Claims and Bad Faith Law Blog

POOR ROI CONTESTING CRN "FACTS AND CIRCUMSTANCES" ANY MORE.

(Gridview_Imagefull / Florida Department of Agriculture & Consumer Services)

There is just not much return on investment in contesting the sufficiency of "facts and circumstances" allegations in a Civil Remedy Notice of Insurer Violation (statutory bad faith) any more.  That determination yields a "de novo standard of review" on appeal, meaning that an appellate panel's determination easily may be quite different from a trial judge's determination, as in the case of Apex Roofing & Restor., LLC v. State Farm Fla. Ins. Co., 343 So. 3d 1223, 1226 (Fla. 5th DCA 2022).  That meant a lot of money spent for a pretty certain reversal; not much ROI in that.

The judicial determinations of sufficient "facts and circumstances" allegations are fact-specific, as would be expected.  In Apex Roofing, these are the allegations that the appellate panel – unanimously – held were sufficient in a Civil Remedy Notice or CRN, and which the trial judge ruled were insufficient which led to the trial court's reversal on appeal here:

Apex's CRN related that State Farm had, among other things, suggested numerous “half-cures” to resolving the damage claim, including pricing for labor and materials that was inconsistent with marketplace pricing, made “lowball” offers as a precursor to invoking the appraisal process in order to cause additional delay, and received an invoice from Apex that detailed the actual work performed, with a specific amount necessary to resolve the claim. We hold that these allegations sufficiently complied with the requirements of section 624.155(3)(b) 2.

Apex Roofing, 343 So. 3d at 1227.

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FILED RATE DOCTRINE DEPENDS ON FILED RATES THAT ARE APPROVED:

THAT INCLUDES INSURANCE RATES.

Applying Third Circuit case law, the Court in Ainger v. Great Am. Assur. Co., No. 2020-0005, 2022 WL 4379794 (D.V.I. Sept. 22, 2022) required record proof that an insurance rate was filed with the appropriate regulatory agency before the Court could apply the filed-rate doctrine to insurance rates.  Ainger, 2022 WL 4379794, at *15.  The Court also  required proof that the insurance rate was actually approved in fact.

Moreover, the Court in this case applied settled law that the forum jurisdiction must have adopted the filed-rate doctrine in order for a federal court to apply it to claims based on the law of the forum.   Ainger, 2022 WL 4379794, at *14. 

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

P.S. to "MEET THE JUDGES WHO RESTORED THE REPUBLIC FOR NOW."

United States Supreme Court (AP / Jacquelyn Martin)

If (some say when) they ask for an emergency blockade of the Eleventh Circuit's decision to allow the United States to continue to investigate criminal violations involving the confidential documents found under a Court-authorized search warrant to investigate criminal violations, and also that part of the Eleventh Circuit's decision to allow the United States to continue to evaluate the damage done to our national security, then it might be worth knowing who the U.S. Supreme Court Justice is who handles emergency applications for a stay of Eleventh Circuit Orders:

U.S. Supreme Court Justice Clarence Thomas.

Think they'll ask for an emergency blockade of the Eleventh Circuit's decision?

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

MEET THE JUDGES WHO RESTORED THE REPUBLIC FOR NOW.

Eleventh Circuit Court of Appeals, Atlanta, Georgia (Image Eleventh Circuit Court of Appeals Website)

On September 21, 2022, a federal appellate court ruled that while its appeal is pending, the United States can use the classified materials it confiscated from the beach resort in South Florida under an authorized search warrant, to investigate whatever crimes may have been committed and to review whatever damage was done to national security.  They also ruled that the United States does not have to submit the classified documents to a special master to review in the meantime.

With their unanimous order, they restored the Republic, at least for now.  Meet the Judges.

JUDGE ROBIN S.  ROSENBAUM is the senior judge among the three judges on this panel.  She has been on the Eleventh Circuit since 2014.  Having turned 56 this year, she is also the oldest of the three judges on this panel.  Judge Rosenbaum is familiar with the inner workings of most of the parties in this case, having worked as a Trial Attorney in the Department of Justice, as an Assistant U.S. Attorney in the Southern District of Florida, as a U.S. Magistrate Judge in the Southern District of Florida, and as a U.S. District Judge in the Southern District of Florida.

A graduate of the University of Miami Law School, she was nominated by President Obama and she was confirmed to the Eleventh Circuit by a vote of 91 to 0.

JUDGE BRITT GRANT was a Justice of the Georgia Supreme Court before she went to the Eleventh Circuit in 2018.  A graduate of Stanford Law School, Judge Grant was confirmed by a vote of 52-46.  She is 44 years old and a Republican by party.

JUDGE ANDREW L. BRASHER rounds out this panel of three Judges.  Judge Brasher turned 41 this year and has been on the Eleventh Circuit since June 2020.  Previously he was appointed a U.S. District Judge in Alabama where he served for about a year before going to the Eleventh Circuit.  A graduate of Harvard Law School, he too is a Republican by party.

Contrary to Mainstream Media and Alternate Media headlines, this decision did not resolve the appeal in favor of the United States, although that is the likely outcome after this ruling.  Also, this panel which decided the motion (called a "motions panel") may not be the same panel of Judges who will decide the entire appeal.  So it's on with the appeal and let's win there!

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

EFFICIENT PROXIMATE CAUSE DOCTRINE, EXPLAINED.

"Under Washington law," said the Washington Supreme Court in a recent decision, coverage under  the efficient proximate cause doctrine works like this:

1. A covered peril sets in motion a causal chain.
2. The last link of the causal chain is an uncovered peril.
3. It does not make any difference if events within the causal chain, taking place after the causal, covered peril sets the chain in motion, are themselves excluded by the policy even if they are causes-in-fact of the loss at issue.

All this is explained in Seattle Tunnel Ptrs. v. Great Lakes Reins. (UK) PLC, ___ P.3d ___, ¶ 33, 2022 WL 4241893, ¶ 33, at *8 (Wash. Sept. 15, 2022).  See generally Dennis J. Wall, Efficient Proximate Cause Doctrine, § 7:3 in JOHN K. DiMUGNO, STEVEN PLITT, and DENNIS J. WALL, CATASTROPHE CLAIMS / INSURANCE COVERAGE FOR DISASTERS (Thomson Reuters May 2022 Ed.).

The case in which this was explained is a coverage case which grew out of a major construction project in Seattle.  The project involved a tunnel and a "tunnel boring machine" or "TBM."  The machine broke down, the project stopped, and insurance claims and litigation ensued.

The policy at issue is a builder's all-risk policy with a "Machinery Breakdown Exclusion" or "MBE."  The issue came down to a relatively narrow question:  Were the design defects which caused the TBM to break down a covered peril or perils, so that there was coverage under the efficient proximate cause doctrine, or was the design defect excluded by the policy's MBE?  (Washington, D.C. does not have an exclusive franchise for acronyms, apparently.  Acronyms are used everywhere including in Washington State.) 

As the Washington Supreme Court put it, the efficient proximate cause doctrine could apply only if the initial event, here, the design defects at issue, were a covered peril under the builder's all-risk policy at issue:

This would first require a finding that the Policy covers damage for design defects and that those design defects caused damage to the TBM.  Under those circumstances, the efficient proximate cause rule might provide coverage for the last link in the causal chain, even if it Is an excluded peril (i.e., the machinery breakdown).

Seattle Tunnel Partners,  2022 WL 4241893, ¶ 33, at *8.

That ruling was foreclosed by an earlier ruling at all levels of this case.   The trial court granted summary judgment that design defects were an excluded peril, the Court of Appeals affirmed the trial court, and the Supreme Court affirmed the Court of Appeals.  Seattle Tunnel Partners,  2022 WL 4241893, ¶ 4, at *1.

And so a long story made short is that the causal event was not covered, so the efficient proximate cause doctrine did not apply.

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

FEDERAL COURT PROCEDURES FOR ASSIGNING JUDGES TO CASES AFFECT OUTCOMES.

Judge's Gavel (Thomson Reuters West via LinkedIn)

In Patterson v. Mahwah Bergen Retail Grp., Inc., No. 3:21cv167 (DJN), 2022 WL 4287200 (E.D. Va. Sept. 16, 2022) (adopting report and recommendation, with modification, after Federal Court Rules were amended governing assignment of Bankruptcy Judges), a U.S. District Judge recognized the effects of Federal Court Procedures for assigning judges to cases:  The Federal Court Procedures for assigning judges to cases affect outcomes.

How true.  This is so clear that we can even see this in today's headlines.

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

UBER DRIVES AWAY, SUBCONTRACTS INSURANCE, DRIVER HAS NO RECOURSE.

 

A dark galaxy alongside a bright star (Image by NASA)

In  Valentine v. James River Ins. Co., No. 1:20-cv-01638-CMA-SKC, 2022 WL 4112210 (D. Colo. Aug. 1, 2022) (USMJ), an Uber driver was injured in an automobile collision with an uninsured motorist.

The Uber driver, Ms. Elet Valentine, sued Uber, an Uber subsidiary, and James River Insurance Company which issued a liability insurance policy to the subsidiary to cover Uber driving operations.  James River "offered Plaintiff $250,000 multiple times, which she rejected each time."  Valentine, 2022 WL 4112210, at *1.  "Ultimately," Ms. Valentine's suit against Uber and its subsidiary was "to recover the amounts she has not received from James River."  Valentine, 2022 WL 4112210, at *1.  

From the beginning, Uber distanced itself from the Uber driver.  It did not sign a contract with her.   That is Uber's business model.

Instead, a wholly owned subsidiary of Uber contracted with the Uber driver.  The opinion gives the subsidiary's name, which is Raiser, LLC.  The opinion does not describe what relationship existed between the Uber driver and Raiser, apart from Raiser's contractual obligation to obtain liability insurance for Uber drivers.

The contract called for the subsidiary to obtain liability insurance for driving operations for Uber.   Although the opinion does not say so, I am intuiting that California law imposed a level of uninsured motorist coverage, perhaps the $250,000.00 that James River kept offering Valentine.  She was not satisfied with that offer because apparently the extent of her injuries, or her or her lawyers' evaluation of her injuries, was greater than $250,000.00.  She brought suit against Uber and Raiser in particular for the amount of her damages that exceeded $250,000.00.

At any rate, Ms. Valentine's contract with Raiser called for Raiser to purchase liability insurance and for all we know from the opinion,  that is what Raiser, the Uber subsidiary, purchased, namely, liability insurance.  No word in the contract or the opinion about uninsured motorist coverage, and no word either about coverage for the full extent of the drivers' injuries, just liability coverage per the express words of the contract written by the subsidiary (or by Uber, the facts are unclear as to who wrote the contract at issue in this case, except that the contract clearly was not written by the Uber driver).

The driver sued Uber and the subsidiary for  breach of contract and for what she alleged as "the nondelegable doctrine" (which the Magistrate Judge analyzed both as "vicarious liability" and as "nondelegable doctrine," finding that neither was an independent claim for relief).  In  this case, the Magistrate Judge recommended that Uber's motion for summary judgment, and its subsidiary's motion for summary judgment,  be granted.

That left any remaining cost of the Uber driver's medical bills incurred while driving for Uber, with the driver who had the misfortune of a rear-end collision with an uninsured motorist while driving for Uber.  It will be recalled that no UM coverage was at issue here as such.   Parenthetically, in a footnote the Magistrate Judge reported a separate recommendation that James River Insurance Company's motion for summary judgment should be granted also.  Valentine, 2022 WL 4112210, at *1 n.2.  

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

SHOW COMPELLING REASONS TO SEAL, EVEN WHEN SEALING IS UNOPPOSED.

Editing (LexisNexis)

In Apex Op's, LLC v. Rosenberg, No. 2:22-cv-01169-RFB-DJA, 2022 WL 4112201, at *1 (D. Nev. Aug. 22, 2022) (Albregts, USMJ), Everything Blockchain, Inc. filed a motion to dismiss with exhibits.  It also filed a motion to seal one of the exhibits to its motion to dismiss.  "Blockchain moves to seal the exhibit because it is a copy of a settlement agreement between other parties in the litigation.  Blockchain explains that the settlement agreement contains a confidentiality provision, designed to protect the confidential business terms and nature of the agreement." Apex Operations, 2022 WL 4112201, at *1 (record reference omitted).

Even though Blockchain's motion to seal was unopposed, it was denied.  The Magistrate Judge denied the motion effectively holding, although not stating it, that an unopposed motion to seal is not sufficient to seal a document in a Court file.  The Magistrate Judge in this case did expressly rule that in the Ninth Circuit a confidentiality provision in a settlement agreement is not enough by itself for a Court to seal the agreement. 

 "A party seeking to seal judicial records submitted in conjunction with dispositive motions bears the burden of meeting the “compelling reasons” standard ….  Under that standard, “a court may seal records only when it finds ‘a compelling reason and articulate[s] the factual basis for its ruling, without relying on hypothesis or conjecture.’ ” [Citations omitted.]   Under Local Rule 7-2(d), the failure of an opposing party to file points and authorities in response to any motion constitutes a consent to the granting of the motion." Apex Operations, 2022 WL 4112201, at *1.

The Magistrate Judge went on to recognize that "[h]owever, courts in this district have explained that '[t]he mere fact that the parties’ settlement agreement may contain a confidentiality provision, without more, does not constitute a compelling reason to seal the information.'” Apex Operations, 2022 WL 4112201, at *1.

Accordingly, Blockchain's motion to seal was denied, without prejudice to submit compelling reasons to seal or, taking a so-called "middle approach" to the presumption of public access to Court records, to propose redactions to the other parties' settlement agreement that Blockchain attached to its motion to dismiss.  Apex Operations, 2022 WL 4112201, at *1.

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

Asking "By What Right" Challenges Their Right to Hold Office. Ever.

(One of the last photographs taken of Abraham Lincoln)

New Mexico and its citizens and its State Courts have all shown the way to challenge the right of insurrectionists to hold -- and run for -- office:  Ask courts to declare by what right those people hold -- or seek -- office under the Fourteenth Amendment, Section 3 of the United States Constitution.  (In litigation, to ask "by what right" usually means pleading the writ of quo warranto or something similar.)

As you may already know, Section 3 of the Fourteenth Amendment was written to bar people engaged in insurrection or rebellion against the United States to ever hold office.  Then, it meant former Confederates.

Now, it means office holders (and office seekers) even though they did not engage in violence so long as the proof in court shows that they did engage in insurrection, as in the case of Download State of New Mexico ex rel. White v. Griffin Findings of Fact Conclusions of Law and Judgment filed Sept. 6 2022 (N.M. Dist. Ct. 1st Dist. Santa Fe County No. D-101-CV-2022-00473).

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

'The Constitution represents popular opinion.'

(Sun Sentinel Handout)

In Download State of New Mexico ex rel. White v. Griffin Findings of Fact Conclusions of Law and Judgment filed Sept. 6 2022 (N.M. Dist. Ct. 1st Dist. Santa Fe County No. D-101-CV-2022-00473), New Mexico District Judge Francis Mathew ruled that because the defendant violated the Fourteenth Amendment, Section 3,  "effective January 6, 2021" the defendant is no longer entitled to hold public office and shall not hold state or federal office in the future.

"Mr. Griffin disregards that the Constitution itself  reflects the will of the people and is 'the supreme Law of the Land.'"  Id., ¶ 67, p. 44.

The Judge who wrote this opinion graduated from Notre Dame the year after I did.  He went on to the University of Notre Dame Law School.  Back in the day, he would have been called "a Double Domer."

Today, he is rightfully called Judge.

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

"The Court denied their request to be friends of court."

(Peter Ringenberg / University of Notre Dame)

On August 30, 2022, seven "former federal prosecutors and state and federal governmental officials who served in Republican administrations," including former Massachusetts and New Jersey Governors William F. Weld and Christine Todd Whitman, filed their motion to appear as friends of the court and brief the unique issues in that case:  Download Trump v. United States Doc. No. 41 Motion to File Amicus Brief filed August 30 2022 (S.D. Fla. No. 9.22-cv-81294-AMC).

As required, they contacted both parties before they filed their motion:  "Defendant consents to the Motion and Plaintiff opposes the Motion."

On September 6, 2022 in an unwritten order the Court denied their request to appear as friends of the court.

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

CONSUMER PROTECTION ACTS AND INSURANCE BAD FAITH ACTIONS

(Blue Moon Image by NASA)

In a decision only recently published on Westlaw, Precision Cranes, Inc. v. Tester Drilling Serv's, Inc., No. 4:18-cv-00019-JMK, 2020 WL 13538682, at *3 (D. Alaska Nov. 18, 2020), the Court held that a UTCPA (Unfair Trade Practices and Consumer Protection Act) statutory claim could not be alleged because the Unfair Claim Settlement Practices Act already occupies the field of unfair methods of competition and unfair or deceptive acts or practices by insurance companies in Alaska.

If the style of this case sounds familiar, another ruling of this Court on the same date in this case was addressed here on August 31, 2022, in an article titled UNFAIR & DECEPTIVE PRACTICES ACTIONS AND IMPLIED COVENANT BREACH ACTION TOGETHER.

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

THE LAW AND UNSEALING SEARCH WARRANT MATERIALS.

 

Editing (LexisNexis)

A recent decision by Chief Judge Beryl Howell of the U.S. District Court for the District of Columbia may shed some light on issues pending in the South Florida case of Trump v. United States.  The issues are masterfully laid out in the Reply Memo of the United States, here:  Download Trump v. United States Doc. No. 48 Response of USA to P's M For Judicial Oversight and Additional Relief filed August 30 2022 (S.D. Fla. No. 9.22-cv-81294-AMC).

The recent judicial decision came in the search warrant materials case of In re Application of Los Angeles Times Communic's LLC to Unseal Ct. Records, Misc. Action No. 21-16 (BAH), 2022 WL 3714289 (D.D.C. Aug. 29, 2022).  Although the L.A. Times Communications Application to Unseal Court Records case involved not private access but rather  public access to Court records, the case involved Court records which are very similar to at least some of the records sought to be unsealed in South Florida, including a search "warrant application, search warrant, supporting affidavit, and docket sheet" and "a motion and accompanying memorandum supporting continued sealing of the redacted portions of the search warrant materials[.]"   Unseal Court Records, 2022 WL 3714289, at *4.

Moreover, with the numbers of interested parties who seek to file amicus briefs or motions to intervene in the Southern District of Florida case accumulating by the day, the precise issues of public access to Court records will or may be litigated. 

For all these reasons, the rulings in the L.A. Times Communications Application to Unseal Court Records case in D.C. may enlighten the proceedings in South Florida.

There were two categories of redactions at issue in the District of Columbia case.  At least some of the materials have counterparts in the South Florida case.  The two categories of redacted materials involved in D.C. are:

(1) those aimed at protecting third-party privacy interests, including, among other things, the “private financial information” of third parties; “information gained from the cooperation of private third-party witnesses[;]; and the descriptions of DOJ's “law enforcement techniques and processes in the course of the investigation,” and (2) those meant to preserve the due process interests of investigative targets “against whom the probable cause allegations in the warrant were made” but were not charged with any criminal offenses.

Unseal Court Records, 2022 WL 3714289, at *6 (record references for internally quoted material omitted).. 

The materials sought to be unsealed are similar in both cases, the one in D.C. and the one in West Palm Beach, but the D.C. case involved a closed criminal investigation and of course the South Florida case involves search warrant and top-secret materials in what are apparently a number of ongoing investigations.  Still, the Unseal Court Records Court's resolution may be helpful in the South Florida case.

As to the first category of redacted materials, the redactions aimed at protecting the third-party privacy interests identified above -- including private financial information, information gained from witnesses, and descriptions of law enforcement techniques, sources and methods in the government's investigation -- the Court in D.C. held that the continued sealing of those materials is appropriate after considering common law and First Amendment presumptions of public access to them.  Unseal Court Records, 2022 WL 3714289, at *6.   The Court's detailed analysis is set forth in id. at *6-*7 and *10.

With respect to the second category of redacted materials, which may be accurately described as "the due process" materials, such materials require a different result depending on an examination of factors such as "misuse of a public office," whether the concealed information has already been disclosed in public, and whether disclosure would harm legitimate privacy or law enforcement interests.  Unseal Court Records, 2022 WL 3714289, at *7.  In the context of the D.C. case, the Court ordered disclosure of "DOJ's proposed redactions intended to preserve the due process interests of investigative targets" who were targets of probable cause outlined in the search warrant but against whom criminal proceedings were closed.  Unseal Court Records, 2022 WL 3714289, at *10.

In South Florida, of course, part of the materials sought to be unsealed are National Defense Information top secrets which have never been disclosed to the public by anyone at this point.  Whether they have been disclosed to anyone at all, is unknown at present.

The parties, their lawyers and the Court in the U.S. District Court for the Southern District of Florida may raise or ignore the rulings in the L.A. Times Communications Application to Unseal Court Records case in D.C.   Whatever choice they make, the Unseal Court Records decision will almost certainly be part of any appeal.

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