Claims and Issues, an exploration of questions and a presentation of research on all sorts of interesting subjects including legal research on many topics.
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On the same morning as this article is written, the U.S. Supreme Court is scheduled to release its opinion striking down coverage for contraception.
The opinion will or may continue the Court's trend of writing words which convince very few people, probably not even the Justices themselves. If we want to find an explanation of the issues involved and how past precedents might have been used by judges and lawyers to resolve those issues, we may want to look elsewhere.
The issues are all addressed and the precedents all seem to be thoroughly examined in this comprehensive article published in 2013: DiMugno, “The Affordable Care Act’s Contraceptive Coverage Mandate,” 35 Insurance Litigation Reporter 5 (Thomson Reuters 2013).
To say again, if these shadows of always increasing flood damages remain unaltered, the shadows of ever-increasing flood taxes will follow. The insurance industry knows this. Even reports in the popular press reflect this.
So, who can ever truthfully say again, "Who knew?"
Sandy repairs are reportedly taking so long in the New York City area, that Additional Living Expense is coming into play. In insurance parlance, this is "A.L.E." Coverage, and not everyone has it.
A Federal Statute requires District Judges to approve settlements in litigated cases in their Courts involving Federal administrative bodies like the SEC. The statutory standard which a District Judge is required to determine in each such settlement is whether the given settlement is "fair and reasonable".
Judge Rakoff declined to approve the SEC's settlement with Citigroup in this particular case until the Court was provided with facts upon which to make the "fair and reasonable" determination. The only thing at all which was provided to District Judge Rakoff along with the parties' settlement papers was the SEC's complaint.
The Second Circuit panel reversed this District Court Order for facts upon which to make the determination. According to the Second Circuit panel, in essence the job of the District Judge is to rubber stamp every or nearly every settlement as "fair and reasonable" and close the file in every case involving the SEC and other administrative agencies.
There is an issue here, however, which goes beyond the District Courts' need for facts to make a proper determination of whether a given settlement is fair and reasonable. The Second Circuit panel's clear disregard for the facts necessary to make that determination invites settlements which are harmful to the public at large. This result conflicts with State laws to the contrary, Florida's law for example. See generally 1 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith § 3:107, "Settlement of Third Party Bad Faith Claims: Confidentiality (Protected) or Concealment (Void)" (West Publishing Co. 3d ed. & 2014 supplement); 2 id. § 9:28, "Settlement of First Party Bad Faith Claims: Confidentiality (Protected) or Concealment (Void)".
In addition to overriding contrary State laws, one additional consequence of the panel's decision in the Second Circuit is that any and all contrary laws designed to protect the public from harm are preempted by one statute which on its face required Federal District Judges to determine whether settlements by administrative agencies such as the SEC are fair and reasonable. From this point forward in the Second Circuit at least, "fair and reasonable" will never mean requiring facts that show that the settlement is fair and reasonable to the public at large.
Reports of despicable conditions in for-profit prisons contain opinions. These reports also contain evidence of facts. Photographs and eyewitnesses have recorded these conditions in a private prison in Mississippi recently:
"Dirt, feces and, occasionally, blood are caked on the walls of cells."
Prisoners with treatable medical conditions, like glaucoma, do not receive medical treatment. When these individuals are released, their condition has deteriorated to the point where the condition is untreatable.
Guards, who are paid a small hourly wage, spend little time in the solitary-confinement block. Prisoners in solitary confinement sometimes set fires to their bedding in order to get the guards' attention and, even then, the guards sometimes do not respond.
These eyewitness accounts and photographic evidence and more are reported for example by Erica Goode, "Seeing Squalor and Unconcern in Southern Jail," p. 1, col. 1 (New York Times Nat'l ed., Sunday, June 8, 2014). The Mississippi prison in question is run by Management and Training Corporation from Utah.
Management and Training Corporation made one comment for publication. They blamed these problems on the corporation they replaced in 2012, one GEO Group. Otherwise, they declined to comment, saying they would not comment because they have been sued. This is unusual. Even aside from the fact that due diligence probably revealed these conditions before Management and Training Corporation took over the running of this Mississippi prison, this is 2014. It has now been two years since CEO Group was in charge, and this is still unusual. Many large corporations stage large press campaigns to "push back" against lawsuits.
Management and Training Corporation is entitled to a defense. Questions abound about how they will defend themselves. Which of their carriers will fund their defense? What sort of insurance coverage will provide them indemnity if their defense fails? Who will cover these people against such reports? And what sort of exclusions could apply, intentional damages exclusions for example? So much depends on what Management and Training Corporation has to say about its prison-keeping. When they start talking we will know more. Until then, questions continue to pile up.
Reports broadcast and published about Sergeant Bowe Bergdahl and his family give rise to questions. One question has not been asked yet so far as I know: Where was this information kept secret for the past 5 years (assuming that it is based on reality), while this soldier was held prisoner and so many other reports were broadcast and printed about him?
For coverage purposes, assume that the hysteria is false, that it is not based on facts. Assume further that if they were sued for libel, that the broadcast and print organizations and reporters would argue that any plaintiff would have to prove "actual malice" which as I recall means something like reckless disregard for the truth. That seems to fit.
If a plaintiff successfully proves actual malice, is any Personal Injury Coverage for the libel or slander forfeit? That is an interesting opening analysis for the insurance coverage questions here.
Beyond coverage, if a person remains silent in the presence of libelous even treasonous innuendo, could a jury conclude that this is the normal state of affairs in which these statements were made?
On a personal note, if I remain silent in the presence of libelous even treasonous slurs, what good am I?
A majority of the Supreme Court of Iowa ruled in Osmic v. Nationwide Agribusiness Insurance Co. that a passenger suing for underinsured motorist (UIM) benefits was bound by the limitations period in the policy just as the contractual limitations period would bind the policyholder in that case. Osmic v. Nationwide Agribusiness Insurance Co., 841 N.W.2d 853 (Iowa 2014)(three Justices specially concurred in the result, analyzing "third-party beneficiary" issues separately from the majority opinion).
The Court's question and answer stand on their own, concisely and directly to the point:
We must decide whether a policy provision limiting the time to file an action to recover underinsured motorist's benefits is binding on a passenger who was injured while riding in the named insured's vehicle. The passenger brought this action approximately one month after the deadline set forth in the policy, which required suit to be commenced "within two years after the date of the accident."
We conclude the passenger, as an insured and a third-party beneficiary of the policy, does not have greater rights than the policyholder. Thus, the passenger cannot avoid the contractual time limitation unless the policyholder under similar circumstances would have been able to avoid it. Because the record, when viewed in the light most favorable to the passenger, does not demonstrate either that the policy's time limit was unreasonable or that the insurer should be equitably estopped from enforcing it, we hold the insurer's motion for summary judgment should have been granted.