Claims And Issues

"Premature" Appraisal Not Bad Faith, Connecticut Appellate Court Holds.

    In a decision that, on  the face of it, seems dated a little prematurely, Download Jansma v. Patrons Mut. Insurance Co. (Conn. App. Ct., Case No. 31705, Opinion Filed for Publication on March 1, 2011) PUBLIC ACCESS, NOT FINAL,, also published as 2011 WL 638295 (Conn. App. "Decided [actually, to be published on] March 1, 2011")(authorized password required to access Westlaw), the Appellate Court of Connecticut rejected a contention that allegedly "premature" appraisal in a first-party case constituted actionable bad faith.  The plaintiffs claimed that the defendant Homeowner's Insurance Company delayed payment of their claim by electing to proceed to appraisal.  (The Homeowner's Insurance Company in this case paid the full amount of the Appraisal Award.  After that, the Plaintiffs filed this lawsuit for Bad Faith, and also for alleged breach of contract, negligent infliction of emotional distress, intentional infliction of emotional distress, and several statutory violations.)

   To the contrary, in the Court's eyes, "our review of the record, including the policy, reveals that the defendant was fully justified in electing appraisal.  Thus, the [Superior Court, Middlesex County trial] court properly granted the defendant's motion for summary judgment."  Id. at *2.

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Payment for Preparation: Taking Expert Witness Depositions.

   In a case involving the issue of pre-payment charges by Expert Witnesses for taking their depositions, a Federal Magistrate-Judge also had something to say about "preparation time" charges by Expert Witnesses.  Most Courts hold that an Expert Witness is entitled to payment by the interrogating attorneys for the Expert's time spent in preparing for a deposition.  Download Bartram, LLC v. Landmark American Insurance Co. (N.D. Fla. Case No. 1.10.28, Order of USMJ Filed February 16, 2011) PUBLIC ACCESS, at n.2.  (This case involves substantive issues of builder's risk Insurance Coverage for construction defects, under Florida substantive law.)

   While the Rule [Federal Rule of Civil Procedure 26(b)(4)(E), which has many State Court counterparts] does not expressly state whether an expert's time preparing for a deposition is "time spent in responding to discovery" the clear trend is that expert witnesses may be entitled to at least some compensation for time spent in preparation for a deposition, particularly if the expert is testifying in a complex case.

Id.

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Prepayment for Expert Witnesses Not Required Before Deposing Them.

   In a First-Party Insurance Coverage case, a universal holding was rendered under the Federal Rules of Civil Procedure.  Plainly stated, a party does not have to pay in advance for the privilege, as it were, of deposing another party's Expert Witness.  Download Bartram, LLC v. Landmark American Insurance Co. (N.D. Fla. Case No. 1.10.28, Order of USMJ Filed February 16, 2011) PUBLIC ACCESS.

   The U.S. Magistrate-Judge's holding in this case came under Federal Rule of Civil Procedure 26(b)(4)(E), a Rule of Civil Procedure which deals with Experts and which has many counterparts in State Court Rules of Civil Procedure.  Despite very little case law addressing the issue, this Court announced that it was following the holdings reached in every other case found by the Court:

The Rule provides that the party deposing the expert must reimburse the expert for the "time spent" in responding to discovery.  The Rule thus contemplates payment for services that have occurred and not for services that will take place -- absent of course a situation which would result in manifest injustice.  As such, the Rule contemplates payment after the services have been incurred.  Indeed, that is the only way the Rule would make sense.

Id. at unnumbered third paragraph of attached opinion.

   While this holding was reached in a First-Party Insurance Coverage case, it is clearly not confined to that category of cases.  It arguably applies to all cases in which one party's Experts impermissibly [or, illegally] attempt to condition their deposition testimony on advance payment.

Discovery from Expert Witnesses in First-Party Insurance Cases, including both Coverage and Bad Faith Cases, is the subject of §12:18 in Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" (Shepard's/McGraw-Hill Second Edition; West Publishing Company 2010 Supplement, Third Edition in progress for publication in Spring, 2011).

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Limitations Held Bar to a Ponzi.

   It seems just yesterday that we first read reports that Ponzi schemes were a part of the Great Financial Collapse.  They have actually been around long enough, apparently, for one Federal Court to rule recently that a Statute of Limitations bars fraud claims against Title Insurance Companies and others who allegedly participated in such a Ponzi scheme, in Download Independent Trust Corp. v. Stewart Info. Serv's Corp. (N.D. Ill. Case No.. 10C4430, Memorandum Opinion and Order Filed February 7, 2011) PUBLIC ACCESS, also published as 2011 WL 529390 (N.D. Ill. February 7, 2011)(authorized password required to access Westlaw).  "Because the statute of limitations has run on all of [the Plaintiff's] claims, [the Title Insurance Company's] Motion to dismiss is granted."

   With prejudice.  Id. at *5.

   The Plaintiff in this case is the Receiver for Independent Trust Corporation.  The Receiver sued, or at least filed suit, against several alleged Ponzi schemers.  What differences, then, are there between this case and the more famous case involving the Bankruptcy Estate of Mr. Bernard Madoff?

   Well, the timeframes are a huge difference.  In the Independent Trust Corporation case, the fraud claims were based on events beginning as far back as 1986, according to the Federal Court's decision in that case.

   Further, in the Madoff Bankruptcy proceeding, it is Mr. Madoff who is the Bankrupt.  The current proceedings are all about the role played by others with respect to the claims of Mr. Madoff's creditors, people and entities who once were his investors -- not at all about any claims of Mr. Madoff himself against anyone else.

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Investigation, Evaluation "Standard Protocol" Held Irrelevant in Action for First-Party ...

... Insurance Coverage for Construction Defects, Because the Only Claims in that Case are for Coverage, Not for Alleged Bad Faith.

    The case of Download Bartram, LLC v. Landmark American Insurance Co. (N.D. Fla. Case No. 1.10.28, Order of USMJ Filed February 4, 2011) PUBLIC ACCESS also published as 2011 WL 528206 (N.D. Fla. February 4, 2011)(authorized password required to access Westlaw) involves high stakes.  "This case is a first-party insurance coverage dispute in which Plaintiff seeks a declaration that the damage to its apartment project was covered by each of the builder's risk policies issued by Defendants."  Id. at *3.  The Plaintiff also claimed Damages for alleged Breach of Contract.  Id.  The Plaintiff has not alleged any First-Party Bad Faith Claims under Florida substantive law.  That is crucial to the outcome of one piece of the parties' discovery disputes addressed by a U.S. Magistrate-Judge in this decision.

   The Plaintiffs requested production of each of the Defendants' "standard protocol and time frame" in which they investigate and evaluate builder's risk claims, and following which they ultimately make a decision whether to accept coverage, reserve rights, or deny all coverage, in basic and simple terms.  The Court held that this particular request for production is "irrelevant in this action because the claims and defenses in this case depend upon the language of the individual policies issued by Defendants and whether these policies cover Plaintiff's losses.  Whether Defendants' failure to pay the claims constitutes bad faith is simply not an issue at this stage."  Id. at *4.

   This significant ruling was an achievement for the defense in a decision which otherwise recorded holdings and stipulations that allow discovery on every other contested request for production and interrogatory in the case, which involves four collective layers of builder's risk insurance totaling $25,000,000.00.  See id. at *1 - *3.

Discovery issues addressed in reported decisions in First-Party Bad Faith Cases, and in First-Party Coverage Cases, are analyzed in Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" Chapter 12 (Shepard's/McGraw-Hill Second Edition; West Publishing Company 2010 Supplement; Third Edition in progress for publication in Spring, 2011).

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One Offer of Judgment Battle, But What About Unintended Consequences?

   The decision in Download Arrowood Indemnity Co. v. Acosta, Inc. (Fla. 1st DCA Case No. 1D10.1060, Opinion Filed February 16, 2011) PUBLIC ACCESS, also published as 2011 WL 522795 (Fla. 1st DCA February 16, 2011), may have given a "win" in one  battle, but the "law" of unintended consequences indicates corrective action would be wise -- immediately.

   Responding to a call for a "subjective" test of so-called "bad faith" of the party making an Offer of Judgment under the Florida Offer of Judgment Statute, Florida's First District Court of Appeal held:

   Although the trial court here properly considered objective factors in assessing the reasonableness of Arrowood's offer ..., the court erred by not giving any consideration to Arrowood's justification for its offer and by basing its ruling exclusively on the objective factors.  Rather, the trial court was required to consider Arrowood's explanation and then determine whether, despite consideration of the objective factors cited by the court, Arrowood had a subjectively reasonable belief on which to base its offer.

Id. at *3.  So, kudos to the legal counsel who successfully focused on winning on an Offer of Judgment in one case.

   Now, the hard work.  It may or may not be too late to file a Motion for Clarification in that case, asking the appellate court to explain that there is a big difference between Florida's Offer of Judgment Statute and Florida's Insurance Bad Faith Law (there is).

   If the Court explains that difference in that case, even in a footnote, and that it is only acting on a Florida Offer of Judgment Statute in that particular case, that would go a long way toward clarifying the law for many future cases.

   If this Court declines that opportunity, then there are going to be additional future cases and future opportunities to explain the difference.  Those opportunities will present  important challenges for the established law of Insurance Bad Faith and the challenges must be accepted.  We have worked very hard to establish an objective test of liability for Insurer Bad Faith, and we will keep it that way, for everyone involved in Insurance Bad Faith cases.

Decisions in reported cases on the many variations of "Good Faith" - "Bad Faith" in the law, are collected in Chapter 2 of  Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" (Shepard's/McGraw-Hill Second Edition; West Publishing Company 2010 Supplement, Third Edition in progress for publication in Spring, 2011).

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Who Says "Climate Change"? Insurance Companies. Munich Re, For One.

    As a result of climate change, many localities are examining their Building Codes.  So are Insurance Companies.  They do not want to pay Damages Claims on structures that are not adequately guarded against contemporary, actual weather-related losses.  See Elisabeth Rosenthal, "Huff and Puff and Blow Your House Down" p. 3, col. 1 (New York Times Nat'l ed., "Week in Review" Section, Sunday, February 13, 2011).

   Insurance Companies are interested in their "financial survival."  Ideology and opinions?  Not so much:

Munich Re, one of the world's largest insurance companies, says climate-related events serious enough to cause property damage have risen significantly since 1980:  extreme floods tripled and extreme windstorms nearly so.

Id. Municipal building codes, in particular, lag behind the actual weather of our time.  Two reasons cited in the linked newspaper article are (1) "the slow pace of lawmaking" and (2) "a bad economy".  Id.

    "Let's face it, there was a lot of warning that this could happen.  People need to be vigilant about it, especially now that they've seen what can happen."  City of Springfield (Massachusetts) Building Commissioner Steven Desilets, quoted in Peter Schworm and Scott Allen, "Roof Collapses Prompt Hard Look at Building Codes" (Boston Globe Online, Sunday, February 13, 2011).

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"Got Warranty?" Ohio and South Carolina Judges Explain.

   You may have wondered for many years what is the difference between a "warranty" and a "condition" in any Insurance Policy.  It took me years, myself, to learn the difference.  You too may benefit from working in a jurisdiction that does not look kindly on "warranties" but instead requires that they be treated as "conditions" in order to enforce them at all.

   In Download Hicks v. Mennonite Mutual Insurance Co. (Ohio 2d DCA Case No. 10.CA.17, Opinion Filed February 4, 2011) PUBLIC ACCESS, also published as 2011 WL 345667 (Ohio 2d DCA February 4, 2011)(authorized password required to access Westlaw), the Ohio Court of Appeals turned to the Supreme Court of South Carolina for assistance.  Together, the Ohio and South Carolina Judges explained what a "warranty" is:

   ¶ 67 "'A warranty, in the law of insurance, is a statement, description, or undertaking on the part of the insured, appearing in the policy of insurance or in another instrument properly incorporated in the policy, relating contractually to the risk insured against.  Generically, warranties are either affirmative or promissory.'"

 Id., quoting Reid v. Hardware Mutual Insurance Co., 252 S.C. 339, 166 S.E.2d 317, 321 (1969)(subscription required for Southeastern Second).  To continue, an "affirmative warranty" is one by which the insured affirms a certain fact at the time that the policy is issued.  A "promissory warranty" is one involving a promise by the insured that that fact shall continue forever.  (Well, maybe not forever, but during the life of the policy of insurance, essentially.)

   The Ohio Court of Appeals also explained that warranties are generally defensive in nature, i.e., used by an insurance company to rebut a claim for relief under the policy, and are ordinarily not offensive or affirmative in nature, and so are not ordinarily available to an insured seeking relief under the policy:

   ¶ 73 Warranties would generally, therefore, be used by insurers to avoid obligations under a policy of insurance; they would not typically be used by insured parties to require that judgment be rendered in their favor as a matter of law.

 Id.

   There you have it, a working definition of "warranties" as that term is used in Insurance Policies and in Insurance Litigation.  Thank you, Ohio Court of Appeals.  And thank you, Supreme Court of South Carolina, which the Ohio Judges consulted.

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Judges With Different Experience Decide Constitutionality of Federal Healthcare Law.

   Four different Federal Judges have confronted the same or similar questions of Constitutionality of the Federal Healthcare Law known as the Patient Protection and Affordable Care Act ("PPACA").

   Judge George Caram Steeh III was the first to face the question.  On October 7, 2010, he ruled that the PPACA passed all the Constitutional objections that could be hurled at the law in Download Thomas More Law Center v. Obama (E.D. Mich. Case No. 10.cv.11156, 20 page Order Filed Oct. 7, 2010) PUBLIC ACCESS, also published as 720 F. Supp. 2d 882 (E.D. Mich. 2010)(subscription required).

   Next to face the question came Judge Norman K. Moon.  On November 30, 2010, Judge Moon too held that the Act withstood all the Constitutional objections that could be mustered, in Download Liberty University, Inc. v. Geithner (W.D. Va. Case NO. 6.10.cv.15, Memorandum Opinion 54 pages Filed Nov. 30, 2010) PUBLIC ACCESS, also published as 2010 WL 4860299 (W.D. Va. Nov. 30, 2010)(authorized password required to access Westlaw).

   Third in line, and the first to find any provision of the PPACA unconstitutional, was Judge Henry E. Hudson.  Judge Hudson entered his ruling on December 13, 2010 but refused to strike down the entire Act because he found a provision unconstitutional.  Download Commonwealth of Virginia v. Sebelius (E.D. Va. Case No. 3.10.cv.188, Memorandum Opinion 42 pages Filed Dec. 13, 2010) PUBLIC ACCESS, also published as  728 F. Supp. 2d 768 (E.D. Va. 2010)(subscription required).

   Fourth in line, and after the three other rulings, Judge Carl Roger Vinson decided that some but not all of the Act's provisions are unconstitutional, but struck down the entire Act in this escalation, as it were, of four rulings by four Federal Judges facing the same or similar Constitutional questions and the same Federal Healthcare Law.  Download State of Florida v. United States Dep't HHS (N.D. Fla. Case No. 3.10.cv.91, 78 page Order Filed January 31, 2011) PUBLIC ACCESS,  also published as 2011 WL 285683 (N.D. Fla. Jan. 31, 2011)(authorized password required to access Westlaw).

   Searching and researching Westlaw, and the Internet at large including Wikipedia Encyclopedia, the Federal Judicial Center, and their four different Court Websites, among other sources publicly available through the Internet, I was surprised to learn that these four Federal Judges have much in common.  First and most obvious, of course (although not commented on previously anywhere, to my knowledge), all four of these Federal Judges are men.

   Most if not all of the four also share backgrounds as criminal prosecutors.  They are all about the same age, and none of them is new to legal affairs, or to life:  Judge Steeh is 63, Judge Moon is 74, Judge Hudson is 63, and Judge Vinson is 70.  Two have taken Senior Status; the other two are approaching but are not yet very close to the point of having to decide whether they want to.

   Judge Steeh of Michigan works among 21 or so District Judges, the biggest working group in which these four Judges find themselves.  At the Courthouse branches where they are apparently headquartered, however, Judge Moon works among 7 District Judges, Judge Hudson, among 5, and Judge Vinson, 3.

   Two work in relatively large urban areas (near Detroit, in Richmond) and the other two do their judging in less populated locales (Western District of Virginia, Pensacola).

   Their law school education is a little different, one from the others:  The two Judges who ruled the PPACA Constitutional went to the University of Michigan and the University of Virginia Law Schools, while the two Judges who ruled the Act unconstitutional went to American University and Vanderbilt Law Schools.

   I did however find three stark differences.  These differences do not, by the way, include the frequently reported fact that the two Judges who upheld the Act were appointed by a Democrat, President Bill Clinton, while the two Judges who struck down the Act in part or in whole were appointed by a Republican, one by president george w bush and the last of the four by President Ronald Reagan.

   No, the first of the three big differences I found is in the degree of judicial experience each of these four Judges had before he assumed the Federal Bench.  Of the two Judges who struck down part or all of the Act, one (Judge Hudson) had 4 years experience as a Trial Judge.

    The other (Judge Vinson) had no judicial experience to be found, before he was appointed to the Federal District Court.

   The remaining two Judges, both of whom upheld the Constitutionality of the Act, between them had 34 years of experience as State Court Judges before they were appointed to the Federal District Court.  Judge Steeh had 10 years experience as a State Court Trial Judge, and Judge Moon had 12 years experience as a State Court Trial Judge and 12 years experience as a State Appellate Court Judge.

   Second, only one Judge (Judge Hudson) reported that he owns stock in a political campaign consultant corporation.

   Third and finally, only one of the four Judges reported that he attended a Seminar since 2008 that was financed by the Koch Brothers, through their Koch Corporation, which is apparently opposed to the Act entirely.  That person is Judge Vinson, the Judge who (so far) struck down the entire Act.

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$84,000 Attorney's Fees Award, $42,000 Breach of Insurance Contract.

   The case of Download Storfer v. Guarantee Trust LIfe Insurance Co. (S.D. Fla. Case No. 10.60400, Order Filed January 21, 2011) PUBLIC ACCESS, also published as 2011 WL 213461 (S.D. Fla. Order Filed January 21, 2011)(authorized password required to access Westlaw) presented issues surrounding a Plaintiff's Motion to Determine Attorneys' Fees Lodestar and Entitlement to a Multiplier.  This case involved questions of reasonable hourly rates for legal services in South Florida.  The Plaintiff was represented by Attorneys from South Florida and the Defendant's Counsel of record are from Atlanta, Georgia.

   This is an Insurance Coverage case.  The Plaintiff sued for Breach of Contract of a Long Term Care Insurance Policy.  Coverage was held to exist.  The Federal Court granted Plaintiff's Motion for Summary Judgment finding it undisputed, for example, that one "God's V.I.P." contracted to provide covered "custodial care" in an assisted living factility to Mr. Sheldon Storfer.  The Plaintiff is his wife and best friend, Mrs. Adele Storfer.

   The parties to the Insurance Coverage case stipulated that Damages were $42,000.00, "plus reasonable attorney's fees," in the event that Mrs. Storer prevailed.  Id. at *1.  After Mrs. Storfer prevailed, she presented her Motion to Determine Attorneys' Fees Lodestar and Entitlement to a Multiplier.

   The Federal Court held that her two Attorneys were entitled to two different hourly rates to determine an Attorneys' Fees Lodestar.  One had 25 years of legal experience, and the other 26.  Between them, the attorney "who has the record of being an expert in the area of log term care insurance litigation, thus justifying a higher rate" in this long term care insurance litigation, was held to a "reasonable hourly rate" in that case of $350.00 per hour.  The other attorney was held to a rate of $315.00 per hour.  Their Paralegal was held to a rate of $100.00 per hour.  Id. at *2 - *3, *5.

   Further, the Federal Court applied a multiplier of 1.5 in this case.  Id. at *5.  The net result was an Attorneys' Fees Award of $83,781.00.  Id. at *6.  Parenthetically, this amount is about $19,000.00 less than the amount originally sought by the Plaintiff as her opening demand for her Attorneys' Fees Award.

   It is also almost twice the amount of Mrs. Storfer's Insurance recovery.  This case is a recent example of a long-standing truth:  The amount of an Insurance recovery does not necessarily bear an exact relationship to the amount of an Attorneys' Fees Award in Court when the Insured has to hire Legal Counsel to represent her in a contested case which, like the Storfer case, "could only have been brought on a contingent basis," and where "success at the outset ... was approximately even".  See id. at *6.

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Cut Waste in Government Spending: Federal Subsidies for Insurance Fraud?

    This post is about farmers.  There should be no doubt from the beginning:  "The vast majority of U.S. farmers follow the rules, insurers and federal officials" acknowledge.  However, the approximately 0.5% of farmers who participate in Federal-Government-subsidized Insurance programs for agriculture, are estimated to be responsible for somewhere between $100,000,000.00 to $200,000,000.00 a year in fraudulent Insurance Claims.

   Claims are reported from everywhere.  The linked newspaper article lists fraudulent Insurance Claims under the program -- for which Federal Taxpayers were on the hook -- from California, Louisiana, Michigan, North Carolina and Texas, for examples.  See P.J. Huffstutter, "Farm Insurance Fraud is Cheating Taxpayers Out of Millions/Perpetrators Falsely Claim Weather or Insects Destroyed Their Crops and Cash in on a Government-Backed Insurance Program.  Some Don't Bother Planting at All.  Others Sell Their Harvests in Secret."  (Los Angeles Times Online, Sunday, February 6, 2011).

   Prospects for the future?  More Insurance Claims are in the outlook.  Current weather conditions are causing a crisis for farmers.  See Stephen Singer, "Farmers Watch Harsh Winter Crush Their Livelihoods" (Associated Press Copyrighted Story in the Washington Post Online, Saturday, February 5, 2011).

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Determination of Coverage in Florida Not Final Until Appeal Determined.

   It is almost always a given that when there is a Count I for breach of contract, and a Count II for alleged Bad Faith, that the Bad Faith Claim will be awaited until the Breach of Contract Claim is final.

   In the case of Download Illinois National Insurance Co. v. Bolen (Fla. 5th DCA Case No. 5D10.2856, Opinion Filed February 4, 2011) PUBLIC ACCESS, also published as 2011 WL 3355555 (Fla. 5th DCA Case No. 5D10.2856, Opinion filed Friday, February 4, 2011)(authorized password required to access Westlaw), that is exactly what happened.   The Count I Claim proceeded to Trial and resulted in a verdict of $870,366.90.  A "partial final judgment" was entered on the Verdict and Illinois National Insurance Company, the Defendant, appealed.

   The appeal is apparently still pending.  Ms. Bolen's attorneys filed a motion to dissolve the abatement of Count II.  The Florida Trial Court agreed.  The Florida Appellate Court did not agree.

   Instead, the Florida Appellate Court, in a unanimous Opinion, agreed on this issue with the Defendant.  "We agree that the bad faith claim may not proceed until the UM carrier's appeal has been finally determined."  Id. at *1.  [Emphasis added.]

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Work Product, EMails, Construction Defects: Insurance Consultant, Fact Witness or Expert?

   In Download Bartram, LLC v. Landmark American Insurance Co. (N.D. Fla. Case No. 1.10.28, Order of USMJ Filed January 24, 2011) PUBLIC ACCESS,  also published as 2011 WL 284448 (N.D. Fla. Order of Magistrate Judge January 24, 2011)(authorized password required to access Westlaw), a Policyholder under Builder's Risk Insurance Policies claimed Coverage for Damages which resulted from Construction Defects.  "This case is a first-party insurance coverage dispute in which Plaintiff seeks a declaration that the damages suffered to its apartment project are covered by each of the builder's risk policies issued by Defendants."  Id. at *2.

   The Policyholder-Plaintiff was apparently the Builder-Owner of the apartment complex.  It engaged the Foram Group, Inc. to manage the apartment project, and it consulted with one Margaret Spence of Douglas Claims & Risk Consultants, Inc. about its Coverage Questions and Claims, eventually retaining Ms. Spence for her services.

   Ms. Spence was "formally retained" by the Plaintiff in September, 2009.  The Federal Magistrate Judge wrote the outlines of Work Product Qualified Immunity for certain EMails she wrote to, and received from Foram, between August 29, 2009 and September, 2009:

 During the time period prior to her retention Ms. Spence was assisting Plaintiff with understanding its rights under the insurance policies issued by the Defendants. Ms. Spence's involvement prior to her retention as an expert in the claims submission process on Plaintiff's behalf was in her role of assisting Plaintiff in its business of submitting claims and not in the role of a retained expert assisting in preparing for litigation. Once Ms. Spence was formally retained, she became a non-testifying expert and her communications with Plaintiff after that date were protected.

Id. at *3.

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