This article is a continuation of the post on Insurance Claims and Issues on Monday, April 24, 2017.
As an example of lower federal courts actively seeking situations in which people simply cannot sue for alleged violations of State statutes, even though States have provided the statutory remedies alleged in the given case, the Eleventh Circuit Court of Appeals held after Spokeo that a borrower-mortgagor of real property located in New York State could not bring that particular lawsuit for an alleged violation of New York Real Property Law because now the United States Constitution forbids such a suit. Nicklaw v. Citimortgage, Inc., 839 F.3d 998, 1002-03 (11th Cir. 2016). The Eleventh Circuit's decision in this case has been rejected by name in other Circuits, see, e.g., Weldon v. MTAG Services, LL, No. 3:16-cv-783 (JCH), 2017 WL 776648, at *6 (D. Conn. Feb. 28, 2017), and it has been distinguished in the Eleventh Circuit based, perhaps ironically, on other Eleventh Circuit case law. See Tillman v. Ally Fin. Inc., No. 2:16-cv-313-FtM-99CM, 2016 WL 6996113, at *4 n.7 (M.D. Fla. Nov. 30, 2016).
However, this decision is by no means alone. In Spokeo itself, the Court deciding that case remanded for a determination of "plausibility," in effect, of whether Thomas Robins and persons like him had alleged injury in fact as the U.S. Constitution now apparently requires.
If the idea of "injury in fact" has been elevated surreptitiously from standing to the U.S. Constitution, it can certainly have an effect on claims based on State statutes providing remedies to 'private attorneys general' that the States rely on to enforce the laws. Time will tell whether State Unfair Claim Handling Practices Acts and Penalties Statutes governing the business of insurance will feel the effects and, if so, how.
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