Claims And Issues

AN UNOPPOSED CHRISTMAS MIRACLE IN PENNSYLVANIA.

This is a story of a Christmas miracle in Pennsylvania.  Part of this story is a tale of ways to deal with a Judge's ruling, among other things.  That tale was told yesterday on Insurance Claims and Bad Faith Law Blog, and the story comes out of the reported decision in Golon, Inc. v. Selective Ins. Co., No. 17cv0819, 2017 WL 6397447 (W.D. Pa. December 14, 2017). 

As yesterday's article on Insurance Claims and Bad Faith pointed out, in that case Selective's lawyers filed an "unopposed emergency motion" to reseal some documents that the District Judge had previously ordered to be unsealed and so to be made public.

The Judge had found that a total of three documents out of over a thousand pages of documents were properly "withheld and/or redacted" for one reason or another.  The District Judge's ruling was that all of the remaining documents, then, were not privileged and thus were properly a part of the public record and should not be sealed.  Selective contested the "public view" part of the Court's ruling, in part, with an unopposed motion.  Its unopposed motion was an emergency motion at that, the idea being it seems that to open these documents to public view would be an "emergency."

The District Judge pointed out that he recognized that this emergency motion was unopposed.  In footnote 1 of his opinion, the District Judge not only recognized that the plaintiff did not oppose resealing these documents, "the granting of Selective's Emergency Motion would remove the documents from public view."

Never again does the Court return to explicitly address the fact that this motion was not opposed.  However, the Court's ruling despite the fact that this request to reseal documents and keep them out of the public view, is clear.  Despite the lack of opposition by the other party to sealing documents in this particular lawsuit involving these particular individual parties, "the Court had to balance the impact of shielding non-privileged documents from the public against the public's right to view them."  (Emphasis added.)

In this case, the Court made its own determination on the secrecy issue.  It did not rely on the advocacy of the parties and their lawyers that were before the Court in this unique case.  The Court did not rely simply on the so-called advocacy system of justice, in which the truth is supposed to emerge, more or less, from the theoretically adversary positions taken by the parties in individual cases.

That is the judicial philosophy that animates so many judges' rulings approving stipulated protective orders to conceal evidence and keep settlements a secret in so many cases.

In this case, a Christmas miracle happened.  The Court considered its ruling on secrecy here, and the Court not the parties ruled.  The Court had already ruled that the documents in question were not privileged, and so "the Court finds that absent a privilege, these documents may not be shielded."  Even though the parties were in agreement to keep the documents a secret from the public, still, the Court ruled, these documents should not be kept secret because of "the public's right to view them."  (Emphasis added.)

In sum, an agreement made for whatever reason did not control the outcome.  There are laws.  Let those who have ears to hear, let them hear.  This is the Christmas miracle that this case presents to all of us.

Happy Holidays to All, and to All a Good 2018!

Dennis Wall is at work on a forthcoming book about Concealed Evidence and Secret Settlements. 

Please Read The Disclaimer.  ©2017 by Dennis J. Wall.  All Rights Reserved.

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APPRAISAL NOT A HURDLE TO FLORIDA STATUTE'S CIVIL REMEDY NOTICE.

In an appeal from Seminole County, Florida, two judges of the Fifth District Court of Appeal agreed in Landers v. State Farm Fla. Ins. Co., No. 5D15–4032, 2017 WL 3443077 (Fla. 5th DCA August 11, 2017) (STATED NOT RELEASED FOR PERMANENT PUBLICATION AND SO SUBJECT TO REVISION OR WITHDRAWAL), that the onset of Florida's "Bad Faith" statute was not delayed by the insurance policy before the court in that case.

In Landers, the Florida court was confronted with a homeowner's insurance policy provision requiring an appraisal in the event of a dispute over value.  The policy's appraisal provision is reproduced in footnote 3 of the majority opinion on appeal.

The appraisal provision applied to a dispute over the claim's value, in essence.  The insurance policy did not make appraisal a condition precedent to coverage, and it did not raise a bar to suing the carrier under a statute or otherwise for bad faith or unfair dealing until after an appraisal process was finished.

Resting its analysis on the Florida statute, neither does the Florida "Bad Faith" Statute make completing the appraisal process a condition precedent, the majority held.  The policyholder in that case was permitted to proceed with a civil remedy notice of insurer violation which he had filed under the statute even before the appraisal process was completed.

Parenthetically, the one judge who dissented did not file a reported opinion.

Please Read The Disclaimer.  ©2017 by Dennis J. Wall.  All Rights Reserved.

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SETTLEMENT UNDER SEAL IN ARKANSAS.

In Chaichian v. Sentinel Ins. Co. Ltd., No. 1:16-cv-01026, 2017 WL 4899232 (W.D. Ark. October 3, 2017) (Bryant, USMJ), a U.S. Magistrate Judge was confronted with three motions concerning settlement of the case.

First, the facts at the time the USMJ confronted these three motions.  The plaintiff, proceeding pro se or without a lawyer, signed a so-called "release agreeement" which set out the parties' settlement terms.

The "release agreement" was filed under seal.

The plaintiff was paid the money set out in the release agreement.

The plaintiff thereafter refused to sign a proposed stipulation of dismissal which the defendants had written for her.

The defendants' proposed stipulation of dismissal was also filed under seal.

The USMJ reviewed the sealed documents and then decided the three  motions.

One of the motions was filed by the pro se plaintiff.  She asked to enforce what she said was her settlement agreement with Sentinel Insurance Co. and SWBC Insurance Services, the only two defendants remaining at the time.

The second of the three motions confronting the USMJ was the defendants' motion to enforce "actual settlement."

The third and final motion which the USMJ confronted in that case was the defendants' motion to strike the first motion, i.e., to strike the pro se plaintiff's motion to enforce settlement agreement.

He granted the defendants' motion to strike the plaintiff's motion to enforce settlement, "because," he said, "Plaintiff's motion contains confidential information and is otherwise unmerited.

We will never know what was actually in the sealed materials, only what the USMJ said about them and in a footnote he remarked how careful he was not to reveal confidential information.

At no time did the U.S. Magistrate Judge report, let alone recommend, that any part of this secret material might not be confidential or that some or all of it might not merit sealing it from public view.

Nonetheless, he read the secret material, kept it sealed, announced his report and recommendation, and included a recommendation that the plaintiff's case be dismissed with prejudice.

To be continued with the U.S. District Judge's order approving the USMJ's Report and Recommendation on Insurance Claims and Bad Faith Law Blog.

Dennis Wall is currently at work on his fifth book, which will address how concealed evidence and secret settlements take our money, foreclose on our homes, and change our lives.

Please Read The Disclaimer.  ©2017 by Dennis J. Wall.  All Rights Reserved.

HOMEOWNERS INSURANCE AND UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW.

In Jones v. Americas Ins. Co., 226 So. 3d 537 (La. Ct. App., 1st Cir., 2017), the Louisiana appellate court held that a homeowner's insurance carrier had no right of action against its insured's contractor for negotiating a check without the mortgage lender's/servicer's authorized endorsement.

The mortgagee was the mortgage lender/servicer and it did not authorize a stamped endorsement on the insurance company's check, accompanied by handwritten words which "endorsed" payment of the check over to the contractor.

As a result of this episode, the carrier had to reissue the check.  The homeowner's carrier accordingly sued the contractor claiming that this episode thereby damaged it to at least the tune of the amount of the duplicate check.

In particular, the Louisiana appellate court ruled that the Louisiana Unfair Trade Practices and Consumer Protection Law invoked by the carrier in this case was expressly actionable only by the Louisiana Insurance Commissioner and that the carrier was not an intended beneficiary of the act even if the court tried to imply a cause of action not expressed in the Louisiana statute.

This result may be so in Louisiana, but in other places, as the song goes, it ain't necessarily so.

The appellate court affirmed the Louisiana trial court's judgment in favor of the contractor.  The appellate court tacked on the costs of the appeal to be paid by the insurance carrier as well.

Please Read The Disclaimer.  ©2017 by Dennis J. Wall.  All Rights Reserved.

ALL RISKS COVERAGE EXCLUDED BY MICHIGAN EARTH MOVEMENT EXCLUSION.

Home-Owners Insurance Company issued a "business owners policy" of property insurance which provides all-risks coverage, i.e., covering all risks or perils except those which are specifically excluded.

The "BOP" policy issued by HO contained a standard "earth movement exclusion":

The policy covered risks of physical loss unless the loss was “[e]xcluded in Section B., Exclusions” or “[l]imited in Paragraph A.4., Limitations.”

* * *

The claim was denied pursuant to an exclusion to coverage in Section B for “[a]ny earth movement.” Home–Owners thereafter sought a declaration that it owed no duty to cover Andriacchi’s losses because the losses were excluded under the policy.

The Michigan appellate court upheld HO's denial of coverage in this case which involved damage allegedly resulting from street repair, because, the appellate court held, the earth movement exclusion was not limited to earth movement due to natural causes.  Home-Owners Ins. Co. v. Andriacchi, 320 Mich. App. 52, 903 N.W.2d 197 (Mich. Ct. App. 2017).

Dennis Wall is at work on an article about interpretation and application of all-risks insurance coverage.

Please Read The Disclaimer.  ©2017 by Dennis J. Wall.  All Rights Reserved.

MAKE A BUCK, MANIPULATE FLOOD MAPS, MANIPULATE FLOOD INSURANCE NOTIFICATIONS.

Flooded homeowners near Houston are learning after Harvey left the area that so did their illusions about the need for flood insurance.

Because their lots were built as little as one inch above the standards for flood plains, and sometimes a couple of inches higher than the standards, the homeowners were not required by federal law to buy flood insurance. 

In the case of at least one planned upscale suburban "community," these buyers "would never have bought here otherwise."

Not only was flood insurance not required, but the developer was not even required to notify the buyers of their risk so that the buyers had the option to purchase flood insurance.

They were on their own when the land was dry.

They are on their own now.

"Houston:  the profound vulnerability of a metropolis with an ethos of untrammeled development built, essentially, on a swamp," in the words of John Schwartz, "Revised Flood Maps Paved Way for Homes Before Harvey Hit," published on Sunday, December 3, 2017 in the New York Times and republished by The Boston Globe on the same day.

With all due respect to Mr. Schwartz and the Times, this is a tale that is not told in Houston only.  A representative of the current developer is quoted by Mr. Schwartz as emphasizing what developers everywhere like to emphasize, which is "'our strict adherence to standards and our commitment to our communities.'"

Please Read The Disclaimer.  ©2017 by Dennis J. Wall.  All Rights Reserved.

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