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In the case of Apple, Inc. v. Samsung Electronics Co., 2014 WL 794238 *23 (N.D. Cal. February 25, 2014), the Federal Court denied a motion to exclude expert testimony, distinguishing contrary cases as involving an expert's "methodology". But that is not the only or even the main reason I write about the case here.
The United States District Court for the Northern District of California is very big on keeping Court proceedings secret. This cite is to the only available version known of this ruling, which is identified on its face as the "PUBLIC REDACTED VERSION" of this decision.
Claims for cancellation of insurance in California were limited on the facts in the case of Van Etta v. State Farm Mut. Auto. Ins. Co., 2014 WL 1089560 (N.D. Cal. March 17, 2014). "Accordingly, there is no evidence that State Farm was attempting to avoid a known, imminent liability, which could have demonstrated a breach of the implied covenant of good faith and fair dealing." Van Etta v. State Farm Mut. Auto. Ins. Co., 2014 WL 1089560 *5 (N.D. Cal. March 17, 2014). [Emphasis added.]
A sister article has been posted on Insurance Claims and Bad Faith Law Blawg today.
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Copyright 2014 by Dennis J. Wall. All rights reserved. No claim to original U.S. Government works.
The standard war exclusion in Homeowner's Policies excludes coverage ...
to bodily injury or property damage caused by war, including any undeclared war, civil war, insurrection, rebellion, warlike act by a military force or military personnel, destruction or seizure or use for a military purpose, and including any consequence of any of these.
[Boldface in original; italics added for emphasis.] To some degree, this exclusion is in force in Homeowner's policies purchased by persons living in the Ukraine and elsewhere.
Recent reports from eastern Ukraine in the Russian neighborhood, reflect that people have been killed at a checkpoint run by "Russian separatists" and that government buildings have been seized by masked men in green. Although reporters consistently report that they are personally at a loss to identify these incidents with the Russian military, many of their sources pin responsibility for these incidents on the Russian KGB. In particular, they point to agent provocateur activities of the commando units included in the Russian secret service.
Some readers will reflect that the KGB has changed its name. They are still best popularly described as the KGB. Further, readers of Tom Clancy novels learned long ago that "Spasnost" is the name given by the KGB to their commando units. The KGB has probably changed that name, too. They are still the Spasnost for purposes of popular description, such as in this article.
Play out the idea that Mr. Vladimir Putin and the Russian powers (if there are any besides Mr. Putin), have planned what appear to be incidents which will invite the invasion of Russian forces in which even reporters are likely to clearly identify Russian military forces.
Will the destruction and death that has been caused then be declared as excluded by the standard war exclusion, being identified as bodily injury and property damage caused by a military force or by military personnel, or for a military purpose?
In the case of Lead GHR Enter's, Inc. v. American States Ins. Co., 2014 WL 1246499 *3 (D.S.D. March 25, 2014)(Duffy, USMJ), a U.S. Magistrate Judge saw no distinction in how Federal Rule 26 requires disclosures from the experts to whom it applies.
If Rule 26 applies to one expert, it applies alike to all experts subject to that Rule. That includes rebuttal experts as well as experts in your case-in-chief.
This ruling seems to be the majority view of the question.
In this particular case, moreover, the expert in question was not really offered just in rebuttal. Rather, the party disclosing him was attempting to use him "as an initial expert witness." Lead GHR Enter's, Inc. v. American States Ins. Co., 2014 WL 1246499 *4 (D.S.D. March 25, 2014). Needless to say, this turn of events did not change the ruling.
The ruling had already been made: Rule 26 requirements apply to experts who have been disclosed under Rule 26. That is the ruling. Period.
P.S.
Subject to the party producing the witness to be redeposed and paying certain expenses, the expert was allowed as an initial expert witness and not just in rebuttal.
SO, FLORIDA COURT REFUSES TO APPLY ACCC IN CASE AT BAR.
In the first-part case of American Home Assurance Co. v. Sebo, 2013 WL 5225271 (Fla. 2d DCA September 18, 2013), a Florida appellate court refused to align Florida with the many jurisdictions invalidating the so-called anti-concurrent cause exclusion. However, the court reached the same result in the case before it. The Florida appellate court held that the exclusion relied on by the carrier in that case was not enforceable in that case:
AHAC argues that the anti-concurrent cause language in its exclusion for defective work entitled it to a summary judgment on all of Sebo's claims except for the $50,000 it tendered for ensuing mold damages. We note that some states reject the application of these clauses.... [Citations omitted.] But Florida courts have not definitively weighed in on this topic. It is not necessary for us do so here because the language relied upon by AHAC was insufficient to exclude losses arising from concurrent causes.
* * *
Contrasted with the other exclusionary clauses in the same policy, AHAC's defective work exclusion simply did not exclude losses arising from concurrent causes.
American Home Assurance Co. v. Sebo, 2013 WL 5225271 *6 (Fla. 2d DCA September 18, 2013).
This appellate finding of ambiguity makes one thing clear: Insurance companies in Florida relying on "anti-concurrent cause exclusions" must at the least point to language in their policies that excludes concurrent causes of loss.
We will let others address questions concerning sanctions for conduct in the Crimea, and whether the Russians have immunity from suit even when yet another oil catastrophe occurs, should damage result to people and businesses in the United States from Russian oil drilling operations in the Gulf of Mexico.
Will there be insurance for those damages should they occur? Will there be any of the kinds of coverages discussed here and elsewhere after the last oil disaster in the Gulf of Mexico including:
Business Interruption?
Contingent Business Interruption?
"Extra Expense"?
Bodily Injury and Property Damage?
See generally Dennis J. Wall, "Claims Handling Practices Issues: Releases of Claims: Macondo--Deepwater Horizon and the BP Business Model," § 2:15 in John K. DiMugno, Steven Plitt and Dennis J. Wall, Catastrophe Claims: Insurance Coverage For Natural and Man-Made Disasters" (West Publishing Co. 2014 Supplements in Process).
And they said the Deepwater Horizon escapade was over with.