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In Evergreen Lakes HOA, Inc. v. Lloyd's Underwriters at London, 230 So. 3d 1, No. 4D16–2657, 2017 WL 4679597 (Fla. 4th DCA October 18, 2017), the plaintiff homeowner's association incurred hurricane damages and sued for breach of the insurance contract. It also served a civil remedy notice of bad faith as required under Florida's Bad Faith Statute. However, the address to which it sent a copy may not have been the carrier's correct address.
Parenthetically, the carrier argued that the claimant could not prove that the claimant had actually sent a copy of the CRN to the carrier. It did not argue apparently that it had never received a copy, because eventually it did receive a copy. The carrier actually received a copy long before the claimant sued.
Although the Florida statute requires the claimant to provide a copy of the CRN to the insurance carrier, that requirement can be waived. That is what happened here, the Florida appellate court ruled. The effect was to reverse a summary judgment that the trial court had granted in favor of the insurance carrier in this case on the ground that proper notice had not been given to it.
In other words, waiving the CRN that the claimant waved meant that at least one obstacle to trial of a bad faith claim is no longer an obstacle in this case.
In a big, multi-district case where there are no binding rules, an MDL court actually flipped the presumption of public access to judicial proceedings, and put the burden of proving that things should not be blacked out on the parties objecting to the blackout, i.e., redaction!
What's more, the MDL court apparently did this because so many lawyers agreed that this should be done, that the court not only went along with it, but actually approved it, In re: Automotive Parts Antitrust Lit., MDL No. 12-md-02311, 2017 WL 3499291, at *8 (E.D. Mich. July 10, 2017), appeal dismissed for want of prosecution, No. 17-1967, 2017 WL 5664917 (6th Cir. Sept. 15, 2017):
None of the Objectors specify any particular redactions as problematic or inhibiting them from understanding the claims asserted in this litigation or any other information that might reflect on the fairness of the settlements. Since the Shane Group decision [Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d299 (6th Cir. 2016)], the parties in In re Auto Parts Antitrust Litigation have developed, and the Court has approved, a protocol predicated on complying with the document-sealing standards laid out in Shane Group. See Stip. Order Regarding Sealed Filings, 12-md-2311, ECF No. 1690. Pursuant to the protocol, dozens of previously sealed documents are no longer sealed. The Objectors' sealing argument lacks merit.
Pursuant to this decision, dozens of presumptively public documents are now sealed. Respectfully, the decision lacks merit.
In Apex Mort. Corp. v. Great N. Ins. Co., No. 17 C 3376, 2018 WL 341661 (N.D. Ill. January 9, 2018) (Weisman, USMJ), a U.S. Magistrate Judge was confronted with numerous discovery requests in a bad faith case.
As anyone involved with any other bad faith case would have reason to expect in this case, one of the requests in this particular bad faith case asked for production of the insurance carrier's claims file.
This bad faith case was brought by a mortgagee, Apex. Apex took control of a property after it foreclosed on it. During the time that Apex controlled the property, a fire broke out. Firefighters responded and two were killed. Their estates sued the mortgagee.
The mortgagee in turn sued two of its liability carriers, Great Northern and Federal. The carriers paid for Apex's defense, and Great Northern tendered its $1 Million policy limit to settle the underlying claims against Apex, but basically the two carriers otherwise declined to do any more than that because they both relied on their common "Foreclosure Exclusion" to deny coverage. The "Foreclosure Exclusion" was the same in both of their liability insurance policies, and it was a standard foreclosure exclusion written in the following language:
“This insurance does not apply to any liability or loss, cost or expense arising out of property you acquire by foreclosure, repossession, deed in lieu of foreclosure or as mortgagee in possession.”
Apex Mort. Corp. v. Great N. Ins. Co., No. 17 C 3376, 2018 WL 341661, at *1 (N.D. Ill. January 9, 2018).
During discovery in its insurance bad faith case, Apex requested production of Federal's claims file "and documents relating to the coverage decision, this case, or ... underlying lawsuits." Federal actually did not object. Instead, Federal produced documents it claimed were responsive, but "with privileged information redacted." The Court had previously determined that the privilege assertion was an assertion of attorney-client privilege, that the assertion of attorney-client privilege was governed by Pennsylvania law, and that the privilege had not been established on the record of this particular case.
In redacting documents that it produced, however, Federal neglected to mention whether they were necessarily all of the documents requested or even what particular "privilege" Federal was asserting in redacting these documents, saying only that the redactions resulted from some unspecified "privilege" in this regard. That is how the Magistrate Judge saw it.
That being the case, and particularly since Federal did not bother to support its redactions with reasons why, the Magistrate Judge ordered these materials to be produced based upon the Court's previous rulings about the assertion of attorney-client privilege in this case:
Accordingly, the Court orders Federal to produce: (1) any non-privileged documents responsive to these requests that have not already been produced; and (2) any portions of the claims file Federal has designated as privileged that this opinion makes clear are not privileged.
Apex Mort. Corp. v. Great N. Ins. Co., No. 17 C 3376, 2018 WL 341661, at *6 (N.D. Ill. January 9, 2018) (Weisman, USMJ).
If a party to a federal lawsuit is going to conceal evidence, including during discovery, it must disclose its reasons for redaction or disclose the evidence. Or suffer the consequences if that party completely ignores the Rules and the rulings.
In Gennock v. Budal, No. 17-454, 2017 WL 6883933 (W.D. Pa. November 29, 2017) (Mitchell, USMJ), recommendation adopted by U.S. District Judge, No. 2:17cv454, 2018 WL 350553 (W.D. Pa. entered January 4, 2018, filed January 9, 2018) (Cercone, USDJ), the Court held that the United States Congress can declare injury by enacting a statute. If the plaintiffs can bring themselves within the reach of the federal statute such that the plaintiffs can state a claim for relief under that statute, in this case, the Fair and Accurate Credit Transactions Act (FACTA), then Article III "actual injury" exists.
This is one Court's reconciliation of federal statutory actions and the Roberts Court's gloss on Article III "actual injury," known as Spokeo.
QUERY: Can a state statute -- such as a state unfair claims practices act or a state bad faith statute -- establish injury for purposes of Federal Article III or the Roberts Court's Spokeo jurisdiction?
A case in New Jersey illustrates three things about the application of generally accepted rules of law in the United States:
When a liability carrier is deciding whether or not the insured will be better off if the carrier pays for an appeal, there has already been an excess judgment. For that reason alone, applying the test of "good faith" is "'more exacting at the appeal stage of the proceedings than before or during trial.'"
On the facts of a given case, including this New Jersey case, the carrier can act in good faith by making a reasonable settlement offer -- in this case, a policy limits offer -- after an excess verdict even if its decision to appeal was not the best.
Perfection is not required. Or, as the New Jersey courts and most U.S. courts put it, a mistake is not bad faith.
The case is Palmer ex rel. Kovacs v. New Jersey Mfrs. Ins. Co., No. A-0854-15T3, 2017 WL 6398789 (N.J. Super. Ct. App. Div. December 14, 2017).
In the meantime, this transcript was unilaterally released so the American public could read the testimony for themselves, by Senator Dianne Feinstein, the Ranking Member on the Senate Judiciary Committee.
Be prepared if you print it: The transcript runs to 312 pages. You are there!
The powers controlling the present Congress continue to conceal testimony given behind closed doors. They persist in their refusal to make public the transcripts of testimony given under oath many months ago. All despite the wishes of the witnesses that the testimony be made public, and all despite the agreement of many others who have also read the transcripts that there are no good reasons to seal them off from the public view.
An observation by a United States Magistrate Judge concerning secrecy in Court proceedings is a useful counterpoint to the Congressional powers continuing secrecy in their closed-door proceedings. In this bad-faith case, the Court ruled that communications from a lawyer about the case at hand should be produced in the litigation in which the defendant insurance company had apparently raised the defense of that counsel's advice, as reported on Insurance Claims and Issues on Monday, January 8, 2018.
The Court observed in that case:
“Rule 26 ... is not a blanket authorization for the court to prohibit disclosure of information whenever it deems it advisable to do so, but is rather a grant of power to impose conditions on discovery in order to prevent injury, harassment, or abuse of the court's processes.” Williams v. City of Dothan, Ala., 745 F.2d 1406, 1416 (11th Cir. 1984) (quoting Bridge C.A.T. Scan Assocs. v. Technicare Corp., 710 F.2d 940, 944–45 (2d Cir. 1983)).
Hibbett Patient Care, LLC v. Pharmacists Mut. Ins. Co., No. CA 16–00231–WS–C, 2017 WL 4817992, at *1 (S.D. Ala. January 26, 2017) (Cassady, USMJ).
What's good for the goose is good for the gander, or to put another way in this particular instance, what's good for the Courts is good for the Congress.
In order to qualify as covered "Personal Injury" under a Comprehensive General (or Commercial General) Liability policy (CGL), "wrongful eviction" requires a possessory interest or there is no Personal Injury Coverage and so no duty to defend or duty to indemnify either, the District Court held under West Virginia law in Grand China Buffett & Grill, Inc. v. State Auto Prop. & Cas. Co., 260 F. Supp. 3d 616, No. 1:16CV159, 2017 WL 2129307 (N.D. W. Va. May 16, 2017), appeal dismissed upon stipulated motion to dismiss, 2017 WL 6345716 (4th Cir. September 25, 2017).
"At issue is a report prepared by a structural engineering consultant, Thomas Walstrom, P.E., of EFI Global, Inc., retained by plaintiff but not disclosed as a testifying expert witness. Defendants seek the production of the report followed by other related discovery if necessary. Plaintiff seeks to prohibit any such discovery." So wrote the Southern District of Iowa in the case of Southern Ins. Co. ex rel. Tony Lowenberg v. CIG Enterprises, Inc., 2017 WL 3449613 (S.D. Iowa June 13, 2017; Jackson, U.S. M.J.).
Put another way, this was a case presenting the issue of when can there be discovery of a non-testifying expert's written report and what if anything can be discovered from it.
The Court allowed discovery in that case of the facts and underlying data contained in the non-testifying expert's written report.
However, the non-testifying expert's opinions were held not to be discoverable under the federal Rules of Civil Procedure, and the expert himself was not required to be deposed nor, for that matter, was his deposition prohibited "at this time."