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"Call Them By Their True Names." -- Rebecca Solnit

(Wikimedia Commons)

Don't get upset at "the United States."  The regime is not the United States.   Save your upset for your children and your spouse.

A version of this article was posted on Substack.

There are a lot of upset people out there.  They are upset with the regime, which is understandable.  But these people generally refer to the actions of the regime as though they were the actions of their United States Government, or even the actions of the United States.

The actions that we have seen since January 20, 2025 are not actions of the United States.  If this did not become clear enough after the regime's budget of death passed the senate and house, here are three relatively brief examples that illustrate that the actions of the regime are not the actions of the United States.

First, the Bureau of Labor Statistics in the Department of Labor.

First, the Bureau of Labor Statistics in the Department of Labor.  It says on their website, which of course is now run by the regime, that this Bureau is independent.  That is not exactly true.

I looked at the roster of personnel at the BLS as it's called, so you wouldn't have to, as the saying goes.  During the Second American Apocalypse that we are living through now, or trying to, the Bureau is run by many people who were installed during the First American Apocalypse.

Further, this supposedly independent Bureau "works closely with the U.S. Customs and Border Protection ... to collect trade and transportation data."  Resume Valley Report titled How Accurate Are the Projections of the Labor Statistics?, online July 6, 2025, at https://www.resumevalley.com/how-accurate-are-the-projections-of-the-labor-statistics/.

In my research, I also came across reports that the Department of Labor might be "cooking the books," meaning publishing false figures.  On closer examination, these reports were repeating that claim about Barack Obama!  Barack Obama left office sometime on January 20, 2017 before the First American Apocalypse took over.

None of this generates trust or respect for the current Department of Labor.  It is certainly not the Department it used to be, so it is a big mistake to treat it as though it is still what it used to be.

 

Second, the Civil Division of the Department of Justice is not a department of justice any more; in fact, it isn't even the civil division any longer.

On June 11, 2025 the current Civil Division of the U.S. Department of Justice issued a MEMORANDUM directed to "All Civil Division Employees."  The Memo said a number of things, so it would be good to read it for yourself to see what they intend for you.  You can find it on the doj website:  https://www.justice.gov/civil/media/1404046/dl?inline.

For nearly one page of this four-page Memo, beginning on page number 3, they focused on "radical gender experimentation."  Lest you think that they only have a harmless fetish, their Memorandum continues:  "The Civil Division will use all available resources to prioritize investigations of doctors, hospitals, pharmaceutical companies, and other appropriate entities consistent with these directives."

They do not have the authority.  They are "investigating" anyway.  What do "investigations" of your doctors, your hospitals, the pharmaceutical companies from which you buy your prescribed drugs, "and other appropriate entities" actually involve, what do they mean?

The part of this Memo that the press paid attention to, begins on page 3 and goes on to the end.  For a full page and roughly an additional third of a page, the Civil Division of DOJ is similarly and deliberately vague about what their Memo calls "Prioritizing Denaturalization."  The first priority on the list, on page 4, consists of cases against "individuals who pose a potential danger to national security."  This category of individuals includes "those with a nexus to terrorism."

We have seen that this regime treats all the people it kidnaps like the people are dangerous to the regime's security.

We have also heard lawyers and other people paid by this regime say that everyone abducted has "a nexus to terrorism."  They even said that about a student walking alone on the street whom they surrounded with at least 6 people, some masked, and at least some armed because, I guess, the student might be dangerous to them.

She was a co-author of an op-ed in a student newspaper.

This is not your mother's and father's department of justice.

Third, there is ICE.  There is always ICE now.

Third and finally, there is Immigration and Customs Enforcement or ICE.  ICE will get more money from the budget of death that this regime required, than the armed forces of many nations.  I have also read, and you probably have as well, that after this budget of death, ICE will become the largest "law enforcement" agency in the country.

But ICE will not be the United States.   In fact, many people have doubts that it is a "law enforcement" agency like, say, the FBI used to be.

I will conclude these three examples that illustrate how the current regime is not the United States, with this quote from the conservative or perhaps libertarian Cato Institute Blog:

ICE's deportation agenda is not what is being advertised to the American public.  ICE is not interested in prioritizing public safety, yet it constantly pretends that anyone who objects to its tactics and priorities is defending violent criminals.  But violent criminals are not ICE's primary focus.  Indeed, it now has no focus altogether.  That's the essence of mass deportation:  It is indiscriminate, unfocused, and chaotic.

David J. Bier, 65 Percent of People Taken by ICE Had No Convictions, 93 Percent No Violent Convictions, CATO BLOG INSTITUTE (June 20, 2025), at https://www.cato.org/blog/65-people-taken-ice-had-no-convictions-93-no-violent-convictions.

Even the Cato Institute recognizes that this regime is not the United States.

We all should see them for what they are.  Call them by their true names.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  There's more on my Substack newsletter. 

Has Loper Bright made filed rate doctrine, judge rate doctrine?

The filed rate doctrine suspends judicial inquiry into a claim.  It applies when the defendant has received approval from an authorized administrative agency to charge a rate the defendant filed for the administrative agency's approval.  The filed rate doctrine or FRD has been applied to insurance cases.[1] 

          Query:  Has the Loper Bright Enterprises v. Raimondo[2] decision turned the filed rate doctrine into the judge rate doctrine?[3]  In Loper Bright, the question was posed in such a way as to implicate all agencies of federal or State government:

          In an agency case as in any other, though, even if some judges might (or might not) consider the statute ambiguous, there is a best reading all the same—“the reading the court would have reached” if no agency were involved.  [Citation omitted.]  It therefore makes no sense to speak of a “permissible” interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best. In the business of statutory interpretation, if it is not the best, it is not permissible.[4]

 

The Loper Bright question is raised in particular in Volume 2 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 11:26, The Filed Rate Doctrine:  The Basics and the background, with illustrations from lender force-placed insurance (LFPI) cases (Thomson Reuters West Publishing Co., with 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  There's more on my Substack newsletter. 

 

[1]  See §§ 11:26.50 and 11:26.75, Volume 2 of DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH (3d Edition with 2025 Supplements in process).

[2]  Loper Bright Enter's v. Raimondo, 603 U.S. 369, 144 S.Ct. 2244 (U.S. June 28, 2024).

[3]  Answering this question fully would probably take a new book in itself.  In the interim, active practitioners should consider raising the issue in pending cases.   Once that's done, after a while there will be enough case law and perhaps statute law that it will be time for that new book.

[4]  Loper Bright Enterprises, 603 U.S. at 400, 144 S. Ct. at 2266 (Roberts, John, for six justices).

When Release in Underlying Case Releases Later Bad Faith Claims.

      In Davin v. Plymouth Rock Assurance Co. of New York,[1] a UM/UIM carrier appealed the denial of its motion to dismiss a bad faith claim.  It "submitted the release executed by the plaintiff, which, by its terms as read by the appellate panel, barred the cause of action alleging bad faith in the processing of the plaintiff's demand for SUM [Supplementary Uninsured/Underinsured Motorist] benefits[.]"[2]

That Release released the defendant as follows, in part here pertinent, from:

any and all actions, causes of actions, [and] claims ... under the Uninsured Motorist/Underinsured Motorist Coverage ... for the injuries suffered by [the plaintiff] as a result of [the] accident ... meaning and intending hereby to release and discharge the said [defendant] ... from only such contractual liability as it may have under the aforesaid Uninsured Motorist/Underinsured Motorist Coverage.[3]

      The Appellate Division panel read the quoted Release as barring the bad faith cause of action at bar, and accordingly reversed the lower court's order denying the motion to dismiss that bad faith cause of action.[4]

Case law on the issues discussed in this article is collected in Volume 2 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 11:20 (Thomson Reuters West Publishing Co., with 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

 

[1]  Davin v. Plymouth Rock Assur. Co. of New York, 227 A.D.3d 862, 211 N.Y.S.3d 459 (N.Y. App. Div., 2d Dep't, 2024), app. denied, 42 N.Y.3d 905, 243 N.E.3d 535, 218 N.Y.S.3d 581 (2024).

[2]  Davin, 227 A.D.3d at 864, 211 N.Y.S.3d at 462.

[3]  Davin, 227 A.D.3d at 862-63, 211 N.Y.S.3d at 461.

[4]  Davin, 227 A.D.3d at 864, 211 N.Y.S.3d at 462.

If No Federal Jursidiction for Nationwide Bans, ...

... What About DJAs and Preliminary Injunctions?

I wonder if Friday's decision that federal judges do not have authority to issue nationwide bans applies to any cases in which nationwide bans are requested from federal judges, such as requested nationwide bans of the Consumer Financial Protection Bureau's Medical Debt Rule prohibiting collection and reporting of consumer medical debt information? This issue is pending right now in the Eastern District of Texas, for example, in Cornerstone Cred. U. League v. CFPB and Russell Vought, No. 4:25-cv-00016, and the request there is clearly for a nationwide ruling in the plaintiffs' Motion for Preliminary Injunction, Doc. 9, filed January 10, 2025.   (It may be of interest here that the presiding judge in this case was appointed during the First American Apocalypse, in 2019.) 

As I previously observed, including here, I read Friday's decision that federal courts do not have authority to issue nationwide injunctions as saying that federal courts do not have jurisdiction to issue nationwide injunctions.

"The issuance of a universal injunction can be justified only as an exercise of equitable authority, yet Congress has granted federal courts no such power."  That's what the Supreme Court Six said in the decision they released on Friday, June 27, 2025. 

I wonder if this lack of jurisdiction can be raised in cases in which federal judges previously entered or are considering nationwide injunctions, such as against the enactment and enforcement of rules and regulations that the Biden Administration wanted to issue?

If the federal judges do not and did not have jurisdiction to issue nationwide injunctions in those cases, aren't those regulations and rules in full force and effect right now including the rules and regs finalized during the Biden Administration?

Further, if the enforcement of a finalized rule or regulation was barred by the federal courts in those cases, wouldn't the rule or regulation be in effect right now, subject to the notice and comment period of the Administrative Procedures Act, among the APA's other requirements, before it could be revoked?

And could it be revoked by a court anyway so long as it is constitutional and follows the applicable statutes?

A good lawyer might raise these issues.  Then people like me could stop wondering, case by case.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

If there's no federal court jurisdiction for nationwide injunctions now, ...

... then there wasn't federal jurisdiction to enter nationwide injunctions earlier, either.

I read yesterday's decision that federal courts do not have authority to issue nationwide injunctions as saying that federal courts do not have jurisdiction to issue nationwide injunctions.

"The issuance of a universal injunction can be justified only as an exercise of equitable authority, yet Congress has granted federal courts no such power."  That's what the Supreme Court Six said in the decision they released on Friday, June 27, 2025. 

I wonder if this lack of jurisdiction can be raised in previously closed cases in which federal judges entered nationwide injunctions, such as against the enactment and enforcement of rules and regulations that the Biden Administration wanted to issue?  If the federal judges did not have jurisdiction to issue nationwide injunctions in those cases, aren't the nationwide injunctions null and void that they issued in those cases?

A good lawyer might raise this issue.  Then people like me could stop wondering, case by case.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

"Where a court finds an attorney acts in bad faith, ...

... the court can impose sanctions on that attorney."  Byoplanet Int'l, LLC v. Knecht, Order to Show Cause, DE 13, filed 05.29.25 (S.D. Fla. No. 0:25-cv-60646-LEIBOWITZ), citing Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998.)  Download Byoplanet Order to Show Cause.05.29.25.

         With these words, Judge David S. Leibowitz of the United States District Court for the Southern District of Florida began writing the heart of his Order for an attorney to Show Cause "whether he intentionally made misrepresentations to the Court," a ruling disguised as a statement that perhaps sidesteps the idea that a finding of bad faith is warranted where an attorney not just knowingly, but recklessly raises a frivolous argument.

        Judge Leibowitz's Order to Show Cause is worth reproducing here in full following the end of the material quoted above:

“A finding of bad faith is warranted where an attorney knowingly or recklessly raises a frivolous argument[.]”  Id.; see Ass’n for Disabled Americans, Inc. v. Pebb Enters. Shops of Delray Ltd., 555 F. App’x 876, 878 (11th Cir. 2014) (“Although we generally afford parties significant latitude in crafting appellate briefs, we cannot countenance such intentional, misleading statements. Accordingly, Pebb’s motion for sanctions . . .is GRANTED.”).  Further, under the professionalism standards set in Florida for attorneys, a “lawyer must not knowingly misstate, misrepresent, or distort any fact or legal authority to the court or to opposing counsel and must not mislead by inaction or silence.”  In Re Neusom, No. 223CV00503JLBNPM, 2024 WL 982508, at *4 (M.D. Fla. Jan. 11, 2024), report and recommendation adopted sub nom. In re Neusom, No. 2:24-MC-2-JES, 2024 WL 1013974 (M.D. Fla. Mar. 8, 2024), reconsideration denied, No. 2:24-MC2-JES, 2024 WL 2288969 (M.D. Fla. May 21, 2024) (citing R. Regulating Fla. Bar 4-3.3 and 4-8.4).

    “When a district court finds that attorneys have acted in bad faith, it may impose a variety of possible sanctions, including an assessment of attorneys’ fees and costs, disqualification of counsel, and monetary penalties payable to the clerk of court, as well as everything from a simple reprimand to an order dismissing the action with or without prejudice.” Boe v. Marshall, No. 2:22-CV-184-LCB, 2025 WL 602564, at *56 (M.D. Ala. Feb. 25, 2025) (cleaned up) (citing Kleiner v. First Nat. Bank of Atlanta, 751 F.2d 1193, 1209 (11th Cir. 1985) and Mingo v. Sugar Cane Growers Co-op. of Fla., 864 F.2d 101, 102 (11th Cir. 1989)).

Order to Show Cause, at 1-2.  After saying this, the Court ordered an attorney to "show cause in writing whether he intentionally made misrepresentations to the Court[.]"  Id. at 2.

        On the day after the Order to Show Cause was filed, the attorney in question filed his response.  Response to Order to Show Cause, filed May 30, 2025 in Byoplanet International, LLC v. Knecht, Document Entry 14 in Case No. 0:25-cv-60646-LEIBOWITZ in the United States District Court for the Southern District of Florida.  Download Byoplanet Lawyer's May 30 2025 Response to Order to Show Cause.

     The Court was made aware in the Byoplanet lawsuit that one of the lawyer's pleadings contained incorrect arguments and admittedly "fictitious citations" and that he had apparently done this before.  See page 1 of the Response to Order to Show Cause, filed May 30, 2025 in Byoplanet International, LLC v. Knecht, Document Entry 14 in Case No. 0:25-cv-60646-LEIBOWITZ in the United States District Court for the Southern District of Florida.

          Not only did the lawyer in question admit that AGI carries "the possibility of producing fictitious citations," which in fact materialized in his own pleading, but he knew beforehand that AGI did that.  It was one of AGI's "known limitations," the lawyer said.  He also admitted that he did not check the pleading very well before he signed it and sent it, or as he put it, "proper cross-verification was not conducted prior to filing."  Page 1, id.

          As of this post, the Court's ruling on whether cause was shown has not yet appeared on the PACER docket of this case.  Stay tuned.

Case law on how issues of bad faith are treated by the courts outside of the context of insurer bad faith, is collected in Volume 1 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 2:7, Contrasting Good Faith Requirements--Miscellaneous Good Faith Requirements (Thomson Reuters West Publishing Co., with 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  A version of this article is in the process of being published on Substack.  Sign up for a free subscription to my Substack newsletter. 

Lessons on Sealing "Commercially Sensitive" Information in Insurance Bad Faith.

A good illustration of the First Amendment presumption of public access to court files, and how it works in litigation,  is provided by the non-insurance case of Mission 1st Group, Inc. v. Mission First Solutions, LLC, decided in the Eastern District of Virginia in 2025.[1]  In that case, Mission Party Solutions (hereinafter sometimes “Solutions”), the party seeking a seal on certain records in the court file, had already redacted many of the exhibits it filed with its motion for summary judgment.  It asked for additional redactions. 

           The Court denied Mission First Solutions’ motion to seal because Solutions had not overcome the Constitutional presumption of access to public records filed in court files.[2]

          Solutions claimed that its proposed additional redactions concerned  what it called “commercially-sensitive information”.  The redactions proposed by Solutions to documents filed in the court file were extensive, and they may find their way into insurance bad faith cases and other litigation:

These proposed redactions seek to remove (1) contract and project names for bids placed by Plaintiff and Defendant, (2) the names of companies with whom both parties conducted, or sought to conduct, business with, and (3) the names of individuals at these companies.[3]

Mission First Solutions’ requested additional redactions ran into the First Amendment presumption of public access to court files, and its arguments failed to overcome that presumption in the eyes of the Court in this case:

Defendant’s conclusory and unsubstantiated claims of harm fail to convince the Court that these proposed redactions serve an important interest, let alone a compelling one. And while the Court agrees with Defendant’s assertion that its request to seal is narrowly tailored, based on the limited additional redactions that it seeks, that fails to satisfy the First Amendment absent a compelling interest.[4]

Case law on the issues discussed in this article is collected in Volume 1 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:107.100 (Thomson Reuters West Publishing Co., with 2025 Supplements in process), and in Volume 2, id., § 9:28.100.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

[1] Mission 1st Grp., Inc. v. Mission First Solutions,  LLC, No. 1:23cv1682 (DJN), 2025 WL 864278 (E.D. Va. March 19, 2025).

[2] Mission 1st Group, 2025 WL 864278, at *4.

[3] Mission 1st Group, 2025 WL 864278, at *1.

[4] Mission 1st Group, 2025 WL 864278, at *4.

$937,989.39. Never Forget: 2+2=4.

On any list of recent judicial decisions worth remembering, this is the story of a decision that may just top the list.

            In 2022, [name redacted from the alogorithm] filed a "huge" lawsuit as plaintiff against his 2016 opponent, Hillary Clinton, elections attorney Marc Elias, Member of Congress Debbie Wasserman Schultz, National Security Advisor Jake Sullivan, former FBI Director James Comey, former FBI official Andrew McCabe, and many others for a total of some twenty-eight (28) defendants named in the original complaint. By the time an amended complaint was filed in the case, the number of defendants seems to have grown to thirty-one (31).

            That case resulted in an Order awarding sanctions against the plaintiff and his lead attorneys for filing and pursuing frivolous litigation:

            This case should never have been brought. Its inadequacy as a legal claim was evident from the start. No reasonable lawyer would have filed it. Intended for a political purpose, none of the counts of the amended complaint stated a cognizable legal claim.

            Thirty-one individuals and entities were needlessly harmed in order to dishonestly advance a political narrative. A continuing pattern of misuse of the courts by Mr. Trump and his lawyers undermines the rule of law, portrays judges as partisans, and diverts resources from those who have suffered actual legal harm.

[Redacted Plaintiff] v. Clinton, 653 F. Supp. 3d 1198, 1207 (S.D. Fla. 2023), app. docketed, No. 23-10387 (11th Cir. Feb. 6, 2023).  The original Order can be found on PACER as [Redacted], Plaintiff, v. Hillary R. Clinton, et al., Defendants, Order on Sanctions, DE 302, at 1, filed Jan. 19, 2023 (S.D. Fla. No. 22-14102-CV-MIDDLEBROOKS).  Here is a link to a copy you can read for yourself on PACER, the Public Access to (Federal) Court Electronic Records:  Download [Redacted Plaintiff] v. [Many Defendants] Order on Sanctions DE 302 filed Jan. 19 2023 (S.D. Fla. No. 22-14102-CV-MIDDLEBROOKS).

            The Court in that case awarded monetary sanctions as follows:

            Plaintiff [Redacted] and Plaintiff's lead attorney—Alina Habba and Habba Madaio & Associates—are jointly and severally liable for $937,989.39.

[Redacted Plaintiff] v. Clinton, 653 F. Supp. 3d at 1233; [Redacted], Plaintiff, v. Hillary R. Clinton, et al., Defendants, Order on Sanctions, DE 302, at 46, filed Jan. 19, 2023 (S.D. Fla. No. 22-14102-CV-MIDDLEBROOKS) (emphasis by the Court).  You can read it for yourself here:  Download [Redacted Plaintiff] v. [Many Defendants] Order on Sanctions DE 302 filed Jan. 19 2023 (S.D. Fla. No. 22-14102-CV-MIDDLEBROOKS).

            The plaintiff has since been elected president by the electoral college.  The plaintiff's lead attorney, Alina Habba, has since been appointed by the president to be the Acting U.S. Attorney for New Jersey at the present time.

            It was previously noted that an appeal by the plaintiff was docketed on February 6, 2023.  That case is on appeal as of this writing, after the plaintiff posted a bond of over $1 Million.   Download [Redacted Unreconstructed] P v. [Lots of Ds], Order Granting Unopposed M.Stay and Approve Bond to be Paid to Registry of Ct. DE 309 filed Feb. 7, 2023 (S.D. Fla. Case No. 2.2022-14102).

        The appeal is still pending.  The Eleventh Circuit has set it for oral argument three times since March, 2025, and in that period the Eleventh Circuit has also removed it three times from the oral argument calendar.  The most recent removal of the case from previously scheduled oral argument was as of last week, on June 12, 2025.

Case law on the issues discussed in this article is collected in Volume 1 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:107 (Thomson Reuters West Publishing Co., with 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

Deny, Delay, or Pay? That is the Question.

The distinction between delay in paying, or complete denial of paying covered benefits, on the one hand, and at least the Colorado common law version of first-party bad faith, on the other hand, was made clear by a federal District Judge in Stickelberger v. Gen. Sec. Nat'l Ins. Co., No. 24-cv-00386-PAB-SBP, 2025 WL 902793, at *11 (D. Colo. March 25, 2025), quoting liberally and directly from Colorado State case law:

          To prevail on a claim for statutory bad faith delay or denial of insurance benefits, a plaintiff must establish that his insurer (1) denied or delayed payment of a claim for benefits owed and (2) the denial or delay lacked a reasonable basis.  [Case citation omitted]; Colo. Rev. Stat. § 10-3-1115(1)(a).  An insurer's delay is unreasonable “if the insurer delayed or denied authorizing payment of a covered benefit without a reasonable basis for that action.” Colo. Rev. Stat. § 10-3-1115(2). To prevail on a claim for bad faith delay or denial of insurance benefits under Colorado common law, a plaintiff must establish that his insurer (1) acted unreasonably under the circumstances; and (2) knew of, or had reckless disregard for, the unreasonableness of its actions.  [Citation omitted.]   “The only element at issue in the statutory claim [for delay or denial] is whether an insurer denied benefits without a reasonable basis.” [Citations omitted.]   “By contrast, to prove a first-party claim of common law bad faith, a plaintiff must show not only that the insurer's conduct in processing or denying a valid claim was unreasonable but also that the insurer knew its conduct was unreasonable or recklessly disregarded the unreasonableness of its conduct.”  [Citations omitted.]  "Accordingly, a claim of common law bad faith imposes a more exacting standard of proof than a statutory claim.”  [Citations omitted.]

Case law on the issues discussed in this article is collected in Volume 2 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 9:14, Express Statutory Causes of Action (Thomson Reuters West Publishing Co., with 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

Proof of UM Coverage Not Required to Prove Bad Faith.

          An insured was not required to reestablish his entitlement to uninsured motorist benefits when seeking to prevail on his common law bad faith and statutory unreasonable delay of benefits claims in Uhl v. Progressive Direct Insurance Co.[1]

[1] Uhl v. Progressive Direct Ins. Co., 765  F. Supp. 3d 1176, 1186 (D. Colo. 2025).

Case law on the issues discussed in this article is collected in Volume 2 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 9:3, The Question of Bad Faith (Thomson Reuters West Publishing Co., with 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

One Last Time ... (Today is the Deadline to Comment.)

As I wrote before, so one last time it's worth the asking for sure:  Why don't you leave a Comment on the proposed Civil Service Rule on or before today, June 7?  You still have time to affect the outcome.  Go ahead, affect the outcome.

And here is a Comment I left yesterday.  It may be different from the one you will leave today.  That's okay.  Go ahead and affect the outcome in your own words with your own thoughts.

Agency:  Office of Personnel Management.

Docket ID:  OPM-2025-0004.

RIN 3206-AO80.

This proposed rulemaking by the Office of Personnel Management is titled "Improving Performance, Accountability and Responsiveness in the Civil Service."  OPM is not authorized to issue this proposed rule-making.  To the contrary, OPM is prohibited by the governing statutes enacted by Congress from promulgating this proposed rule-making.

OPM's instant rule-making is at once both unauthorized, and contrary to OPM's rule-making authorization extended by Congress.

OPM is the creature of an Act of Congress.  From its inception in 1978, OPM was required by Congress to abide by Congressionally required protections afforded by the laws enacted by Congress.  See, e.g., 5 U.S.C.A. § 1103(a)(5)(A), providing that the Director of OPM's functions include "executing, administering, and enforcing (A) the civil service rules and regulations of the President and the Office and the laws governing the civil service" (emphasis added); and id., § 1103(b), which requires OPM when promulgating rules to follow notice and comment procedures established by Congress in the Administrative Procedure Act (APA).

In recognition of the obvious fact that from its inception, OPM has been required by Congress to promulgate rules governing the civil service which are subject to laws enacted by Congress, OPM seems to have followed the APA's notice and comment procedures here, in the instant proposed rule-making, for example.

The focus of OPM's instant proposed rule-making is on efficiency of the civil service.  OPM has been authorized by Congressional statute to prescribe rules for agencies to take action "against an employee only for such cause as will promote the efficiency of the service."  5 U.S.C.A. § 7513(a).  OPM acknowledges that this is the source of what OPM calls "[m]odern adverse action procedures for most Federal employees[.]"  See 90 FR at 17199.

In addition, agencies have been authorized by Congress to "reduce in grade or remove an employee for unacceptable performance," subject to the provisions of Section 4303,  5 U.S.C.A. § 4303(a), which of course include its remaining subsections, id., § 4303(b)-(d).

But the rules which Congress has authorized OPM to prescribe must include notice and opportunity to be heard, standard Constitutional protections of Due Process, prescribed by Congress.  See, e.g., 5 U.S.C.A. § 7513(b)-(e); 5 U.S.C.A. § 4303(b)-(d).

OPM's proposed rule-making does not afford Due Process protections of any kind.  OPM does not follow either Section 7513 or Section 4303 in this regard.  To the contrary, a clear result of finalizing OPM's Proposed Rule would be to circumvent the Due Process protections enacted by Congress in those Sections of the United States Code.

OPM's proposed rule-making does not offer any substitute for the Due Process protections afforded by Section 4303 or by Section 7513.  To the contrary, in this Proposed Rule OPM would remove or eliminate those protections for the thousands of workers that would be covered by this rule-making should it be finalized.

For these reasons, whether they are taken separately or together, OPM's proposed rule should not be finalized and, if finalized, it should instead be rewritten or totally withdrawn, but if it is not rewritten or withdrawn, it should be declared arbitrary and capricious by every reviewing court and its enforcement should be enjoined.

OPM's instant rule-making is arbitrary and capricious for at least two reasons as a result:  (1)  failure to offer an alternative and (2) failure to tailor rules to address the narrowest possible focus without adversely affecting employee rights.

As noted, OPM's rule-making does not provide any substitutes of any kind for the notice and opportunity to be heard, i.e., Due Process, provisions extended by Congress to federal workers.  See, e.g., 5 U.S.C.A. § 4303(b)-(d); 5 U.S.C.A. § 7513(b)-(e).  This failure alone dooms the proposed rule-making.  If the law is followed by OPM, then this proposed rule-making should not be finalized.  If for some reason this proposed OPM rule-making is made final, the reviewing courts must declare it invalid and unauthorized.

Second, OPM's proposed rule-making for the same reasons does not address the narrowest possible focus of the concerns OPM expresses in it, without adversely affecting employee rights by its proposed rule-making.  In this case, OPM ultimately states its apparently foregone conclusion that efficiency of the federal civil service can only be improved by removing the Due Process protections established by Congress.  This failure, too, dooms the proposed rule-making.  If the law is followed by OPM, then this proposed rule-making should not be finalized.  If for some reason this proposed OPM rule-making is made final, the reviewing courts must declare it invalid and unauthorized.

For all of the reasons expressed in this Comment, whether taken separately or together, OPM's proposed rule should not be finalized.  It should instead be rewritten or simply withdrawn.   If it is not rewritten or withdrawn, it should be declared arbitrary and capricious by every reviewing court and its enforcement should be enjoined.

Thank you for your consideration.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

Have your say. While there's Still Time. The Second Part.

Why don't you leave a Comment on the proposed Civil Service Rule on or before June 7?  You still have time to affect the outcome.  Go ahead, affect the outcome.

And here is a Comment I left today.  It may be different from yours.  That's okay.  Go ahead and affect the outcome in your own words with your own thoughts.

 

Agency:  Office of Personnel Management.

Docket ID:  OPM-2025-0004.

RIN 3206-AO80.

This proposed rulemaking is titled "Improving Performance, Accountability and Responsiveness in the Civil Service."  This Comment will offer some evidence, some law, and overall it will offer substantive Comment.

The stated goal of  the Office of Personnel Management's proposed rule-making here, is to promote the efficiency of the service.

Congress has already provided that remedy.  Section 7513 in Title 5 of the United States Code is titled Cause and Procedure.  In part here pertinent, Section 7513 provides in its first subsection as follows:

Under regulations prescribed by the Office of Personnel Management, an agency may take an action covered by this subchapter against an employee for such cause as will promote the efficiency of the service.

5 U.S.C.A. § 7513(a) (emphasis added).

As evidence, I respectfully submit the facts of a case that was not cited in the 43 pages of OPM's proposed rule-making, but should have been.

In O'Neill v Dep't of Housing and Urban Dev., 220 F.3d 1354 (Fed. Cir. 2000), cert. denied, 531 U.S. 1197, 121 S. Ct. 1202 (2001) the decision of the Merit Systems Protection Board (MSPB) was affirmed to remove a federal employee from the workforce of the Department of Housing and Urban Development at the time.  The Federal Circuit upheld the MSPB's decision to remove the employee after reviewing the record.   The U.S. Supreme Court thereafter denied certiorari.

The Circuit Court pointed out that the Administrative Law Judge (ALJ) in the case invoked the principle which, then and now, provides that an employee's disrespect toward her supervisors seriously interfered with HUD's fulfillment of its mission.

The agency built up a record which included evidence submitted to the ALJ of specific statements from the agency detailing the ways in which the particular employee's specific conduct adversely affected "the efficiency of the service," as required by Section 7513(a), supra.

There is nothing preventing an agency from meeting its burden of proof over 25 years later after this case was presented to the ALJ, decided by the MSPB, and affirmed by the Federal Circuit Court of Appeals.

And none of the facts of the O'Neill line of cases in any way supports revocation or elimination of  employee protections of adverse action procedures or appeals such as Congress provided in Section 7513.

The proposed rule-making titled "Improving Performance, Accountability and Responsiveness in the Civil Service" is legally inadequate and insufficient in the face of existing solutions to the "problem" outlined at length in it  by the Office of Personnel Management.  It should be withdrawn and, if it is not withdrawn, it should not survive judicial review because it violates at least section 706(2)A) of the Administrative  Procedure Act (APA):

The reviewing court shall--

* * *

(2) hold unlawful and set aside agency action, findings, and conclusions found to be--

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]

5 U.S.C.A. § 706(2)(A).

For all these reasons, whether taken separately or together, this proposed rule should not be finalized.  It should instead be rewritten or simply withdrawn.   If it is not rewritten or withdrawn, it should be declared arbitrary and capricious by every reviewing court and its enforcement should be enjoined.

Thank you for your consideration.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

Have your say. While there's still time.

Why don't you leave a Comment on the proposed Civil Service Rule on or before June 7?  You still have time to affect the outcome.  Go ahead, affect the outcome.

Here is a Comment I left yesterday.  It may be different from yours.  That's okay.  Go ahead and affect the outcome in your own words with your own thoughts.

Agency:  Office of Personnel Management.

Docket ID:  OPM-2025-0004.

RIN 3206-AO80.

This proposed rulemaking is titled "Improving Performance, Accountability and Responsiveness in the Civil Service," but it should not survive judicial review because it violates at least sections 706(2)A), (D), and (F) of the Administrative  Procedure Act (APA):

The reviewing court shall--

* * *

(2) hold unlawful and set aside agency action, findings, and conclusions found to be--

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

* * *

(D) without observance of procedure required by law;

* * *

or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

5 U.S.C.A. § 706(2)(A), (D) & (F).

When reviewing agency action under the "arbitrary and capricious" standard under the Administrative Procedure Act (APA), reviewing courts should not always substitute their judgment for the agency's judgment.  However, reviewing courts should always instead determine whether (1) the agency in question has actually considered the relevant data and (2) stated a satisfactory explanation for its action, including whether the agency has made a legally sufficient showing in its explanation of a rational connection between the facts found by the agency and the choice made by the agency.

In any case, the agency may not proffer "conclusory statements or unsubstantiated claims in defense of its decisions.  Yet OPM has done precisely that here."  OPM must offer more by way of evidence to support its decision than its own 'say so' in support.  "Reviewing courts are not obliged, in the name of judicial deference, to uphold agency action on the basis of purely self-serving statements."  Nat'l Treasury Ees. U. v. Horner, 654 F. Supp. 1159, 1163 (D.D.C. 1987), aff'd in part, remanded with directions, 854 F.2d 490 (D.C. Cir. 1988).

OPM's proposed rule-making here would make thousands of federal employees who currently enjoy protections from adverse actions, "at-will" employees without protection from adverse actions of their superiors who temporarily occupy the federal government.  See 90 FR at 17182, in the first paragraph of OPM's "Summary" Section:

Yet they will be at-will positions excepted from adverse action procedures or appeals.

OPM's proposed removal of protections from adverse action in federal employment is supported in this rule-making only by polls (which OPM denominates as "surveys"), anecdotes, and speculation.  It is not supported by evidence, as required.

Instead of providing evidence and a record, OPM has provided the supposed opinions of unknown, unidentified persons in the federal government who apparently have complained about how hard they find it to fire their subordinates.  After pages of polls, anecdotes, and speculation, OPM then offers its conclusion which simply does not follow from all or any of these polls, anecdotes, and speculation:

OPM now recognizes that the weight of evidence shows that chapter 43 and 75 procedures [defined by the OPM as "adverse action procedures or appeals," 90 FR 17182] make effectively addressing poor performance, misconduct, and corruption difficult.

90 FR at 17191.

It is tempting to say that if OPM supervisors find it "difficult" to address poor performance, misconduct, and corruption unless they are permitted to take away other people's protections from adverse employment actions, then they should find a job that is not so "difficult" for them.

Yet that observation is actually not snide, it seems.  It is at the heart of the defect in this attempted rule-making.

OPM is tasked with finding a way of dealing with employee discipline that is supported by the record, and is not arbitrary, capricious, or illegal but is instead rational and related to the evidence it has provided in support of its decision.

OPM has not provided evidence in support of its decision, and its decision is not rational or related to the "record," such as it is.  There is actually no legally sufficient record for this rule-making.

Further, OPM offers no proof at all that chapter 43 and 75 procedures are the cause of OPM's concerns with removing unperforming federal employees, or for that matter, that the current procedures cannot be changed or supplemented.

This is indicative of OPM's overall approach to this rule-making.  OPM has ignored alternatives at every step it has taken along the way toward its conclusion, alternatives that OPM was required to address and which OPM did not address at any point.

For all these reasons, whether taken separately or together, this proposed rule should not be finalized.  It should instead be withdrawn.   If it is not withdrawn, it should be declared arbitrary and capricious by every reviewing court and its enforcement should be enjoined.

Thank you for your consideration.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

 

Discovering Post-Litigation Materials: Part Two, the Final Part.

This is the second of two parts.  The first part was published here on Monday, June 2, 2025.

          The reason that this was not the end of the matter lies in how the Court got to this point.  The Court’s inquiry into discoverability of these materials was informed by guidance from two sources:  federal proportionality of discovery, and Colorado doctrine concerning the duty of good faith and fair dealing here.  To the Court, proportionality of discovery in federal court meant that the defendant carrier should not be required to produce information for which the defendant “claims work product or privilege protections over post-litigation claim review materials,” i.e., “those objections” which the defendant “reflected in a [future] privilege log.”[6]    Parenthetically, the Court had previously noted that up until this point, “so far as the Court can tell,” the defendant had not yet put these materials on a privilege log to support its “work product argument[.]”[7] 

          The second source informing the Court’s resolution of the policyholder’s motion to compel production of the post-litigation claims evaluation and review materials in this case, was Colorado law.  After wending its way through the thicket of Colorado cases involving the duty of good faith and fair dealing in third-party and in first-party bad faith cases (including at least one UIM case), the Court held that Colorado law would recognize a continuing duty of good faith and fair dealing in this case even after the bad-faith lawsuit was filed:

An insurer who continues to evaluate a claim is necessarily creating new discoverable documentation while the case is pending. However, unless and until Colorado law changes to relieve an insurer of its post-litigation duty of good faith, that duty must be tested through discovery. The difficulties this presents for courts should not give insurers a free pass on that discovery. Additionally, courts have many tools at their disposal to manage discovery, curtail it where necessary, and stave off discovery abuses. [Citation omitted.]   Thus, the concern over process will not deter this Court from ordering relevant and proportional discovery that will facilitate adjudication on the merits. [Citations omitted.]  Insureds are entitled to know whether their insurers continue to operate in good faith and post-litigation claim review materials are relevant to that determination.[8]

          In the end, the issue of discoverability of post-litigation claim materials reviewed and evaluated by the defendant carrier in this insurer bad faith case required the Court to resolve the tug of Federal proportionality and the pull of State law.  The Court resolved the dispute in this matter with this succinct holding:

  CONCLUSION

For these reasons it is

ORDERED that Plaintiff’s Motion (Doc. No. 24) is GRANTED to the extent Defendant does not log the communication/document on a privilege log. It is DENIED without prejudice to the extent Defendant logs it on a privilege log within 10 days of this order.[9]

An earlier version of this post was published here in September, 2024 based on the information available then.

Case law on the issues discussed in this article is collected in Volume 1 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 8:5, Claims Adjuster's Files (Thomson Reuters West Publishing Co., with 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

[6] Lynn, 748 F. Supp. 3d at 1035.

[7] Lynn, 748 F. Supp. 3d at 1032.

[8] Lynn, 748 F. Supp. 3d at 1035.

[9] Lynn, 748 F. Supp. 3d at 1035 (boldface in original).

Discovering Post-Litigation Materials: Part One.

In Lynn v. State Farm Mutual Automobile Insurance Co.,[1] a U.S. Magistrate Judge dealt with the thorny issue of discovery of post-litigation claim evaluation and review materials.

          The dispute was presented to the Court by the plaintiff-policyholder’s, Ms. Sheree Lynn’s, motion to compel.  Injured in an automobile accident, the other party’s insurance carrier paid her that policy’s bodily injury liability limits.  Ms. Lynn then claimed the underinsured motorist (UIM) benefits under how own policy with State Farm. 

          Ms. Lynn and State Farm disagreed over “the nature and extent” of Ms. Lynn’s injuries.[2]  She eventually brought the instant suit for insurer bad faith.

          “Plaintiff seeks an order requiring the production of Defendant’s post-litigation claim review materials.”[3]  Put another way, Ms. Lynn requested among other things, materials which State Farm obtained in discovery in this bad faith case.  Among the materials State Farm obtained in discovery in this bad-faith case were “over 40+ medical and employment Authorizations” from Ms. Lynn’s “’employers and medical providers,’” she told the Court.[4]   

          She was not interested so much in these discovery materials per se, as in materials reflecting State Farm’s evaluation and review of this and other information after the bad-faith litigation commenced.

          State Farm’s response to the plaintiff’s requested discovery included what the Court described as an admission “that it ‘continues to review information obtained post-suit[.]’  (Doc. No. 30 at 2-3, 5.)”  (All brackets and parentheses by the Court.)  The Court’s response was succinct insofar as establishing a right in this case to relevant, unprivileged claim evaluation material obtained and reviewed by State Farm regarding Lynn’s UIM claim after the bad-faith litigation began:

Plaintiff is entitled to know whether that review has been conducted in good faith and whether Defendant is adhering to its duty of good faith and fair dealing.[5]

That may seem to an outside observer to have ended the matter, but it didn’t.

To be continued .... An earlier version of this post was published here in September, 2024 based on the information available then.

Case law on the issues discussed in this article is collected in Volume 1 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 8:5, Claims Adjuster's Files (Thomson Reuters West Publishing Co., with 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

 

[1] Lynn v. State Farm Mut. Auto. Ins. Co., 748 F. Supp. 3d 1030 (D. Colo. 2024).

[2] Lynn, 748 F. Supp. 3d at 1031.

[3] Lynn, 748 F. Supp. 3d at 1031. 

[4] Lynn, 748 F. Supp. 3d at 1031.

[5] Lynn, 748 F. Supp. 3d at 1034-35.

Commenting: Proposed Rule "Disappears" Years Of Civil Service Protections...

Comments can be left on www.regulations.gov to June 7, 2025 about a proposed rulemaking that is intended to take away years of Civil Service Protections.

The way this proposed rule is set up, in order to leave a Comment you must also write the name of the agency involved, and the docket number or Regulation Identifier Number (RIN) for this rulemaking.

Here is an example of a Comment.  I left it earlier this morning.  Feel free to leave your own Comments; I am giving this one here only as an example.

Feel free as well to leave as many Comments as you like before the deadline.  Feel free also to leave detailed and informed Comments.  They have to read every one; they must respond to "substantive" Comments or a reviewing Court would have grounds to toss the proposed rule for that reason alone.

Here is my example:

Agency Name: Office of Personnel Mangement.
Docket ID: OPM-2025-0004.
RIN 3206-AO80.
Re: Proposed rulemaking.

This proposed rule, titled "Improving Performance, Accountability and Responsiveness in the Civil Service," does not list a legally sufficient source of authority for this proposed rulemaking.

The Summary recites merely:

"The OPM Director is generally charged with executing, administering, and enforcing the civil service rules and regulations of the President and the laws governing the civil service." 90 FR at 17183.

That is not good enough. If this proposed rulemaking were supported by reference to a SPECIFIC charge to the OPM Director, the specific reference would be cited. It was not cited. There is none.

For these reasons alone, the proposed rule is legally insufficient and must be rejected.

Before the Office of Personnel Management can lawfully exercise such powers as are embodied in this proposed rulemaking, please tell the Court that will review this matter, what is the source of authority SPECIFICALLY that authorizes the OPM to issue this particular proposed Rule?

Thank you for your attention to this matter.

I will try to link to the entire proposed rule here.  It takes up 43 pages in the Federal Register:  https://www.regulations.gov/document/OPM-2025-0004-21022.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

The way this proposed rule is set up, in order to leave a Comment you must also write the name of the agency involved, and the docket number or Regulation Identifier Number (RIN) for this rulemaking.

Here is an example of a Comment.  I left it earlier this morning.  Feel free to leave your own Comments; I am giving this one here only as an example.

Feel free as well to leave as many Comments as you like before the deadline.  Feel free also to leave detailed and informed Comments.  They have to read every one; they must respond to "substantive" Comments or a reviewing Court would have grounds to toss the proposed rule for that reason alone.

Here is my example:

Agency Name: Office of Personnel Mangement.
Docket ID: OPM-2025-0004.
RIN 3206-AO80.
Re: Proposed rulemaking.

This proposed rule, titled "Improving Performance, Accountability and Responsiveness in the Civil Service," does not list a legally sufficient source of authority for this proposed rulemaking.

The Summary recites merely:

"The OPM Director is generally charged with executing, administering, and enforcing the civil service rules and regulations of the President and the laws governing the civil service." 90 FR at 17183.

That is not good enough. If this proposed rulemaking were supported by reference to a SPECIFIC charge to the OPM Director, the specific reference would be cited. It was not cited. There is none.

For these reasons alone, the proposed rule is legally insufficient and must be rejected.

Before the Office of Personnel Management can lawfully exercise such powers as are embodied in this proposed rulemaking, please tell the Court that will review this matter, what is the source of authority SPECIFICALLY that authorizes the OPM to issue this particular proposed Rule?

Thank you for your attention to this matter.

I will try to link to the entire proposed rule here.  It takes up 43 pages in the Federal Register:  https://www.regulations.gov/document/OPM-2025-0004-21022.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

THE DESPERATE DISTRACTION OF "COMPARATIVE BAD FAITH."

Research to date has not disclosed a single case of alleged insurer bad faith in settlement (or alleged insurer bad faith in anything else), in which a court held in favor of a defense of comparative bad faith.  (Florida and perhaps one other State has apparently tried to enact the defense by statute, but no reported cases have yet been found in which the statute(s) reached the courts.)

The reasons given by the courts have included (1) the nearly universal fact that an insured's breach of good faith gives rise to a contract claim against that insured; (2) various kinds of insured misconduct will void insurance coverage, in which event there would be no insurer bad faith in settlement because there would be no coverage under the policy at issue, and (3) if the insured's bad faith falls to the level of fraud, it gives rise to a lawsuit against that insured for fraud.  These are protections which the courts have generally recognized as belonging to liability insurance carriers in this country, even without a defense of so-called comparative bad faith.

Of all the decisions rejecting such a defense by carriers presumably weary not so much of their own bad-faith behavior in settlement, but of paying damages beyond policy limits, perhaps the best explanation that this defense simply does not and cannot exist is the explanation given by the Supreme Court of California in 2000 in the case of Kransco v. American Empire Surplus Lines Ins. Co.[1]:

          We observe that rejection of comparative bad faith in this context does not leave the insurer without remedies for an insured’s breach of the covenant of good faith and fair dealing. Evidence of an insured’s misconduct may factually disprove the insurer’s liability for bad faith by showing the insurer acted reasonably under the circumstances.  [Citations omitted.]   The insured’s breach of the covenant of good faith and fair dealing is also separately actionable as a contract claim.  [Citation omitted.]   Some forms of misconduct by an insured will void coverage altogether under the insurance policy. [Citation omitted.]  Of course, without coverage there can be no liability for bad faith on the part of the insurer. [Citation omitted.]  And, ... an insured’s fraudulent misconduct is separately actionable and can give rise to tort damages. These remedies adequately serve to protect an insurer from the insured’s misconduct without creating the logical inconsistencies and troublesome complexities of a defense of comparative bad faith.[2]

Case law on the issues discussed in this article is collected from third-party decisions in Volume 1 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 5:27.50, Comparative Bad Faith (Thomson Reuters West Publishing Co., with 2025 Supplements in process), and in Volume 2, § 11:16.50, Comparative Bad Faith, collecting first-party cases.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

[1] Kransco v. Am. Empire Surplus Lines Ins. Co., 23 Cal. 4th 390, 2 P.3d 1, 97 Cal. Rptr. 2d 151 (Cal. 2000).

[2] Kransco, 23 Cal. 4th at 408, 2 P.3d at 13-14, 97 Cal. Rptr. 2d at 164-65 (emphasis by the Court).

 

Timeliness of Third-Party Bad Faith Claims, Limitations, Wasting Policies.

In Jenkins ex rel. CLJ Healthcare, LLC v. Prime Insurance Co.,[1] the Tenth Circuit Court of Appeals applied the bad faith law of Utah which, in pertinent part, matches the majority view held by courts across the United States.

          The Tenth Circuit panel dealt with bad faith claims that boiled down on appeal to two ultimate facts:

1. Prime [the liability carrier] failed to tell CLJ [the policyholder] how much coverage was available.
2. Mr. Jenkins [the injured plaintiff] demanded $100,000 in settlement, but Prime counter-offered for less without telling CLJ that it could contribute to the settlement.[2]

          As interpreted by the panel, Utah law required the entry of an excess judgment in the underlying case:

The district court concluded that the bad-faith claim would be untimely under a theory involving either contract or tort. On appeal, CLJ characterizes its bad-faith claim as a tort based on Prime's duty as a fiduciary.  So we address timeliness of the claim under a tort theory.[3]

The appellate panel concluded that the bad-faith claim was potentially timely under a tort theory, and accordingly reversed the trial court’s summary judgment for the carrier in this case.

Case law on the issues discussed in this article is collected in Volume 1 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 5:20, Statutes of Limitation (Thomson Reuters West Publishing Co., with 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

 

[1] Jenkins ex rel. CLJ Healthcare, LLC v. Prime Insurance Co., No. 23-4113, 2024 WL 4040386 (10th Cir. Sept. 4, 2024).

[2] Prime, 2024 WL 4040386, at *6. 

[3]Prime, 2024 WL 4040386, at *6.  It is worth noting that the Tenth Circuit panel in Prime was confronted with an underlying medical malpractice action against what it called “a physicians’ company,” CLJ.  The policy at issue in the case was “a wasting policy, where the amount for indemnity is reduced by the amount spent on defense costs.”  Prime, 2024 WL 4040386, at *1 (emphasis by the Court). 

THE BATTLE AT THE LIBRARY OF CONGRESS. MONDAY, MAY 12, 2025.

To rephrase a song from back in the day, 'The regime fought the law.  And the law won.'

Library of Congress.  (Library of Congress Website)

 

It was different on Monday.   It happened at the Library of  Congress.

When the regime previously tried to take over buildings, the regime was largely successful in the attempt.  In the past, they came in large numbers accompanied by large men who said that they were "U.S. Marshals," but who did not show their badges or wear uniforms or carry ID, although they may have come in masks and balaclavas, some of them.

No, it was not like that on Monday, May 12, 2025 at the Library of Congress.  The regime sent two lawyers to take over the U.S. Copyright Office.  The Copyright Office is a part of the Library of Congress and so it is housed in that building.

When what has become known as the Battle at the Library of Congress began, the two lawyers apparently relied on attempted intimidation.  Understandably, being lawyers they did not try to muscle their way in.  Rather, they announced that they had come to take over the Copyright Office and they demanded the keys.

The Librarians working at the Library of Congress refused admission to  the takeover lawyers and the Librarians declined to be taken over by the regime.  They apparently pointed out that they work for Congress, not the regime.

Then the Librarians called the cops.

Before the cops arrived, the lawyers left.  At the end of the day, Librarians were still in charge of the Library.

It is a pretty good guess that this will not be the end of the story.  In fact, it is almost certainly not the end; the regime doesn't ever seem to stop trying despite its repeated  failures.  But the Librarians will be ready for them if they come back. 

I hope that we will all be ready, when the time comes.

Things are looking brighter in general than they did in late January of 2025.  We have a long way to go.  Take the long view.

Be sure to celebrate successes along the way.  And so, remember the example set by Librarians on Monday, May 12, 2025.

What follows is an article I previously published on Substack earlier this week.  I have continued to try to find further information on this event, including on what steps if any the regime is taking to avenge their humiliation.  I have nothing new to report.  The article that follows is based on the latest -- and only -- information available, so far as I can find it.

LIBRARIANS ROCK.

When you rile up a librarian, you better watch out if you know what's good for you.

I do not know what happened after the librarians kept the regime's agents from taking over the U.S. Copyright Office.

The agents showed up on Monday, May 12, 2025  at the Library of Congress which houses the U.S. Copyright Office.  The librarians stopped them from taking it over and called the cops.  Then the agents went away.

I have looked over the whole Internet but I have not been able to find out what if anything happened since Monday (and certainly something has, we just haven't heard about it, yet).

I have asked for information on social media and here on Substack, but so far crickets.

All I know for sure is that librarians did not allow agents of the regime to take over the U.S. Copyright Office in the Library of Congress on Monday.

The reports I have read identify the two agents of the regime as "Department of Justice officials."  Are you kidding me?  Do you not know who runs the Department of Justice now?  It's not the same Department of Justice that your mothers and fathers grew up with, you know.

Some reports have also mentioned Shira Perlmutter, the Director of the Copyright Office and Carla Hayden, the Librarian of Congress.  The reports had it that both were "fired" by the head of the regime.  I call BS.

I call BS because the head of the regime did not fire either person.  He could only say that he fired them; he never had the actual power.  Don't give it to him.

Relish instead the only facts we truly have, and they are good to know:  Librarians turned away agents of the regime when they tried to take over.

We need more librarians.  Or, at least we need more of the courage that inspired librarians displayed at the Library of Congress in Washington, D.C. on Monday.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including  Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

Waiver in Insurer Bad Faith Cases.

In Yogeshwar, Inc. v. Society Ins., 739 F. Supp. 3d 714, 727 (N.D. Iowa 2024), applying Iowa substantive law, the Court denied motions for summary judgment because of the existence of genuine issues of material fact as to the insurance carrier's waiver of a contractual limitations period.  Yogeshwar, 739 F. Supp. 3d at 729 (first-party case).

            In Bailey v. People’s Trust Ins. Co., 392 So.3d 123 (Fla. 4^th DCA 2024) (first-party insurer bad faith case),  a Florida intermediate appellate court agreed with a homeowner-policyholder’s argument that “by responding to the CRN on the merits and failing to identify any specific defect with the CRN in its response, [her insurance carrier] waived the right to contest the validity of the CRN in the bad faith action. We agree.”  Bailey, 392 So. 3d at 124.

           By deciding to respond to the Civil Remedy Notice on the merits while failing to identify a specific defect within the CRN, the homeowner’s carrier may have added icing to the cake, or in this case, to its waiver.  Under established Florida law applied in the Bailey decision, “an insurer waives its right to contest a defect in the CRN if it fails to identify the specific defect in its response to the CRN.”  Bailey, 392 So. 3d at 124.

          The appellate court accordingly reversed the trial court’s grant of summary judgment to the carrier in this case on the issue of the CRN’s invalidity and remanded for determination of the bad faith claim.

Case law on the issues discussed in this article is collected in Volume 1 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 5:13, Waiver and Release (addressing third-party cases), and in Volume 2, § 11:14, Waiver (addressing first-party cases) (Thomson Reuters West Publishing Co., with 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

To Be A Drum Major For Justice.

https://claimsandissues.substack.com/p/say-that-i-was-a-drum-major-for-justice

An Open Letter to my Fellow Lawyers.

 

https://claimsandissues.substack.com/p/an-open-letter-to-my-fellow-lawyers

PERKINS COIE LLP v. U.S. DEP'T OF JUSTICE Memorandum Opinion, May 2, 2025.

https://claimsandissues.substack.com/p/perkins-coie-llp-v-us-dept-of-justice

Private Projects, Public Money.

https://claimsandissues.substack.com/p/the-skinny-budget-calling-names-different

Stipulated Protective Orders: Confidentiality and Proof Burdens in Insurance Cases.

In Wright v. State Farm Fire & Casualty Co.,[1] the policyholders filed two motions to seal.  Both were unopposed.  That might set you to thinking that granting the two unopposed motions would be automatic.  If you thought that, you would be wrong.

          In this case, the policyholders’ motions to seal related to “several documents cited in their briefing [that] are covered by the parties’ stipulated protective order and should therefore be filed under seal.”  The Local Rules of the Western District of Washington where this action is pending, incorporate the “strong presumption of public access to the court’s files.”   To overcome this strong presumption, “a party seeking to file a document under seal must provide ‘[a] specific statement of the applicable legal standard and the reasons for keeping a document under seal, including an explanation of’ specific factors. LCR 5(g)(3)(B).”[2] 

          In the Wright case, the policyholders, the Wrights, were of course the parties “seeking to file a document under seal,” but they only provided a statement that State Farm had designated the documents in question “confidential” under a Stipulated Protective Order.

          In the ordinary course of litigation, then, the Wrights’ motions to seal should simply have been denied because they did not provide the required specific statement in order to seal the documents.  But that is not what the Court in this case did.  Instead, this Court shifted the burden of proof entirely to the party claiming confidentiality, in this case, State Farm:

The Court does not reach the question of whether the presumption of public access has been overcome here. The Wrights seek to file the documents at issue under seal because State Farm “has designated [them] as confidential during discovery.” See LCR 5(g)(1)(A). Thus, to the extent State Farm wishes to maintain the confidentiality of these documents, it bears the burden of satisfying LCR 5(g)(3)(B).[3]

           It appears to be a rule in the process of being established, if it is not in fact already an established rule in insurance and non-insurance cases alike, that the party actually seeking confidentiality in a given case is the party that bears the burden of proof on the confidentiality issue:

While Plaintiff technically constitutes the moving party for this Motion, where “a party moves to file material under seal because another party has designated that material as confidential, the party designating the material as confidential must file a response to the motion complying with requirements [around providing statements why sealing is necessary and references to the governing case law].” E.D. Va. Civ. R. 5(C). In light of Defendant’s designation of the relevant materials, and in accordance with Local Civil Rule 5, the Court finds that Defendant constitutes “the party seeking to restrict access” and therefore bears the burden to overcome the First Amendment right of access in this case. Va. Dep’t of State Police [v. Wash. Post, 386 F.3d 567] at 575 [(4^th Cir. 2004)].[4]

This was exactly the approach taken by the Federal Trade Commission in recent litigation, such as in Federal Trade Commission v. Amazon.com Inc. in the Western District of Washington,[5] discussed in DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:107.50 and which of course is the same Court as the Court in which the Wright decision was issued, and such as in Federal Trade Commission v. U.S. Anesthesia Partners., Inc.[6]

 

[1] Wright v. State Farm Fire & Cas. Co., No. 2:23-cv-179, 2024 WL 4979849 (W.D. Wash. Dec. 4, 2024).

[2] Wright, 2024 WL 4979849, at *4. 

[3] Wright, 2024 WL 4979849, at *4 (emphasis added).  

[4] Mission 1^st Grp., Inc. v. Mission First Solutions, LLC, No. 1:23cv1682 (DJN), 2025 WL 864278, at *2 n.2 (E.D. Va. March 19, 2025).

[5] Fed. Trade Comm’n v. Amazon.com Inc., (W.D. Wash. No. 2:23-cv-01495-JHC).

[6] Fed. Trade Comm’n v. U.S. Anesthesia Ptrs., Inc. (S.D. Tex. No. 4:23-cv-03560).  The FTC v. U.S. Anesthesia Partnes case is discussed at greater length in Volume 2, id., §§ 9:28.50 and 9.30.

Case law on the issues discussed in this article is collected in Volume 1 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:107.50, and in Volume 2 in §§ 9:28 & 9:30 (Thomson Reuters West Publishing Co., with 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

Perkins Coie v. U.S. Dep't of Justice, Memorandum Opinion, May 2, 2025

Perkins Coie Memorandum Opinion May 2, 2025.  (Author Photo)

"No American President has ever before issued executive orders like the one at issue in this lawsuit," thus beginning the first sentence of an opinion that spans 102 pages.  Most of the 102 pages of this opinion consists of the regime's arguments and contentions.

      As you might expect, there is a lot in this opinion.  Together, we will explore the most significant of many significant issues as the week goes on starting Monday.  I wanted to get the opinion to you as soon as I could today, and not just showing it to you, then telling you to read it for yourself and leaving without any suggestions to hopefully contribute to your own reading of it.  Download Perkins Coie LLP v. U.S. Dept of Justice Memo. Opinion Doc. 185 filed May 2 2025 (D.D.C. No. 25.716.(BAH)).

      A good place to start I think is how the regime responded to this lawsuit.  They responded pretty much the same way they do everything, which is by blaming other people.  For example, in this case Perkins Coie alleged several different First Amendment Free Speech claims; the regime had issued an executive order requiring all agencies of the federal government basically to shun any dealings with Perkins Coie  --including to bar its lawyers from access to federal buildings, which naturally includes federal courthouses--because of the firm's representation of the regime's political opponents.

      The Court rejected the regime's approach.  (The Court refers throughout this opinion to "the government," meaning the regime.)  "The government's attempt to reframe this case as about governmental speech is subterfuge."  (Memorandum Opinion at p. 35.)

      "The claims that the government seeks to dismiss in this lawsuit challenge the use of governmental power, not governmental speech."  (Id., p. 35.)  "Put another way, plaintiff [Perkins Coie LLP] does not challenge 'what the current Administration thinks about Plaintiff,' Gov't's Mem. at 13, but rather what the current Administration seeks to do to plaintiff based on that thinking."  (Id., p. 36) (emphasis by the Court.)

      As you likely already know, the Court denied the regime's motion to dismiss and granted Perkins Coie's motion for summary judgment for "declaratory and permanent injunctive relief on Counts II through IX of the Amended Complaint."  (Id., p. 102.)

To be continued ....

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

"When Your Enemies Know What Your Friends Can't Believe."

https://claimsandissues.substack.com/p/when-your-enemies-know-what-your

A NATIONAL LAW DAY REPORT: STIPULATING SECRECY OVER "ADMINISTRATIVE ERROR."

Kilmar Armando Abrego Garcia is the person who was kidnapped in a parking lot in Maryland and spirited off to El Salvador.  There he continues to stay in a prison run by the Salvadoran regime and paid for by the current U.S. regime with your taxes.  Right or wrong, Abrego Garcia's continued stay in El Salvador's most notorious prison is paid for by your tax money.

The U.S. regime says that it was an "administrative error" that led to Mr. Abrego Garcia's being shuffled off to the one place to which he could not be deported, namely El Salvador.  A federal immigration judge had previously entered an order that Abrego Garcia should not be sent to El Salvador because his life is in danger there.

In El Salvador he stays, to this day.

There is now a Stipulated Secrecy Order in that case.  It was entered on April 21, 2025.  Download Abrego Garcia v. Noem Stipulated Protective Order Doc. No. 95 filed April 21 2025 (D. Md. Case No. 8.25.cv.00951.PX).

Time will tell how much, if anything, is made available to public access to the Court file.  Why was he sent to El Salvador?  Who made that decision?  Why is he still there?

To say again, time will tell how much and whether anything will be made available to the public as this federal case proceeds in federal Court, which is also paid for by your taxes.

General questions of public access to Court files are examined in the context of secrecy in Settlements in Bad Faith Cases in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:107 (Thomson Reuters West 3d Edition, 2025 Supplements in process) (regarding Third-Party cases) and in 2 id. § 9:28 (regarding First-Party cases).  Particular issues of secrecy relating to Insurer Bad Faith cases are discussed in Volume 1, id., §§ 3:107.50-3:107.100 (addressing Third-Party Bad Faith litigation) and in Volume 2, id., §§ 9:28.50-9:28.100 (concerning First-Party Bad Faith lawsuits).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

Duty to Indemnify Distinct From Duty to Defend, Coverage Distorted.

In a case involving New York law, the Supreme Court of Delaware highlighted a distinction between the duty to indemnify and the duty to defend that is recognized in most if not all jurisdictions as to a liability carrier's duties to its insureds:

          Although the Insurers' fraud defense required them to prove that Conduent manufactured indemnity coverage through the settlement, the Insurers left the impression at trial that they had no coverage obligations at all.....  The Insurers' duty-to-defend issues and coverage position pre-Settlement had little if anything to do with whether Conduent fraudulently settled the State Action to secure indemnity coverage.  By probing these issues [at trial], the Insurers caused confusion between indemnity coverage and the duty to defend.

AIG Spec. Ins. Co. v. Conduent State Healthcare, LLC, ___ A.3d ___, 2025 WL 369450, at *8 (Del. Feb. 3, 2025)/

Case law on the issues discussed in this post is collected in Volume 1 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:52 (Thomson Reuters West Publishing Co., with 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

OFF WITH THEIR HEADS!

Or, how dare they question the regime?

Administrative Stay Order.  (Author Photo)

When the regime refused to turn the planes around and return the people it had abducted to a notorious prison in El Salvador, Judge James Boasberg held a Hearing on whether the regime should be held in Contempt of Court.

After the Hearing was over, Judge Boasberg wrote down all the evidence.  He also wrote down all the reasons why he found Probable Cause to hold the regime in Contempt based on all that evidence.  His Order is 46 pages long. He does not seem to have overlooked anything.  Download JGG v. Donald J. Trump Contempt Findings . Memorandum Opinion filed 04.16.25 (D.C.D.C. No. 25-766 (JEB)) 

The regime filed an appeal, of course.

Look at this appeal like an appellate lawyer would, and early on you would find out who your judges are.  Then you would find out all you could about them.

The regime not only filed what they call an emergency appeal, they also filed what they called an emergency motion to stay (or stop) the Contempt proceedings in Judge Boasberg's Court.  (Everything is an emergency with these people.  They don't dare give you time to think.)

Under the D.C. Circuit Court rules, the emergency motion was referred to a special panel to decide it.  The D.C. Circuit rules provide that the special panel can stay with the case and decide it too,  although that would be unusual.

There were three judges on the special panel in this case, which is usual.  Two of the judges voted for an administrative stay, and one did not.  As the two judges stated in their Administrative Stay Order in this case, in the D.C. Circuit Court the purpose of an administrative stay "is to give the court sufficient opportunity to consider the emergency motion[.]"  

The two judges who voted for a stay  are GREGORY KATSAS and NAOMI RAO.

Judge Katsas practiced law at Jones Day.  He moved over to the job of Deputy White House Counsel alongside Don McGahn, who also came from Jones Day.  David Enrich, who wrote a book about Jones Day, wrote that when Gregory Katsas left Jones Day for his new job at the White House in the first round of the regime, that "Greg Katsas received a bonus -- 'at the discretion of the managing partner,' as he explained in a government filing -- that brought his compensation to nearly $4 million for the year."[1] 

Naomi Rao is well-known to everyone who follows the rulings that sometimes come out of her pen when she can get another vote on the D.C. Circuit to make her ruling the Opinion of the Court.  Many of her dissents are just as well-known.

Both Judge Katsas and Judge Rao were nominated by the same man who is the current first-named appellant, the present head of the regime and the co-president (no, not Elon Musk, the other one).

The third judge on the special panel in this case, the judge who did not vote to grant an administrative stay in this case, is CORNELIA "NINA"  PILLARD.  Judge Pillard was nominated by President Obama.  The special panel's Administrative Stay Order reveals that she dissented because she did not think it was proper; in fact, she thought "there is no ground for an administrative stay."

Knowing what you know now, suppose that right now you are sitting with the lawyers representing JGG and the other people who were abducted to El Salvador.  In this case, your lawyers are effectively representing the Judge who found Probable Cause to hold the regime and its leader in contempt of Court.

Suppose further that all you know about your judges on appeal is what I have told you here.  (I guarantee that this is enough to know for purposes of evaluating how they might rule and what arguments to craft that might work best, if at all, which good appellate lawyers have to do in every appeal.)

Do you think that you have a 100% chance of winning this appeal?  OK, probably not.  How about 50-50?  25%?  Lower %?

You make the call.  But wait!  Before you make the call, wait to see if the special panel sticks around to decide the whole case.  If that happens, unusual though it might be, it will likely predict the outcome right then and there.

My call is that the special panel will decide the whole case.  I also predict that Judge Katasa and Judge Rao will go with the regime.  I would not be surprised if their opinion put the blame on Judge Boasberg and on the people who were kidnapped because, after all, Judge Boasberg had the audacity to issue rulings against the regime right there in his Courtroom and all,  and those people who were kidnapped also got in the way standing there on the street or in their homes or wherever.

Whatever their opinion says, my prediction is a 2-to-1 decision in favor of the abductions and against the 46 pages of evidence reviewed by the District Judge when he found Probable Cause to hold the regime and the regime's current leader in contempt of Court.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter.

 

[1] DAVID ENRICH. "SERVANTS OF THE DAMNED / Giant Law Firms, Donald Trump, and the Corruption of Justice," p. 242.  I previously referred to Jones Day and Mr. Enrich's book in an article posted here on Good Friday, April 18, 2025.