(Photo by Dennis Wall)
Sometimes, it's written for you. When you sit down to write, as I did for this article on bad faith, you expect to spend time researching, then crafting sentences and paragraphs to convey the meaning you draw from what you found.
Not this time.
There are instead times when it is written for you. This was the case of the opening words of a decision by a federal judge in Indiana on St. Patrick's Day 2023. The judge summarized the entire case in the opening words of the decision. To be sure, the opinion went on for several pages in the Westlaw version, but the following words written in the judge's decision sum it up completely:
In 2015, Tampa Bay Buccaneers kicker Lawrence Tynes sued the franchise for an off-the-field injury that ended his decorated career. The Buccaneers believed the franchise had insurance coverage based on representations in a proposal from one broker, American Specialty Insurance & Risk Services, Inc. American Specialty served as underwriter for AXIS Insurance Company. But AXIS called an audible and denied coverage. The Tynes suit never progressed to name American Specialty or AXIS.
Instead, as the suit proceeded against the Buccaneers, rather than ask American Specialty to defend even a potential claim, AXIS directed American Specialty to stay out of it, and did so for eighteen months. AXIS maintained its position that it wasn't actually liable because the insurance policy provided no coverage. At mediation, AXIS nevertheless chose to attend and contribute to a Buccaneers settlement in exchange for the franchise's promise not to sue AXIS. AXIS had invited American Specialty to consider a “market solution” at mediation too but never asked for a defense.
American Specialty's silence [in response to Axis's proposed "market solution"] and lack of contribution at mediation [which American Specialty did not attend, seemingly in accordance with Axis's long-standing instructions not to be involved in any way in the Tynes case] kicked off AXIS's suit based on an indemnity clause in their Program Manager Agreement. This case presents the question whether AXIS paid a loss for which it was not liable or in a manner that rendered its settlement contribution voluntary such as to foreclose a request for indemnity. American Specialty requests summary judgment for this reason. The court grants summary judgment accordingly.
Axis Ins. Co. v. Am. Spec. Ins. & Risk Serv's, Inc., No. 1:19-CV-165 DRL, 2023 WL 2560833 (N.D. Ind. March 17, 2023).
The Court noted that Indiana law requires that the party from which indemnity is sought, must have been given notice and an opportunity to defend itself. On this record, that did not happen for American Specialty. Indiana law summarized by the Court equates conduct of this kind with bad faith when it is indulged in by a party which later seeks indemnity . See Axis, 2023 WL 2560833 at *5. On this record, then, the Court granted American Specialty's motion for summary judgment.
The only wonder about this case is something the judge did not address, actually could not address: Why was this lawsuit ever filed?
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