Claims And Issues

Bank of America Directors, Officers May Pay Personally, Plus Insurance?

  The New York Times reports on a lawsuit pending against Bank of America, its former CEO Kenneth D. Lewis, and other former Directors and Officers.  The suit was brought by BOA Shareholders.  They accuse the Defendants of intentional fraud, according to the reporting, in connection with disclosure of a huge loss Merrill Lynch was experiencing and about to report.

   The Plaintiffs claim that Bank of America knew but did not disclose this information before BOA acquired Merrill Lynch's liabilities in late 2008 to early 2009.

   The Plaintiffs also claim that as soon as the acquisition of Merrill Lynch was completed, the Defendants disclosed "this staggering loss ... to ensure that Bank of America shareholders did not vote against the transaction."  Prof. Steven M. Davidoff, "Deal Professor / Dealbook / For Bank of America, a Looming $50 Billion Claim of Havoc" p. B7, col. 1 (New York Times Nat'l ed., Wed., September 28, 2011).

   The report by Professor Davidoff summarizes the lawsuit this way:

   The case shows how regulators' actions can be supplemented by private actions.  And if the plaintiffs win, this case may be the exceedingly rare event of directors and officers, particularly Mr. Lewis and Mr. [Joseph] Price [BOA's former CFO], actually having to pay money personally to settle a securities fraud claim.  If so, the two men would join the relatively few executives from the financial crisis who have been personally penalized.

   Whatever the outcome of this case, it appears that Bank of America shareholders were sacrificed in December 2008 so that the Merrill deal could be completed.  The bill may now be coming due for Bank of America.

Id.

   And to that summary should be added here the news that at last, Directors and Officers Liability Insurance may not pay alone, if at all.

  The 22nd Annual Bad Faith Litigation Conference of the American Conference Institute is being held in 2011 in Orlando, Florida.  The author will be speaking.  As a result, the ACI will offer you a large  discount if you choose to register for the Conference.  The last day announced by the ACI to obtain this discount, however, is Friday, September 30, 2011.  In order to register and receive this discount from the ACI, contact Amanda Waltmon, Esquire, Legal Analyst and Program Director at the ACI.  Ms. Waltmon's direct dial is 212.352.3220, ext. 5231 or send Ms. Waltmon an EMail at [email protected].  Here is a link to the American Conference Institute Website Page which features this Conference including registration, if you or someone you know would like to attend.

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Who Do Hiked Health Insurance Premiums Compensate?

  The Kaiser Family Foundation released a report on Tuesday of this week that Health Insurance Companies are requesting and making Premium Rate Increases in very high numbers.  The KFF report is found in full on www.kff.org.  It is summarized by Reed Abelson and Nina Bernstein, "Health Insurers Push Premiums Sharply Higher" p. A1, col. 6 (New York Times Nat'l ed., Wed., September 28, 2011)(account log-in or account registration and/or subscription may be required by the New York Times).

   The linked reporting on this issue does not include information on the extent to which these Premium Rate Increases are based on existing, or increasing, compensation to Health Insurance Company executives, directors, and officers.

   How much of the Premium Increases is intended to compensate these people?  If they answer "none," then does that mean that these people forswear any compensation based on those Premium Increases?

The author has been asked to Co-Chair the Health, Life and Disability Subcommittee of the American Bar Association Insurance Coverage Litigation Committee.

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Four For Other Insurance: Recent Primary vs. Excess Cases.

    An "other insurance" clause is found in an Insurance Policy that would otherwise be Primary.  The purposes of an other insurance clause are many, and its language changes depending on the purpose it was intended to serve in the Policy at issue.

    Entire Books and chapters of Books have been written on the subject of "other insurance" clauses.  See, for example, Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith Ch. 6 "Relation of Primary Insurer With Excess Carriers and Reinsurers" (West Publishing Co. Third Edition 2011).  In general terms, language of an "other insurance" clause as distinct from an "escape clause," for example, will be something like the following language which is adapted generically from the specific language appearing in published cases:

   This policy is primary except when certain other insurance applies.  When there is other primary insurance written on the same terms or basis as this policy, we will share pro rata with that other insurance to pay the covered amounts you may be legally obligated to pay as damages.

     However, when certain types of other insurance are available to you as an insured under them, we will be excess of all such other insurance.

    Insurance Companies which issue Policies with "other insurance" clauses contest their interpretation all the time.  This may be one reason why Books, and Chapters of Books, have been written about them.  Recently, four newly decided cases have contributed to the continuously growing collection of reported judicial interpretations of "other insurance" clauses.

 1.  DIFFERENT TYPES OF COVERAGES, SAME INSURED.

    In Federal Insurance Co. v. Firemen's Insurance Co., 2011 WL 2710458 (D. Md. July 11, 2011), the Court followed Fourth Circuit case law in a conflict situation.  The Court recognized that there is a conflict of authority over the issue of whether "other insurance" clauses need to be compared when the Policies containing them cover different risks, i.e., afford different types of coverages.  The Court in this case followed Fourth Circuit holdings that require the different Policies to cover the same risk in order for courts to apply the Policies' "other insurance" clauses.  Id. at *4 - *5.  Here, the Court refused to compare two Policies' other insurance clauses, having previously found one to be a CGL or Commercial General Liability Policy, and a second to be a D & O or Directors and Officers Liability Policy, even though both Policies were issued to the same Insured.  Id. at *3.

  2.  SAME TYPES OF COVERAGES GENERALLY, SAME OR DIFFERENT INSUREDS, BUT ONE INSURANCE POLICY IS AN UMBRELLA.

    In California and in this country, it is settled law that where one of the Policies to be compared is an Umbrella or True Excess Policy, all bets are off.  There is nothing to compare.  Umbrella Policies are simply not on the same level of Coverage as Primary Policies which have an other insurance clause, and the Courts will not compare the two.  See Continental Casualty Co. v. St. Paul Surplus Lines Insurance Co., 2011 WL 1103345 *6 (E.D. Cal. March 22, 2011).  In pure and simple terms, wrote the Federal Court, in previous California State case law, the California Courts settled the issue that

 ... the umbrella carrier was entitled to full reimbursement from a primary insured [sic] for sums paid out on behalf of a mutual insured regardless of the terms of the underlying indemnity agreement between the insureds.  This holding is conclusive with respect to the present matter.

 Id. at *8.  Parenthetically, this decision is rich with rulings on Insurance Coverage issues related to Primary - Excess Carriers.  Future posts will address them here.

3.  WHERE UMBRELLA EXCLUSION APPLIES, NO NEED TO COMPARE ANYWAY:   NO UMBRELLA POLICY COVERAGE AT ALL.

    In some cases, the outcome is determined not by a Primary vs. Excess Carrier contest over levels and layers of Coverage, but the outcome may be determined after such an altercation simply by applying an Umbrella Policy Exclusion.  If an Exclusion in the Umbrella Policy appears to the Court to apply, then the Court will apply it regardless of whether there is a Primary Policy in the case.  Such was the case in Amerisure Insurance Co. v. Scottsdale Insurance Co., 2011 WL 2446277 *4, * 9 (S.D. Ind. June 15, 2011)("Having concluded that the cross liability exclusion applies and renders the Scottsdale umbrella policy inapplicable, the Court need not address these other arguments herein.').

 4.  WHETHER INSURANCE POLICY APPLIES IN FIRST INSTANCE UNDER ITS INSURING AGREEMENT, IF A QUESTION OF FACT, THEN THERE WILL BE A TRIAL.

    The heading was the holding in Employers Mutual Casualty Co. v. Arbella Protection Insurance Co., 24 A.3d 544, 554, 2011 WL 2693228 *10 (R.I. July 12, 2011).  In this case, the Supreme Court of Rhode Island reversed a Partial Summary Judgment in favor of the Plaintiff.

    The Supreme Court pointedly noted the Trial Court's observation that there was no Expert Testimony to guide the Court, although the Trial Court held that the Plaintiff had no legal duty to introduce Expert Testimony in this "declaratory judgment action related to issues of coverage."  Id. at 552, 2011 WL 2693228 at *8.

 5.  ONE MORE HOLDING OF INTEREST, FROM THE FOUR RECENT CASES:

DIFFERENT RULES OF INTERPRETATION WHEN THE COVERAGE CONFLICT IS BETWEEN TWO INSURANCE COMPANIES?

   Under Indiana law, even apparently where an Insurance Policy is arguably ambiguous, "when the dispute is between an insurance company and a third party (or between two insurance companies), the policy is construed from a neutral stance."  Amerisure Insurance Co. v. Scottsdale Insurance Co., 2011 WL 2446277 at *3 (S.D. Ind. June 15, 2011).

    Whether and when this rule will be applied in other cases by other Courts in other jurisdictions remains to be seen, and will definitely be the subject of future posts here.

 The 22nd Annual Bad Faith Litigation Conference of the American Conference Institute is being held in 2011 in Orlando, Florida.  The author will be speaking.  Here is a link to the American Conference Institute Website Page which features this Conference including registration, if you or someone you know would like to attend.

Please Read The Disclaimer.

Containing Healthcare Costs, Controlling Health Insurance Premiums.

   Several newspaper reports recently have drawn attention once again to the related subjects of containing healthcare costs, and controlling Health Insurance Premiums.

   Major Health Insurance Companies are going to provide Claims information to a newly formed, previously unknown "nonprofit group" called "the Health Care Cost Institute".  The purpose of providing their Health Claims information is to display the spiraling costs of Healthcare.  Parenthetically, the wide variation in Healthcare costs makes a stark contrast to the costs of Medicare, which are uniformly lower than privately fund Healthcare costs -- i.e., Insurer-paid Healthcare charges.  See Reed Abelson, "4 Insurers Will Supply Health Data" p. B1, column 6 (New York Times Nat'l ed., "Business Day" Section, Tuesday, September 20, 2011).

   In another report, consistent with the handling of Healthcare Claims under the Federal Healthcare Reforms, State Insurance Commissioners are receiving grants from the Federal Government which are intended to beef up the ability of State Insurance Commissioners to review Premium Rate Increase Requests from Health Insurance Companies (the Federal Government not having assumed any powers to require Health Insurance Premiums to be lowered, although some States confer that power on their State Insurance Commissioners).  Reportedly, Health Insurance Companies are not as happy with that effort to contain costs.  See Noam N. Levey, "29 States Get Grants to Boost Health Insurer Oversight" (Los Angeles Times Online, Tuesday, September 20, 2011).

   States receiving grants include those with Democratic Governors and those without, such as:

• California
• Illinois
• Indiana
• Maryland
• Michigan
• Mississippi
• New Mexico
• Ohio
• Pennsylvania
• South Dakota
• Tennessee
• Utah and
• Wisconsin.

Id.

   Texas has not yet made this list.  It may.  Reportedly, "Insurance premiums have risen more quickly in Texas than they have nationally over the last seven years.  And when compared with incomes, insurance in Texas is less affordable than in every state but Mississippi, according to the nonprofit Commonwealth Fund."  See Noam N. Levey, "Texas Healthcare System Withering Under Gov. Perry" (Los Angeles Times Online, Thursday, September 8, 2011).  When statistics as of 2007 were analyzed, "nearly a third of the state's children did not receive an annual physical and a teeth cleaning".  Id.  Although infant mortality rates have declined in the United States in the last decade -- thankfully -- they have risen in Texas.  Id.

   A spokesperson for the Texas Governor's office has countered these facts with the observation that many individuals simply choose not to purchase Health Insurance.  Id.

   Maybe.  But the costs of Health Insurance Premiums are every bit as much under the microscope as the costs of Healthcare -- as are policies of government which make it harder for people to obtain care and Coverage adequate to keep them and their children healthy, and alive.

The Author was invited to serve as  Co-Chair of the American Bar Association's Health, Life and Disability Insurance Subcommittee of the Insurance Coverage Litigation Committee.

Please Read The Disclaimer.

 

We Have TWO Petraeuses. NATIONAL SECURITY Demands BOTH Be Directors.

 Posts on this Blog will be temporarily interrupted in the interests of National Security.

  I learned this morning that Ms. Hollister Petraeus, the wife of General Petraeus, is assistant director of the Consumer Financial Protection Bureau.   This is an outrage. 

   Mr. Obama, if you are going to appoint General Petraeus's wife to something, can you not get some good out of it for the rest of us?  Appoint Mrs. Petraeus as the Director of the Consumer Financial Protection Bureau and then declare it a matter of national security that she be confirmed!  And then repeat that claim over and over again until a lot of people have heard it.

 Let's see then if the people who were for General Petraeus are against Hollister Petraeus.

More to come, have no doubt.

Motions in Limine Running Wild: Focus on Experts, Computer Simulations.

   In the case of Royal & Sun Alliance Insurance PLC v. UPS Supply Chain Solutions, Inc., 2011 WL 3874878 (S.D.N.Y. August 31, 2011), the Plaintiff, a Liability Insurance Company, and one of the defendants filed more than 9 motions in limine between them.  (Previously filed motions in limine were not counted by the District Judge in this decision.)

   Six of the motions in limine focused on Expert Witnesses and computer simulations.  One of the defendant's proffered Experts, an accident reconstructionist, produced various computer simulations "using the PC Crash computer software" to reconstruct the automobile accident at issue and whether in effect it was, in this instance, negligence per se on the part of the subject defendant, as Royal Sun alleged.  Royal Sun contended in one of its motions in limine that the accident reconstructionist's testimony would be "unreliable" and should thus be excluded because of 'GIGO,' or 'Garbage In, Garbage Out':  Royal Sun alleged that the Expert "used flawed factual inputs to run the program."  Id. at *7.

   The defendant which proffered this Expert's Opinion Testimony including regarding the computer simulation in question, also submitted a "declaration" from him in opposition to Royal Sun's motion in limine to exclude the Expert's testimony about any of his computer simulations.  Id. at *8.

   The Federal Court considered the record and found that the Expert's methodology was reliable enough for his Expert Testimony to be admissible.  "Royal Sun will have the opportunity to question [him] about his methodology at trial, including why he selected certain inputs for PC Crash and why he decided not to run more than ten scenarios in conducting his analysis."  Id. at *9.

   Royal Sun's motions in limine fared better with the Federal Judge in this case when they directed attention to two of the accident reconstructionist's computer simulations, with the contention that both of the two simulations were disclosed "late" in violation of Federal Rule of Civil Procedure 26(a)(2)(B) and thus they, and testimony about them, should be excluded under Federal Rule 37(c)(1).

   One of the subject computer simulations is called the "Avoidance Simulation," and the other is called the "Fogarty Simulation".  The Court found that the defendant disclosed the Expert's Avoidance Simulation six business days after the applicable deadline.  The Fogarty Simulation, in contrast, was not "formally disclosed" even at the time the Court wrote the subject opinion.  However, the Federal Court was willing to "grant [the defendant] one final opportunity to fulfill its Rule 26 obligations."  Id. at *11.  If that defendant intends to use the subject Expert's testimony about the two of his computer simulations in question, then that defendant must make the Expert available for deposition about them:

We will not limit [the Expert's] testimony concerning the initial eight to ten PC Crash scenarios he conducted.  With respect to the Avoidance and Fogarty Simulations only, [his] testimony will be precluded unless [the defendant proffering his Expert Testimony in this particular case] provides the additional discovery outlined above.

Id.

   In this case, once the Federal Court was convinced of the proffering party's failure to comply with the disclosure requirements of Federal Rule 26, the proffering party had a decision to make.  It could belatedly comply with those requirements or it could do without the Expert's Testimony at trial in that case.  The Federal Court in this case, like the Courts in many other cases previously decided on the same or similar issues, could instead have offered no choice at all and excluded the Expert Witness's Testimony entirely in regard to the untimely disclosed two computer simulations at issue there.

   It appears, moreover, that as the proffering party's alleged failure to disclose could not be cured by cross-examination (unless the Expert is made available for deposition), the Court did not treat the alleged failures of his methodology, which could clearly be cured by cross-examination, in anything like the same way.

Admissibility of Expert Testimony in Insurance Coverage and Insurance Bad Faith Cases is the focus of § 8:17 (Third-Party Cases) and § 12:18 of Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" (West Publishing Co. Third Edition 2011).

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Three Cases For The Experts: Disclosure, Deadlines and "Fit" Testimony.

   Rules requiring disclosure of Expert Testimony are important.  Compliance with them can be crucial.  In Federal Court, Federal Rule of Civil Procedure 26(a) provides for certain requirements and deadlines governing disclosure concerning Expert Witnesses and their testimony expected to be offered at Trial.  Failure to comply with Rule 26(a) can result in the imposition of a number of sanctions under Federal Rule 37.  If the failure to comply is "neither substantially justified nor harmless," the party offering the Expert Testimony may be barred from using them in the Federal Court action "as an expert witness to supply evidence on a motion, at a hearing, or at trial," as happened to the Plaintiff Condominium Association in the case of La Gorce Palace Condominium Ass'n v. QBE Insurance Corp., 2011 WL 1522566 *4 (S.D. Fla. February 28, 2011)(authorized subscription required).

   Even where disclosure is arguably "late," it may nonetheless be substantially justified or the Court's resolution of the opposing party's challenge to the Expert disclosure may render the "lateness" of the disclosure harmless, as in Perez v. First American Title Insurance Co., 2011 WL 3861677 *1 (D. Ariz. September 1, 2011)(authorized password required to access Westlaw).  In the First American Title Insurance case, a District Judge held that a supplemental Expert report was "substantially justified" because the Court itself had previously held that electronic discovery would be allowed after the original deadlines had passed for disclosure concerning Experts, including deadlines for Rebuttal Reports.

   When timely or substantially justified, or harmless, even allowable Expert Testimony depends on the issue for which the Expert Testimony is offered.  Further, Expert 'qualifications' do not require an academic degree; experience is often the appropriate answer as to whether the proffered Expert Testimony is a good fit for the issue on hand, as  a third U.S. District Judge ruled in Metlife Auto & Home v. Broan-Nutone, LLC, 2011 WL 3736550 *3-*4 (N.D.N.Y. August 24, 2011)(authorized Westlaw password required).

Issues surrounding Expert Witnesses in Insurance Cases are addressed in Sections 8.17 (Third-Party) and 12.18 (First-Party) by Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" (West Publishing Co. Third Edition 2011).

Please Read The Disclaimer.

  

Insurance Exclusions Ambiguous, Unambiguous May All Apply.

   Florida's Supreme Court has upheld the standard so-called "Household Exclusion" in an Auto Liability Insurance Policy.  It is not ambiguous, the Court held, and so it can be applied to Exclude all Coverage for Bodily Injury Damages claimed by members of the Additional Insured's household.  State Farm Mutual Auto. Insurance Co. v. Menendez, 2011 WL 3715044 *1 (Fla. Case No. SC10-116, Opinion Filed August 25, 2011; STATED NONFINAL)(authorized password required to access Westlaw).

    Ambiguity in an Exclusion, however, does not necessarily mean that the Exclusion at issue in a given case does not apply.  An interpretation of ambiguity only means that the Insurance Policy provision will be interpreted strictly against the Insurance Company which drafted it.  It may still apply, as in the case of Download Certain Underwriters at Lloyd's, London v. Abundance Coal, Inc. (Ky. Ct. App. Case No. 2009.CA.001283, Order Reversing, Vacating and Remanding) PUBLIC ACCESS, also published as 2011 WL 2496203 *3 - *5 (Ky. Ct. App. June 24, 2011; case involved Commercial General Liability Insurance Policy's standard "Absolute Pollution Exclusion" in this regard)(authorized password required to access Westlaw).

 The 22nd Annual Bad Faith Litigation Conference of the American Conference Institute is being held in 2011 in Orlando, Florida.  The author will be speaking.  Here is a link to the American Conference Institute Website Page which features this Conference including registration, if you or someone you know would like to attend. 

Please Read The Disclaimer. 

Title Insurance Company Breaches Contract in California: ...

FDIC Sues For Alleged Nondisclosure, Summary Judgment Granted.

    An "escrow officer" of First American Title Insurance Company became the "closing agent" for IndyMac Bank in California.  IndyMac lent money to one Steven Darling for the purchase of "a single family home".  IndyMac provided certain Closing Instructions to First American Title in connection with the purchase, to which FAT put its corporate name.

   Among the Closing Instructions to which FAT subscribed, was one which "required First American Title to inform IndyMac if its escrow agent knew of a transaction involving the same borrower taking place within 180 days of the closing."  Download FDIC v. First American Title Insurance Co. (C.D. Cal. Case No. SACV 10.0713, Order Filed August 24, 2011) PUBLIC ACCESS, also published as 2011 WL 3737435 *1 (C.D. Cal. August 24, 2011)(authorized password required to access Westlaw).  FAT allegedly knew of two other Mortgage Loans to Mr. Darling for the purchase of two other properties through its escrow officer, one Bushway,

   IndyMac and the Mortgage Loan in question both collapsed in the face of the financial winds howling across California -- and the rest of the United States --  once the Great Credit Collapse began.  The Federal Deposit Insurance Corporation put IndyMac into Receivership.  Among other actions as IndyMac's Receiver, the FDIC filed suit for alleged breach of contract against First American Title for alleged breach of the Closing Instructions in question.

   First American Title defended itself by contending that it sent IndyMac a letter which "modified" the requirement to disclose material information.  FAT did not, however, annotate any objection to the disclosure provision in the Closing Instructions signed by FAT including the provision which required First American Title to disclose certain information.  Instead, it was undisputed that FAT simply signed the Closing Instructions and sent a letter.   Id. at *7.  The Federal Court in California granted the FDIC's Motion for Summary Judgment against First American Title.

   According to PACER, the Federal Court's Online Docket, on September 7, 2011 First American filed a Notice of Settlement in this case, Download FDIC v. First American Title Insurance Co. (C.D. Cal. Case No. SACV 10.0713, Notice of Settlement Filed September 7, 2011) PUBLIC ACCESS.

 

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Federal Court Abstains From California Coverage, Environmental Tort Damages Both.

   The Federal Ninth Circuit Court of Appeals has recently affirmed a District Court's rare and unique two-punch decision to abstain both from a determination of California Insurance Coverage and a related environmental tort action for Damages:  Download R.R. Street & Co. v. Transport Insurance Co. (9th Cir. Case Nos. 10.55361, 10.55404 Opinion Filed September 2, 2011) PUBLIC ACCESS, also published as 2011 WL 3873804 *1 (9th Cir. September 2, 2011)(authorized password required to access Westlaw).  These are the circumstances and these too are the issues identified by the Ninth Circuit before it pronounced its decision in this appeal:

   This dispute emerges from a web of state and federal litigation over liability for damages and defense costs in certain environmental tort suits. The appeal before us concerns two cases that mirror each other: (1) an action for damages that the Appellants brought in federal court and (2) a declaratory judgment action that the Appellee brought in state court, which Appellants later removed to federal court. The district court declined to entertain these actions, by dismissing the former and remanding the latter, in light of a related third action that had been pending for several years in state court.

   The District Court's decision to abstain from California Coverage was affirmed on the discretionary Declaratory Judgment abstention doctrine announced 70 years ago in Brillhart v. Excess Insurance Co. of America, 316 U.S. 491 (1942).  In the case at bar, three factors articulated by the United States Supreme Court in Brillhart  were considered, and each was found to be in play:  (1) Avoiding "'needless determination of state law issues'"; (2) "discouraging 'forum shopping'"; and (3) "avoiding 'duplicative litigation.'"  Federal Courts are allowed to consider other factors as well.  R.R. Street & Co. v. Transport Insurance Co., 2011 WL 3873804 at *6.  The three enunciated factors were enough to affirm abstention from deciding California Insurance Coverage issues in this case.  See id. at *6-*8.

   The District Court also appropriately abstained from deciding Damages in the related environmental tort action because the "concurrent state proceeding" to determine California Insurance Coverage was the kind of "rare case" described by the U.S. Supreme Court in the case of Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976).  As applied by the Ninth Circuit panel in affirming the District Judge's abstention from considering the environmental tort action for Damages here, the circumstances of this case warrant abstention after considering such factors as (1) "piecemeal litigation"; (2) "order of jurisdiction"; (3) "source of law"; (4) "adequacy of state court" protections; (5) "forum shopping"; and (6) "parallel suits".  Id. at *8-*14.

   This is not all.  The District Court also applied "the Rooker-Feldman doctrine," a doctrine examined on this Blog previously, under which Federal Courts refuse to function as courts of appellate review over State Court Judgments, in simple and basic terms.  The Ninth Circuit did not agree with the District Court's application of that doctrine in this case.  Here, there was no State Court Judgment, said the appellate panel.  Even if there had been a Judgment, the State Court Order in question did not apply to two of the three named Defendants.  Therefore, in the view of the Ninth Circuit panel on appeal, Rooker-Feldman is out of place here.  Id. at *5.

   Regardless of Rooker and irrespective of Feldman, though, in this case Federal Courts will not interpret California Insurance Coverage issues which apparently control all Jurisdiction over the environmental tort action for Damages as well.

Please Read The Disclaimer.

Texas, Take Two: Less Health Insurance, More Tort Immunity ...

 

 ... Do Not Lower Healthcare Costs.

 

    Advocates of less Health Insurance Coverage and greater Tort Immunity, claim that both of these policies will cause lower Healthcare costs.

   In Texas, both of these measures have been in place long enough to compare them to the results.  These measures have been in place for years:

1. 26% of people in Texas currently have no Health Insurance, a difference since 2000 which reflects increasing numbers of people with no Health Insurance.  In 2000, the percentage of people with no Health Insurance was 22%; and
2. Tort Immunity for wrongdoers, marketed by them with the words, "tort reform," was enacted in 2003 in favor of "physicians and hospitals to a total of $750,000" in noneconomic damages.

   Here are the results:  These measures have not reduced Healthcare costs.  See  Kevin Sack, "G.O.P. Stands on Health Mask Records As Governors" p. 13, Col. 6 (New York Times Nat'l ed., Sunday, September 4, 2011).  It is clear that whoever or whatever these practices may benefit, they are not good for your Health.

The Author was asked to serve as Co-Chair of the Health, Life and Disability Insurance Subcommittee of the American Bar Association's Insurance Coverage Litigation Committee.

Postscript on Tuesday, September 6, 2011:  See also this post by Professor Jerry Pfeffer, "Why Do Cars Have Better Insurance Than People?" posted on his Rational Rants Blog on July 29, 2010.

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Irene Brings Flood Exclusions Along With Winds.

   The concurrence of Flood Exclusions and Wind Coverage is in many ways a specialized subject.  See, e.g., Dennis J. Wall, § 7:5, "ACCC or 'Lead-in Language'," and § 7:6, "Water and Flood," in John K. DiMugno, Steven Plitt, and Dennis J. Wall, "CATClaims:  Insurance Coverage for Natural and Man-Made Disasters" (West Publishing 2008; 2011 Supplements).

   The Catastrophe called Irene has left a growing awareness in her wake that out of the great Damage she inflicted while she was among us, much may be Excluded.  See Michael Cooper, "Hurricane Cost Seen As Ranking Among Top Ten / Limits on Insurance / Many Policies Exclude Payment for Losses Caused by Flood" p. A1, col. 6 (New York Times Nat'l ed., Wed., August 31, 2011).

   This is one of the lessons Hurricane Katrina left us.  Having lived through Hurricanes Charley, Frances, and Jeanne myself, I can definitely say that it is better to have such problems, than to have nothing at all.

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