Claims and Bad Faith Law Blog

TODAY IS EARTH DAY. LEAVE A COMMENT!

Today is the 54th anniversary of Earth Day!  Honor Earth Day by telling your country about changes in your Health Care in 2024!

          Uncle Sam has a Request For Information (RFI), your information.  The RFI is only 12 pages long, which is not too long for Uncle Sam who can be very wordy as we all know.  Click on the blue underlined Request For Information to read all 12 pages of it.

• Have there been changes in your health care since a provider was bought or merged or changed procedures?
• Has your work safety in the health care industry, or have your wages from a health care provider, changed in recent times?
• Is health care affordable for you as a patient or as a taxpayer, both, since one or more of your health care providers changed their business operations because they were bought by some other company, or because they bought some other company or merged with it somehow?

THEN UNCLE SAM WANTS TO HEAR FROM YOU!

          Tell the U.S. Department of Justice, and the U.S. Department of Health and Human Services, and the Federal Trade Commission!  You can send your comments to them by U.S. Mail, or you can leave your comments online at www.regulations.gov.  Put the Docket Number ATR 102 on your comments, and send them in before May 6, 2024.  That's it!

          Except to remember this, as Uncle Sam put it:

Privacy Note: The agencies’ general policy is to make all comments received from members of the public available for public viewing in their entirety on the Federal eRulemaking Portal at www.regulations.gov. Therefore, commenters should be careful to include in their comments only information that they wish to make publicly available.

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

TOMORROW IS EARTH DAY. LEAVE A COMMENT!

Tomorrow is the 54th anniversary of Earth Day!  Honor the Day by leaving a Comment on changes in your Health Care in 2024!

          Uncle Sam has a Request For Information (RFI), your information.  The RFI is only 12 pages long, which is not too long for Uncle Sam who can be very wordy as we all know.  Click on the blue underlined Request For Information to read all 12 pages of it.

• Have there been changes in your health care since a provider was bought or merged or changed procedures?
• Has your work safety in the health care industry, or have your wages from a health care provider, changed in recent times?
• Is health care affordable for you as a patient or as a taxpayer, both, since one or more of your health care providers changed their business operations because they were bought by some other company, or because they bought some other company or merged with it somehow?

THEN UNCLE SAM WANTS TO HEAR FROM YOU!

          Tell the U.S. Department of Justice, and the U.S. Department of Health and Human Services, and the Federal Trade Commission!  You can send your comments to them by U.S. Mail, or you can leave your comments online at www.regulations.gov.  Put the Docket Number ATR 102 on your comments, and send them in before May 6, 2024.  That's it!

          Except to remember this, as Uncle Sam put it:

Privacy Note: The agencies’ general policy is to make all comments received from members of the public available for public viewing in their entirety on the Federal eRulemaking Portal at www.regulations.gov. Therefore, commenters should be careful to include in their comments only information that they wish to make publicly available.

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

JOINT MOTION TO ENTER STIPULATED PROTECTIVE ORDER IS NOT ENOUGH.

A joint motion for entry of a stipulated protective order is not enough for a federal court to enter the stipulated order.  "Rule 26(c) allows the Court to enter a protective order for good cause shown."  Gordon v. Menard, Inc., No. 1:23-cv-00317-HAB-SLC, 2023 WL 6619427, at *1 (N.D. Ind. Oct. 10, 2023) (Collins, USMJ).  Good cause was not shown in Gordon, which is why the Magistrate Judge denied the joint motion without prejudice.

              To begin with, the proposed stipulated protective order was overbroad on its face.  In pertinent part, "it seeks to protect information regarding current and former employees and agents," but as the Court pointed out, there are many times when employee information is subject to disclosure such that an absolute ban on disclosure is contrary to the law.  See Gordon, 2023 WL 6619427, at *1.

              Next, all parties failed to show good cause to protect "Defendant Menard Inc.'s training videos and materials, policy and procedure, information of Menard Inc. and its shareholders and directors, store surveillance videos, and blueprints and schematics."  Gordon, 2023 WL 6619427, at *2.

              An insurance carrier's desire to protect its similar information from disclosure is obvious, particularly if the parties to an insurance case can get away with stipulating to protect something as ill-defined as otherwise unidentified "information of [the insurance company] and its shareholders and directors," similar to what the parties tried to do in proposing their stipulated order in Gordon.  In Gordon, though, the parties' stipulation to protect did not fly in this regard.  "The proposed order makes no effort to specify why the purported protected materials are confidential."  Gordon, 2023 WL 6619427, at *2.

              For a third drawback in the eyes of the Gordon Court, the proposed order would have allowed the parties to file documents marked "Confidential Material" under seal in their entirety, without redacting the supposedly confidential information.  This, too, is contrary to law.  See Gordon, 2023 WL 6619427, at *2.

              For the benefit of the parties in the future, including if and when they redraft and resubmit their proposed stipulated protective order, the Court had two more things to say.  First, this Court "is unwilling to enter a protective order that suggests it retain jurisdiction of any kind after resolution of the case[.]"  Gordon, 2023 WL 6619427, at *2 (emphasis by the Court).

              Second, the Court admonished the parties to modify their version of protected confidentiality of information once the case came to an end:

Similarly, the parties should expressly state that any provisions requiring the return or destruction of confidential or protected information at the end of this litigation—such as those in Paragraph 4 of the proposed order (ECF 16-1 ¶ 4)—do not apply to the Court or material filed with the Court.

Gordon, 2023 WL 6619427, at *2.

              While entering all of these relatively clear and unambiguous rulings that leave no room for reasonable interpretation, the Court actually began its opinion in this case with a seeming ambiguity.  As was pointed out above, the Court began its rulings in this case by referencing Federal Rule of Civil Procedure 26(c)'s requirement of "good cause" before any protective order can be entered by a federal court.

              However, the Court pointed out in a footnote that the same level of scrutiny of what exactly constitutes "good cause" varies from case to case, and that it was applying "a higher level of scrutiny" for a good cause showing that the Court determined was required here, "[b]ecause the proposed order permits filing under seal without court permission[.]"  Gordon, 2023 WL 6619427, at *1 n.1.

              This is an important concept for practitioners and judges to keep in mind when evaluating whether good cause has been shown to shield discovery, evidence, information, or anything else during litigation in federal courts – including insurer bad faith litigation among the rest.

Stipulated Protective Orders in Federal and State litigation are addressed in § 3:107.50 concerning third-party bad faith claims, in Volume 1 of DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH (West Publishing Co. 3d Edition, 2024 Supplements in process), and in § 9:28.50 as they relate to first-party bad faith cases, in Volume 2 of DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH (West Publishing Co. 3d Edition, 2024 Supplements in process).

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

EQUITABLE DEFENSES: THE SWEET SMELL OF SUCCESS.

In general terms, equitable defenses including the affirmative defense of "unclean hands" historically have had a pretty spectacular record of success.  Equitable defenses have such a track record of success that it is a wonder that they are not raised whenever the circumstances of a given case allow.

          A small-scale empirical study undertaken long ago found zero successful claims for damages after a claim was dismissed because of unclean hands or any similar equitable defense.  The authors collected a sample of 150 reported cases over a 10-year period.  They wrote the counsel of record in each case and got 56 replies.  "The fifty-six surviving cases were utterly diverse, involving specific performance and injunction, tort and contract.  Yet in one respect they were uniform:  In every instance, an equitable defeat was a total defeat.  In no instance did the defeated claimant gain anything by virtue of any reserved legal rights; in only two instances did he so much as try."  John P. Frank & John Endicott, Defenses in Equity and "Legal Rights," 14 La. L. Rev. 380, 381 (1954).  Download Defenses_in_Equity_and_Legal_Rights.pdf by John P. Frank & John Endicott 14 La. L. Rev. 380 (1954)

          Through this helpful link, download and read the cited article.  With this track record of success, what good reason can there be for not raising equitable defenses when the facts warrant? 

The availability of equitable defenses such as Clean Hands in cases between primary and excess carriers in particular, is raised in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 7:27 (West Publishing Co., 2024 Supplements in process).

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

"GENERAL BUSINESS PRACTICE" IN THE COURTS: FLORIDA SPEAKS HERE.

This article is the concluding part of a series begun here and continued here on what the Courts hold about "General Business Practice" claims and proof in cases involving alleged statutory violations.    

    Similar holdings have been reached under similar statutory "general business practice" requirements for claiming and proving statutory violations in bad-faith cases,  and for assessment of punitive damages in most cases.  In Cook v. Florida Peninsula Insurance Co.,[1] the Court was confronted with a "general business practice" or GBP  dilemma.  Proof of a general business practice is required in order to assess punitive damages under Florida law; proof of a GBP is also a central tenet of Florida Insurer Bad Faith Law under Florida's Bad Faith Statute, Section 624.155.

          The Court resolved the issue of the proof required in order to prove a general business practice in the context of a claim for punitive damages, with these words which are very similar to the holdings in the Connecticut federal cases decided under the Connecticut Unfair Insurance Practices Act, discussed in articles published here earlier:

          There is no magic number for other evidence required to show frequency of a general business practice in order to assert a claim for punitive damages—at a minimum it is the plaintiff’s own claim and at least one more. What is required is “a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” § 768.72(1), Fla. Stat. (2022); Fla. R. Civ. P. 1.190(1)(f).[2]

Statutory bases of liability in settlement are discussed in § 3:28 (third-party bad faith claims and cases) and § 9:14 (first-party bad faith claims and cases), in DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH (West Publishing Co., 2024 Supplements in process).

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

 

[1] Cook v. Fla. Peninsula Ins. Co., 371 So. 3d 958 (Fla. 5th DCA 2023).

[2] Cook, 371 So. 3d at 962.

"GENERAL BUSINESS PRACTICE" IN THE COURTS: CONNECTICUT, Part 2.

This article is part 2 of a series begun here on what the Courts hold about "General Business Practice" claims and proof in cases involving alleged statutory violations.

          Merely alleging that "upon information or belief ... approximately" four complaints were filed against a defendant insurance company with the Connecticut Insurance Department, and that "approximately seven similar claims" were filed against the defendant with the National Association of Insurance Commissioners,[1]

and further that the defendant had been sued "at least four times" for refusing to settle "similar" claims and that "'Westlaw reports approximately 5 other cases'" involving defendant's type of policy, are not sufficient to allege a statutorily required "general business practice."[2]  Allegations of the type which have just been summarized have been held to be "non-conclusory allegation[s] that those instances are factually similar to Plaintiff's situation[.]"[3]

Statutory bases of liability in settlement are discussed in § 3:28 (third-party bad faith claims and cases) and § 9:14 (first-party bad faith claims and cases), in DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH (West Publishing Co., 2024 Supplements in process).

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

[1] Thomas, 594 F. Supp. 3d at 512.

[2] Thomas, 594 F. Supp. 3d at 512-13.

[3] Thomas, 594 F. Supp. 3d at 513.

"GENERAL BUSINESS PRACTICE" IN THE COURTS: CONNECTICUT, Part 1.

 Section 38a-816(6) of the Connecticut General Statutes[1] is a part of the Connecticut Unfair Insurance Practices Act and requires proof of a general business practice in order to establish a statutory violation.  It has been held that proof of a general business practice is dependent on the facts of the case at bar:

Rather, the appropriate consideration is whether the plaintiff has made facially plausible factual allegations that, in the circumstances of the particular case, the defendant has engaged in the alleged wrongful acts enough to suggest it has a general business practice of doing so.  [Citations omitted.]   Relevant factors may include: the degree of similarity between the alleged unfair practices in other instances and the practice allegedly harming the plaintiff; the degree of similarity between the insurance policy held by the plaintiff and the policies held by other alleged victims of the defendant’s practices; the degree of similarity between

claims made under the plaintiff’s policy and those made by other alleged victims under their respective policies; and the degree to which the defendant is related to other entities engaging in similar practices.

* * *

          It is important to note that there is no “magic number” of other instances that a plaintiff must allege to survive a motion to dismiss on an unfair settlement practices claim under CUIPA [the Connecticut Unfair Insurance Practices Act]  through CUTPA’s [the Connecticut Unfair Trade Practices Act's] enforcement provision; rather, the allegations must be considered in the context and circumstances presented by the entire complaint.[2]

Statutory bases of liability in settlement are discussed in § 3:28 (third-party bad faith claims and cases) and § 9:14 (first-party bad faith claims and cases), in DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH (West Publishing Co., 2024 Supplements in process).

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

 

[1] Conn. Gen. Stat. § 38a-816(6), which is titled Unfair claim settlement practices.

[2] Belz v. Peerless Ins. Co., 46 F. Supp. 3d 157, 166-67 (D. Conn. 2014).  Accord, Thomas v. Vigilant Ins. Co., 594 F. Supp. 3d 499, 512 (D. Conn. 2022).

JUDGES OF THE AMERICAN APOCALYPSE.

     It may be true that we live in a world filled with interesting questions.  One of the more interesting questions is an unanswered question, one which may not have even been asked yet.  So far as I know, this question has not generally been asked yet, and Holy Week seems to be a fit time to ask:

How is it that so many federal judges who were appointed during the American Apocalypse, got assignments to one-judge divisions? 

Perhaps journalists and the news media in general can ask that question, and perhaps they can get answers.  I will list some below that can perhaps get answers.

            For more on the American Apocalypse and how its effects are still with us every day, see, for example, the articles  UNELECTED TEXAS JUDGES, THE AMERICAN APOCALYPSE, AND MINORITY RULE, published on Claims and Issues Blog on March 9, 2024, and JUDGES ASSIGNED TO ONE-JUDGE COURTS DURING THE AMERICAN APOCALYPSE, published on Claims and Issues Blog on March 26, 2024.

          I am now going to mention the names of people and outlets who have the capacity to get answers to these questions if they want to.  If I left a tweet on X-which-used-to-be-Twitter, I guess they might find a tweet but so would the trolls most likely and I do not want that.  I do not know whether these people will pay attention to blogs like this one, but I am going to try.  Maybe they will seek out their names since they are in a business where their name recognition is so important to them.

        I am still not completely sure of how to bring this article to their attention, so I am going to mention their names here in the body of this article as well as in the metadata accompanying it.  Our nation turns its lonely eyes to you, Susanne Craig, David Barstow, Russ Buettner, Andrew Weissmann, Will Bunch, Scott Maxwell, Jackie Calmes, LZ Granderson, Karen Tumulty, Julie K. Brown, David Dayen, New York Times, Washington Post, American Prospect, Guardian, Philadelphia Inquirer, Jamie Raskin, Senate Judiciary Committee, Senator Sheldon Whitehouse, Talking Points Memo, ProPublica, Miami Herald, Sun-Sentinel, Dahlia Lithwick, Mark Joseph Stern, Slate, Linda Greenhouse, Lisa Rubin, and American Prospect.

          Thank you in advance, one and all.

How is it that so many federal judges who were appointed during the American Apocalypse, got assignments to one-judge divisions? 

Perhaps journalists and the news media in general can ask that question, and perhaps they can get answers.  I will list some below that can perhaps get answers.

            For more on the American Apocalypse and how its effects are still with us every day, see, for example, the articles  UNELECTED TEXAS JUDGES, THE AMERICAN APOCALYPSE, AND MINORITY RULE, published on Claims and Issues Blog on March 9, 2024, and JUDGES ASSIGNED TO ONE-JUDGE COURTS DURING THE AMERICAN APOCALYPSE, published on Claims and Issues Blog on March 26, 2024.

          I am now going to mention the names of people and outlets who have the capacity to get answers to these questions if they want to.  If I left a tweet on X-which-used-to-be-Twitter, I guess they might find a tweet but so would the trolls most likely and I do not want that.  I do not know whether these people will pay attention to blogs like this one, but I am going to try.  Maybe they will seek out their names since they are in a business where their name recognition is so important to them.

        I am still not completely sure of how to bring this article to their attention, so I am going to mention their names here in the body of this article as well as in the metadata accompanying it.  Our nation turns its lonely eyes to you, Susanne Craig, David Barstow, Russ Buettner, Andrew Weissmann, Will Bunch, Scott Maxwell, Jackie Calmes, LZ Granderson, Karen Tumulty, Julie K. Brown, David Dayen, New York Times, Washington Post, American Prospect, Guardian, Philadelphia Inquirer, Jamie Raskin, Senate Judiciary Committee, Senator Sheldon Whitehouse, Talking Points Memo, ProPublica, Miami Herald, Sun-Sentinel, Dahlia Lithwick, Mark Joseph Stern, Slate, Linda Greenhouse, Lisa Rubin, and American Prospect.

          Thank you in advance, one and all.

THEIR GOD-GIVEN RIGHT TO EXPORT LIQUEFIED NATURAL GAS.

The State of Louisiana, along with other States where the oil and gas industry holds enormous power, has sued the United States Government which has limited or even refused to issue permits to export Liquefied Natural Gas.

          Louisiana and the other liquefied natural gas-producing States have sued to assert their God-given right to export LNG or liquefied natural gas.  Their lawsuit is Louisiana v. Biden (W.D. La. No. 2:24-cv-00406).  The complaint is too long and not important enough to link here.

          A review of the Public Access to (Federal) Courts Electronic Records or "PACER," reveals what the popular press has not yet reported:  The Judge assigned to the case in the Western District of Louisiana is the Hon. James D. Cain Jr.  He was appointed as a federal judge during the American Holocaust in 2019.  Lawsuits like this one are usually filed in one-judge divisions of federal courts in Texas, but this one has been filed in Louisiana.  You see, when a federal lawsuit is filed in a division with one judge in it, the chances are 100% that you know what judge will be assigned to your case.  They get to pick their own judge.

           The interesting and unanswered, so-far-unasked question is how so many judges appointed during the American Holocaust got assignments to one-judge divisions.  Perhaps journalists and the news media in general can ask that question, and perhaps they can get answers.  I will list some below that can perhaps get answers.

           Oh, and a review of the website of the U.S. District Court for the Western District of Louisiana reveals that only one of its Divisions, the Lake Charles Division as it happens, has only one judge:  Judge Cain.  All the other Divisions have an active sitting judge and a Senior Judge available, except Lake Charles, which has only Judge Cain.  Truly no coincidence, when you want to file a lawsuit to assert your God-given right to export liquefied natural gas but the United States is standing in the way, for now.

           For more on the American Holocaust and how its effects are still with us every day, see UNELECTED TEXAS JUDGES, THE AMERICAN HOLOCAUST, AND MINORITY RULE, published on Insurance Claims and Issues Blog on March 9, 2024.

          So, no coincidence that Judge James D. Cain Jr. was assigned to this LNG exportation lawsuit.  Moreover, Judge Cain has his own track record of ruling against the United States in similar cases.

I am now going to mention the names of people and outlets who have the capacity to answer these questions if they want to.  If I left a tweet on X-which-used-to-be-Twitter, I guess they might find a tweet but so would the trolls most likely and I do not want that.  I do not know whether these people will pay attention to blogs like this one, but I am going to try.  Maybe they will seek out their names since they are in a business where their name recognition is so important to them.

        I am not completely sure of how to bring this article to their attention, so I am going to mention their names here in the body of this article as well as in the metadata accompanying it.  Our nation turns its lonely eyes to you, Susanne Craig, David Barstow, Russ Buettner, Andrew Weissmann, Will Bunch, Scott Maxwell, Jackie Calmes, LZ Granderson, Karen Tumulty, Julie K. Brown, David Dayen, New York Times, Washington Post, American Prospect, Guardian, Philadelphia Inquirer, Jamie Raskin, Senate Judiciary Committee, Senator Sheldon Whitehouse, Talking Points Memo, ProPublica, Miami Herald, Sun-Sentinel, Dahlia Lithwick, Mark Joseph Stern, Jackie Calmes, Robin Abcarian, Los Angeles Times, and Slate.

          Thank you in advance, one and all.

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

FEDERAL JUDGES SURVEY THE OUTER BOUNDS OF SECRECY.

In Atlantic Specialty Ins. Co. v. Royal Alliance Assoc's, Inc., No. 23-CV-9555 (JGLC), 2023 WL 8600548 (S.D.N.Y. Dec. 12, 2023), a federal judge once again stretched the rubber band of secrecy farther than it will usually go.  To put it another way, the judge surveyed the outer bounds of secrecy in this insurance case.

          Royal Alliance Associates (sometimes also called "the Associates") is a brokerage.  It was issued a Securities Broker/Dealer Professional Liability Insurance primary policy.  Atlantic issued the Associates an excess policy.  The Associates made a claim for insurance coverage with Atlantic.  Atlantic sued for declaratory relief of no coverage for the amounts claimed by the Associates, i.e., of no coverage for the settlements that Royal Alliance Associates made with their investors-customers. 

    Two initially filed versions of Atlantic's complaint are inaccessible on PACER, the Public Access to (Federal) Court Electronic Records.   Ultimately, a redacted version of the complaint was made accessible to the public in this case.  See Atlantic Spec. Ins Co. v. Royal Alliance Assoc's, Inc., Complaint, DE 21 (S.D.N.Y. Case No. 23-CV-9555 (JGLC)).

          Royal Alliance successfully requested that the "names and amounts of the settlements" it made with its customers, for which it sought the insurance coverage from Atlantic, should be blacked out – in Atlantic's complaint.  After repeating the oft-repeated acknowledgement that complaints are "'the cornerstone of every case,'" and after restating that the public presumption of access is protected both by the common law and by the First Amendment to the United States Constitution, the Court in this case equated "'the sealing of settlement negotiations materials'" with the names and amounts of the resulting settlements.  In other words, the Court confused the process with the results.

          The Court granted the motion to redact from Atlantic's complaint with respect to, among other things,  the names and amounts of the settlements that the Associates made with their broker-customers including in Financial Industry Regulatory Authority (FINRA) arbitrations, for which the Associates now seek insurance coverage from Atlantic.  No cornerstone here, no presumption this.  No access either, at least not by the public in this case.

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

WELL, SHUT MY MOUTH! LEGISLATORS, CORPORATIONS, AND AN UNTOLD STORY.

I recently uncovered a story of how corporations ask legislators to agree to keep quiet about giving the corporations tax breaks until the breaks become law.

          The corporations are apparently concerned that if there is publicity before they get their tax breaks, then the legislators might become unreliable and pay more attention to the people they represent than to the corporations that want the tax breaks.  So the corporations ask the legislators to agree not to speak about their proposed tax breaks until the law actually takes effect.  They have the legislators sign what are called "nondisclosure agreements," meaning of course that the legislators as the ones signing these agreements will not disclose whatever the agreements are about.

          I have not gotten very far, but what my reading and research tells me already is that this is an interesting story.

          It has real-life implications.  Here in Florida, it was the law for generations that if an insurance company wrongly forced people to sue it in order to get the benefits of their insurance policies, that those insurance companies would have to pay the attorney's fees of the people they forced to file the lawsuit.  This was the rule, this is the way things were, until 2022.

          On May 26, 2022, in the midst of a Florida homeowner's insurance crisis when some people could not get insurance and some people who had legitimate claims could not get their claims paid,  the Florida Legislature wrote a statute that exempted the homeowner's insurance companies from this rule.  By March 24, 2023, the Florida Legislature threw the rule out completely; now, every insurance company in Florida can deny claims under their policies even if in doing that, they force people to sue them to get their insurance benefits under their contracts – and the insurance companies will not have to pay the legal fees of the people they force into hiring lawyers to file these lawsuits --  and who win.  I wrote about this in my books.[1]

          It was not general knowledge at the time when the legislators were making these laws.  The changes became known when they became law.

          Were there "nondisclosure agreements" at work here?  We do not know, or at least I certainly do not know, and I do not know of any way that anyone other than the insurance companies and the legislators would know one way or the other, as things stand right now.

          But suppose instead of not knowing, we knew that there were no nondisclosure agreements and that our legislators here in Florida were representing their constituents rather than the corporations?  Banning agreements by which legislators agree—with anyone --  not to tell their constituents what is going on with legislation would be a good first step.

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

 

[1] E.g., 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 13:14, Attorney's Fees—Prosecution of Actions Against the Insurer (Thomson Reuters West 3d Edition, 2024 Supplements in process).

RATE APPEALS: ANOTHER ROAD TO MEDICAID GOLD?

In a recent case in New York State Court, "23 residential health care facilities" (read:  nursing homes) challenged the rates they were paid for rendering services to Medicaid patients.  Collectively, they had previously filed over 160 rate appeals, the court said.

          True it is that nursing homes are entitled by law to be reimbursed for the services they provide to Medicaid recipients.  It is also true that under the Medicaid program, these providers of services covered by Medicaid are given an "administrative review procedure to review and challenge" the amount of Medicaid money they receive for their services.

          During the current Sunshine Week, in which all things are made visible, it is a good thing to shine a light on rate appeals of Medicaid money.  "Trust but verify," which I understand comes from a Russian proverb.  A good proverb for cases like this recent case in New York State Court:  Woodside Manor Nursing Home, Inc. v. Zucker, 223 A.D.3d 94, 204 N.Y.S.3d 256 (N.Y. App. Div. 3d Dep't 2024).

Significant features of the Medicaid Program like the rate appeals involved in the Zucker case in New York, are the subject of Chapter 18D, titled Medicaid and the Children's Health Insurance Program (CHIP), in Volume 2 of CATASTROPHE CLAIMS / INSURANCE COVERAGE FOR NATURAL AND MAN-MADE DISASTERS (Thomson Reuters Nov. 2023 edition, 2024 Supplement in process).

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

"IT'S THE DICTA, STUPID."*

*With apologies again to Mr. James Carville, who famously said during one of the successful Clinton campaigns, "It's the economy, stupid."

 

Dicta is a word that lawyers use to describe the opinions of judges that go beyond what they need to say to decide the case that confronts them.  To paraphrase Black's Law Dictionary, a standard text for many lawyers, dicta are opinions of judges concerning matters which are not necessarily involved in nor essential to determine the case presently before the court.

          In the course of enticing all justices to agree that a candidate of a certain persuasion should remain on all ballots, 5 judges went beyond that case to declare how and why candidates in future cases should not remain on the ballot (which most legal scholars say is self-evident from the Fourteenth Amendment and which did not need to be rewritten).

          When the U.S. Supreme Court took this case, they limited their review to whether they should affirm or reverse the Supreme Court of Colorado.  The Colorado Supreme Court, you will recall, had held that the Fourteenth Amendment barred this particular candidate in this particular case from the Republican primary ballot in Colorado.

          That is what the U.S. Supreme Court said that they would review.  That narrow question.  Of course, as lawyers know, the question of affirmance or reversal on the facts of the particular case is everything that a reviewing court can ever determine without issuing an advisory opinion.

          Here is what the 9 said they ruled on together.  You may or may not agree with it, but you can certainly read it for yourself.  They don't want you to read it for yourself, you know.  Every good trial lawyer, and any lawyer or person for that matter, knows that when they don't want you to look at something, you should look at it.  Read this for yourself:

          A group of Colorado voters contends that Section 3 of the Fourteenth Amendment to the Constitution prohibits former President Donald J. Trump, who seeks the Presidential nomination of the Republican Party in this year's election, from becoming President again. The Colorado Supreme Court agreed with that contention. It ordered the Colorado secretary of state to exclude the former President from the Republican primary ballot in the State and to disregard any write-in votes that Colorado voters might cast for him.

* * *

Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse.

Trump v. Anderson, ___ U.S. ___, ___ S. Ct. ___, 2024 WL 899207, at *1 (U.S. March 4, 2024).

          The U.S. Supreme Court was previously pretty consistent in stating the view that it is or was limited under Article III of the Constitution to the existence of a controversy, and that, unlike State Supreme Courts, the U.S. Supreme Court and other federal courts lacked the power to issue advisory opinions.

          Based on preexisting precedent, the U.S. Supreme Court is accordingly prohibited by the Constitution from issuing an advisory opinion on what action Congress should take to enforce Section 3 against federal officeholders and candidates.  So there were very strong grounds before the U.S. Supreme Court ruled in this case that it would be limited to deciding whether the Supreme Court of Colorado was right or wrong in this particular case.  Period.  End of report.

          Instead, the joint opinion of the 5 rewrote the Fourteenth Amendment to the satisfaction of the 5.  But this is not how all 9 think about the issue they decided, and it is certainly not the view of the other 4 who decided the narrow question of whether this particular candidate in this particular case would remain on the ballot.

          So the command of the 5 to Congress on how to implement Section 3 against federal officeholders and candidates is dicta.

          That is what it is.  Meaning no offense but stating it clearly:  "It's the dicta, stupid."

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

LEST WE FORGET TO ASK: WHO PAID THE $1,031,788.33 BOND?

One month ago today, on February 6, 2024, U.S. District Judge Donald Middlebrooks entered an Order approving the payment of a  $1,031,788.33 bond into the Registry of the U.S. District Court for the Southern District of Florida.  [Redacted, Unreconstructed] Plaintiff v. Hillary Clinton, Marc Elias, Glenn Simpson, Christopher Steele, James Comey, and the United States of America, et al., Order Granting Unopposed Motion for Stay of Final Order and to Approve Bond To be Paid to Registry of Court, DE 309, filed Feb. 7, 2024 (S.D. Fla. No. 2:22-14102).  Download [Redacted Unreconstructed] P v. [Lots of Ds], Order Granting Unopposed M.Stay and Approve Bond to be Paid to Registry of Ct. DE 309 filed Feb. 7, 2023 (S.D. Fla. Case No. 2.2022-14102).

         The payment of $1,031,788.33 into the Court Registry took the place of the Redacted, Unreconstructed Plaintiff and his lead lawyer in the case, Alina Habba and her law firm, Habba Madaio & Associates – lawyers who would also be his lawyers in other cases including the recently concluded and well-known litigation which Judge Kaplan presided over  --  placing a supersedeas bond as they appealed their joint and several liability to pay sanctions of $937,989.39 for filing this frivolous litigation in which they sued many, many defendants.  [Redacted, Unreconstructed] Plaintiff v. Hillary Clinton, Marc Elias, Glenn Simpson, Christopher Steele, James Comey, and the United States of America, et al., Order Granting Joint Motion for Sanctions, DE 302, filed Jan. 19, 2023 (S.D. Fla. No. 2:22-14102).  

         PACER does not show when the bond amount was filed or who filed it.  There is a lot of speculation in the press and on cable television, podcasts, and radio asking how the same Redacted, Unreconstructed party will be able to fund his appeals, several of which he has already filed.  Those are good questions.  You would think the payment of another Million Dollars (actually, more) would be added to the pot.  The payment of another Million Dollars+ to appeal hasn't even been discussed so far as I can find, let alone the fact that this appeal involves sanctions for filing a frivolous lawsuit.

          Yet the Sanctions Order filed January 19, 2023 seems to be forgotten already, and the Order Approving over $1Million to be Paid Into the Court Registry entered a month ago does not even enter the equation, yet it presents an identical question:  How did the Redacted, Unreconstructed party pay it, in other words, where did he get the money?  These are good questions as well.

         I am going to mention the names of people and outlets who have the capacity to answer these questions if they want to.  If I left a tweet on X-which-used-to-be-Twitter, I guess they might find a tweet but so would the trolls most likely and I do not want that.  I do not know whether these people will pay attention to blogs like this one, but I am going to try.  Maybe they will seek out their names since they are in a business where their name recognition is so important to them.

        I am not completely sure of how to bring this article to their attention, so I am going to mention their names here in the body of this article as well as in the metadata accompanying it.  Our nation turns its lonely eyes to you, Susanne Craig, David Barstow, Russ Buettner, Rachel Maddow, Andrew Weissmann, Will Bunch, Scott Maxwell, Jackie Calmes, LZ Granderson, Karen Tumulty, Julie K. Brown, David Dayen, New York Times, Washington Post, American Prospect, Guardian, Philadelphia Inquirer, Jamie Raskin, Senate Judiciary Committee, Senator Sheldon Whitehouse, Talking Points Memo, ProPublica, Miami Herald, Sun-Sentinel, and American Prospect.

          Thank you in advance, one and all.

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

 

 

INSURER'S GOOD FAITH OBTAINING DISCLOSURE IN A BAD FAITH CASE.

The plaintiff's attorney pays Allstate's attorney's fees.

In Perez v. Allstate Fire & Cas. Ins. Co., No. C23-0681-KKE, 2024 WL 776028 (W.D. Wash. Feb. 26, 2024), Allstate petitioned for attorney's fees under Federal Rule of Civil Procedure 37(a)(5).  This was a case presenting Perez's bad faith and IFCA (Insurance Fair Conduct Act) claims.

          Rule 37(a)(5) provides that after a party's motion to compel is granted, "the court must, after giving an opportunity to be heard, require ... the party or attorney advising that conduct [which necessitated the motion], or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees."  Fed. R. Civ. P. 37(a)(5)(A) (emphasis added).

          Allstate successfully obtained an order granting its previous motion to compel, seemingly entitling Allstate to attorney's fees under the Rule.  However, as the Perez Court noted, the Rule has three exceptions to an award of reasonable expenses.  The exception of interest here is that reasonable expenses will not be awarded under Rule 37(a)(5)(A) if Allstate, the movant here, had "filed the motion before attempting in good faith to obtain the disclosure or discovery without court action[.]"  [Emphasis added.]

          In this case, the Court held, Allstate had acted in good faith in accordance with the Rule before filing its motion to compel responses to certain of its interrogatories.  "Relying primarily on the email summary of the parties' October 9, 2023 discovery conference," the Court rejected the idea that Allstate did not act in good faith in conferring on better responses to those interrogatories before Allstate filed its motion to compel concerning them.  Perez, 2024 WL 776028, at *2.

          In accordance with the Rule, which as noted above authorizes the Court to require the attorney advising the conduct which necessitated the motion to compel, the Court "ORDERS counsel for Perez to pay Allstate $8,875.50 by March 14, 2024."   Perez, 2024 WL 776028, at *3 (emphasis added).

          Parenthetically, according to the record, Allstate was paying one attorney $545.00 per hour, and another $400.00 per hour.  Perez, 2024 WL 776028, at *2.

          As a Magistrate Judge observed in an earlier decision in a different District Court, monetary sanctions are the norm – not the exception --  under the circumstances governed by Rule 37(a)(5), i.e., when a party is required to file and pursue a motion to compel in order to obtain the discovery to which the party is entitled.  Hedgeye Risk Mgt., LLC v. Dale, No. 21-CV-3687 (ALC) (RWL), 2023 WL 4760581, at *2, *3  (S.D.N.Y. July 26, 2023) (Lehrburger, USMJ) (attorney's fees assessed against Hedgeye, the plaintiff,  after the defendants filed a motion "to compel a thorough search of Hedgeye executives' laptop computers, which Hedgeye apparently had not done at all," which the Court granted in that case subject to awarding reasonable costs; as the Court noted on the subject motion for sanctions, "counsel failed to exercise sufficient quality control over collection by Hedgeye's personnel.").

The recovery of any party's attorney's fees, including in cases like Perez and Hedgeye in which attorney's fees are imposed as sanctions, is the subject of discussion in Volume 2 of DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 13:14, Attorney's Fees—Prosecution of Action Against The Insurer (Thomson Reuters 3d Edition, 2024 Supplements in process).

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

"KEEP PUBLIC HOSPITALS PUBLIC FOR THE PATIENTS' SAKE."

A joint editorial published in the Florida Sun Sentinel and the Orlando Sentinel newspapers says what needs to be said:  "Keep Public Hospitals Public For the Patients' Sake."  (The link is to The Florida Sun Sentinel website; the Orlando Sentinel has put the editorial behind a paywall with much of the rest of that newspaper.)

    The spur for the editorial is a bill that has been introduced in the Florida House by a wealthy member.  He is still in his first term but he has lost no time providing an opportunity for private equity and other investors to convert public hospitals to private profit centers.  The editorial pretty much says it all.

    The editorial's only drawback is that it is overly tentative, too iffy, whereas direct description is called for here.  For example, a quote from the "CEO of Florida's Safety Net Hospital Alliance" says that the bill "seems" to give a competitive advantage to the money-making funds that would take over public hospitals.

    Of course it "seems" to.  The bill was written to give them an advantage and to make it easier for the private investors to take over public hospitals.  In the Orlando Sentinel version, a sentence appears that is not found in the Florida Sun Sentinel's version, in which the Orlando paper weakly intones that "It's foolish to assume that private chains wouldn't come sniffing after such profitable targets."

    They already are.  The "private chains" highlighted in this timely editorial are already sniffing after public hospitals.  Thanks to these two newspapers for sniffing out these private chains of publicity-shy investors who are trying to change patient care into nothing but making profits.

Please read the disclaimer.   This article 2024 Dennis J. Wall.  All rights reserved.  The author has pointed to the growing issues presented by the takeover of hospitals, nursing homes, physicians' practices, and other public healthcare providers for private profit, in Dennis J. Wall, Catastrophe Claims / Insurance Coverage for Natural and Man-Made Disasters, Private Equity and Medicare, § 18C:6.50 (Thomson Reuters forthcoming in the Spring of 2024). 

    

AN ADDENDUM TO INSURANCE ARBITRATION.

In In re Westbank Holdings, LLC v. Interstate Fire & Cas. Co., No: 22-10082ADV & NO. 23-1010, 2024 WL 670755 (Bankr. E.D. La. Feb. 17, 2024), the insurers under a commercial insurance policy filed a motion for arbitration of the insurance claims at issue in a bankruptcy, or alternatively, to dismiss them.  The claims had been filed in State Court initially.  "The Insurers removed the case to the United States District Court for the Eastern District of Louisiana pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. §§ 201–208 (the “Convention”)."   In re Westbank Holdings, 2024 WL 670755, at *2.  Some of the insurers on the risk were part of a Lloyd's of London Syndicate in the U.K.

            The insurance claims against them resulted from damage caused by Hurricane Ida and included claims for insurer bad faith.  "The parties here agree that the arbitration clause in the Policy is enforceable under the Convention because Westbank Holdings and the Foreign Insurers reside in different countries (the United States and England and Wales) which are signatories to the Convention."  In re Westbank Holdings, 2024 WL 670755, at *5.

          The Bankruptcy Judge in Louisiana granted the motion and compelled arbitration of the insurance claims.

A Professional Reminder:  In a forthcoming article in New Appleman on Insurance:  Current Critical Issues in Insurance Law, the author examines significant potential, external legal constraints to arbitration of insurance bad faith claims.  Whether you represent insurance carriers or policyholders, be on the lookout for the article and for significant potential constraints that might be raised to insurance arbitration.

 

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

ACCESS FROM THE BEGINNING. BETTER THAN MAKING POLICY THROUGH LITIGATION.

Yesterday on my Claims and Issues Blog, I wrote an article based on this quote from an article by Professor Ron Buliung of the University of Toronto, Despite Legislative Progress, Accessible Cities Remain Elusive The Conversation (online Jan. 24, 2024):

        Disability as an afterthought makes platform and vehicle retrofit an inconvenient, costly necessity. The technical part of this problem can likely be solved with existing technology, like platform gap fillers and bridge plates. Waiting around for disabled passengers to engage in class-action litigation is not an effective strategy.

    Buliung, who specializes in disability studies and transport geography, was specifically commenting on subway platforms and trains that are too high in the air for many disabled people to access, such that "platform gap fillers and bridge plates" exist to literally fill the gaps and bridge the heights.  Whether that is enough will depend on how you react to reading the rest of his article.

        But it is certainly true in my experience that litigation is a poor way to make policy.  "Waiting around for disabled passengers" to solve the gaps and scale the heights at subway platforms by any kind of litigation, including the "class-action litigation" he specifically mentions, is not a good option.

         Litigation usually depends on one case at a time.  It is rare for litigation to affect the outcomes of many cases all at once.          Moreover, lawyers in litigation owe their loyalties to their clients, not to society as a whole.  They work to obtain the result that is best for their client, not the result that is best for, say, America.

         That is why the results of individual cases are not very satisfactory to large groups of people.   Sometimes, though, litigation is the only option to make policy.  That is a great sadness of our time.

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

ARBITRATION, INSURANCE POLICIES, AND INSURANCE BAD FAITH CLAIMS.

In Crescent City Brewhouse, Inc. v. Indep. Spec. Ins. Co., NO. 23-7366, 2024 WL 640005 (E.D. La. Feb. 15, 2024), a Senior District Judge ruled on an insurance company's unopposed motion to compel arbitration of insurer bad faith claims and alleged violations of Louisiana Statutes, among other claims.  Following the Federal Arbitration Act and prevailing Fifth Circuit case law, the Federal Court noted that "[n]either party has asserted an external legal constraint that forecloses arbitration[.]"

          Parenthetically, of course the carrier that filed the motion to compel arbitration did not assert an external legal constraint to arbitration.  What a wonder it would have been if it had.

          That leaves the policyholder which filed the bad faith claims and the policyholder did not assert an external legal constraint to arbitration of those claims, either.

          In a forthcoming article in New Appleman on Insurance:  Current Critical Issues in Insurance Law, the author examines significant potential, external legal constraints to arbitration of insurance bad faith claims.  Whether you represent insurance carriers or policyholders, be on the lookout for the article and for significant potential constraints that might be raised to insurance arbitration.

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

COMMENTS, DISABILITY DISCRIMINATION: WHO MAKES THE DECISIONS MATTERS.

I wrote the following Comments and posted them on the Federal Government's eRulemaking website:

Agency: DEPARTMENT OF JUSTICE (DOJ)
Document Type: Proposed Rule
Title: Nondiscrimination on the Basis of Disability: Accessibility of Medical Diagnostic Equipment of State and Local Government Entities
Document ID: DOJ-CRT-2024-0001-0001

Comment:
Re: RIN 1190-AA78 "The MDE Standards were developed after extensive notice and comment.... They have gained wide recognition in the United States." 89 F.R. at 2193.   Your Issue 20 in which your Department seeks public comment on the Standards for Accessible Medical Diagnostic Equipment and whether there are any other standards for accessible MDE that the DOJ should consider.

If it is true that as you wrote in your Notice that the MDE Standards have gained wide recognition in the United States after extensive notice and comment, consider filing an action for Declaratory Relief in the appropriate District Court. Consider naming as defendant(s) some, any or all of the organizations likely to benefit from lack of accessibility to MDE, and give some consideration to groups that are likely to gain from accessible MDE such as groups of disabled persons.

Consider in short that these Standards were developed based on evidence and not conjecture. Share that evidence with a Court in a litigated case, perhaps after your current Comment-gathering period is done.

At best, you can establish that the Standards are reasonable and serve the purpose for which they are intended; at worst, you can establish that agencies are preferable to judges making these Standards. Thank you.

AGGRIEVED BY BLACK COACHES IN THE NATIONAL FOOTBALL LEAGUE?

If you are upset that Black men make up almost 28% of the head coaches in the National Football League, and that there might be even more Black head coaches in the NFL in the future, here are three big tips for you.

First, if you complain that the NFL is following rules that are designed to encourage Black men to become head coaches, the first thing you must know is that you have to be "aggrieved" if you want to sue under Title VII of the Civil Rights Act of 1964.

In 2011, the U.S. Supreme Court said that "aggrieved" in the Civil Rights Act means that it applies to a person who is within the "zone of interests" that are arguably protected by that law, but it excludes everyone else whose interests are not related to the statutory prohibitions.  Remember, whatever you do, that the current supreme court may stand by that decision in your case.

So make sure that when someone sees you or your group that when your picture is taken, you at least look like people who played football, if not at a professional level, let alone coached it.

Second, the same law that makes it possible for a person aggrieved by an employer's alleged "unlawful employment practice" to file a complaint with the Equal Employment Opportunity Commission, also provides that the EEOC must informally investigate the complaint and keep it totally private.  The reason is obvious:  If a complaint is leaked to the press, for example, the effects on the reputation of the accused can be huge, to coin a word.

Moreover, the same law also provides:  "Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both."

So don't be stupid and take a chance that you or your lawyers announcing your grievance complaint are fined or imprisoned.  Keep it private, if you really have a complaint that is.

Third, if you decide to file a lawsuit over your complaint, remember that you may have to pay the reasonable attorney's fees of the accused under the Civil Rights Act of 1964 if the accused becomes the prevailing party in your lawsuit.

So before you or your group -- let's call them the Bad Faith Boys or the Grievance Dudes – file a lawsuit like this, remember that some people are not intimidated easily.  And that some of them play football for a living.

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

COMMENTING ON PROPOSED RULES AGAINST DISABILILTY DISCRIMINATION & MEDICAL DIAGNOSTIC EQUIPMENT

Here's a sample of leaving Comments on proposed rules.  These are Comments I left on one of the Civil Rights Division's proposed rules on Nondiscrimination on the Basis of Disability in the use of Medical Diagnostic Equipment.  Once I realized perfection is not required, I realized how easy it is to leave Comments on proposed rules.  I hope you have the same experience including the realization that perfection is not required!

COMMENTS ON "NONDISCRIMINATION ON THE BASIS OF DISABILITY:  ACCESSIBILITY OF MEDICAL DIAGNOSTIC EQUIPMENT OF STATE AND LOCAL GOVERNMENT ENTITIES":

Re:  RIN 1190-AA78.

To the Civil Rights Division, U.S. Department of Justice:

This Comment will address your proposed addition in a new Subpart I of a new § 35.213, Qualified staff.

As written this proposed rule is more aspirational than mandatory.  It would be a good starting point perhaps when combined with more specific rules on staffing.

These do not have to be precise or expressed in ratios (such as 1:1, God forbid) that would overwhelm the presumed expertise of the State and local entities using Medical Diagnostic Equipment.  It is probably wiser, at least at first and for now, to leave precise staffing ratios to them.  However, it is equally possible and wiser to provide more than aspirational goals.

Are not Nursing Homes subject to specific staffing ratios?  My understanding is that they are.  Propose a rule or rules that refer to such rules/regulations adopted in similar settings regulated by other agencies and Departments, without expressly incorporating by reference the separate standards that have been adopted for other entities and attempting to apply them directly to the State and local entities you address.

Further, if you need assistance in formulating such rules about staffing, by all means get it.  Consult with private organizations that deal with all sorts of populations that encounter MDE both from the receiving end and from the user end of things, and ask how they have resolved staffing issues such that the people who use this equipment "successfully operate accessible MDE, assist with transfers and positioning of individuals with disabilities, and carry out the program access obligation regarding existing MDE."  KFF is a more-or-less private organization that comes to mind; I am certain that you will think of others and that your proposed rules will benefit from the experience of the receivers and users of MDE as relayed to you through private organizations.

In addition to staffing requirements, your proposed rules ought to be more specific about your expectations concerning training of the people, i.e., the employees, who actually use this equipment "in, or in conjunction with, medical settings by health care providers for diagnostic purposes."

Once again, the big drawback here is that the rule you propose in Section 35.213 is more aspirational than mandatory.  Perhaps that approach was your intent.  If so, that approach is unsatisfactory to the disabled people who encounter MDE wielded by poorly trained individuals or perhaps even used by people who are not up to the task of using MDE the way the manufacturers intended it to be used.  Provide the State and local entities you regulate with the means to measure the performance of these people, their employees – and let them know in the process, expressly or better yet, implicitly – that you too are measuring their performance with MDE.

Drawing from the lived experience of people that has already been reported to private organizations, follow the same approach concerning training as you take to obtain information on proposed further rules regarding staffing, above. 

To summarize, combine your aspirational message with at least some mandatory language, and write some proposed rules that are more specific for the State and local entities in implementing your aspirational message.

Please read the disclaimer.  

SOME STATES HAVE BAD FAITH TORTS, SOME HAVE PENALTIES STATUTES.

In Snyder v. Erie Ins. Co., No. 1:22-cv-01205-STA-jay, 2023 WL 9503402 (W.D. Tenn. Dec. 12, 2023), the District Court summarized Tennessee law and the law applicable to this case:

       Tennessee insurers have a duty to act in good faith, and, while there is no separate tort for breach of good faith, Tennessee statutory law allows insureds to seek a penalty up to 25% of the total liability when a claim is denied in bad faith. [Citation omitted.]  Tennessee's bad faith statute provides as follows:

    The insurance companies of this state, and foreign insurance companies and other persons or corporations doing an insurance or fidelity bonding business in this state, in all cases when a loss occurs and they refuse to pay the loss within sixty (60) days after a demand has been made by the holder of the policy or fidelity bond on which the loss occurred, shall be liable to pay the holder of the policy or fidelity bond, in addition to the loss and interest on the bond, a sum not exceeding twenty-five percent (25%) on the liability for the loss; provided, that it is made to appear to the court or jury trying the case that the refusal to pay the loss was not in good faith, and that the failure to pay inflicted additional expense, loss, or injury including attorney fees upon the holder of the policy or fidelity bond; and provided, further, that the additional liability, within the limit prescribed, shall, in the discretion of the court or jury trying the case, be measured by the additional expense, loss, and injury including attorney fees thus entailed.

Tenn. Code. Ann. § 56-7-105(a). Thus, under the statute, to recover a bad faith penalty, a plaintiff must prove (1) that the policy of insurance had, by its terms, become due and payable; (2) the plaintiff made a formal demand for payment and then waited sixty days after making the demand before filing suit; and (3) the refusal to pay was made in bad faith.

Snyder, 2023 WL 9503402, at *6-*7.  Under Tennessee law as in this case, negligence alone is not legally sufficient to impose extracontractual damages for a failure to settle a claim.  Snyder, 2023 WL 9503402, at *7.

Express statutory causes of action in first-party insurance cases, including under penalties statutes like the Tennessee statute at issue in Snyder, are discussed in Volume 2 of Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith § 9:14 (West Publishing Co. 3d Edition and 2023 Supplements, 2024 Supplements in process).

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

THE ACCESSIBLE WHEELCHAIR USER'S BATHROOM

Here is a challenging survey for you or anyone you know who is a wheelchair user and faces access issues to a bathroom.  I have cut and pasted the survey questions to the bottom of this article because a form I received and downloaded, unfortunately will not download here.  You can work around that by cutting and pasting the bottom of this article, and then printing it as a form.

After this information is filled out, can you share it with the Civil Rights Division of the U.S. Department of Justice?  If you can, leave a Comment on their proposed new rules to combat Nondiscrimination on the Basis of Disability:  Accessibility of Medical Diagnostic Equipment of State and Local Government Entities, leaving the code name, RIN 1190-AA78,  on your Comment at the Federal eRulemaking website before the February 12, 2024 deadline:  https://www.regulations.gov.

I know what you are thinking.  How does this affect the use of Medical Diagnostic Equipment (MDE) at facilities run by State and Local Governments?  Two reasons.

First, the U.S. Department of Health and Human Services has proposed similar rules.  Between them, the rules proposed by the DOJ and the earlier rules proposed by HHS will cover virtually every provider of Medical Diagnostic services who takes Federal money including from Medicare and Medicaid.  Expect DOJ to share your Comment with Health and Human Services.

Second, the places where MDE is found includes hospitals, physicians' offices, and X-ray labs.  Do these places not have restrooms?  Sure they do.  Do these places not have patients in wheelchairs?   Sure they do.

So get cracking, and when the form is filled out to survey Accessible Bathrooms For A Wheelchair User, send it if you can to the Federal Government – and make someone's life easier by making the bathroom more accessible to them.

HOW ACCESSIBLE IS YOUR ACCESSIBLE BATHROOM FOR A WHEELCHAIR USER—Really?

Location:

Name of critiquer:

Email address of critiquer:

1. Doorway (5 lbs. of pressure to be ADA compliant)
2. Automatic entry
3. Very easy open
4. Challenging but doable
5. Almost impossible
6. Space in bathroom to maneuver?
7. Yes
8. No
9. Where is handicapped stall located?

 

 

4. Is the space in the stall adequate to accommodate a motorized wheelchair? How about a helper as well?

        

5. Is purse holder on door of stall lower?

         `                                                                                                 

6. Grab bars
7. Where?
8. How many?
9. Good height?
10. Toilet height
11. Too Tall
12. Too Low        
13. Just right
14. Toilet easy to flush?
15. Sink
16. Slide under?
17. See yourself in mirror?
18. Soap accessible?
19. Paper towels in reach for manual wheelchair users?

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

TWENTY NUMBERED ISSUES, TAKE 3 FOR NOW: END DISABILITY DISCRIMINATION.

For the past week, you have received and read about opportunities for Comments on rules that have been proposed to help make Medical Diagnostic Equipment accessible to all people:  The identifier for the Federal government is RIN 1190-AA78, and you can submit your Comments at the Federal eRulemaking website:  https://www.regulations.gov.

The MDE rules proposed by the Civil Rights Division of the U.S. Department of Justice follow similar rules proposed earlier by the U.S. Department of Health and Human Services.  Between them, these Departments will cover most if not all of the State and local governments, hospitals, physicians' groups, and other people that take Federal money, such as from the Medicare and Medicaid programs.

The Department of Justice has written twenty (20) specific invitations on Issues for Comment, within its proposed Notice of Proposed Rulemaking which you can find at Volume 89 Federal Register, pages 2183-2195 and at the Americans With Disabilities Act website:   https://www.ada.gov.

Take 3 of these specific issues to help frame your thoughts for now:

1. The Department seeks

public comment on whether different

scoping requirements should apply to

different types of MDE (e.g., requiring a

higher percentage of accessible exam

tables and scales than accessible x-ray

machines).

Has it been your experience that there is a need for more accessible exam tables than accessible X-ray machines?  (That's what they mean by "scoping requirements":  how many should be required.)   Whatever your experience may be or whatever you may think about this, take their invitation to Comment and tell the Department!

2.           The Department seeks information

             regarding:  The burdens that the rule’s

proposed approach to dispersion may

impose on people with disabilities e.g.,

increased wait times if accessible MDE

needs to be located and moved;

embarrassment, frustration, or

impairment of treatment that may result

if a patient must go to a different part

of a hospital or clinic to use accessible

MDE).

Again, they are looking for information about YOUR experience, not theirs.  And not someone else's theoretical daydreams, but YOUR EXPERIENCE.  Tell them in a Comment!

3. The Department seeks

public comment on this proposal, as

well as any specific information on:

The effectiveness of programs used

by public entities in the past to ensure

that their staff is qualified[.]

Have any experience with or thoughts about whether hospital workers today can operate Medical Diagnostic Equipment so that the equipment is accessible, and so that you receive the kind of good medical examination that you deserve?

How about physicians' staff, what is your experience and what are your insights about them in this regard?

Should job postings, employment applications and job interviews match the new dynamics of operating Medical Diagnostic Equipment and, if so, how?

After employees are hired, will more and better MDE training help?  More and better training on interacting with People With Disabilities?

Whatever your experience, and whatever your insights, once again:  SHARE them in your Comments!

To quote the Civil Rights Division of the DOJ:  "All comments must be submitted on or before February 12, 2024."

SHARE YOUR COMMENTS!

Please read the disclaimer.  This blog article is offered to the public domain to make clear that leaving Comments is cool!

MEDICAL DIAGNOSTIC EQUIPMENT: THE MEANING OF ACCESS FOR ALL.

The Department of Justice as it was run in 2017 withdrew previous attempts to look at whether equipment and furniture in "services, programs, and activities provided by State and local governments and public accommodations, are accessible to people with disabilities."

In 2021, this effort was restored.  The results of a change in approach include proposed new rules for Nondiscrimination On the Basis of Disability concerning Medical Diagnostic Equipment used in or with medical settings for medical specialists to make diagnoses.  The HHS was the first to propose new rules for all entities receiving Federal financial assistance.

The Civil Rights Division of the U.S. Department of Justice is proposing much the same new rules for Medical Diagnostic Equipment to be accessible to all of the public in "the services, programs, and activities offered by State and local governments" and by "public entities," under Title II of the Americans With Disabilities Act.  As the Federal government itself has written in its proposal for these new rules, "there are likely no public entities in the healthcare sector that do not receive some form of Federal financial assistance."  89 F.R. at 2192.

The need for new rules and Standards for Medical Diagnostic Equipment is no longer open for debate, if it ever really was.  What is open for discussion are your own Comments on how these proposed rules and Standards can work best.  Based on information provided by the Department of Health and Human Services and the Centers for Medicare and Medicaid Services, the Department of Justice estimates "that this title II ADA proposed regulation would affect 6,905 public entities."  Id. That's a lot of public entities.

Before you, your family, or anyone you know goes to any medical exams for diagnosis, help make these proposed rules and regs the best that they can be!  You can submit your Comments online at the Federal eRulemaking website, https://www.regulations.gov, with the identifying information "RIN 1190-AA78" which will help the people processing your Comments match them with the proposed rules.  They are called rulemaking for Nondiscrimination on the Basis of Disability; Accessibility of Medical Diagnostic Equipment of State and Local Government Entities.  To read them, you can internet search that name, or if you prefer to search with a cite, you can input 89 Federal Register 2183-2195, or last but not least, you can check out the notice of this proposed rulemaking on https://www.ada.gov.

Comment now!  The Civil Rights Division is waiting to hear what you've got to say.

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

PERFECTION IS NOT REQUIRED. "REASONABLE MODIFICATIONS": THAT'S WHAT'S REQUIRED.

He rolled into the examination room in his wheelchair.  There he stayed for the whole exam, in his wheelchair, while his doctor listened to his heart and lungs, looked inside his ears and throat, and then announced:  "I assume everything below the waist is fine."  The doctor was done with his exam.

          She rolled into the examination room in her wheelchair.  With the help of her doctor's staff, she transferred to a standard exam table but the staff had to stand by to make sure she did not fall off, as the table did not have guardrails.

          These are experiences reported to the National Council on Disability.  They are a big part of the reason that the Civil Rights Division of the U.S. Department of Justice is proposing to overhaul rules and adopt Standards for the use of Medical Diagnostic Equipment or "MDE."

          These and similar experiences are also a big part of the reason that the U.S. Department of Health and Human Services proposed new rules last September that would apply to healthcare providers that take Federal money like Medicare and Medicaid.  The DOJ and the HHS are operating in tandem, together.

          Perfection is not required under any of these proposed rules and Standards.  "Reasonable modifications" are what they require, and what Title II of the Americans With Disabilities law requires.

          Share your own experiences, and your thoughts and ideas.  You can Comment on the rules proposed by the Civil Rights Division and the Department of Justice on the Federal eRulemaking website:  https://www.regulations.gov, writing "RIN 1190-AA78" on your Comments so that they are sure to match up with these proposed rules.  You can find the proposed rules at https://www.ada.gov, or by internet searching "Nondiscrimination on the Basis of Disability:  Accessibility of Medical Diagnostic Equipment of State and Local Government Entities" (the HHS rules apply to providers who receive Federal funds, while the DOJ rules will apply to State and Local Government Entities), or if you prefer citations, at 89 F.R. 2183-2195.

          Share your Comments!  Tell them what you have lived through and what you think! 

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

MAKING YOURSELF HEARD WITH COMMENTS ABOUT YOUR EXPERIENCES.

The "stakeholders" made themselves heard for years.  They told the Architectural and Transportation Barriers Compliance Board ("Access Board") what they thought about technical standards for Medical Diagnostic Equipment before the Access Board published Standards for that Equipment.  The last time Standards were published was 7 years ago, in January 2017.

         Since then we have examining tables that are too high for disabled people to climb up on in order to get a medical examination by their doctors.

         We have examining chairs that some ophthalmologists use in examining diseases of the eye – except that they cannot examine the eyes of disabled people who cannot get in ordinary exam chairs without reasonable modifications.

         And we have so many other features of Medical Diagnostic Equipment that were not made for Disabled People.  But they were supposed to be, if Title II of the Americans With Disabilities Act has any meaning.

         The new rules proposed by the Civil Rights Division of the U.S. Department of Justice do NOT require your doctor to purchase all brand-new equipment to accommodate the Disabled.

         Like the rules previously proposed by the Department of Health and Human Services for all health care providers that take Federal money, only "reasonable modifications" are involved here.  Reasonable modifications – that's what Title II of the Americans With Disabilities Act requires.  And that's all that the rules proposed by the Department of Justice for State and local governments and by HHS for takers of Federal funds would require too:  Reasonable modifications.

         This time, don't leave it up to the commercial "stakeholders" to Comment on Medical Diagnostic Equipment.  Share your own Comments with the Civil Rights Division and the Department of Justice – they're waiting for your Comments!

         You can submit Comments at all hours of the day and night at the Federal eRulemaking website:  https://www.regulations.gov, putting "RIN 1190-AA78" on your Comments so that they can be identified with the proposed rules you want to Comment on.  And here is a link to the Notice of Proposed Rulemaking by the Department of Justice:  https://www.ada.gov.  You can also find the proposed rules by internet searching "Nondiscrimination on the Basis of Disability:  Accessibility of Medical Diagnostic Equipment of State and Local Government Entities," or if you prefer to enter citations in your browser's search bar, you can find the proposed rules at 89 F.R. 2183-2195.

         Thank you for your leaving a Comment!

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

PUTTING THE SQUEEZE ON DISCRIMINATION ON THE BASIS OF DISABILITY.

The Centers for Disease Control and Prevention estimates that approximately 61 Million adults have a disability in this country, and that 13.7% of them have a mobility disability,  including serious difficulty walking or climbing stairs – but also including serious difficulty in getting a medical diagnosis or a dental exam or an eye exam.  That translates into more than 8.5 Million adults with a mobility disability.

        The Civil Rights Division of the U.S. Department of Justice, alongside a rule previously proposed by the U.S. Department of Health and Human Services, is proposing to revise its rules in an effort to make Medical Diagnostic Equipment as accessible as possible to Persons With Disabilities.

        Their notice of proposed rulemaking is available at https://www.ada.gov, or by internet searching "Nondiscrimination on the Basis of Disability:  Accessibility of Medical Diagnostic Equipment of State and Local Government Entities," and for the citation-minded, at 89 F.R. 2183-95.  (This isn't just about State and Local Government Entities.  It's about you.  Remember that Health and Human Services is proposing similar rules for various health care providers that take Federal money such as Medicare and Medicaid.)

        Medical Diagnostic Equipment (or MDEs, the people writing these rules work in Washington, D.C., remember) is equipment used in or together with medical settings for the purposes of medical diagnosis by health care providers.       

        Examples of this definition may help to make it clear.  Medical Diagnostic Equipment includes:

• Medical examination tables.
• Examination chairs (including for eye exams and for dental exams).
• Weight scales.
• Mammography equipment.
• X-ray machines and other radiological diagnostic equipment.

      Have you or anyone you know ever had difficulty getting on a medical exam table because of a disability?

      Or having your weight taken at a doctor's office?

       Or had trouble with a mammogram (notoriously difficult to encounter for everyone), because of a disability?

      If the answer to any one of these or similar questions is "yes," then the people that work at the Civil Rights Division of the Department of Justice want to hear from you!  Think that they are working there because the money is so good?  Not likely.  More like they work there because they want to work on rules like these.

      Even if they didn't want to listen to you, they have to.   It's the law that they are required to read every single Comment.  So Comment about your own experience or that of your friends, neighbors, and family.  The people at the Civil Rights Division want to know about your personal, lived experience along with the data and briefs and memos paid for by others who are sure to Comment.  Add your voice and your experience.

      Make the resulting rules true because the rules take account of true experience.

      You may submit any and all Comments on the Federal eRulemaking website at https://www.regulations.gov, making sure to put "RIN 1190-AA78" on them so that your Comments get hooked up with the proposed rules that concern you.  The deadline for submitting Comments is February 12, 2024.

      And remember:  The United States Department of Justice, through its Civil Rights Division, invites your Comments.  Take them up on it and Comment!

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

NONDISCRIMINATION ON THE BASIS OF DISABILITY: CIVIL RIGHTS DIVISION'S PROPOSAL.

The Civil Rights Division of the United States Department of Justice has issued a Notice of proposed rulemaking about Nondiscrimination against Disabled people, which has been officially published at 89 Federal Register 2183 (Friday, Jan. 12, 2024).  Here is the pdf format:  Download Notice of Proposed Rulemaking Civil Rights Division Dept of Justice Nondiscrimination on the Basis of Disability (Jan. 12 2024).

All Comments must be submitted on or before February 12, 2024.  I intend to submit a Comment or two, never having been shy about expressing my opinions, like most people in the United States.

It's quick.  My Comments and yours do not need to be written for lawyers.  Quite the opposite.  Just write your Comments for people.  If you have personal experience to share, please share it.  In any case, feel free to share your thoughts and points of view about the many subtle forms that even well-meaning decisions bring discrimination against the disabled as well.

It's easy.  AND they are required by law to read your Comments!  It doesn't get any better than this.

You may submit Comments, identified by RIN 1190-AA78, on the Federal Rulemaking Website at https://www.regulations.gov.  Just follow the website's instructions for submitting Comments.  No worries.

Besides finding the Notice of Proposed Rulemaking in the officially published Federal Register, you can also find this "NPRM" as the people in Washington, D.C. call it at https://www.ada.gov.

Comments are good!

GO FORWARD

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