Claims and Bad Faith Law Blog

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"EMBARRASSED" PORN VIEWERS, PSEUDONYMOUS PARTIES, & SEALING COURT RECORDS: WHAT'S REQUIRED.

The question of sealing the identity of defendants sued by Strike 3 Holdings, LLC is now a thing.  Strike 3 has settled with anonymous defendants in several recent cases in which the defendants are known only by their IP addresses.  The issue in all of these cases is whether the defendant can remain pseudonymous, that is, known only by the pseudonym such as "John Doe subscriber assigned IP address [fill in the blank]."

Two cases decided one day apart will illustrate the issue.  The question was presented "by way of a joint motion to seal" pursuant to Local Civil Rule 5.3 in the case of Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 108.11.13.20, No. 1:21-cv-17860-NLH-MJS, 2022 WL 2274473 (D.N.J. June 23, 2022) [hereinafter "Strike 3 v. IP address 108.11.13.20"]. (Local Rule 5.3 in the District of New Jersey merits further comment in another article, to be posted here.)   Strike 3 is described in that case as  "the purported owner of copyrights in 'adult motion pictures'[.]"  Strike 3 v. IP address 108.11.13.20, 2022 WL 2274473, at *1.

 In a case decided the day before in the Eastern District of Pennsylvania, the District Judge wrote that the same  "Strike 3 Holdings, LLC produces and distributes pornographic films."  Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 108.52.236.56, No. 21-5178, 2022 WL 2276352, at *1 (E.D. Pa. June 22, 2022) [hereinafter "Strike 3 v. IP address 108.52.236.56"].

To say again, these two cases illustrate the issue of pseudonymous defendants sued by Strike 3 for their "embarrassing" use of porn such that they settled with Strike 3 and sought to seal their identities because they would be embarrassed if they were identified to the public.

The District Court in New Jersey stated and applied the same Third Circuit law that governed the decisions and led to  the same result  in both cases.  In the New Jersey case, the parties jointly moved to seal the defendant's identity after they settled the plaintiff's claim, whereas in the Pennsylvania case the plaintiff filed the motion to seal after the parties settled.

 The reasons the parties gave for sealing court records  in the New Jersey case are typical:  The parties alleged that "present and prospective  employers" might potentially discover the defendant's involvement in the case "resulting in adverse employment consequences," irreparably tarnishing the defendant's reputation, "and financial losses."  The parties did not identify what "consequences," reputational hits, or  "financial losses" they had in mind in requesting that the defendant's identity be sealed from public view in the amended complaint, the civil cover sheet, a return of summons, and "a declaration of John Doe," the defendant.  The parties' supports were simply not enough to  make the required showing to seal even these documents.  Strike 3 v. IP address 108.11.13.20, 2022 WL 2274473, at *2.

What is required to seal any document in a  court file is specificity.  Mere recitations of embarrassment are not ordinarily enough under Third Circuit case law.  In the New Jersey case, therefore, "[t]he generality of this harm is not sufficient to overcome the presumption of access to court records."  Strike 3 v. IP address 108.11.13.20, 2022 WL 2274473, at *2.

The result in the Pennsylvania case was the same under Third Circuit case law and a similar record.  See Strike 3 v. IP address 108.52.236.56, 2022 WL 2276352, at *2 ("Potential embarrassment is not enough.").

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

Dobbs v. Jackson Women's Health Org.

 I always thought that the job of judges was to protect rights.

Until Sam Alito and his gang, I never thought that judges would take established rights away.

There is more to come, I am afraid.  See SUPREME POWER published here on May 25, 2022.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

WHEN PROPERTY CARRIERS RECOUP FROM INSUREDS WHAT THEY PAY TO MORTGAGEES.

In some cases, property carriers can recoup the amounts they paid to mortgagees from their own insureds, the mortgagors.  “Stated another way, ‘[W]hen an insurer pays a mortgagee for loss from an insured’s  arson, the property insurer is entitled to recoupment and restitution of that amount from the insured.’”  Allstate Indem. Co. v. Dixon, No. 6:14-cv-03489-MDH, 2018 WL 11427943, at *7 (W.D. Mo. March 30, 2018), aff’d with opinion, 932 F.3d 696 (8 th Cir. 2019).

When one insured’s act destructive of coverage binds its co-insureds, there is simply no insurance coverage available for damage or loss that results from the destructive act.  This principle appears broad enough to apply even in cases involving destructive acts besides setting fires.  “Where an insurer makes mortgage payments to a mortgagee on the insured’s  behalf because it is required to do so by the policy, and a determination is later made that the insured was not entitled to coverage under the policy, the insured has no right to benefit from the payment.”  Allstate v. Dixon, 2018 WL 11427943, at *8.

In this case, a jury previously found that a destructive fire was set by or at the direction of a husband.  The Court ruled under Missouri law that this act of the husband bound his co-insured wife under their Allstate property insurance policy.  Accordingly, the Court granted the carrier’s “motion to recoup the mortgage payment made to the [mortgagees by the mortgagors-insureds] in the amount of $107,526.29,” among other things.  Allstate v. Dixon, 2018 WL 11427943, at *9, aff’d, 932 F.3d at 703.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.     

DO YOU KNOW THE DIFFERENCE BETWEEN "INDEMNITY RESERVES" & "CLAIM RESERVES"?

In Luxottica of Am. Inc. v. Allianz Global Risks US Ins. Co., No. 1:20-cv-698, 2022 WL 1204870 (S.D. Ohio April 22, 2022),  what the Court identified as "indemnity reserves," the Court held to be protected work product under federal civil procedure in a third-party bad faith case.  Confused yet?  The Court itself was unsure of the exact distinction between "indemnity reserves" and "claim reserves."   Nonetheless, the Court thought itself clear enough on the concepts at issue in this case to rule that indemnity reserves such as in the case at bar designate reserves that are directly related to the carrier's exposure to its insured given the claims involved.  It was such reserves that the Court addressed when it ruled that they are protected work product under federal civil procedural rules in this third-party bad faith case.   Luxottica, 2022 WL 1204870, at *1-*2.

See also 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 8:6 Home Office Claims Files and Setting of Reserves (3d Edition West Publishing Co., 2022 Supplements forthcoming).

Please read the disclaimer.  This blog article ©2022 Dennis J. Wall.  All rights reserved.

Ocasio v. C.R. Bard: READING THE LOCAL RULES ONE YEAR LATER.

Ocasio v. C.R. Bard, Inc., No. 8:13-cv-1962-CEH-AEP, 2021 WL 2477259 (M.D. Fla. June 17, 2021) was decided on June 17, 2021.

Three were 7 lawyers of record by my count.  Four were from outside Florida.  These 4 were obviously the lead counsel and the remaining lawyers apparently served as local counsel.

The decision in this case by Judge Honeywell was to deny unopposed motions of the plaintiffs and of the defendants to seal certain deposition transcripts.  The parties jointly requested the Court to seal “53 deposition transcripts that the parties intend to play at trial.”  Ocasio, 2021 WL 2477259, at *1.

The Court denied this unopposed joint request to seal testimony for several reasons.

First, the defendants represented to the Court that sealing the entire set of 53 deposition transcripts was the narrowest method they knew of keeping proprietary information confidential.  Judge Honeywell’s answer was that “the Court finds this blanket statement to be unsupported and improbable.”  Ocasio, 2021 WL 2477259, at *2.

Next, the parties proposed to read or play the depositions “in open court and thus the matter will not be kept confidential from any member of the general public attending the trial.”    Ocasio, 2021 WL 2477259, at *2.

Third, the fact that the parties declared these transcripts to be confidential did not by itself make them confidential.  Ocasio, 2021 WL 2477259, at *2.

In short, for all these reasons the parties did not jointly show “good cause” and they did not in their unopposed motions overcome the presumption of public access to these documents.  Ocasio, 2021 WL 2477259, at *2.  But none of these reasons was the main reason for decision here.

The most important reason for denying the parties’ joint unopposed motions to seal was that they apparently did not read Middle District of Florida Local Rule 1.11(a).  Whether they read it or not, they obviously did not follow it.  If they had, they might have succeeded.  Local Rule 1.11(a), relied on by the Court as a basis for its Order, provides in full as follows:

Rule 1.11 - Filing Under Seal in a Civil Action

• PUBLIC RIGHT OF ACCESS. Because constitutional law and common law afford the public a qualified right of access to an item filed in connection with the adjudication of a claim or defense, sealing is unavailable absent a compelling justification. Sealing is not authorized by a confidentiality agreement, a protective order, a designation of confidentiality, or a stipulation.

M.D. Fla. Local Rule 1.11(a) (emphasis added).

The lesson for practitioners is pretty well summarized (if I do say so myself) in the title of my Letter to the Editor about the Ocasio v. C.R. Bard decision, published in the August 1, 2021 edition of The Florida Bar News:  Read The Local Rules.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

A COURT EXPLAINS WHY REINSURANCE WORLD IS A SPECIAL PLACE.

A federal Court applying Illinois law recently held that there is no statutory bad-faith claim against a reinsurer's agents under 215 Ill. Comp. Stat. (ILCS) 5/155 because that statute does not apply to reinsurance contracts or to reinsurers' agents.  The federal Court followed a legion of State Court decisions.  Stonegate Ins. Co. v. Fletcher Reins. Co., No. 21 CV 3523, 2021 WL 5769528, at *7-*8 (N.D. Ill. December 6, 2021).  As the Court wrote:  "Given this precedent, it is clear that Section 155 does not permit a bad faith claim to be brought against a reinsurer’s agents, such as the Defendants. In other words, Stonegate cannot bring a claim against Defendants under Section 155, because Section 155 pertains only to insurance contracts – not reinsurance contracts."  Stonegate, 2021 WL 5769528, at *8 (emphases by the Court).

See generally 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 6:11, Primary And Excess Insurers And Reinsurers:  A Working Definition of Reinsurance--The Effect of Reinsuring Agreements or Treaties (3d Edition Thomson Reuters West, 2022 Supplements in process).

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

EXCESS CARRIERS AND PRIMARY CARRIERS IN NEW JERSEY, AND BEYOND.

When a court describes the importance of excess vs. primary coverage, it is a beautiful thing to excess carriers and their coverage counsel.  In CNA Ins. Co. v. Selective Ins. Co., 354 N.J. Super. 369, 383, 807 A.2d 247, 255 (N.J. Super. Ct. App. Div. 2002), the court stated it this way:

    Whether a carrier provides true excess coverage or primary coverage with an excess “other insurance” clause is meaningful. In a true primary-excess relationship between insurance companies, the excess carrier has a reduced risk of exposure and an increased reliance on the primary carrier.  [Citation omitted.] The true excess carrier may rely on the primary carrier to act reasonably in (1) discharging its claims-handling obligations; (2) discharging its defense obligations; (3) properly disclosing and apprising the excess carrier of events which are likely to effect that carrier's coverage; and (4) safeguarding the rights and interests of the excess carrier by not placing the primary carrier's own interests above that of the excess insurer. 

CNA Insurance v. Selective Insurance, 354 N.J. Super. at 383, 807 A.2d at 255.

Please read the disclaimer.  This blog article ©2022 Dennis J. Wall.  All rights reserved.

LISTENING AS THE WITNESS TESTIFIES.

One of the things that lawyers need to do better when they take depositions is listen to what the witness has to say.

I heard Mr. Bill Stepien testify today by deposition at the Jan 6 Committee Hearing.  He testified that he told the Grievance Boy about the so-called “Red Mirage” phenomenon.  That is a mirage caused when in-person votes are counted on Election Day, and Republican (“Red”) candidates often tend to be in the lead until early voting, absentee, and mail-in ballots are counted later.  The whole counting process can takes days.  For those reasons, in 2020 Mr. Stepien counselled against declaring victory on Election Night based only on the in-person vote totals, because it was just too early.

I heard Mr. Stepien also testify in his deposition testimony that was “read” (or more accurately, seen and heard via video), that he told the Grievance Boy this in 2016 as well.  He testified several times, actually, that he had done this in 2016.  And that was only in the small portions of his deposition testimony that we could see and hear today.

So, the Grievance Boy knew in 2016 that we cannot know who won a national election until all the votes are counted, not just the in-person votes that are counted on Election Day.

I did not hear any follow-up questions or testimony, but as I say, I did not hear (or “read”) the entire deposition.  Certainly, I did not hear any mention of that testimony about Mr. Stepien’s counsel in 2016 at today’s Hearing, and I did watch the entire Hearing.

I hope there was follow-up at the deposition, and that there will be follow-up now both during the Committee’s remaining investigation and during the Department of Justice’s investigation, if any, of the January 6 Attack on the U.S. Capitol.  As I said toward the beginning, one of the things that lawyers need to do better is listen to what the witness is actually saying.  Sometimes we get so tied up in what we want to ask witnesses that we may not pay enough attention to the witnesses’ testimony.  After all, the testimony is why the lawyers and witnesses are there in the first place, whether the testimony is developed in a deposition or at trial.

In the end, it may also be true that one of the things that everyone receiving witness testimony needs to do better – not just the lawyers asking the questions -- is to listen to what the witnesses are saying.

Were you listening today, Merrick?

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

PROVIDED DEFENSE COUNSEL: LIABILITY TO THE INSURER FROM DEFENDING INSURED?

It seems that things have changed somewhat in Florida with the decision in Arch Ins. Co. v. Kubicki Draper, LLP, 318 So. 3d 1249 (Fla. 2021).  In Kubicki Draper, the Florida Supreme Court answered the following question certified to it by Florida's Fourth District Court of Appeal:

WHETHER AN INSURER HAS STANDING TO MAINTAIN A MALPRACTICE ACTION AGAINST COUNSEL HIRED TO REPRESENT THE INSURED WHERE THE INSURER HAS A DUTY TO DEFEND.

Kubicki Draper, 318 So. 3d at 1251.  The Supreme Court answered this question "in the affirmative," then quashed the Fourth District's decision and remanded.  To be clear here, the liability insurance carrier Arch was the entity that retained Kubicki Draper, LLP to defend Arch's insured.  Kubicki Draper, 318 So. 3d at 1251.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

CIVIL REMEDY NOTICE: FOCUS ON THE SPECIFICS.

In Gooden v. People's Trust Insurance Co.,[1] Florida's Fourth District Court of Appeal decided an issue of Civil Remedy Notice specificity:  The essence of Civil Remedy Notice specificity is that a Civil Remedy Notice can contain quotations of provisions of Florida's Bad Faith Statute, and provisions of Florida's version of the NAIC's Unfair Settlement Practices Act, and still meet the Bad Faith Statute's specificity requirements.[2] 

More to the point, every one of the nine statutory provisions Ms. Gooden quoted in her CRN were relevant to her Bad Faith claim against People's Trust.  Her CRN's invocation of just one of her insurance policy provisions was also relevant.  As the Fourth District panel described the CRN:

Gooden's civil remedy notice cited nine statutory provisions and a single policy provision, listing only the statutory and policy provisions relevant to his [sic] allegations.[3]

Further, Gooden's CRN explicitly stated what the carrier would need to do to cure its alleged bad faith. 

In the judgment of the Fourth District, this specificity distinguished Ms. Gooden's CRN from the CRN involved in Julien v. United Property & Casualty Co.[4]  Julien was the subject of an earlier article posted here.  The Fourth District decided both cases, Gooden and Julien.

In the judgment of the trial court, in contrast, the Gooden CRN looked like the Julien CRN and so the trial judge dismissed Gooden's statutory bad faith claim for supposed failure "to meet section 624.155's specificity requirements."  However, in Gooden,  the Fourth District had a different judgment, and so the Fourth District said, "We reverse."[5] 

 

[1] Gooden v. People's Trust Ins. Co., 336 So. 3d 331 (Fla. 4th DCA 2022).

[2] The statute's specificity requirements are set out in Fla. Stat. § 624.155(3)(b).

[3] Gooden, 336 So. 3d at 332 (emphasis added). 

[4] Julien v. United Prop. & Cas. Co., 311 So. 3d 875 (Fla. 4th DCA 2021). 

[5] Gooden, 336 So. 3d at 331.

 

Please read the disclaimer.  This blog article ©2022 Dennis J. Wall.  All rights reserved.

SUPREME POWER.

There is a theory by which some members of the U.S. Supreme Court want to exercise supreme power.  A combination of things -- inadequate legal reasoning and bad historical research --   may be why this theory has not appeared in any of the U.S. Supreme Court's majority opinions as yet.  It can only be found in citations to some long-ago concurring opinions and to a few modern dissents.

This theory is often called the Independent State Legislatures Theory, but it is broader than its name.  It posits that State Legislatures have really been "independent" of any other decider of State law issues since 1789 when the U.S. Constitution was adopted.  This theory does not account for the fact that State Legislatures could not exist unless State Constitutions provide for them.  They have no "independent" existence separate and apart from the State Constitutions that authorize them.

This theory is generally traced to a concurring opinion written by then-Chief Justice Rehnquist in Bush v. Gore, 521 U.S. 98, 121 S. Ct. 525 (2000).  The crux of Chief Justice Rehnquist's concurrence in Bush v. Gore is that the U.S. Supreme Court declared the State Legislature to be the supreme arbiter of State law in Bush v. Gore, 531 U.S. at 112, 121 S. Ct. at 534 (Rehnquist, C.J., concurring).

The Chief Justice was joined in that opinion by two other Justices, Scalia and Thomas.  They based their decision on U.S. CONST. art. II, § 1, cl. 2, which reads in full as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

It is not often noted, but this theory of "independent State Legislatures" surfaced by three Justices in Bush v. Gore was explicitly rejected by four other Justices in the same case.  In an opinion written by Justice Ginsburg, four Justices expressly rejected the legal reasoning and history offered as the bases of this theory.   Bush v. Gore, 521 U.S. at 141-43, 121 S. Ct. at 549-50 (Ginsburg, J., dissenting; joined by Justices Souter, Stevens, and Breyer).

The theory that State Legislatures are supreme arbiters of law in the States regardless of State Constitutions and State Supreme Courts surfaced again in February 2022.   That is the only date we have, so far, for what has come to be called the "draft Alito opinion" in Dobbs v. Jackson Women's Health Organization, Download Scotus-initial-draft-opinion Dobbs v. Jackson Women's Health Org. circa 02.10.22 (67 pages with 31 pages of attachments), an emerging development commented on in the two blog articles that preceded this one, the first on May 3, 2022 and the second on May 5, 2022.

Without repeating what was stated in either of those earlier articles, the draft Alito opinion in Dobbs recites:   "Our decision returns the issue of abortion to those {State] legislative bodies."  Dobbs, Alito draft opinion, at 61 (U.S. No. 19-1392) ("Alito draft opinion," date unknown as of the time of this writing; there is of course no Docket Entry Number for this document).  While the draft continues on for a few more words, the Alito draft opinion concludes the majority's holding with the following:

We therefore hold that the Constitution does not confer a right to abortion.  Roe [v. Wade, 410 U.S. 113, 93 S. Ct. 705 (1973)] and Casey [Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992)] must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.

Dobbs, Alito draft opinion, at 65 (U.S. No. 19-1392).  By referring to the people's "elected representatives," the author of the draft clearly has State Legislators in mind.

One month later, in March 2022, Justice Samuel Alito wrote another opinion.  This one was written on the shadow docket, and it was a dissent from a denial of a motion to stay the North Carolina Supreme Court's opinion holding that the North Carolina Legislature's redistricting of Congressional elections violated a number of provisions of the North Carolina Constitution.

One of those North Carolina State Constitutional provisions guarantees that  "[a]ll elections shall be free."  Harper v. Hall, 868 S.E.2d 499, at ¶ 181, p. 553 (N.C. 2022).

The North Carolina Speaker of the House, one State Representative, and a handful of State Senators appealed to the U.S. Supreme Court and requested a stay of the North Carolina Supreme Court's ruling.  Justice Alito agreed with them, calling them "the North Carolina Legislature" at one point, and was joined in his dissent by two other Justices, Gorsuch and Thomas.  Moore v. Harper, 595 U.S. ___, 142 S. Ct. 1089, 1090 (U.S. March 7, 2022) (Alito, J., dissenting from denial of requested emergency stay).  A fourth Justice, Kavanaugh, would have granted certiorari or discretionary review he wrote, but would not grant a stay.  (Within two weeks, the appellants filed a petition for certiorari review.)

To sum up these developments, at least three and possibly four or five current Justices of the U.S. Supreme Court are willing to sign on to a theory that makes them supreme in deciding which matters of State law should be decided by State Legislatures and not by State Courts or State Constitutions.

In the end, there is no end to federal overreach under this theory.  State Legislatures would have the final (or even the only) word on State law issues whenever a majority of the United States Supreme Court would say so.  On its face, this is bad reasoning, ignorant of context and a superficial review of history.  It is not a true theory, at last; it is simply a thin cover for what will result in the end in the U.S. Supreme Court's supreme power.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

WHERE FACTS, NOT SO MUCH ALLEGATIONS, DEPLOY A DEFENSE.

When facts determine a liability carrier's duty to defend, it's the allegations of fact that are relevant and not so much the allegation "labels" that a plaintiff -- or a liability carrier contesting its duty to defend -- put on them.  This is the rule that was applied under Illinois law, for example, in a case involving one of the more well-known arrangers in financial schemes:  Zurich Am. Ins. Co. v. Ocwen Fin. Co., 990 F.3d 1073, 1078 (7th Cir. 2021) (under Illinois law, duty to defend is determined by "considering whether the facts alleged describe potentially covered liability").

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

UNFAIR CLAIMS SETTLEMENT PRACTICE ACTIONABLE UNFAIR OR DECEPTIVE ACT, PRACTICE?

There is a question which many courts are addressing concerning whether and when an Unfair Claims Settlement Practice is actionable as an Unfair or Deceptive Act or Practice.

Given this judicial debate, it is worth noting when an Unfair Claim Settlement Practice Act violation has been held to be the equivalent of an Unfair or Deceptive Act or Practice for purposes of a Consumer Protection Statute.  See McGilloway v. Safety Ins. Co., 488 Mass. 610, 618, 174 N.E.3d 1191, 1199 (Mass. 2021).

Please read the disclaimer.  This blog article ©2022 Dennis J. Wall.  All rights reserved.

THERE'S A GOOD FAITH DUTY TO DO something.

TOTALLY IGNORING THE INSURED'S RISK IS NOT AN OPTION.

"Where the liability is clear and injuries are so serious that an excess judgement is likely, an insurer must do more than merely wait for a settlement offer; the insurer has an affirmative duty to initiate settlement negotiations."[1] 

 

[1] Ellis v. GEICO Gen. Ins. Co., 541 F. Supp. 3d 1371, 1380 (S.D. Fla. 2021), aff'd with opinion, No. 21-12159, 2022 WL 454176 (11th Cir. Feb. 15, 2022).  The trial court granted the carrier's motion for summary judgment of no bad faith in Ellis.

 

The Duty to Initiate Settlement Negotiations is explored at length in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:16 (West Publishing 3d Edition, 2022 Supplements forthcoming).  With the forthcoming publication of its 2022 Supplements, LITIGATION AND PREVENTION OF INSURER BAD FAITH draws on over 5,000 authorities.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

 

Central Issue in First-Party Bad Faith is the Carrier's Reasonableness.

"The central issue with regard to Plaintiff’s bad faith claims is the reasonableness of Defendant’s conduct."  So said the U.S. District Court for the District of Colorado in an Underinsured Motorist Case with Bad Faith Claims in Chinnock v. Safeco Ins. Co. of Am., No. 20-cv-00918-RM-NYW, 2022 WL 1469545, at *5 (D. Colo. May 10, 2022).

The same observation was made much earlier, in case law and in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH, § 9:3, The Question of Bad Faith (West Publishing Co. 3d Edition, 2022 Supplements forthcoming).  Since at least 1991, the clear majority of courts follow the rule of reason in assessing first-party insurer bad faith liability:

    CITING TO [AN EARLIER VERSION OF] THIS SECTION, a summary judgment for the carrier in a first-party bad faith case was affirmed in Cruz v. American United Ins. Co.[,580 So. 2d 311, 312 (Fla. 3d DCA 1991):]

 

The legal standard governing an insurer's settlement conduct is one of reasonableness. D. Wall, Litigation and Prevention of  Insurer Bad Faith § 9.03 (1985).

 

This is the clear majority view of the question.

 

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

 

 

CONTRASTING GOOD FAITH REQUIREMENTS.

Good faith requirements are embedded as they say in many areas of the law.  For example, courts will refuse to enforce a "no damages for delay" clause in a government contract when the facts say that the government itself caused the delay, acting in bad faith.

See Sarasota County v. S. Underground Indus., Inc., 333 So. 3d 285, 288 (Fla. 2d DCA 2022) ("Although 'no damages for delay' clauses are recognized in the law, they will not be enforced in the face of governmental 'fraud, bad faith, or active interference' with performance under the contract." (Emphasis in original.))

See generally Contrasting good faith requirements -- Miscellaneous good faith requirements listed and explored in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF NSURER BAD FAITH § 2:7 (West Publishing Co. 3d Edition, 2022 Supps. forthcoming).  The Sarasota County case is analyzed along with 5,000 other authorities as of the 2022 Supplements in the two volumes of LITIGATION AND PREVENTION OF INSURER BAD FAITH.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

2: "INSTEAD OF GETTING TO A TAKEOVER AT LAST, ...

WE'VE BEEN GOING ALL ALONG."  Part Two.

This is the second part of an earlier article.  Part One was published here on May 3, 2022.

The leaked draft opinion written by Samuel Alito for a reported majority of the U.S. Supreme Court has raised quite a ruckus.  Download Scotus-initial-draft-opinion Dobbs v. Jackson Women's Health Org. circa 02.10.22 (67 pages with 31 pages of attachments).  It has been called "a naked power grab" and a "gleeful mockery," the history recited in it has been criticized as false, and its author has been called many things, including "snide," "arrogant," "acidic," "caustic," and "sneering," among other things.

It is not my purpose here to characterize the draft opinion or Justice Alito, but to shine a light on a couple of its features that I have not seen mentioned so far.  The first is the concept of "originalism" or "original text" of the Constitution that is reflected in the draft opinion.

Its author and its reported adherents, forming a reported majority of the Court, would have us believe that they only see "a fundamental constitutional right" deserving of their protection "because such a right has [a] basis in the Constitution's text or our Nation's history."  (At another point, the draft opinion referred to grounding a decision that a right is fundamental "in text, history, or precedent.")

Under this view, there can never be a newly recognized Constitutional right.  If it is not written in the Constitution, then quite simply the thing does not exist.  Similarly, if the thing did not exist in the past, it does not exist now in their eyes.

To return for a moment to what others have said, many people have pointed out that rights of privacy are in danger as a group, because rights of privacy are not mentioned in the Constitution.

Many people have also pointed out that individuals' rights of privacy, such as the right to buy and use contraceptives, or to marry the person you love, even if the person you want to marry is of the same gender or from a different race, are also not in the Constitution and that, further, some or all of these rights are like abortion in this draft opinion:  The Constitution "makes no mention" of any of them.  Therefore, they all stand on the same footing as abortion in the eyes of the reported majority on the current Supreme Court.

Many things are not written in the Constitution but that does not mean that they are unworthy of the Constitution's protection by that fact alone.

Other things are written in the Constitution, but that does not mean that they are worthy of deference in 2022 by that fact alone, by the fact that they were written in the Constitution by White men over 230 years ago. 

The Constitution says, for example, that Black people are 3/5 of a person.  Justice Clarence Thomas is an eager originalist.  We will learn how eager if he is ever called upon to cast 3/5 of a vote on the Court.

We should expect no less of him.  After all, the Constitution declares that people of his skin color are 3/5 of a person.  To be consistent (admittedly never a problem for him and at least 4 or 5 other justices on the Court), he will acquit himself in all things like 3/5 of a person, whatever that means in 2022.

Another thing to point out is the independent state legislatures doctrine.  While never mentioned by name in the draft opinion, perhaps because it is not a doctrine, it is central to the draft opinion.  I have already surfaced some thoughts about this idea in an earlier article, and I look forward to adding to them here in a future post.

To be continued .... 

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

"FAIRLY DEBATABLE" LIABILITY FOR INSURER BAD FAITH.

In a third-party bad faith case in 2022, the Rhode Island Supreme Court apparently extended the "fairly debatable" standard of liability to third-party bad faith cases, albeit in seeming dicta in that case.  See Shannahan v. R.I. Interlocal Risk Mgmt. Trust, 269 A.2d 737, 740-41 (R.I. 2022).

The Supreme Court previously announced the "fairly debatable" standard of liability in a first-party bad faith case 20 years ago, in Skaling v. Aetna Ins. Co., 799 A.2d 997, 1004-07, 1010 (R.I. 2002).

By "standard of liability" for insurer bad faith the Rhode Island Supreme Court means to include "fairly debatable" in the context of a cause of action and not simply as an insurer's defense.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

POSTSCRIPT: APPEASEMENT OVER JURISDICTION NO BETTER THAN APPEASEMENT OVER TERRITORY.

This is a postscript to an article posted here on April 22, 2022.

I have been curious about the practice of pleading Affirmative Defenses in the actions that have been filed against various vaccine mandates and other public health measures in the COVID-19 Pandemic.  The federal case in Florida, you may recall from the April 22nd article, had zero Affirmative Defenses in it.  To put it another way, the U.S. government raised no Affirmative Defenses, and lost.  Now they have filed a Notice of Appeal.

Recently, I came across another case involving the same exact lead Plaintiff that was the lead Plaintiff in the Florida case.  The case is Health Freedom Defense Fund v. Megan K. Reilly.  It involves a staff vaccine mandate issued by the Los Angeles United School District.  Here is the Complaint:  Download Health Freedom Defense Fund v. Megan K. Reilly Complaint Doc. 1 filed 11.03.21 (C.D. Cal. No. 2.21.cv.08688).  This Complaint was filed nearly four months after the Health Freedom Defense Fund Complaint was filed in the Florida case.

There is now a Second Amended Complaint in the California case, and here is the Answer to it:  Download Health Freedom Defense Fund v. Megan K. Reilly Answer to 2d Ad Comp filed 04.07.22 (C.D. Cal. No. 2.21.cv.08688).  There are 41 Affirmative Defenses alleged in the Answer in that case.

Forty-one. Count 'em, 41.

Zero in the Florida case.

The difference is clear to all.  And it is clear that in the California case, the School District's lawyers are defending it.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

 

 

"INSTEAD OF GETTING TO A TAKEOVER AT LAST, ...

WE'VE BEEN GOING ALL ALONG."

There have been comments made today that radicalized judges are taking over, in light of the leaked draft opinion overruling Roe v. Wade.

An examination of decisions from just the last 7 months shows that they already have.  In every one of these cases, judges appointed in the old regime have ruled against the current Administration.

The decision of the federal judge in Tampa is well-known.  She struck down the CDC's mandate to wear masks in public transit including airplanes.  She was appointed in the old regime.  Here is the Complaint filed in that case:    Download Health Freedom Defense Fund v. Biden Doc. 1 Complaint filed 07.12.21 (M.D. Fla. No. 8.21.cv.01693).

You may recall other decisions that involved the pandemic in which federal judges ruled against the Biden Administration and public health policies intended to get the pandemic under control.  Recall as well that there were no comparable public health policies, and no visible control of the pandemic, under the previous regime.  So it would be a big deal for Biden to control the pandemic.

In another one of those cases, this one in Missouri, a federal judge ruled against the Biden Administration's vaccine mandate for health care workers.  He was appointed in the old regime.

The case is Missouri v. Biden and it was filed in the Eastern District of Missouri.  The Eighth Circuit Court of Appeals' panel unanimously vacated that stay and remanded on April 11, 2022 in 8th Cir. Case No. 21-3725.  None of the three judges on the Eighth Circuit panel in that case were appointed during the old regime.

 In another case, this one from November of last year, BST Holdings, LLC v. OSHA, the health care measures during the pandemic were again involved.  In that case, a panel of the Fifth Circuit Court of Appeals stopped OSHA's vaccination mandate that applied to employers with over 100 employees, which would have required such employers either to tell their employees to be vaccinated before they came to the job, or to tell their employees to take weekly tests and wear a mask when they came to the workplace.

There were 3 judges on the Fifth Circuit panel who ruled against the Biden Administration.  Two of them were appointed in the old regime, by the former guy.  The third was appointed way back by President Ronald Reagan and she has attempted to garner respect ever since.  The case was BST Holdings, LLC v. OSHA, No. 21-60845 (5th Cir. Nov. 12, 2021).

But the BST Holdings case did not end there.  It was vacuumed up into a Multi-District Litigation.  This was coming even when the Fifth Circuit panel was getting ready to rule, but they ruled anyway even though they would soon have no jurisdiction to rule and, moreover, might be reversed (which they were).

Over the years, I have learned to take note when people do things they do not have to do, but they do them anyway.

You may also recall that at the time when BST Holdings was being transferred to the MDL, where the Sixth Circuit -- not the Fifth -- was given the task of presiding over underlying rulings, the Sixth Circuit dissolved both the District Judge's stay and the Fifth Circuit's stay of OSHA's workplace mandate.  The decision was 2-to-1.  The dissenting judge who ruled against the Biden Administration was appointed in the old regime.  The other 2 judges were appointed by Democratic Presidents.

On appeal to the U.S. Supreme Court, this time it was the Sixth Circuit panel that was reversed.  That ruling came on the so-called "shadow docket" (no briefs, no oral arguments) in January of this year, 6 Justices ruling against them, in Download Nat'l Fed. Indep. Bus. v. Dep't of Labor OSHA (Jan. 13 2022).  Of the 6, three were appointed in the old regime.

At this point, 11 judges ruled against the Biden Administration in these cases.  Eight of the judges who ruled against the Biden Administration in these cases were appointed in the old regime.

Every single judge appointed in the old regime ruled against the Biden Administration.  All of them.  100%.  What were the odds of 100% of eight federal judges ruling the same way whenever the authority of the Biden Administration was at issue in different cases?

Also in January, 2022, another judge ruled against the Biden Administration.  This ruling came from the Southern District of Texas in a case involving President Biden's authority to issue an Executive Order "which mandates COVID-19 vaccination for all executive branch employees, subject to medical and religious exceptions."  That is a quotation from the opinion of the Fifth Circuit, which vacated the Texas judge's ruling and remanded on April 7, 2022, in Feds for Med. Freedom v. Biden, 30 F.4th 503 (5th Cir. 2022).

That was a 2-to-1 decision, and if you guessed that the 2 judges in the majority on the panel were appointed by Democratic Presidents, you are correct.  The 1 dissenter was appointed by a Republican President long ago and not during the old regime.

To rephrase an insight from an Emily Dickinson poem:  Instead of getting to a takeover at last, we've been going all along.  To add an insight from May, 2022:  We may get there, there is no doubt that we may, or at least there should not be any doubt at this point.  But the end is by no means certain.

NEXT:  THE  (UNDERSTANDABLY) OVERLOOKED  PROPOSAL IN THE LEAKED SUPREME COURT OPINION TO OVERTURN Roe v. Wade AND Planned Parenthood v. Casey.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

FLORIDA CIVIL REMEDY NOTICE BY A DIFFERENT NAME ... Continued.

This continues the article begun here on Thursday, April 28, 2022.

 

That is not the end of the story, however.  The new statute provides for the eventuality that the claimant has also served a notice of intent to initiate litigation, but the appraisal or alternative dispute resolution has not taken place within the times set out in the statute:

If the appraisal or alternative dispute resolution has not been concluded within 90 days after the expiration of the 10-day notice of intent to initiate litigation specified in subsection (3), the claimant or claimant's attorney may immediately file suit without providing the insurer additional notice.[1]

[1] Fla. Stat. § 627.70152(4)(b).

 

Please read the disclaimer.  This blog article ©2022 Dennis J. Wall.  All rights reserved.

Common Law and Statutory Requirements for Civil Remedy Notices to Insurers are discussed in 2 DENNIS J. WALL, LITIGATION AND PREVENTION INSURER BAD FAITH § 9:21 (Third Edition, 2022 Supplements in process).

"STATE INDEPENDENT LEGISLATURES DOCTRINE" NOT DOCTRINE, NOT EVEN A THING.

The "state independent legislatures doctrine" is not a doctrine.  It has never been adopted by the Supreme Court or by any other court for that matter.

It came from three concurring opinions in Bush v. Gore, apparently.  Two of the concurring Justices are dead, William H. Rehnquist and Antonin Scalia, and the third is Clarence Thomas.

Parenthetically, I recall from reading all the opinions in that case that the majority held that Bush v. Gore  was never to be cited as precedent in any other case?

Anyway, the concurring theory then was that whatever state legislatures say about elections is the final word.  This theory of state-legislatures-are- supreme applies in their view even if a state supreme court says that what the legislatures say is unconstitutional or otherwise unlawful.  It also applies, in their view, even if the state Constitution says that the state's supreme court has the final say on what the state's law is.

In the United States Supreme Court, though, some but not yet a majority of the living Justices say that state legislatures should rule because after all, these Justices are on the federal Supreme Court, the Highest Court in the land, you know.

They apparently do not see any irony in the view that a federal judge would tell the states what to do about state law.

Or that the United States Supreme Court simply does not have jurisdiction here.  But that doesn't matter to them, apparently, if they get the votes they need to do what they will.

I guess it is no coincidence that this view apparently surfaced in the Bush v. Gore case.  This view fits with the result in that case that awarded a presidential election to the loser of the popular vote. 

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

A FLORIDA CIVIL REMEDY NOTICE BY A DIFFERENT NAME.

The requirements of a Civil Remedy Notice under Florida's Bad Faith Statute, Section 624.155, have been in place for awhile.  Effective July 1, 2021, another Florida Statute took effect containing a requirement of specified notice within a specified time as a "condition precedent to filing suit under a property insurance policy[.]"[1] 

The new statute, Section 627.70152, applies "exclusively" to "all suits not brought by an assignee arising under a residential or commercial property insurance policy, including a residential or commercial property insurance policy issued by an eligible surplus lines insurer."[2]

The notice required by Section 627.70152 "must state with specificity" at least eight things, most of which are in numbered sections or paragraphs.[3]  If the notice meets the statutory requirements, then the carrier must respond in specified ways, ordinarily within specified periods of time.[4]  One response among the range of responses by the property insurance carrier is to "respond by making a settlement offer or requiring the claimant to participate in an appraisal or another method of alternative dispute resolution."  The statute requires this response, in fact, if the notice alleges "an act or omission by the insurer other than a denial of coverage[.]"[5]

To be continued .... 

This blog article ©2022 Dennis J. Wall.  All rights reserved.  Please read the disclaimer.

 

[1] Fla. Stat. § 627.70152(3)(a).

[2] Fla. Stat. § 627.70152(1).  As of April, 2022, six cases are listed in Florida Statutes Annotated as citing or interpreting this statute.  All six involved motions to dismiss and all six were decided by federal courts.  It appears that none of them involved bad faith claims.

[3] See Fla. Stat. § 627.70152(3)(a).

[4] See Fla. Stat. § 627.70152(4)(a) & (b).

[5] Fla. Stat. § 627.70152(4)(b).

APPEASEMENT WITH JURISDICTION NO BETTER THAN APPEASEMENT WITH TERRITORY.

The case raises questions about ceding jurisdiction over public health policy to one federal district judge.  The case is Health Freedom Defense Fund v. Biden (M.D. Fla. No. 8:21-cv-01693). 

The Complaint alleged jurisdiction only on the basis of diversity.  The Complaint was filed in the names of three plaintiffs.  It alleged that two individual plaintiffs are from Florida, and that the third plaintiff is a Wyoming corporation headquartered in Idaho.

The two individuals claimed that they wanted to use public travel in the future.  Their travel plans might include travelling by airplane from the Tampa airport, and they alleged that to do so, they would have had to comply with a mandate to wear masks in the COVID-19 pandemic.  That entitled them, they alleged, to sue the many officials of the federal government in Tampa.  Download Health Freedom Defense Fund v. Biden Doc. 1 Complaint filed 07.12.21 (M.D. Fla. No. 8.21.cv.01693)  (jurisdiction alleged under 28 U.S.C. §§ 1331 & 1346, and 5 U.S.C. § 702.03; venue alleged under 28 U.S.C. § 1391(b)(2)&(e)(1)).

The Department of Justice filed an Answer with no affirmative defenses on behalf of the United States.  Download Health Freedom Defense Fund v. Biden Doc. 20 Answer filed 1013..21 (M.D. Fla. No. 8.21.cv.01693).pdf NO ADS! 

They did not challenge jurisdiction or venue in Tampa.

They did agree, however, that the plaintiffs could amend their complaint.  Download Health Freedom Defense Fund v. Biden Doc. 39 Amended Answer filed 12.13..21 (M.D. Fla. No. 8.21.cv.01693)  But they did not defend against the Amended Complaint, not even filing an Answer.

They did not file any affirmative defenses in response to this do-over opportunity, either.

The plaintiffs' uncontested theories of jurisdiction and venue are simple:  This suit could have been brought anywhere.

That means of course that if these theories prevail -- and they sure seem to have prevailed so far -- a suit like this can be brought anywhere.

That offers an alternative to the appeal which the DOJ has filed, at least an alternative to running the risk of bad precedent from the Eleventh Circuit Court of Appeals.  The greatest danger to acceptance of Judge Mizelle's ruling may not be the public criticism of it, or even the possibility that the Eleventh Circuit may reverse her ruling.

The greatest danger to acceptance of Judge Mizelle's bizarre ruling is that  District Judges ruling in other jurisdictions may reject it.

For that matter, nothing prevents people living in the Middle District of Florida from filing suit to request declaratory relief of the Center for Disease Control and Prevention's (CDC's) mask-mandate-for-public-travel, either.

If jurisdiction and venue are proper in federal District Court in Tampa in this case, then jurisdiction and venue are proper in any federal District Court in the United States in a case like this.

Perhaps that will help put this case back in perspective.  "Just sayin'."

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

TransUnion LLC v. Ramirez AND INSURER BAD FAITH CASES.

The U.S. Supreme Court rendered a decision in 2021 in a case involving a credit reporting agency, TransUnion LLC, and a putative class of 8,185 people which has implications for insurer bad faith cases.  The putative class in TransUnion LLC v. Ramirez[1] was composed of people who alleged that TransUnion had placed misleading alerts in their credit files at TransUnion to the effect that their names potentially matched the names of terrorists, drug traffickers, and others of like kind on a list kept by the Office of Foreign Assets Control (OFAC) at the U.S. Treasury Department.  The plaintiffs alleged that TransUnion thereby violated the Federal Fair Credit Reporting Act or FCRA.[2]

The ramifications of the holding in TransUnion LLC v. Ramirez for insurer bad faith cases are discussed in the forthcoming 2022 Supplement to 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:28.50, "Injury in Fact":  What Happens to Bad Faith Statutes? (West 3d Edition, 2022 Supplements in process).

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

 

[1] TransUnion LLC v. Ramirez, ___ U.S. ___, 141 S. Ct. 2190 (2021)/

[2] 15 U.S.C. § 1684.

COLORADO GOES AGAINST THE GRAIN TO BAR ADJUSTER PERSONAL LIABILITY.

Colorado stands to the contrary of most jurisdictions that recognize a case for personal liability of insurance adjusters when claims under insurance policies are delayed or completely unpaid; Colorado does not recognize such personal liability.

Colorado's position comes because of a statute which prohibits unreasonable delay or denial of an insurance claim by "a person engaged in the business of insurance," Colo. Rev. Stat. § 10-3-1115 (2021), and under another statute which provides a cause of action for the unreasonable delay or denial of a claim for insurance benefits prohibited by the first statute.  Colo. Rev. Stat. § 10-3-1116 (2021).  The Colorado Supreme Court resolved this issue in its answer to a question certified from the United States District Court for the District of Colorado, in Skillett v. Allstate Fire & Cas. Ins. Co., 505 P.3d 664, ¶ 1, at p. 665 (Colo. 2022):

Specifically, the certified question asks:

Whether an employee of an insurance company who adjusts an insured's claim in the course of employment may for that reason be liable personally for statutory bad faith under Colorado Revised Statutes Sections 10-3-1115 and -1116 (“Statutes”).

Given the plain statutory language, we answer that question in the negative. An action for unreasonably delayed or denied insurance benefits under Colorado law may be brought against an insurer, not against an individual adjuster acting solely as an employee of the insurer.

Please read the disclaimer.  ©2022 Dennis J. Wall.  all rights reserved.

COVERAGE PROPERLY DENIED, BAD FAITH CLAIMS NECESSARILY DENIED AS WELL.

"Coverage having been properly denied, the plaintiffs' bad faith claims are necessarily denied as well."  Haisous, LLC v. State Auto Prop. & Cas. Ins. Co., Nos. 20 C 04286, 20 C 05017, 20 C 05021, and 21 C 01150, 2022 WL 999987, at *4 (N.D. Ill. March 31, 2022).

COVID-19 business coverage was at issue and was properly denied, this federal judge held in Illinois.  That follows a long line of similar holdings, as does the judge's pronouncement on the 'no coverage, no bad faith' issue.  Parenthetically, the above quotation is the Court's entire holding on the issue.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

EVERY CONTRACT'S IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING.

"Moreover, as this Court has explained many times, 'virtually every contract contains an implied covenant of good faith and fair dealing between the parties[.]'"   Houle v. Liberty Ins. Corp., ___ A.3d ___, No. 2021-30-Appeal (PC 16-4707), 2022 WL 945815, at *3 (R.I. March 30, 2022).

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

FLORIDA CIVIL REMEDY NOTICE: SPECIFICITY GOOD, TMI BAD.

In Gooden v. People's Trust Ins. Co., ___ So. 3d ___,  No. 4D20-2760, 2022 WL 945507 (Fla. 4th DCA March 20, 2022), Florida's Fourth District Court of Appeal has decided that a Civil Remedy Notice quoting provisions of Florida's Bad Faith Statute, and provisions of Florida's version of the NAIC's Unfair Claim Settlement Practices Act, met the Bad Faith Statute's specificity requirements.  (The statute's specificity requirements as they existed at the time of Ms. Gooden's claim, and as they still exist now, are set out in Fla. Stat. § 624.155(3)(b).)

More to the point, the nine statutory provisions Ms. Gooden quoted in her CRN were relevant to her Bad Faith claim against People's Trust, and so was her invocation of just one of her insurance policy provisions.  As the Fourth District panel described the CRN:

Gooden's civil remedy notice cited nine statutory provisions and a single policy provision, listing only the statutory and policy provisions relevant to his [sic] allegations.

Gooden, 2022 WL 945507, at *1.  Further, Gooden's CRN explicitly stated what the carrier would need to do to cure its alleged bad faith. 

In the judgment of the Fourth District, this specificity distinguished Ms. Gooden's CRN from the CRN involved in Julien v. United Prop. & Cas. Co., 311 So. 3d 875 (Fla. 4th DCA 2021).  The Fourth District decided both cases, Gooden and Julien.

In the judgment of the trial court, in contrast, the Gooden CRN looked like the Julien CRN and so the trial judge dismissed Gooden's statutory bad faith claim for supposed failure "to meet section 624.155's specificity requirements."  As noted, the Fourth District had a different judgment, and so the Fourth District said, "We reverse."  Gooden, 2022 WL 945507, at *1.

The Julien case was the subject of commentary here first on October 15, 2020 when the decision was not yet officially released, and thereafter when released for publication in Westlaw, on March 10, 2021.

The various requirements for Civil Remedy Notices across the United States, including Florida, are examined in third-party cases in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:30, "Legal Bases of Liability in Settlement -- Statutory Requirement of Notice of Violation" (Thomson Reuters West 3d ed., 2022 Supps in process), and in first-party cases in id., Volume 2, § 9:21, "Common Law and Statutory Regulation of Civil Remedy Notice to Act in Good Faith."

            Defenses raised by failure to comply with CRN requirements are also discussed in third-party insurance bad faith actions in id., Volume 1, § 5:57, and in first-party insurance bad faith actions in id., Volume 2, § 11:24. 

Please read the disclaimer.  2022 Dennis J. Wall.  All rights reserved.

NO COVID COVERAGE, NO BAD FAITH CLAIM.

In Morningside Cafe Inc. v. Acuity Ins., No. 20-cv-05584, 2022 WL 952736 (N.D. Illinois March 30, 2022), a District Court followed the settled rule that where there is no insurance coverage, there can be no insurance bad faith claim.  In Morningside Cafe, the claims were made by a small business under its CGL (commercial general liability) policy for Covid-related damages, to no avail.

As the District Judge in the Northern District of Illinois explained:

    As explained above, the Policy's Business Income, Civil Authority, and Virus Exclusion provisions preclude coverage for Plaintiff's alleged business income losses. Because no coverage exists, Plaintiff has not alleged a plausible basis for its bad faith denial of insurance coverage claim. Accordingly, this claim must also be dismissed.

Morningside Cafe Inc. v. Acuity Insurance, 2022 WL 952736, at *6.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.