Image copyright 2016 by Dennis J. Wall. All rights reserved.
Happy St. Patrick's Day!
We start today with a question: Why is the Lyons case decided in the Southern District of New York important to a case pending in the Southern District of Florida?
The answer is: Because Lyons relies on a panel decision of the Second Circuit Court of Appeals. The judge in Lyons had to rely on the Second Circuit because that judge's District Court is in the Second Circuit. District Judges in the Second Circuit have to obey the Second Circuit. So the Lyons judge relied on the discredited Rothstein decision of a Second Circuit panel in July, 2015. See Dennis J. Wall, "Force-Placed Insurance / Filed Rate Doctrine Imported From Utilities Regulation to Insurance Law / Second Circuit Court of Appeals Panel Applies Doctrine to Texas, New Hampshire, and New York Lender Force-Placed Insurance Practices / Rothstein v. Balboa Insurance Co., 794 F.3d 256 (2d Cir. 2015), 37 Insurance Litigation Reporter 435 (October 6, 2015). A reprint of this publication © Thomson Reuters, reprinted with permission, is available at www.lenderforceplacedinsurance.com.
A District Judge in a previous Southern District of Florida case also relied on the Second Circuit panel decision in Rothstein. The Florida judge's court is not in the Second Circuit and the Florida judge did not have to obey the Second Circuit panel; he chose to. The previous case is Trevethan v. Select Portfolio Servicing, Inc.
The defendants have accordingly cited Trevethan and filed copies of Rothstein and Lyons to persuade yet another District Judge, the Chief Judge of the Southern District, the Honorable K. Michael Moore, and the U.S. Magistrate Judge on the case as well, the Honorable Chris M. McAliley, to apply the filed rate doctrine in another insurance case pending in the Southern District of Florida, Lowe v. Loancare, LLC (S.D. Fla. No. 1:15-cv-23700-KMM).
Next we take a look at the dispute on the law in the context of the pending Southern District of Florida case, followed by a look at the facts in the same context.
Please Read The Disclaimer. ©2016 by Dennis J. Wall, author of Litigation and Prevention of Insurer Bad Faith (3d ed. Thomson Reuters West in 2 Volumes, with Supplements). The recent defense of the Filed Rate Doctrine in insurance cases is addressed by itself in a new Section § 11:26 in 2016. All rights reserved.
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