Claims and Bad Faith Law Blog

WHEN DOES THE DUTY TO DEFEND INCEPT?

There are different views among the courts as to when the duty to defend is triggered under a liability insurance policy.  South Carolina has given the usual answer, for example.

   "In South Carolina, the duty to defend arises when a covered lawsuit is filed—not when the insured gives notice of that suit or demands a defense."  Harriman v. Assoc. Indus. Ins. Co., 91 F.4th 724, 729 (4th Cir. 2024) (emphasis by the Court).

The many cases on the subject are discussed in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH §§ 3:51 through 3:54 (West Publishing Co. 3d Edition, 2024 Supplements in process).

Please read the disclaimer.  This blog article ©2024 Dennis J. Wall.  All rights reserved.

WHERE FACTS, NOT SO MUCH ALLEGATIONS, DEPLOY A DEFENSE.

When facts determine a liability carrier's duty to defend, it's the allegations of fact that are relevant and not so much the allegation "labels" that a plaintiff -- or a liability carrier contesting its duty to defend -- put on them.  This is the rule that was applied under Illinois law, for example, in a case involving one of the more well-known arrangers in financial schemes:  Zurich Am. Ins. Co. v. Ocwen Fin. Co., 990 F.3d 1073, 1078 (7th Cir. 2021) (under Illinois law, duty to defend is determined by "considering whether the facts alleged describe potentially covered liability").

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

NO "SPECIFIC, IDENTIFIABLE" CLAIM OR CASE? NO FEDERAL JURISDICTION.

In State Auto Prop. & Cas. Ins. Co. v. Williams, No. 20-CV-1420, 2021 WL 2106488, at *4 (C.D. Ill. March 15, 2021), the District Judge applied a rule of federal jurisdiction which is summarized in the title of this article:  No "specific, identifiable" claim or case?  No federal jurisdiction.

          In that case, the federal court did not have jurisdiction to issue declaratory relief as between a liability carrier and Norfolk Southern Railway Company, "a purported additional insured" under a policy the carrier issued to one Williams.  Williams, in turn, was doing business as Jandi Services, a cleaning company.  Norfolk contracted with Williams d/b/a Jandi Services for cleaning services.  State Auto Property, 2021 WL 2106488, at *1.  Although the underlying claimant provided Norfolk with an unfiled draft complaint against Norfolk, State Auto Property, 2021 WL 2106488, at *2, there was no underlying action against Williams.  State Auto Property, 2021 WL 2106488, at *2.

          Making a complicated story simpler, there was no "specific, identifiable" claim or case in the eyes of the District Judge.  The Court accordingly granted the defendants' motion to dismiss the carrier's complaint seeking a declaration that it has no duty to defend.  State Auto Property, 2021 WL 2106488, at *6.

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

DUTY TO DEFEND FACTUAL ALLEGATIONS IN PENNSYLVANIA UNDERLYING COMPLAINT.

In Vitamin Energy, LLC v. Evanston Ins. Co., ___ F.4th ___, No. 20-3461, 2022 WL 39839, *1 (3d Cir. Jan. 5, 2022), the Court applied Pennsylvania law, where a liability insurance company's duty to defend is determined by comparing the allegations in the underlying complaint against the insured, with the provisions of the policy at issue.  In that case, Vitamin Energy "took its insurer to court" for declaratory relief, breach of contract, and "bad-faith denial of coverage[.]"  Vitamin Energy, 2022 WL 39839, at *2.  The appellate court determined that the underlying complaint adequately alleged an "Advertising Injury," holding that there is a duty to defend here.

          Note that Pennsylvania law on the duty to defend requires a comparison of the policy with the factual allegations in the underlying complaint.  Vitamin Energy, 2022 WL 39839, at *3, *6.

          The Third Circuit panel said nothing about the bad-faith claim.  The appellate court vacated and remanded in an appeal from a judgment on the pleadings, not intending "to signal how the coverage dispute here should ultimately be decided," but "focused now solely on the duty to defend."  Vitamin Energy, 2022 WL 39839, at *6.

Other jurisdictions determine the liability carrier's duty to defend differently, such as by comparing the policy to the claims alleged in the underlying complaint.  The different tests are examined in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH §§ 3:53-3:54 (West 3d edition, 2022 Supplements in process).

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

LIABILITY INSURER'S DUTY TO DEFEND COVID-19 CASE UNDER FLORIDA LAW.

NOT IN THIS FIRST-PARTY INSURANCE CASE OF NO COVERAGE FOR COVID-19 CLAIMS.

Under Florida law, "an insurer's duty to defend its insured against legal action depends solely on the facts alleged in the pleadings and on the legal claims alleged against the insurer [sic; should be "alleged against the  insured"]."   Mauricio Martinez, DMD, P.A. v. Allied Ins. Co. of Am., ___ F. Supp. 3d ___, No. 2:20-cv-00401-FtM-66NPM, 2020 WL 5240281, at *1 n.2 (M.D. Fla. Sept. 2, 2020).

This was actually a first-party insurance case.  However, apparently the policyholder's coverage argument occasioned a footnote in which the Court  reflected both on the propriety of defending litigation, and on the contractual duty to defend where such a duty exists.

As the Court noted in the body of its opinion, "[t]he scope of insurance coverage is defined by the language and terms of the insurance policy[.]"  Mauricio Martinez, DMD, P.A., 2020 WL 5240281, at *2.

Due to the carrier's virus exclusion in the first-party policy at issue in this case, there was no coverage for the COVID-19 claims of the policyholder.

The holdings in third-party or liability insurance cases and the judicial interpretation of insurance statutes concerning a liability insurer's duty to defend throughout the United States, are extensively discussed in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH §§ 3:51 - 3:64 (Thomson Reuters West 3d edition & 2020 Supps.).  Coverage and Policy Defenses to First-Party Insurance Coverage are addressed in id., Volume 2, throughout Chapter 11 and particularly in § 11:1.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

A LESSON IN LONGEVITY.

(Image courtesy of LexisNexis)

Judging from the electronic docket of the case, the parties and their lawyers in the case of Travelers Indemnity Co. of Connecticut v. Old Dominion Insurance Co. (M.D. Fla. Case No. 8:19-cv-T-30AAS) obviously want to settle.

    The docket activity since this case was filed in 2019 has involved offers of judgment/settlement, mediation, case management scheduling deadlines, and an expert witness matter.  There has not been any dispositive motion filed.  In particular, there has been no motion to dismiss.

    On September 24, 2020, the U.S. Magistrate Judge assigned to the case entered a discovery order granting in part and denying in part TIC's motion to compel production from Old Dominion.  The Westlaw publication of this order does not show that it was entered by the Magistrate Judge, but I learned who entered it when I reviewed the electronic docket of the case on PACER.  See Travelers Indem. Co. of Conn. v. Old Dominion Ins. Co., Case No. 8:19-cv-T-30AAS, 2020 WL 5701816 (M.D. Fla. Sept. 24, 2020).

    TIC a/k/a Travelers sued Old Dominion "for equitable subjugation or, in the alternative, equitable contribution" for failure to indemnify a common insured.  Travelers, 2020 WL 5701816, at *1.  Later in the case, the Magistrate Judge who entered the September 24 order said that "Travelers sues Old Dominion for equitable subjugation and equitable indemnity[.]"  Travelers, 2020 WL 5701816, at *4.

    I am an Insurance Coverage lawyer and I have never heard of "equitable subjugation."  Have you?  This alleged claim would later determine the outcome, as we will see below.  (The opinion cited one case, which involved equitable subrogation, so despite the words used in the Travelers case, maybe that is what was meant in this case, namely, equitable subrogation.  Again, the alleged claim determined the outcome here, see below.)

    I am also not familiar with "equitable contribution" between liability insurance carriers under Florida law, at least by that name or in the context of this case.  Unless Florida law has changed substantially, there is no cause of action between insurers for "equitable indemnity," either.  I have heard of equitable subrogation, and I have heard of contribution, and I have even heard of indemnity, but not "equitable contribution" or "equitable indemnity," either, particularly as an alternative to something called "equitable subjugation."

    If only a motion to dismiss had been filed in the case.  Perhaps this could have been cleared up by now.  On the road to settlement, perhaps this has been overlooked but since the parties and their lawyers are continuing on the road to settlement, it seems, perhaps the USMJ's two rulings on September 24 will hasten that conclusion to this matter. 

    The first ruling was to declare that the defense lawyer ("Attorney Metzger"), Old Dominion, and the insured enjoyed a "tripartite relationship."  The insured executed an assignment to Travelers and so, the court ruled, Travelers became the insured's "successor in interest" to this tripartite relationship.  "Thus, Old Dominion's attorney-client privilege objections to the production of correspondence between Old Dominion and Attorney Metzger are overruled.  Old Dominion must produce those withheld documents."  Travelers, 2020 WL 5701816, at *2.

    Second, Travelers sought to compel production also of Old Dominion's claim files in the underlying case against the common insured.  The Magistrate Judge responded to Travelers' claim that it really was like a plaintiff in a bad faith case because it had alleged "equitable subjugation claims."  Travelers, 2020 WL 5701816, at *2. 

    Old Dominion raised the qualified immunity of work product and also argued that "this is not a bad faith claim."  The Magistrate Judge held in favor of Old Dominion on this issue.  The USMJ based this outcome on the claim or cause of action alleged in this case:  "But Travelers does not assert a bad faith claim against Old Dominion; rather, Travelers asserts a claim of equitable subjugation.  Thus, the work-product doctrine applies to Old Dominion's claim file."  Travelers, 2020 WL 5701816, at *3.

    So, in the end, the lesson of this case may be that bad faith by another name does not smell like bad faith.  Or, perhaps, at least it need not be an insurmountable obstacle to settlement.

P.S. from another Insurance Coverage lawyer:  "Equitable subjugation strikes me as the quintessential oxymoron.  It sounds like a theory slaveholders might have invoked to support the trope that Blacks are better off under slavery than free."

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.   

 

USING "THE FOUR-CORNERS RULE" TO DECIDE BREACHED DEFENSE DUTY.

The Supreme Court of Wisconsin took a break from its elections work this year and held that in deciding a liability insurance carrier's duty to defend ...

... a court is bound by the four-corners rule when deciding whether the Complaint alleges a covered claim triggering the insurer’s duty to defend. Once a court concludes a duty to defend exists, the insurer’s actions—unilaterally denying coverage, opting for a judicially preferred procedure to determine coverage, or something else—will be examined to decide whether the insurer breached its duty to defend.

Choinsky v. Employers Ins. Co. of Wausau, 390 Wis. 2d 209, ¶ 42, at 238, 938 N.W.2d 548, ¶ 42 at 562 (2020).

A checklist based on the decided case law including the Choinsky decision for Avoiding Bad Faith in Third-Party Claims: Check List On Deciding Whether to Defend, is set out in Section 3:103 in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH (Thomson Reuters West, 3d Edition, forthcoming 2020 Supplement).

Please read the disclaimer. ©2020 Dennis J. Wall. All rights reserved.

ANOTHER TAKE: NO DUTY TO DEFEND ASSAULT AND BATTERY.

A panel of the Sixth Circuit Court of Appeals said in a 2-to-1 decision that it was not able to find any Kentucky State Court cases saying that an answer to the question of a duty to defend should include "known facts" outside the allegations appearing from the face of the underlying complaint against the insured.  The case involved an apparently standard liability policy with a standard assault and battery exclusion.

The same Sixth Circuit Court of Appeals panel observed that "several federal-court decisions applying Kentucky law do state a 'known facts' rule, and the proposition that an insurer has a duty to defend if known facts outside the complaint demonstrate the possibility of coverage enjoys support in many jurisdictions."  United Spec. Ins. Co. v. Cole's Place, Inc., 936 F.3d 386, 403 n.3 (6th Cir. 2019).

This observation did not affect the outcome however.  The trial court in this case entered a summary judgment of no coverage in favor of the carrier, and the two judges in the panel majority affirmed on appeal.

The dissenting judge would have reversed the summary judgment in favor of the carrier on coverage as a matter of law, and she would have also addressed a second issue in the case, namely, whether there was federal declaratory relief jurisdiction and she would have ruled that in this case, there was not.

The room for Coverage of a Claim Known But Not Pleaded and its consequences for Fulfillment or Enforcement of Good Faith Duties, are discussed based on the case law that decides them including the United Specialty Ins. Co. v. Cole's Place decision, in Section 3:54 in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH (Thomson Reuters West, 3d Edition, forthcoming 2020 Supplement).

Please read the disclaimer. ©2020 Dennis J. Wall. All rights reserved.

DUTY TO DEFEND AN ARBITRATION?

A commercial general liability (CGL) carrier had a duty to defend its policyholder in an arbitration, the court held in Gemini Ins. Co. v. Constrx Ltd., 360 F. Supp. 3d 1055 (D. Haw. 2018).  As the Court read the liability policy at issue in that case, the policy provided that the policyholder could not be subjected to liability without a defense.  Under the policy provisions, as interpreted by the Court, the CGL carrier had to provide defense coverage for the arbitration.

The Requirements for a Duty to Defend and its consequences for Fulfillment or Enforcement of Good Faith Duties, are discussed based on the case law that decides them including the Gemini decision, in Section 3:51 in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH (Thomson Reuters West, 3d Edition, forthcoming 2020 Supplement).

Please read the disclaimer. ©2020 Dennis J. Wall. All rights reserved.

APPOINTING INDEPENDENT COUNSEL IN ILLINOIS.

In 2019 an Illinois District Court of Appeal used an established test to decide whether an insured has a right to its own independent counsel at the expense of the liability carrier. The case is Xtreme Protection Services, LLC v. Steadfast Insurance Co., ___ N.E.3d ___, No. 1-18-1501, 2019 WL 1976482, 2019 IL App (1st) 181501 (Ill. 1st DCA, 6th Div., May 3, 2019) (stated Not Final), app. denied, 132 N.E.3d 357 (Ill. 2019).

    The test that the Illinois Court applied in the Xtreme case is in the mainstream of Illinois insurance law. The Court's concise question was "whether the insurer's interests would be furthered by providing a less-than-vigorous defense" to the allegations in the underlying case against the insured.

    That is the simple question that determines the outcome even in complicated cases in Illinois.  If and when the given case provides a "yes" answer to that question the carrier has the responsibility to pay for the insured's independent defense counsel in that case and loses the right to provide defense counsel of its own choosing.

    The trial court too applied that simple test and in a rare move, entered judgment on the pleadings in favor of the insured.

    The appellate court applied the same test and affirmed.

The Xtreme decision is one of many cases discussed at length in Section 3:7, Informing the Insured: Providing Independent, "Mutually Agreeable" Counsel to the Insured, in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH (Thomson Reuters West, 3d Edition, forthcoming 2020 Supplement).

Please read the disclaimer. ©2020 Dennis J. Wall. All rights reserved.

 

Liability Carriers and Defense Costs Reimbursement by Policyholders.

To date, an apparent minority of courts has held that liability insurance carriers cannot recover defense fees and costs even when the policyholder agrees and there is a judicial determination that no possibility of coverage ever existed for the defended claims, summarized in detail in Attorneys Liability Protection Society, Inc. v. Ingaldson Fitzgerald, P.C., 370 P.3d 1101, 1112 (Alaska 2016) :

    The answer to both certified questions is “yes”: Alaska law prohibits enforcement of a policy provision entitling an insurer to reimbursement of fees and costs incurred by the insurer defending claims under a reservation of rights, where (1) the insurer explicitly reserved the right to seek such reimbursement in its offer to tender a defense provided by independent counsel, (2) the insured accepted the defense subject to the reservation of rights, and (3) the claims are later determined to be excluded from coverage under the policy; and, Alaska law also prohibits enforcement of a policy provision entitling an insurer to reimbursement of fees and costs incurred by the insurer defending claims under a reservation of rights, where (1) the insurer explicitly reserved the right to seek such reimbursement in its offer to tender a defense provided by independent counsel, (2) the insured accepted the defense subject to the reservation of rights, and (3) it is later determined that the duty to defend never arose under the policy because there was no possibility of coverage.

In this case, the Supreme Court of Alaska based its answer to certified questions on the wording of Alaska's independent counsel statute. It was interpreted to bar all such reimbursement claims, contrary to the interpretation of similar statutes in other States such as the interpretation of the California independent counsel statute in the California Courts including the California Supreme Court.  Attorneys, 370 P.3d at 1108-09.

    This decision has been rejected by name by a federal court applying Washington law in a case which was the subject of an earlier article on this blog, Massachusetts Bay Insurance Co. v. Walflor Industries, Inc., 383 F. Supp. 3d 1148, 1168-69 (W.D. Wash. 2019).

The issue of a liability carrier's right to reimbursement of defense expenses for defending noncovered claims, as well as the carrier's right to reimbursement of indemnity for noncovered claims, is discussed at length in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:6, Informing the Insured: Insurer Assertion of Rights to Reimbursement From the Insured of Clearly Noncovered Indemnity and Defense Expense (Thomson Reuters West 3d ed, 2020 Supplements in process). The Attorneys Liability Protection Society case and the Massachusetts Bay Insurance Co. cases are among the cases discussed there, both in print and online.

Please read the disclaimer. ©2020 Dennis J. Wall.  All rights reserved.

 

REIMBURSEMENT OF DEFENSE EXPENSES BY POLICY PROVISION.

In the case of National Surety Corp. v. Immunex Corp., 176 Wash. 2d 872, 297 P.3d 688 (2013), the Supreme Court of Washington rejected a carrier's claim to reimbursement of defense expenses for noncovered claims.

    More recently, a federal District Judge has distinguished Immunex in a case involving Washington State substantive law.  The federal court held that Washington State public policy did not invalidate a policy's defense cost reimbursement endorsement even though the endorsement compelled a result contrary to Immunex.  Massachusetts Bay Insurance Co. v. Walflor Industries, Inc., 383 F. Supp. 3d 1148, 1168-69 (W.D. Wash. 2019).

The issue of a liability carrier's right to reimbursement of defense expenses for defending noncovered claims, as well as the carrier's right to reimbursement of indemnity for noncovered claims, is discussed at length in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:6, Informing the Insured: Insurer Assertion of Rights to Reimbursement From the Insured of Clearly Noncovered Indemnity and Defense Expense (Thomson Reuters West 3d ed, 2020 Supplements in process). The Immunex case and the Massachusetts Bay Insurance Co. cases are among the cases discussed there, both in print and online.

Please read the disclaimer. ©2020 Dennis J. Wall. All rights reserved.

This new article is drawn from research for the manuscript of the 2020 Supplement of LITIGATION AND PREVENTION OF INSURER BAD FAITH, which I am writing right now:

In 2019, the Reporters on the Restatement of the Law of Liability Insurance Reporters wrote that the majority view now rejects vicarious bad-faith liability of liability insurance companies for the professional malpractice of the defense counsel they provide to their insureds. See RESTATEMENT OF THE LAW OF LIABILITY INSURANCE § 12 & cmt. d (2019).

    The Tenth Circuit Court of Appeals echoed this view in 2020, based on the Reporters' Comment in 2019. The Tenth Circuit pointed out that Kansas law already follows this rule. The federal appellate court accordingly affirmed the trial court's summary judgment under Kansas law on a claim of vicarious bad-faith liability for the conduct of the insured's defense counsel in this case.

    The Tenth Circuit panel predicted that the Kansas Supreme Court will apply the following test which the appellate panel read in the Restatement, "[b]ecause of the soundness of the common rejection of an insurer's general vicarious liability for negligent representation by the insured's attorney":

An insurer is subject to liability for the harm caused by the negligent act or omission of counsel provided by the insurer to defend a legal action when the insurer directs the conduct of the counsel with respect to the negligent act or omission in a manner that overrides the duty of the counsel to exercise independent professional judgment.

Progressive Northwestern Ins. Co. v. Gant, ___ F.3d ___, No. 18-3226, 2020 WL 2078282, at *9 (10th Cir. April 30, 2020), quoting RESTATEMENT OF THE LAW OF LIABILITY INSURANCE § 12(2) (2019) (emphasis by the Tenth Circuit).

    In a shorter version of the appropriate test in Kansas, the Tenth Circuit panel wrote and applied the following test: "But the test for vicarious liability in this context is not the right to control, but the exercise of control." Gant, 2020 WL 2078282, at *10 (emphasis added).

    Query for the defense: How much of this is about vicarious liability?

See generally Dennis J. Wall, § 3:71, Requirements for fulfillment or enforcement of good faith duty: Conduct of defense--Negligence of trial counsel, in Volume 1 of LITIGATION AND PREVENTION OF INSURER BAD FAITH (Thomson Reuters West 3d ed., 2020 Supplements in process).

Please read the disclaimer. ©2020 Dennis J. Wall. All rights reserved.

Conflicts and Separate, Independent Defense Counsel.

"After considering case law from New York to California and in between, and after considering statutes from California to Florida, it appears clear that lawyers' rules of ethics provide the bases for the conflict that requires liability carriers to provide their insureds with separate, independent defense counsel."

Dennis J. Wall, Conflicts Requiring Liability Carriers to Provide Independent Defense Counsel to Insureds, New Appleman on Insurance:  Current Critical Issues in Insurance Law 1 (Spring 2020).  PDF provided courtesy of copyright holder LexisNexis.

Please read the disclaimer. ©2020 Dennis J. Wall.  All rights reserved.

 

 

 

 

 

 

 

SPECIAL APPEALS IN MARYLAND: INSURANCE COVERAGE FOR LEAD POISONING.

Two insurance coverage issues were addressed by the Maryland Court of Special Appeals in Pennsylvania Nat'l Mut. Cas. Ins. Co. v. Jeffers, ___ A.3d ___, No. 960, 2020 WL 502612, at *1 (Md. Ct. Spec. App. January 31, 2020) (stated not released for permanent publication):

    This case involves two issues of insurance coverage that have arisen in the context of judgments for lead poisoning.

[* * *] 

    We shall hold that the insurer in this case was not obligated to indemnify the insured for bodily injury that occurred before its policy period began or after its policy period ended. Although we recognize that an unborn child may suffer bodily injury from exposure to lead while in utero, we shall hold that the evidence in this case was insufficient to establish when any such injury began, and thus insufficient to establish an obligation on the insurer’s part. Finally, we shall hold that the insurer must pay postjudgment interest on the entire amount of the judgment even if it is obligated to indemnify its insured for only part of the judgment.

Based on these rulings, the appellate court reversed a summary judgment effectively entered against the carrier on the issue of interest liability, affirmed a summary judgment in favor of the carrier on the issue of "bodily injury" liability coverage, and remanded.

Please read the disclaimer. ©2020 Dennis J. Wall.  All rights reserved.

  

RECOVERING POLICY LIMITS WITHOUT COVERAGE.

There are many things to say about the rulings in the Szafarowicz case.  Commerce Ins. Co. v. Szafarowicz, 131 N.E.3d 782 (Mass. October 1, 2019).  A special feature of the case was discussed in an article posted here on October 22, 2019, and the background of the case has been discussed with unique insight into Insurance Coverage Law in Massachusetts by Nina Kallen, Esquire in her blog of that name, most recently on October 23, 2019.

I have struggled with ways to organize my own remaining thoughts about the reported decision in this case.   Here is how I settled, for now, on organizing some of them.

1.  Recovery under a stipulated settlement or "Consent Judgment" in this case was limited to policy limits because that's what the insureds and the claimant agreed.

The insureds and the deceased claimant's estate stipulated to settlement of the estate's Wrongful Death Action against the insureds.  Although it appears not to be relevant to the stipulation, the fact that the settlement happened at all has everything to do with a couple of further facts by way of background here.  The insureds were being defended by Commerce at the time under a reservation of rights to deny all coverage.  Commerce also separately pursued a Declaratory Judgment Action before the underlying settlement was stipulated.  (Commerce objected to the settlement.)

As a part of their stipulated settlement, the insureds and the estate in the Wrongful Death Action stipulated that the estate's recovery if any would be limited to the insureds' Commerce policy limits and that they, the defendants-insureds, would not face any other risk of damages other than the Commerce policy limits.  Szafarowicz, 131 N.E.3d at 789.  Not only did the estate stipulate to limiting recovery to policy limits.  "The estate agreed that it would not seek to collect or enforce any judgment against the [insureds] beyond the amount payable under their insurance policy[.]" Szafarowicz, 131 N.E.3d at 789.  

That is why the estate's potential recovery against Commerce was limited to the policy limits by the Supreme Judicial Court of Massachusetts:  Anything else they could say would be dicta in the face of these facts.  The facts of this case determined the outcome.

2.    Recovery of policy limits was possible in this case even though there is no insurance coverage.

The Massachusetts Supreme Judicial Court allowed injured claimants, broadly speaking, to recover from defendants' liability insurance carriers so long as certain conditions were met.  Those conditions are discussed below.

However, in the Szafarowicz case, by the time the Supreme Judicial Court ruled there had already been a judicial determination that Commerce had no coverage under the "optional" bodily injury liability coverage under its policy. Szafarowicz, 131 N.E.3d at 790-91.

To recover policy limits, which the Szafarowicz Court said it would allow theoretically, means that the injured claimant would recover under the policy.  Yet in this case, there was already a determination that there was no coverage under the policy.  Still the Massachusetts HIgh Court remanded for a determination in the lower courts under its theoretical framework for recovery of Consent Judgments, as discussed below.

That framework simply does not include proving insurance coverage for the loss.  If it did, the Szafarowicz Court would not have remanded for a determination of anything in this case, where to say again there was already a judicial determination of no insurance coverage for the loss.

3.    "How many angels can dance on the head of a pin?"  Theoretically.  The elements of recovery under a Consent Judgment in Massachusetts today.

Well, there was still the matter of whether Commerce would be liable for post-judgment interest on any part of the underlying Consent Judgment.  So, the Massachusetts Supreme Judicial Court said that it was fashioning a rule to address that situation.  But that is not what they actually did.

In Szafarowicz, the Court fashioned a rule for recovery under Consent Judgments generally:

    Balancing these risks and benefits, we conclude that an insurer who defends a claim under a reservation of rights is bound by the amount of a judgment arising from a prejudgment settlement/assignment agreement where (1) the insurer is given notice of the settlement/assignment agreement and an opportunity to be heard by the court before judgment enters; (2) the insurer contests the judgment; and (3) the insured, after hearing, meets his or her burden of showing that the settlement is reasonable in amount.

Szafarowicz, 131 N.E.3d at 797.

The Court said, theoretically, that "the probability of a finding that the plaintiff's injuries were caused by an accident rather than intentional conduct ... may also be considered in determining the amount of a reasonable settlement." Szafarowicz, 131 N.E.3d at 798.

They said this despite the fact that, in this case, they previously said that on remand Commerce will not be bound here "to pay the damages determined at the assessment hearing, because it obtained a declaratory judgment that it was not obligated to pay these damages." Szafarowicz, 131 N.E.3d at 796.

In the final analysis, the Szafarowicz Court was against exposing carriers to recovery beyond policy limits even when Consent Judgments are successfully enforced against the carriers, at least in a case like this where the insureds and the injured claimant stipulated to that result.  Except that liability carriers can be exposed to paying Consent Judgments even when they have no coverage under their policies for the loss at issue unless they previously obtained a judicial declaration of no coverage for the loss at issue, as in this unique case.

Whew.  Complicated, isn't it?  Maybe it became more complicated in Szafarowicz than it had to be.  Who am I to judge?

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COURAGE, INSURANCE COVERAGE, AND STIPULATED SETTLEMENTS IN MASSACHUSETTS.

The Supreme Judicial Court of Massachusetts has rendered a decision that has many features, all of them interesting and some of them moving.

The complicated background of the decision in this case is thoroughly explored by Nina E. Kallen, Esquire in her blog article posted in Insurance Coverage Law in Massachusetts on Wednesday, October 16, 2019. I will also write another article this week about some of the other rulings in this important decision that I do not address here today.

In my judgment, one of the more important features of this decision is not readily apparent, however. I am going to ask Ms. Kallen for her comments on it by sending her a copy of this article with an email today. If we miss anything unique to this decision and Massachusetts law here, she is the right person to ask.

The decision came on October 1, 2019 in the case of Commerce Ins. Co. v. Szafarowicz, 131 N.E.3d 782 (Mass. 2019). It involves a couple of stipulated settlement agreements in a Wrongful Death Action. Commerce was defending its insured under a reservation of rights at the time, and Commerce was simultaneously pursuing a separate Declaratory Judgment Action of no coverage. Massachusetts, like most jurisdictions, permits the filing of a DJA while defending an insured under a reservation of rights to deny all coverage.

The insureds stipulated to settlement in the Wrongful Death Action before there was a determination in the Declaratory Judgment Action. The judge in the Wrongful Death Action (we are not told her or his name in the opinion) "ordered that judgment enter in favor of the [deceased claimant's] estate" far in excess of the policy limits. The policy limits were at most $500,000.00 and the original judgment was entered in the Wrongful Death Action in the amount of $5,617,510.00 (later increased to $7,669,254.41). Commerce, 131 N.E.3d at 789.
We do not know the date of the stipulated settlements because the Massachusetts Court does not tell us, but we know that "the judge ordered that judgment enter in favor of the estate" on December 28, 2016. Commerce, 131 N.E.3d at 789.

"[A]nother Superior Court judge resolved the declaratory judgment action" on February 21, 2019. The Declaratory Judgment judge (again, we are not told her or his name, only that this was a different judge from the Wrongful Death judge) held that there was no coverage for the policy's "optional bodily injury coverage of its automobile policy" because, the DJA judge found, the injuries in question "'did not arise out of an accident under the policy.'" Commerce, 131 N.E.3d at 790-91. Accordingly, said the Supreme Judicial Court in Commerce, "Commerce has no obligation to pay any amount of the $7.7 million judgment in the wrongful death action beyond the $20,000 it already paid under its compulsory bodily injury coverage." Commerce, 131 N.E.3d at 791 (emphasis by the Court).

So, to recap what happened on the facts here, the insureds stipulated to a settlement with the claimant's estate in the Wrongful Death Action for what became a judgment of $7.7 Million. That was years before the Declaratory Judgment was concluded. This means, of course, that everyone involved including Commerce, Commerce's lawyers, and the DJA judge knew that the estate was pursuing a damages determination of some 15 times what might be called the "full" policy limits of $20,000 for compulsory bodily injury coverage and $480,000 for optional bodily injury coverage.

To say again, because it bears repetition here, at the time that the DJA judge ruled in the liability insurance company's favor the insureds had already stipulated to damages far exceeding the potential policy limits. (The insureds also stipulated that their driver's negligence caused the accident which resulted in the claimant's death, a stipulation which would have triggered insurance coverage if that particular stipulation was determinative, which clearly it was not).

Nevertheless, Commerce persisted. That is clearly one way to put it. On a human level, of course the deceased claimant's loved ones are the first to command our empathy. Yet on a human level we cannot overlook the behavior of Commerce and its lawyers who for many years must have confronted the risk of losing many times, and for a lot of money, before they obtained a final Declaratory Judgment of no coverage.

That is likely to be the overlooked story of this case that I want to feature in this article today. Right or wrong, the people at the insurance company involved in this case and the lawyers who represented the insurance company in the DJA deserve to have their courage recognized, too.

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NO PENNSYLVANIA CGL DUTY TO DEFEND: NO "OCCURRENCE," NO "ACCIDENT."

The Third Circuit recently applied Pennsylvania law to hold that there is no duty to defend under a Commercial General Liability Policy where there is no "accident" and so there is no "occurrence."  Sapa Extrusions, Inc. f/k/a Alcoa Extrusions, Inc. v. Liberty Mut. Ins. Co., 939 F.3d 243 (3d Cir. 2019).

But the ruling involves much more than that truism.

The Third Circuit held, first, that the trial court was wrong to determine the question of whether there is a duty to defend by looking to the headings or titles used in the complaint to describe different counts alleged.  To the contrary, the duty to defend is determined under Pennsylvania law, as it is in most jurisdictions, by looking to the allegations of fact in the complaint and comparing those allegations to the CGL policy at bar.  This is the so-called "four corners rule."  Sapa Extrusions, Inc., 939 F.3d at heading III.A of the appellate court's opinlon (page numbers not available from Westlaw at the time this article is written).

Then and only then will courts applying Pennsylvania law determine whether there is a duty to defend.  In this case, the question of a defense arose under a CGL policy, as has been noted.  The specific claims against the insured in the complaint at issue there involved aluminum parts of windows and frames that allegedly corroded.  Tired of oxidized window and door frames, homeowners sued the insured.  See Sapa Extrusions, Inc., 939 F.3d at heading I.A of the appellate court's opinlon (page numbers not available from Westlaw at the time this article is written).  The issue then was whether there is a duty to defend that insured in those cases under the CGL policies at issue there.

The Third Circuit held that there is no duty to defend the insured in that case because the nature of the alleged defects could not be an "accident neither expected nor intended by the insured" there.  Where there was no "accident," there could be no covered "occurrence" under the CGL polices at issue.  Where there was no covered "occurrence," there is no duty to defend.  Sapa Extrusions, Inc., 939 F.3d at heading IV.C.1 of the appellate court's opinlon (page numbers not available from Westlaw at the time this article is written).

On all these issues, the Sapa decision is squarely in the mainstream of insurance coverage determinations.

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NO BAD FAITH DAMAGES FOR INADEQUATE DEFENSE CLAIM.

That is because Count III failed to state a claim for inadequate defense upon which relief could be granted.  It does not mean that the substantive law of the forum State does not award damages for an inadequate defense; it does.

However, in the federal case of Mosley ex rel. Cellini v. Progressive Am. Ins. Co., No. 14-cv-62850-BB, 2018 WL 4208201 (S.D. Ill. April 8, 2018), U.S. District Judge Beth Bloom granted the liability carrier's motion to dismiss the inadequate defense claim which was alleged in Count III of Plaintiff's Amended Complaint against the carrier.  Count III failed to state a claim of inadequate defense for two reasons.  The Court's reasons for dismissing the inadequate defense claim in that case are instructive.

First, the claim contained a failure to settle allegation so that a claim for contract breach because of an inadequate defense, could not be determined objectively from the contract itself.  It would require a determination of "bad faith" or "good faith," which is a fact determination reserved exclusively to failure-to-settle claims.  The question of good or bad faith, in the eyes of the Court, has nothing to do with a claim of an inadequate defense.  Mosley, 2018 WL at *3.

Second, the Plaintiff did not present any "evidence" that defense counsel was "not competent or qualified[.]"  Mosley, 2018 WL at *4.  In the absence of such allegations, and since liability carriers are not vicariously liable for provided counsel's negligence in the forum State, there could be no claim for inadequate defense in this case as a matter of law.  (The Court must have meant that the Plaintiff did not present any allegations, since the Court was ruling on a motion to dismiss for which evidence should not be an issue.)

Allegations of inadequate defense are clearly almost inextricable from allegations of a failure to settle.  The rulings in this case make that all the more clear.

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ILLINOIS COURTS CONFIRM INSURED'S OWN INDEPENDENT COUNSEL PAID BY INSURER.

In Xtreme Protection Serv's, LLC v. Steadfast Ins. Co., ___ N.E.3d ___, No. 1-18-1501, 2019 WL 1976482, 2019 IL App (1st) 181501 (Ill. 1st DCA, 6th Div., May 3, 2019) (stated Not Final), the Illinois District Court of Appeal applied the prevailing test in Illinois for whether the insured is entitled to have its own independent counsel at the expense of the liability carrier.

The Court applied the settled test of asking "whether the insurer's interests would be furthered by providing a less-than-vigorous defense" to the allegations in the underlying case against the insured.

If the answer to that question is in the affirmative, then the carrier has the responsibility to pay for the insured's independent defense counsel and loses the right to provide defense counsel of its own choosing.

The trial judge applied the same test and, in a relatively rare procedural ruling, entered judgment on the pleadings in favor of the insured.

The appellate court applied the same test, as noted, and affirmed.

This test is gathering adherents outside of Illinois.  See generally 1 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith, § 3:7 Informing the Insured:  Providing Independent, "Mutually Agreeable" Counsel to the Insured (3d edition Thomson Reuters West, 2019 Supplements in process).

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EQUITABLE CONTRIBUTION BETWEEN INSURERS IN FLORIDA: DEFENSE? "NO," INDEMNITY? "YES."

Or at least one Federal Judge just said so in Lawrence v. ACE Am. Ins. Co., No. 8:18-cv-738-T-24, 2018 WL 6192190, at *8-*9 (M.D. Fla. November 28, 2018):

    ACE moves to dismiss this claim, arguing that Florida does not recognize a cause of action for equitable contribution between co-insurers. The flaw in this argument, however, is that Florida does not recognize a cause of action for equitable contribution by co-insurers in order to recover defense costs. [Federal citation omitted.]  USAA is not seeking to recover its defense costs in the underlying litigation, and as such, this argument for dismissal has no merit.

     Florida does recognize a cause of action for equitable contribution by co-insurers for the amounts the insurer paid to indemnify the insured. 

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DUTY TO DEFEND ARBITRATION? YES, IN THIS CASE.

In Gemini Ins. Co. v. Constrx Ltd., NO. 14-00355 DKW-RLP, 2018 WL 7508264 (D. Haw. September 24, 2018), the Court determined that a commercial general liability carrier owed a duty under its liability insurance policy to defend its policyholder in an arbitration.  The reason?  The policyholder could be subjected to liability and the liability policy had to provide defense coverage as a result.  Simple as that, the Court ruled in effect.

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CARRIER CHALLENGE FAILS CONTENDING EXPERT REQUIRED TO SUPPORT INSURED'S SETTLEMENT.

In Sykes v. Singh, ___ P.3d ___, No. 76009-2-I, 2018 WL 5146747 (Wash. Ct. App., Div. 1, filed August 13, 2018, publication ordered October 16, 2018), a liability carrier refused to defend its insured, the insured settled rather than face an underlying trial and verdict, and the carrier challenged the reasonableness of the insured's settlement.  Standard stuff in refusal-to-defend cases these days.

    In this particular case, the insured's settlement included what the appellate court called "general damages."  What the court meant by this phrase is explained in more detail in the quotation below.  The interesting thing about this case is the carrier's argument.

    The carrier argued in this case that the insured's settlement was not reasonable because no expert testimony was provided to support the reasonableness of the insured's settlement particularly his pain and suffering and emotional distress, and loss of consortium.

    In other words, instead of contending that experts are "hired guns" or the like when they testify about personal injury damages, in this case the carrier contended that experts are indispensable to proving personal injury damages.

    The appellate court was having none of it:

    ¶ 26 Zurich also challenges the general damages. The settlement allocated approximately $150,000 in general damages for Sykes and $30,000 for the loss of consortium by his family members. Sykes attributed his general damages to pain and suffering and the emotional trauma of the accident. Zurich objects to the absence of expert testimony but fails to show that expert testimony is needed to support an award of general damages. Support for the general damages was provided by Sykes’ own testimony along with declarations from friends and family that after the accident, Sykes became depressed and withdrawn. Zurich argues that the allocation to the Sykes children for loss of consortium was error in view of Sykes’ testimony that he spent more time with them and had greater appreciation for them as the result of the accident. But in view of the evidence that Sykes suffered from ongoing depression, it was reasonable to include loss of consortium damages in the settlement.

Sykes v. Singh, ___ P.3d ___, No. 76009-2-I, 2018 WL 5146747, at p. *5, ¶ 26 (Wash. Ct. App., Div. 1, filed August 13, 2018, publication ordered October 16, 2018).

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DETERMINING THE DUTY TO DEFEND: NOT WITH CONCEALED EVIDENCE, BUDDY.

Filing redacted meaning blacked out 'evidence' because of a sealing order in another case is not enough to decide a duty to defend under New Jersey law.  The party seeking to seal or conceal evidence must still comply with the applicable Rule in the insurance case:  Albion Engineering Co. v. Hartford Fire Ins. Co., No. 1:17-cv-3569 (NLH/KMW), 2018 WL 1469046 (D.N.J. March 26, 2018), appeal docketed, No. 18-1756 (3d Cir. April 10, 2018).

Here, the insurance case concerned the duty to defend issue under New Jersey law which allows facts known outside complaint to determine that duty.  Unredacted information was not given to the insurance carrier in the first place, so it was held in the insurance case that there is no duty to defend.  The Court in the insurance case granted the carrier's motion for summary judgment that the carrier has no duty to defend.

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THE AYATOLLAH, JOHN BOLTON, AND KIM JONG UN: BAD FAITH?

More and more reports are rapidly being published that the U.S. will preventively strike Teheran without insisting on a provocation to launch a new war.  Most reports seem to put North Korea, which already has nuclear weapons, in a distant second place on the list of likely targets.

We need to get past the headliners including in the title of this article.  Let's focus instead on the people who would make war under these circumstances.  Take a bomber crew, for example.

Suppose Iran did not counter-attack in the conventional way, which most observers agree would be suicidal.  Suppose that instead Iran sued for their damages in U.S. Courts.  Suppose further that they sued not the people who gave the orders, but the people who carried them out?

Setting immunity and pardons from liability to one side, if a lawsuit was filed against the bomber pilots and crews for the damages and destruction they caused, would it be "bad faith" to refuse to defend the lawsuits?

Dropping a bomb on targets with whom you are not at war is more than an intentional act.  Coverage law ordinarily requires intent to cause the injury or damage that substantially results from the act, in order to void coverage and give a liability carrier a good reason to deny a defense in "good faith."

Dropping bombs in this situation is clearly an act that is substantially certain to result in injuries, deaths, and destruction.  It is clearly an act that would not be covered by most insurance.

Neither are alternative forms of unprovoked killing, like launching missiles.  The same results -- injuries, death, and destruction -- are likely to follow from that intentional conduct also.

So, whatever coverage there may or may not be for the ones who talk, there will not be coverage for the ones who do the work in this situation.

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"FIRST, THEY CAME FOR THE IMMIGRANTS": SELECTIVE ENFORCEMENT, BAD FAITH?

There are many reports recently that immigrants are being targeted in California, not so much in other places at the moment, because California is on the outs with the current regime.

If those empowered to enforce laws pick which places to enforce them in, to the exclusion of other places, what is to stop them from selectively enforcing any laws against any group of people who are not in favor?

We are concerned in this space with insurer bad faith.  First there is a predicate question, which is what we lawyers call a preliminary question that would have to be answered before we could answer the main question:  Will there be insurance coverage for selective enforcement? 

Not just one branch of police or another might want to claim coverage in the future, but any part of the military, state police, federal agents, or any other government organization equipped with guns and a uniform or badge might be interested in whether there is coverage in the future.

To think about the insurance coverage question most clearly, suppose that the selective enforcement is not policy because that would make the question of insurance coverage harder by moving closer to obviously intentional discrimination.

So, the coverage question then would suppose that rogue units engaged in selective enforcement, and that their members who engaged in this behavior were not immune from liability or suit.   That would still leave an intentional discrimination question, but one that would be easier to answer in insurance terms.

Would it be bad faith to deny a defense?

The duty to defend depends on allegations and claims.  So, whether there would be a duty to defend would depend on how the selective enforcement discrimination claims were pleaded.

If it were arguable, for example, that the pleaded claims could be proven by evidence of "disparate impact" or different impacts on different groups from the same pattern of behavior, for example, then perhaps there would be a potential for coverage and, under the test in most jurisdictions, therefore a duty to defend.

The duty to defend would arguably be breached by the liability carrier's refusal or failure to defend in that case.  Some judges call this "bad faith," but no jurisdiction consistently treats a breach of the duty to defend as automatically triggering extracontractual damages.  In some jurisdictions, to be sure, a refusal or failure to defend potentially covered claims under a liability policy could subject the carrier to liability separate and apart from its policy limits, or over and above its policy limits if you will.

Bad faith in settlement?

Liability for bad faith in settlement will depend largely on settlement demands in a situation like this.  For example, a settlement demand here might include a demand that the selective enforcement be put to a stop.  Obviously that particular behavior would be within the control of the insured rather than the carrier.  There is an argument in that situation that a liability insurance company can do nothing in settlement negotiations without the insured's cooperation.

Perhaps this situation would raise a defense to insurance coverage rather than a question of insurer bad faith.

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FIRING BOB MUELLER:  ACTIONABLE BAD FAITH?

FIRING BOB MUELLER: ACTIONABLE BAD FAITH?

We will keep the actors in the following scenes anonymous.  We will not only keep personalities out of this.  We will not distract our thinking with personalities.

Assume that when Special Counsel Robert Mueller is fired, that the person or persons involved do not have immunity for their conduct.

Assume further that someone would have standing to sue because Mr. Mueller is fired as Special Counsel.  (That is a big assumption given the current composition of the Supreme Court.)

There are questions whether firing Bob Mueller will be actionable bad faith under any likely set of circumstances.

Refusal or failure to defend?  Suppose that a liability carrier for one of the persons sued for firing Special Counsel Mueller, failed and refused to defend that person?

When a liability carrier wrongfully refuses or fails to defend, it is not so much bad faith as a breach of contract.  It may be a breach of contract with potentially disastrous consequences, that is sure, but it is a breach of contract nonetheless. 

Contract breach or bad faith, there could certainly be a wrongful refusal or failure to defend here, assuming coverage in the first place.

Failure to initiate settlement negotiations?

Breach of settlement duties?

These questions presuppose an answer to an underlying question:

What would settlement look like?

Until we have an answer to that question in our own minds, we cannot explore bad faith breach of settlement obligations of a liability carrier for a person responsible in some part for the firing of Special Counsel Robert Mueller.  Until then, we must come to a stop.

Perhaps this is an illustration of why "bad faith" does not always mean the same thing as extracontractual damages.

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"WRONGFUL EVICTION" AS A CGL PERSONAL INJURY OFFENSE.

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).

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KENTUCKY RAIN ELVIS SANG ABOUT WASHES AWAY CARRIER'S CAREFUL PLANS.

A liability carrier's decisions to simultaneously defend its policyholder under a reservation of rights, seek declaratory judgment of no coverage, and settle underlying claims against the policyholder, did not bar a bad faith claim nor claims under the Kentucky Unfair Claim Settlement Practices Act and the Kentucky Consumer Protection Act, Kentucky's highest court held in Indiana Ins. Co. v. Demetre, 527 S.W.3d 12 (Ky. 2017).

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A STORY OF AN INSURANCE COMPANY'S GOOD FAITH.

The first amendment to the Constitution states:  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.   Which of these rights has a special meaning for you, and how have you experienced it in your life?

"Mary Jean Bradham died."  I can say her name because it is a public record, now.  I was one of the people who put her name in the public record, but I sure wasn't the first.  That was the first sentence of a brief I filed in a court.  "Mary Jean Bradham died."

    Mary Jean Bradham's ex-husband beat her.  He went to jail for it.  He told her that he would kill her when he got out.

    Mary Jean Bradham asked the State Attorney's Office to request high bail on her ex-husband.  She told the State Attorney's Office that she was in fear for her life.  And she told the State Attorney's Office why.

    She also told her local Police Chief and he came to the Bail Hearing for Mary Jean Bradham's ex-husband.  She convinced him to come, but he already knew the danger.

    The State Attorney's Office did not request high bail and, as I recall, may not have asked for bail at all.  I recall for a fact that the judge released Mary Jean Bradham's ex-husband on his own recognizance.

    Mary Jean Bradham's ex-husband beat her to death, on his own recognizance.

    Her father sued the State Attorney's Office for negligence.  He lost.  His case was dismissed.   The father as I recall was in his 70's.

    The story did not end there.  In fact, my part in it began at about that time, but only after the State Attorney sued the father and the father's lawyers for daring to sue his Office.  Even though the State Attorney's Office won that lawsuit.  The State Attorney, himself, sued Mary Jean Bradham's father and the father's lawyers, anyway.

    The right to petition the government for redress of grievances has a special meaning for me, and this is the story of how I have experienced it in my life.

    I argued that the defense of petitioning the government is an absolute defense.  At first, I did not personally think so.  My research revealed later, however, that petitioning the government for redress of grievances had been an absolute defense to lawsuits filed by the Kings of England.  So much for the difference between what lawyers may personally think, and what they argue on behalf of their clients.

    I was the defense lawyer for the father's lawyers in the case that the State Attorney brought against them.  I was not the only defense lawyer in the case, but I became the lead lawyer.  We had quite a cast of characters among the lawyers on both sides in that case.  For example, one of the attorneys who argued the State Attorney's case against the father and the father's lawyers was a politician who was very popular at the time; another was nominated to be a Federal Judge and later withdrew his name because, he said, it was taking too long; and still another had argued for many years that a person should still be able to sue another person whose negligence helped cause her injuries, even if the person suing was even a little bit at fault (it had been the law for many years that you could not sue anybody unless you were 100% innocent yourself, so of course very few people qualified), and eventually he succeeded and changed the law.

    There was then, and so far as I know there is still, a distinction in how defense lawyers and plaintiff's lawyers who represent people who sue other people, view themselves and each other.  Learning that distinction was pretty good preparation for later distinctions I would learn in life, such as the difference between being Irish like me and the English, or the difference between people who identify themselves as Democrats and people who call themselves Republicans today.  One side did not think very highly of the other side, to say the least.

    To the huge credit of the insurance company that retained me to defend the plaintiff's lawyers in the case brought against them by the State Attorney, who claimed that he should be paid money because the father and the lawyers "prosecuted his Office maliciously," the insurance company paid for a defense based on the U.S. Constitution.  Specifically, based on the First Amendment right to petition the government.

    Often, people who work at insurance companies get a bad rap, I think.  They do not deserve it so much, and not so here. 

    This was not your usual defense but this was not your usual case, either.  To say again, it is to the insurance company's everlasting credit that they paid for a defense based on constitutional rights guaranteed to all Americans.

    The defense had nothing to do with whether there was evidence that the State Attorney's Office was negligent or not in not asking for bail on Mary Jean Bradham's ex-husband before he kept his promise and beat her to death.  The State Attorney's issues were all decided before I got there.

    The defense I am talking about was new in Florida and in most States, probably because government officials in the past did not try to sue people who had petitioned for redress of grievances.  Since the defense was new, I had five judges in a row disagree with me at first that the right to petition the government for redress of grievances prevented the State Attorney from suing Mary Jean Bradham's father and the father's lawyers here.

    Then the tide turned.  After that, the next 10 judges in a row agreed that the right to petition was absolute and dismissed the State Attorney's lawsuit against the father and his lawyers.

    The first of the 5 judges to rule against me was the judge in the Florida Circuit Court, where the State Attorney filed his lawsuit.  The judge held that we would decide the defense at trial.  I then took a discretionary appeal to the Florida Fifth District Court of Appeal.  There, three judges exercised their discretion to wait until after the trial to decide the defense.  Then I went to Federal Court, since the First Amendment right to petition is a Federal right after all, and a Federal Judge denied the defense again.

    Then I took an appeal to the Federal Eleventh Circuit Court of Appeals.  That is when the tide turned, and the first 3 of 10 judges ruled in my favor.  The Eleventh Circuit judges ruled that the right to petition is absolute, BUT they would not make that a holding until they asked the Florida Supreme Court whether Florida law would permit such a lawsuit.

    The last 7 of these judges were the ones that counted most:  They were the seven Justices of the Florida Supreme Court.  They ruled unanimously that Florida law prevented the State Attorney or any other government prosecutor or government official from suing Mary Jean Bradham's father and his lawyers here.

    They ruled that the State Attorney's lawsuit had to be dismissed.

    In the end, my clients won all the issues.  There was nothing left to litigate.  The Supreme Court even published my brief as their opinion.

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