Claims and Bad Faith Law Blog

Claims and Bad Faith Law -- Author's Note: Commercial Advertising Not Authorized.

    **Florida Insurance Bad Faith Expert - Author's Note:  If you have reached this blog through a list that carries advertising, your computer may or may not be put at risk either through the list or through the advertising.  I do not accept or authorize any commercial advertising of any kind on any list or post.  Placing commercial advertisements with or near any of my web log posts is prohibited.  Further, I do not recommend any products or services advertised with or near any of my posts or any list of my posts.** 

   

 

SAYIN' DON'T MAKE IT SO: "CONFIDENTIAL" DESIGNATIONS v. PUBLIC RIGHTS.

(Image by NASA)

The recent decision in Plexxikon Inc. v. Novartis Pharm's Corp., No. 17-cv-04405-HSG, 2020 WL 7027432 (N.D. Cal. November 30, 2020), explores what seems to be all the necessary issues that surround getting a Federal Court to seal a document in a case in the Ninth Circuit and perhaps the nation.

First, there is the question of the American public's right of access to documents filed in court cases.  If the document is part of a filing submitted to a Court when asking the Court for a ruling, then the document is presumptively accessible to the public and it cannot be sealed without a showing of "extraordinary circumstances."  Plexxikon Inc., 2020 WL 7027432, at *1.

In contrast, if the document is not part of a filing designed to elicit a dispositive ruling from the Court, i.e., if it is attached to "a non-dispositive motion," then the party seeking to seal it must instead show "good cause" to seal it.  The showing of "good cause" to seal is a "particularized showing" of specific harm or prejudice that would happen to the party seeking to seal a document if the document is not sealed.  Plexxikon Inc., 2020 WL 7027432, at *2.

In either situation, the party asking a judge to seal a document must do more than say that it is "confidential" or "highly confidential" just because a stipulated protective order allows that party to say those words.  In the view of the federal judge in this case, that is all that the party did when it asked the Court to allow it to file a second motion for summary judgment, asked the Court to seal attachments to its motion requesting leave, and also asked the Court to seal the party's objections to a Magistrate's Recommendation against sealing.  Plexxikon Inc., 2020 WL 7027432, at *2-*3.

Saying that the documents were "highly confidential" did not make them so, the Court ruled in effect.

The sealing motions were denied even applying the lower standard of "good cause" in this case.  Plexxikon Inc., 2020 WL 7027432, at *3.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

THE CASE OF THE STOLEN GIFT CARD INFORMATION.

(Photo by the author)

The case of Maritz Holdings Inc. v. Certain Underwriters at Lloyd's London, No. 4:18-CV-00825 SEP, 2020 WL 7023952 (E.D. Mo. Nov. 30, 2020), came about in this way.  Maritz allegedly experienced cyber-security breaches.  At this time of the year in particular, gift cards are on our minds.  In the Maritz case, the cyber-security breaches endured by Maritz occurred because of gift cards.

Gift card information was allegedly stolen from Maritz.  It claimed coverage under insurance policies issued by Lloyds of London.  "Underwriters issued breach-response insurance coverage to Maritz[.]"  Maritz, 2020 WL 7023952, at *1.

Underwriters filed a motion to dismiss directed to Maritz's claim that the Underwriters' refusal to pay was vexatious and so actionable under Missouri "bad-faith" or vexatious refusal statute.  (Maritz also asked the Court to treat its motion as a motion for judgment on the pleadings.  The Court said the same standard would apply to measure the motion.)  In pertinent part, Underwriters argued that the vexatious-refusal-to-pay claim brought under the Statutes of Missouri should be dismissed because a choice-of-laws provision in the insurance policy required New York law to apply here, not Missouri law.

The Court disagreed with Underwriter and agreed with Maritz in this regard, that Missouri public policy mandates that Missouri law be applied when the protection of Missouri citizens is at stake:

 Maritz argues that an insurer should not be allowed to achieve that same end via a choice-of-law provision that works to strip Missouri insureds of the protections afforded by the vexatious refusal statute. The Court agrees.

Maritz, 2020 WL 7023952, at *3.

After announcing the public policy of Missouri, the Court upheld Maritz's vexatious refusal claim and denied Underwriters' motion to dismiss. 

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

EXPERT TESTIMONY TO ROUND OUT THE MONTH:   NEUROSURGEON & BAD FAITH.

(Photo courtesy of NASA)

In Jarman v. American Family Ins. Co., No. CV-18-00526-PHX-SMB, 2020 WL 7013957 (D. Ariz. July 10, 2020), the Court held that a neurosurgeon could still testify to facts observed as a fact witness even though the plaintiff-policyholder did not designate the neurosurgeon as an Expert Witness.  Under Arizona law, this included testimony about delay and denial in an insurance carrier's authorization and thus in the policyholder's treatment that were perceived in the eyes of the neurosurgeon.  Jarman, 2020 WL 7013957, at *1.

    However, the Court did not permit the neurosurgeon to testify in this bad-faith case that the insurance carrier's allegedly unreasonable delays and denials were part of a habit or pattern that the carrier followed "routinely in other cases."  That calls for the opinion testimony of an Expert, and this witness was not designated as such so that such testimony from this witness was excluded.  Jarman, 2020 WL 7013957, at *1.

    That takes care of the bad-faith portion of the Court's rulings.  Another ruling is of interest, parenthetically.  The Court declined to allow the neurosurgeon who had not been designated as an Expert Witness to testify to an Expert opinion that the carrier caused post-traumatic stress in its handling of the plaintiff's claim.  Jarman, 2020 WL 7013957, at *2.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

HAPPY THANKSGIVING, BUT POLICY'S PRIMARY BENEFICIARY RECEIVES LIFE INSURANCE PROCEEDS.

(Desiree Rios / New York Times)

TODAY IS THANKSGIVING DAY.  REMEMBER THE NEEDIEST!

 

In D.S.S. v. Prudential Ins. Co. of Am. & Time Warner Cable, No. 3:20-CV-248-CRS, 2020 WL 6877738 (W.D. Ky. Nov. 23, 2020), a federal court turned the defendant corporations' motion to dismiss into a motion for summary judgment, and then granted them summary judgment on the claims of life insurance policy survivors.

Survivors brought suit to allege claims of breaches of contract and of fiduciary duty, bad faith, and violations of ERISA for the life insurance company's refusal to pay the survivors the proceeds of a life insurance policy taken out by the cable company on the deceased, a cable company employee.

The deceased was their mother.

There was evidence in the record, however, that the deceased had changed her beneficiary to a person who was not one of the suing survivors, in accordance with the plan and the policy.

So, in accordance with the plan and the policy, the life insurance company paid the proceeds of the policy to the primary beneficiary named on the policy.  Among other things, there was no bad faith on the part of the insurance company on this record, the judge ruled.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

CHALLENGING THE FILED RATE: THE ADMINISTRATIVE REMEDIAL APPROACH.

When a filed rate is challenged in a proceeding made available by statute to challenge the rate, it is possible to allege and even to prevail on a complaint that the filed rate is excessive and should not be charged.  There is just no filed rate doctrine in such administrative proceedings, it appears.

Even when the persons challenging the rate as excessive file their own complaint "incorrectly" but they allege enough claims to merit the attention of the agency.  See Malott v. Summerland Sanitary Dist., 55 Cal. App. 5th 1102, ___ Cal. Rptr. 3d ___ (Cal. 2d DCA, Div. 6, October 19, 2020).

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

SECRET SETTLEMENT TALKS IN FACE OF KENTUCKY BAD FAITH ALLEGATIONS.

In Rebennack v. Westchester Fire Ins. Co., ___ S.W.3d ___, Nos. 2018-CA-1494-MR &  2019-CA-0078-MR, 2020 WL 6811652, at *1-*2 (Ky. Ct. App. Nov. 20, 2020) (stated NOT FINAL), Kentucky's Court of Appeals kept any mention of settlement talks in the appellate briefs a secret.

Despite the fact that there were allegations of underlying bad faith failure to settle.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

"GOOD FAITH BELIEF" IN A STIPULATED PROTECTIVE ORDER: WHOSE BELIEF?

Stipulated protective orders pretty universally require a "good faith belief" that the materials being marked "Confidential" are, in fact, worthy of being marked Confidential.  But whose good faith belief are we talking about?

(Photo by Peter Dejong/AP)

In some cases, this apparently means a good faith belief by the lawyers who marked the thing "confidential" in the first place.  See, e.g., Davey's Locker Sportfishing, Inc. v. Amco Ins. Co., No. 8:20-cv-01424 JVS (JDEx), 2020 WL 66818548, at *1, GOOD CAUSE STATEMENT (C.D. Cal. Nov. 12, 2020) (Stipulated Protective Order signed by USMJ; boldface in original).

In other cases, this expressly constitutes "a representation by the party or nonparty and its counsel that they believe in good faith" that the material designated "confidential" is, in fact, confidential.  See, e.g., Mullins v. Humana Health Plan, Inc., No. 4:20-cv-00192-CDL, 2020 WL 6706364, at *1, ¶ 3 (M.D. Ga. Nov. 13, 2020) (Definition of Confidential Material in Stipulated Protective Order signed by U.S. District Judge; italics in original).

In still other cases, the last remaining alternative is written in the Stipulated Protective Order and the requisite "good faith" belief comes from "the producing party[.]"  Multicare Health Sys. v. National Fire & Marine Ins. Co., No. C20-5559 TSZ, 2020 WL 6700924, at *1, ¶ 2 (W.D. Wash. Nov. 13, 2020) ("'CONFIDENTIAL' MATERIAL" paragraph in Stipulated Protective Order signed by U.S. District Judge; all caps in original).

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

WHEN A COVERAGE DEFENSE 'RESIDENCE' IS FAIRLY DEBATABLE.

The short answer is:  when it is a complicated endeavor.

(Image courtesy of NASA)

In Bloxham v. Allstate Ins. Co., No. 3:19-CV-004812020, WL 6710427 (M.D. Pa. Nov. 16, 2020) (Mehalchick, USMJ), a homeowner's insurance carrier denied coverage for a fire loss.  The carrier's coverage denial was premised on two related grounds:  that the claimant did not "reside" on the covered property and that there were "material misrepresentations" that he did.

The carrier's motion for summary judgment was denied including on a statutory claim of insurer bad faith.  The Court's announced reason after reviewing all the evidence on the question of the insured's "residence" in that particular case was this:  "Defining and determining the term 'reside' is a complicated endeavor."  Bloxham, 2020 WL 6710427, at *8.

The Court did not say so in this case but clearly it came to the conclusion after reviewing all the evidence that this coverage question was fairly or reasonably debatable.

That is the real reason that the carrier's motion for summary judgment based on that coverage question was denied.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

Business Interruption (BI) and COVID-19.

Like the people of the United States, not every virus exclusion looks alike.

        (Image courtesy New York Public Library Digital Collections)    

    Read your clients' policies before you decide whether and how to argue for or against insurance coverage for the pandemic.  See, e.g., Covid Coverage Litigation Tracker Blog News posted October 27, 2020,

"Not All Virus Exclusions Are Equal."

   

 

 

(Brennan Linsley /Associated Press)

    On a related note, read the cases to find the law, not just the headnotes.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

COMMENTS ON FEDERAL INFORMATION COLLECTION NOTICE DUE TOMORROW.

The organization that is still in control of the federal government proposes to collect information on "Federal and Non-Federal Financial Assistance Instruments" through the Forest Service.  The deadline for Comments on this proposal is tomorrow, Friday, November 13, 2020.  Now is the time to make your voice heard once again.

Feel free to use all or part of the Comments I left today, which are published below for your ease of reference.  Thank you for being a citizen.

Agency: FOREST SERVICE (FS)
Document Type: Notice
Title: Agency Information Collection Activities; Proposals, Submissions, and Approvals:: Federal and Non-Federal Financial Assistance Instruments
Document ID: FS_FRDOC_0001-3384

Document No.:  2020-20195.

Comment:

BECAUSE THE NOTICE IS UNSUPPORTED BY FACTS, IT IS IN VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT AND CANNOT BE IMPLEMENTED IN ACCORDANCE WITH LAW.

The Notice contains unsupported statements that the actions described in it are authorized by Congress because they are exempted by Congress from statutes that would otherwise govern these actions: "The Forest Service issues partnership agreements under specific authorities exempt from the Federal Grants and Cooperative Agreements Act (FGCAA). This collection is for a new form that will be used to enter into [certain] agreement[s.]"

   The Notice further contains this advisory: "In addition to Federal Financial Assistance (FFA), Congress created specific authorizations for acts outside the scope of the FGCAA. Appropriations language was developed to convey authority for the Forest Service to enter into relationships that are outside the scope of the FGCAA. The Forest Service implements these authorizations using instruments such as collection agreements, FGCAA exempted agreements, memorandums of understanding, and other agreements which mutually benefit participating parties. These instruments fall outside the scope of the Federal Acquisition Regulations (FAR) and often require financial plans and statements of work."

THE NOTICE FAILS TO SUFFICIENTLY IDENTIFY THE AUTHORITY OR LEGAL BASIS FOR IT. FOR THAT ADDITIONAL REASON, IT IS CONTRARY TO LAW AND CANNOT LAWFULLY BE IMPLEMENTED.

The exemptions are unidentified in this Notice except by reference generally to " the Federal Grants and Cooperative Agreements Act" and to "Federal Financial Assistance." "Authorization" to expend federal funds and enter into agreements is not specified. For these reasons, this Notice merits further attention.

    Background Information: This particular Notice is unusual in that it does not identify the specific statutory provisions on which it is based. The Federal Grants and Cooperative Agreements Act is codified at 31 USCA § 6301 et seq. The federal government has provided a description of its operation at https://www.grants.gov/learn-grants/grant-policies/federal-grant-cooperative-agreement-act-1977.html.

CONCLUSION

For all of the above reasons, whether taken separately or together, the proposed Notice is unauthorized and contrary to law. Therefore it cannot lawfully be implemented. Thank you for your consideration of these Comments.

Please read the disclaimer.  This blog article ©2020 Dennis J. Wall; permission is freely given to leave Comments in response to this proposed federal Notice on regulations.gov, that may contain material from this article.  All other rights reserved.

MICHIGAN PENALTY INTEREST BEGINS WITH "SATISFACTORY PROOF OF LOSS."

Michigan provides for statutory "penalty interest" on delayed payment of claims.  However, the Michigan penalty-interest statute requires "satisfactory proof of loss," or penalty interest is not available.

    "This case cannot be resolved on summary judgment. Resolution of the case depends on when defendant received 'satisfactory proof of loss,' Mich. Comp. Laws § 500.2006(4), and this issue is disputed. Notably, the statute requires 'satisfactory proof,' not any proof, some proof, or partial proof."  Johnson Law, PLC v. Sentinel Ins. Co., No. 19-CV-11786, 2020 WL 6585540, at *2 (E.D. Mich. Nov. 10, 2020).

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

VOLUNTARY PAYMENT NO DEFENSE TO EXCESS CARRIER'S BAD-FAITH CLAIM.

(Image by Thomson Reuters West)

In Metropolitan Prop. & Cas. Ins. Co. v. GEICO Gen. Ins. Co., 186 A.D.3d 1513, 130 N.Y.S.3d 847 (N.Y. App. Div., 2d Dep't, N.Y. 2020), it was held that "voluntary payment" was not a defense available to a primary carrier against an excess carrier's claim of insurer bad faith.

    As explained by the court in this case, the voluntary payment defense at common law is an affirmative defense in an action for the recovery of money which was voluntarily paid with full knowledge of the facts, in basic terms.

    In this case, the appellate court carefully explained that the voluntary payment doctrine has no place:

   Applying the common-law voluntary payment doctrine so as to bar actions alleging bad faith would allow primary insurance companies to benefit from their own bad conduct. Here, MetLife alleged that GEICO acted in bad faith by failing to timely notify MetLife of the underlying personal injury action commenced against their mutual insured, Colvin, by failing to timely apprise MetLife of developments in the underlying personal injury action, by failing to apprise MetLife that GEICO's tender of its policy limit to Gomez in the underlying personal injury action had been rejected, and by failing to adequately and properly defend Colvin in the underlying personal injury action. Moreover, in support of its motion, GEICO submitted copies of numerous emails and letters from MetLife's counsel and claims representative to GEICO requesting documents in order for MetLife to adequately assess Gomez's claim after being informed of the underlying personal injury action by Gomez's counsel and receiving a request from Gomez's counsel that MetLife tender its policy, as well as a copy of MetLife's reservation of rights letter issued to GEICO with respect to the settlement of the underlying personal injury action. As a result, we conclude that the voluntary payment doctrine does not apply in this action alleging bad faith.

Metropolitan Property & Casualty, 186 A.D.3d at ___, 130 N.Y.S.3d at ___ (page numbers not available at time of publication).

The voluntary payment doctrine is explored in the context of lender force-placed insurance practices in § 11:25, 2 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith (3d ed. and 2020 Supps. Thomson Reuters West).  Actions by Excess Carriers and Defenses of Primary Carriers are the specific focus of §§ 7:7 - 7:18, inclusive, in Volume 1, id.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved. 

"REASONABLY DEBATABLE" COVERAGE QUESTION DECIDED IN FAVOR OF GOOD FAITH.

(Gridview_imagefull / Florida Department of Agriculture and Consumer Services)

Chicago Title issued a title insurance policy to the appellants in the case of Jericho State Capital Corp. of Fla. v. Chicago Title Ins. Co., ___ S.C. ___, 848 S.E.2d 572 (S.C. Ct. App. 2020).  The policyholders-appellants contended that the title insurance policy should have provided coverage to a claim based on an ordinance that the appellate panel described as "unusual."

    Although the underlying claim based on the ordinance was not clearly excluded from coverage under the title insurance policy at bar, the South Carolina Court of Appeals had little trouble holding that the claim was not excluded but covered. 

    After the South Carolina appellate court held that the coverage question was a close one, the appellate panel affirmed the entry of summary judgment in favor of the carrier on the policyholders'-appellants' bad-faith claim.  The latter holding was in line with the majority view of courts in the United States that the closeness of the coverage question prevented the viability of a bad faith claim against the title insurance carrier:

    Appellants’  bad faith cause of action fails because they did not demonstrate Chicago Title acted unreasonably in denying Appellants’ claims.  [Citation omitted.]  The unusual nature of the Ordinance presented close policy interpretation issues. Chicago Title had a reasonable basis for denying the claims, and we affirm summary judgment to them as to this issue.

Jericho State Capital, ___ S.C. at ___, 848 S.E.2d at ___ (at headnote 20; page numbers not available at the time of publication of this article).

      The appellate panel mentioned at the end of its opinion that it took no position on the policyholders'-appellants' apparently separate claim based on alleged breach of the implied covenant of good faith and fair dealing.  This was the first time that the panel mentioned the existence of such a claim, but the panel did not treat it except to say that the entry of summary judgment in favor of the carrier on that claim, too, had not been appealed and so was not before the court on appeal.

Fairly or Reasonably Debatable Claims are discussed collectively as a defense of Good Faith to claims of Insurer Bad Faith in 2 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith § 11:17 (3d ed. and 2020 Supps. Thomson Reuters West).

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved. 

POSTSCRIPT TO JURISDICTION.

(Sun Sentinel photograph)

In a postscript to yesterday's article on Jurisdiction, we now have further reports that clarify some of the earlier confusing reporting.  Apparently three lawsuits have been filed by the losing candidate's campaign so far, as previously reported.

           Two of those lawsuits were filed in State Court, not Federal Court, however.  One was filed in Georgia and the other was filed in Michigan.  Both have already been rejected by State Court Judges.

           The third and remaining lawsuit at this time was filed in Federal Court in Pennsylvania.  The announced purpose was to stop the counting of votes already cast.  The Federal Judge presiding over that case rejected that one, as well.  No word yet on the Federal Court's claim to jurisdiction, if any, over State Election Law.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

ARE PLAINTIFFS IN ELECTION CASES DEMANDING FEDERAL ACTIVISM, PREEMPTIVE JURISDICTION?

This article arises from the same common nucleus of operative facts, so to speak, out of which an earlier article published today also arises.

Recently filed elections cases have also caused me to wonder about Federal jurisdiction.

Are the plaintiffs in these elections cases asking Federal Judges to be activists and preempt the jurisdiction of State Courts over State Election Laws?  That seems to be the gist of the lawsuits I have seen reported to date.

There was a lawsuit filed in U.S. District Court in Texas, in which the same person or group of people reportedly filed the same lawsuit they had already lost in the Texas Supreme Court.  Each time the lawsuit challenged the legality of drive-through voting in Harris County (Houston).

Isn't the issue of legality of drive-through voting a matter for the Texas State Courts to decide?

Parenthetically, I understand that the same person or group of people who lost their case in the Texas Supreme Court also lost their case in the U.S. District Court and then they lost again in the Federal Appellate Court.

Different people have filed their own lawsuits which are basically one lawsuit as well, but these people have filed in different States, all in Federal Court.  They have so far filed their lawsuit in Georgia, Pennsylvania, and Wisconsin.

The same losing candidate's campaign organization has reportedly filed three times, once in each of three Federal Courts.  It is confusing.  Apparently two of these same lawsuits were filed to stop counting votes and the third was filed for a re-count.

Isn't the issue of applying State Election Law an issue for State Court Judges to decide? 

I am going to look into the jurisdictional basis if any for asking Federal Courts to preemptively and actively exercise jurisdiction so as to impose their own views of local Election Law in these States.  As I wrote today in the earlier article also arising out of these developments, let's all of us keep an eye on the lawsuits being filed, and on who files them and who pays for them.

Assessing "bad faith" attorney's fees and sanctions, along with many situations requiring good faith and fair dealing, are discussed in § 2:7 in 1 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith (3d ed. and 2020 Supps. Thomson Reuters West).  Attorney's fees awarded in a variety of cases are the subject of §§ 13:12 -13:14 in Volume 2, id.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

"BAD FAITH" ATTORNEY'S FEES EXPOSURE: LITIGIOUS PLAINTIFFS IN ELECTION CASES?

(Photograph Brennan Linsley / Associated Press)

Recently filed litigation has caused me to wonder about "bad faith" attorney's fees liability.  First, let me describe the lawsuits that have caused the wondering.

In Texas, the same person or group of people reportedly filed the same lawsuit more than once challenging the legality of drive-through voting in Harris County (Houston).  They filed in Texas State Court to begin with, ultimately losing at every level all the way to the Supreme Court of Texas, according to the confusing reporting.  Then they filed in a U.S. District Court in Texas and they lost there.  Then they filed an appeal to the Fifth Circuit Court of Appeals.  My understanding is that they lost again there.

Other people have also filed their own "one-note" lawsuit but in different States, all in Federal Court.  In Georgia, Pennsylvania, and Wisconsin there is a lawsuit filed in a Federal District Court in each state by the losing candidate.   The same losing candidate filed in each.  It is confusing, at least before looking more closely at each of these lawsuits, but apparently two are to stop counting votes and the third is for a re-count.  Presumably the votes have already been counted once before the recount litigation was filed, or else there could not be a "recount" yet, but as I say, the reports are confusing.

I want to temporarily put aside the question of Federal jurisdiction to adjudicate State election matters, and concentrate here on the issue of exposure to "bad faith" attorney's fees in Federal Court.

Having laid out the facts for the moment, here now is the law.  My understanding has long been that there can be exposure under Federal Rule of Civil Procedure 11, under Federal Appellate Rules and under State Court equivalents for parties and their lawyers for bad faith in litigation.

Did the defendants and their lawyers even request attorney's fees in any of these cases for having to go through a "Groundhog Day" kind of litigation?

Parenthetically, if they did not request attorney's fees, did they request some kind of sanctions for this conduct?  I am not asking why the Courts did not assess attorney's fees or sanctions; I wonder if the defendants and their lawyers even asked for them.  Why should the defendants have to bear the full burden of their attorney's fees for repeatedly having to defend the same losing propositions?

I am going to look into this exposure in more detail.  In the interim, let's all of us keep an eye on the lawsuits being filed, and on who files them and who pays for them.

Assessing "bad faith" attorney's fees and sanctions, along with many situations requiring good faith and fair dealing, are discussed in § 2:7 in 1 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith (3d ed. and 2020 Supps. Thomson Reuters West).  Attorney's fees awarded in a variety of cases are the subject of §§ 13:12 -13:14 in Volume 2, id.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

THANK YOU FOR VOTING!

Many people never got the chance we have to vote.  But without them, our votes would not be possible.  We remember them and honor them every time we vote.

Thank you for being a voter.

 

Photo courtesy of Common Ground.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

 

THANK YOU FOR BEING A VOTER TOMORROW.

(Orlando 2020.  Photo ©Dennis J. Wall.  All rights reserved.)

Tomorrow we get to exercise what many people have lived and died to protect for years in this country:  Our votes!

Thank you for being a voter.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

MORE RESOURCES, MORE VOLUNTEER OPPORTUNITIES FOR PROTECTING THE VOTE!

And now a message from the Common Ground Project in Florida:  More resources, more volunteer opportunities for protecting the vote!

(Common Ground Project)

Defend Democracy:

Poll monitors needed!

Can we count on you?

The Common Ground Project is looking for volunteers to assist in our Poll Monitoring and Election Protection Program. This is a large statewide initiative led by our coalition partners: Common Cause, State Voices, and Florida for All. The Common Ground Project is committed to ensuring that all voters have safe and accessible access to casting their ballots and having their voices heard on November 3rd. We are in need of volunteers!

Please join us for this critical work to protect our election. We look forward to working with you as a leader in your community!

Please register to be a poll worker and sign up for one of the following upcoming training opportunities:

• Friday, October 30th at 6 PM
• Saturday, October 31st at 12 PM

As always, please do not hesitate to reach out if you have any questions!

Regards,

Lisa Perry

REGISTER

‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ 

Please read the disclaimer.  This blog article ©2020 Dennis J. Wall.  All rights reserved.

Tenants in Florida Disasters: How Do They Get Through?

(Image courtesy of NASA)

How Disasters Affect Residential Tenants and Mobile Home Tenants in Florida.  View this informative and useful Powerpoint presentation by Tom DiFiore, Housing Unit Leader at Bay Area Legal Services who is justifiably recognized as an expert in the field.

Download Candles in the Wind The Impacted Residential and Mobile Home Tenant

Please read the disclaimer.  This blog article ©2020 Dennis J. Wall.  All rights reserved.

 

TRUST THE VOTE.

And now, a message from Election Protection.  Trust the Vote.

We care about the integrity of our elections and love when election officials quickly fix errors. Some politicians use these errors to make us feel that our votes won’t count. Do not let this affect our confidence in our system or our willingness to vote. #VoteReady.

Please read the disclaimer.  This blog article ©2020 Dennis J. Wall.  All rights reserved.

AMERICAN BAR ASSOCIATION ANNOUNCES FINANCIAL INCENTIVE FOR LAWYERS ASSISTING VOTERS.

(American Bar Association)

In an email received this morning, the American Bar Association announced it is offering a financial incentive to lawyers who assist voters at this time.  Here is the ABA's announcement:

Volunteering at the polls is an important civic duty that lawyers are especially suited for given the profession's long tradition of civil service. This November, the ABA and MyCase are partnering to give ABA members who volunteer during the general election a $50 credit to ShopABA for their service. Whether you have already volunteered at your local polling place, or plan to volunteer on election day, November 3, you can earn a $50 credit towards books, webinars, CLE and other purchases in ShopABA.*

Register your service by November 6, 2020.

Please read the disclaimer.  This blog article ©2020 Dennis J. Wall.  All rights reserved.

DON'T BE AFRAID, VOTE!

(Photo by Ilene Vegazo.  Used with permission of the artist.)

MEMO TO LAWYERS:  As a lawyer, your clients look to you as a leader. When they ask you about voting, your clients are interested in how they can vote. Be a leader. Familiarize yourself with Florida's voting laws, enough at least to guide your clients on how to engage the voting process.

Which is not the same as telling your clients how they should vote! Everyone has their own opinions about that & respectfully, your clients do not think your opinions are special that way. But clients do look to you for help negotiating the process. Thank you for being a voter.

MEMO TO EVERYONE:

Early Voting began in Florida October 19. Early Voting continues through Saturday, October 31. The Election as you know is on Tuesday, November 3.

Remember to vote!

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

LENDER FORCE-PLACED INSURANCE PRACTICES IN 2016 ACTIONABLE UNDER RESPA.

(Image ©Donna M. Bruno and Dennis J. Wall)

Wilson Richard sued his mortgage lender, Finance of America Mortgage LLC (FOA), which later became his mortgage servicer and allegedly let Richard's homeowner's insurance lapse, substituting "a lender force-placed insurance policy on this [Richard's] property."

    Specifically, Richard alleged that he "was harmed by a course of conduct that resulted in the cancellation of his original homeowner's insurance and the substitution of a lender force-placed insurance policy in 2016, which provided him with less coverage at the time that he experienced property damage losses in 2016 and 2017."  Richard v. Fin. of Am. Mort., LLC, No. 3:18-CV-559, 2020 WL 6274822, at *1 (M.D. Pa. Oct. 26, 2020) (Carlson, USMJ).

    Richard sued globally so to speak, joining as defendants "his mortgagee; a mortgage servicing company; two insurance companies; and an insurance agency, seeking damages he claims he is owed for water damage to his home[.]"  Richard, 2020 WL 6274822, at *1.

    As against FOA, Richard alleged two claims:  first, that "FOA violated the Real Estate Settlement and Procedure Act (RESPA), 12 U.S.C. § 2601, et seq., and second, a claim for breach of contract."  The Court in this case joined with "the majority view" that "RESPA provides a private right of action for persons injured both by violations of the statute and its implementing regulations."  Richard, 2020 WL 6274822, at *5 (emphasis added).

    Applying the majority view of the applicable law to the undisputed facts in the record of this case, the Court rejected FOA's assertion that in giving notice in accordance with RESPA, it was insulated from "any liability under RESPA."  The Court denied FOA's motion for summary judgment accordingly, holding:

 Under RESPA, we do not deem the duty of a loan servicer to entail simply providing notice to a borrower prior obtaining force-placed insurance. The statute and its implementing regulations impose a far more fundamental duty on loan servicers like FOA— a duty to timely pay hazard insurance premiums in order to avoid a lapse in coverage and the necessity of securing inferior force-placed insurance.

    It is this fundamental duty that FOA is alleged to have violated, and it is this alleged failure to protect Richard's interests by timely paying the hazard insurance premium out of the existing escrow account balance, that forms the gravamen of Richard's RESPA claim. Viewed in this light, FOA cannot avoid liability for this greater failure on its part to make timely hazard insurance payments by simply pointing to the fact that, after it is alleged to have harmed Richard when its inaction led to the loss of hazard insurance on this property, it subsequently complied with RESPA's force-placed insurance notice requirements. Because FOA's claimed defense does not relate to, or excuse, its prior alleged RESPA violations, FOA's motion for partial summary judgment fails and will be denied.

Richard, 2020 WL 6274822, at *8.

     Lender force-placed insurance in 2016.  Duties allegedly unfulfilled under the RESPA statute and its attendant regulations.  Denial of a mortgage servicer's immunity defense based on notices that complied with RESPA.  "As we have noted," the Court said in the first sentence of its opinion, "this case presents a homeowner's nightmare scenario."

     What the Court did not emphasize was so obvious that it did not need to be emphasized:  Lender force-placed insurance practices continue today.  The gist of the Court's holding, on the other hand, was emphatic:   A mortgage servicer's claim to compliance with "the letter of the law" does not confer immunity from RESPA claims.  Providing the statutorily required notice under RESPA does not "relate to, or excuse, its prior alleged RESPA violations" of its "fundamental duty," namely, "a duty to timely pay hazard insurance premiums in order to avoid a lapse in coverage and the necessity of securing inferior force-placed insurance."  Richard, 2020 WL 6274822, at *8.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved. 

RESOURCES TO PROTECT THE VOTE THIS YEAR.

 

(Brynn Anderson / Associated Press)

Want to help protect the vote this year, but unsure of where to go or what to do?  Here is a list of contacts for places and sources that can help answer your questions.

ELECTION PROTECTION.  This is an umbrella of many different organizations that all have different pieces of election protection, such as Poll Monitors, Social Media Monitors, Legal Volunteers, and On-Call Legal Support, among others.  Telephone 1-866-OUR-VOTE or email grassroots@commoncause.org.

POSTCARDS TO VOTERS.  Just like it sounds, volunteers write postcards with messages provided by campaigns that have signed up with PTV, to addresses that are anonymous as far as names; only mailing addresses are provided.  Volunteers mail postcards on their own dime, so to speak.  For more information, visit www.postcardstovoters.org.

FLORIDA RESTORATION OF RIGHTS COALITION.  You may have heard about this group which works with registering returning citizens to vote.  To find out about their current activities, email them at info@floridarrc.com.

ADOPT A STATE - VOTE SAVE AMERICA.  This group offers ways to contact voters especially in 6 targeted States in which voters will likely affect the outcome of the Election.  Their Email Address is votesaveamerica@crooked.com.

Best of luck and use your best judgment in evaluating these groups, what they have to offer, and your place in it all.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

Voting in a Pandemic of Misinformation, i.e., Lies.

A WORD ABOUT VOTING DISINFORMATION FROM ELECTION PROTECTION:

If you see disinformation about voting in an online post or ad, do your part to stop the spread. Don’t engage, react or comment — that only means more people will see it! Do take a screenshot to submit it to ReportDisinfo.org. Then share official voting information, like your local election official or Secretary of State. Do your part to keep voters safe from disinformation! Need help voting or need to report a problem? Call or text 1-866-OUR-VOTE.

Please read the disclaimer.  Blog article ©2020 Dennis J. Wall.  All rights reserved.

VOTE, LAWYERS AND PEOPLE, VOTE!

Here for ease of reference is another article from Election Protection:

A politician is suggesting people vote twice to “test the system.” This is to create confusion and is against the law. You MUST choose 1 way to vote and should make a plan to vote now. Vote by mail is a safe, secure, and trackable way to vote. #ProtectOurVote #VeYVota #YallaVote

 

The telephone number on the image may be a little hard to read.  It is 1-866-OUR-VOTE.

Please read the disclaimer.  Blog article ©2020 Dennis J. Wall.  All rights reserved.

PARTICIPATE IN DEMOCRACY:  VOTE!

Between now and Election Day (one week from today) Claims and Bad Faith will concentrate on the upcoming Election and voting.  For starters, here is an article which we post from the Election Protection coalition:

Vote by Mail is Safe and Secure

Certain politicians want you to think vote-by-mail will lead to ballot manipulation. The truth is they don’t want people to vote-by-mail because they think it will hurt their chances at the polls. In the states that have transitioned to all mail-in ballots, there has been no evidence of a partisan advantage for either side. Having the option to vote-by-mail is critical to ensuring the health and safety of every eligible voter. Read more here: https://www.nytimes.com/2020/04/10/us/politics/vote-by-mail.html Call or text 866-OUR-VOTE for nonpartisan help if you have questions.   

Please read the disclaimer.  Blog article ©2020 Dennis J. Wall.  All rights reserved.

LIABILITY INSURER'S DUTY TO DEFEND COVID-19 CASE UNDER FLORIDA LAW.

NOT IN THIS FIRST-PARTY INSURANCE CASE OF NO COVERAGE FOR COVID-19 CLAIMS.

Under Florida law, "an insurer's duty to defend its insured against legal action depends solely on the facts alleged in the pleadings and on the legal claims alleged against the insurer [sic; should be "alleged against the  insured"]."   Mauricio Martinez, DMD, P.A. v. Allied Ins. Co. of Am., ___ F. Supp. 3d ___, No. 2:20-cv-00401-FtM-66NPM, 2020 WL 5240281, at *1 n.2 (M.D. Fla. Sept. 2, 2020).

This was actually a first-party insurance case.  However, apparently the policyholder's coverage argument occasioned a footnote in which the Court  reflected both on the propriety of defending litigation, and on the contractual duty to defend where such a duty exists.

As the Court noted in the body of its opinion, "[t]he scope of insurance coverage is defined by the language and terms of the insurance policy[.]"  Mauricio Martinez, DMD, P.A., 2020 WL 5240281, at *2.

Due to the carrier's virus exclusion in the first-party policy at issue in this case, there was no coverage for the COVID-19 claims of the policyholder.

The holdings in third-party or liability insurance cases and the judicial interpretation of insurance statutes concerning a liability insurer's duty to defend throughout the United States, are extensively discussed in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH §§ 3:51 - 3:64 (Thomson Reuters West 3d edition & 2020 Supps.).  Coverage and Policy Defenses to First-Party Insurance Coverage are addressed in id., Volume 2, throughout Chapter 11 and particularly in § 11:1.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

NO COVID COVERAGE, NO COVID CONTRACT BREACH.

(Imagefull / Florida Department of Consumer and Agricultural Services)

"Because it is not entitled to coverage under the Policy, Plaintiff cannot state a claim for breach of contract."  10E, LLC v. Travelers Indem. Co., No. 2:20-cv-04418-SVW-AS, 2020 WL 5359653, at *6 (C.D. Cal. Sept. 2, 2020).  In making this statement, a federal judge extended this rule of insurance law to COVID-19 coverage claims.

The federal judge further ruled in 10E, LLC that in the absence of coverage, the policyholder in this first-party insurance case could not state a viable claim under California's Unfair Competition Law, either.  10E, LLC, 2020 WL 5359653, at *6.

The reach and reasoning of holdings that where there is no insurance coverage, other claims are not available including claims for insurance bad faith, are addressed in 1 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith § 3:28 (third-party cases) (Thomson Reuters West 3d ed. & 2020 Supps);  and in id., Volume 2, §§ 9:1 & 9:14 (first-party cases).   

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.