Claims and Bad Faith Law Blog

THE VOTER VIGILANTES OF MARICOPA COUNTY, FEDERAL LAW & JUDGE: UPDATE.

 

The recent developments in an Arizona federal case surrounding the Voter Vigilantes of Maricopa County are confused and confusing by the mainstream media.  So I went out to the case docket on PACER (Public Access to [Federal] Court Electronic Records).  Here is what I found to be the case.

When last we left the story on Friday, October 28th, a federal judge had entered an order refusing to enjoin the Voter Vigilantes from  voter intimidation.  He said that he could not see how the First Amendment (right of intimidation?) could be reconciled with such an injunction, so he denied the injunction.

That was on October 28th.  Since then, the plaintiffs, augmented by the League of Women Voters, wrote an order together with the defendants reconciling the First Amendment with such an injunction.  Download Arizona Alliance for Ret. Am's v. Clear Elect's USA DE 51 Temporary Restraining Order (Stipulated and Contested) filed Nov. 1 2022 (D. Ariz. No. 2.22.cv.01823.MTL)  The federal judge signed the parties' stipulated Temporary Restraining Order on November 2, 2022 and, apparently emboldened by the parties' ability to write an order, he went further and ordered injunctive relief requested by the plaintiffs to which the defendants had not apparently agreed.

In the stipulated part of the Temporary Restraining Order, the defendants agreed not to carry guns to drop boxes in Maricopa County; to stay away from drop boxes the same 75 feet that Arizona law requires them to stay away from polling places; post a statement on their existing website and social media and on any new social media account they make, that directly contradicts everything they have been writing about drop boxes in Arizona; and other things. 

In the unstipulated part of the Temporary Restraining Order, this federal judge restrained the defendants from doxing any individuals (meaning enjoining them from publishing the names and contact information and such) who wanted to drop off their ballots.  Over the defendants' apparent opposition, this federal judge also enjoined the defendants from saying false things about Arizona voting law "through the close of voting on Election Day 2022."  Download Arizona Alliance for Ret. Am's v. Clear Elect's USA DE 51 Temporary Restraining Order (Stipulated and Contested) filed Nov. 1 2022 (D. Ariz. No. 2.22.cv.01823.MTL)

So, those are some of the things that have actually happened since last Friday, October 28, 2022 in the case of the Voter Vigilantes of Maricopa County.

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

EVEN COVID COVERAGE DEPENDS ON LANGUAGE OF THE POLICY.

COVID ER (Jae C. Hong / Associated Press)

Coverage depends on the language of the insurance policy at bar.  It does not depend on hypotheticals and abstractions or majority views or trends.  To say again, coverage depends on the language of the policy, even for COVID.

In  Sacramento Downtown Arena LLC v. Factory Mut. Ins. Co., No. 2:21-cv-00441-KJM-DB,  2022 WL 16529547 (E.D. Cal. Oct. 28, 2022), the Court denied the carrier's motion to dismiss claims of insurance coverage for alleged  COVID-19 losses.  The policy at issue in that case is an "all risks" property policy with aggregate limits of "several hundred million dollars."

The plaintiffs "operate and manage the Golden 1 Center, which is the home of the Sacramento Kings, as well as a nearby hotel and outdoor shopping center."  The State of California and Sacramento County urged people to stay home, allegedly resulting in losses from cancelled basketball games, "a Bon Jovi concert, a talk by the former First Lady of the United States, and a graduation ceremony for Sacramento State University, among many others."  The basketball team and arena lost money; the hotel's occupancy rate dwindled to zero before the hotel closed; revenues of restaurants and retailers dropped, and "[t]he  plaintiffs also spent money cleaning, replacing air filtration systems, remodeling, and taking other precautions."  Sacramento Downtown Arena, 2022 WL 16525947, at *1 (record references omitted). 

The plaintiffs put forward a reasonable theory for coverage which, under California law, is enough to trigger coverage even if there is a reasonable competing coverage theory put forward by the carrier.  Once again, the language of the actual policy at issue in the particular case determined the outcome of the coverage issue.  "No matter what might be possible to plead and prove about a different policy and viral pandemics in the abstract, the policy at the center of this case can reasonably be interpreted as defining the presence of a 'communicable disease' as 'physical loss or damage.'"  Sacramento Downtown Arena, 2022 WL 16525947, at *4.

The policy at issue expanded on the policy's coverage for property damage.  In its first section, it set out a description of what the carrier identified in the policy as "other additional coverages."  The carrier wrote in its policy that these "additional coverages" are "coverages 'for insured physical loss or damage.'  One category of additional coverages relates to 'communicable disease response'," leading to the reasonable interpretation in the eyes of the Court that insured property damage includes "additional coverages" as stated in the policy including coverage for "communicable disease response," as also stated in the policy.  Since this interpretation offered by the policyholders is reasonable, it defeated the carrier's motion to dismiss in this case.  Sacramento Downtown Arena, 2022 WL 16525947, at *1.

To put it in the language of the policy's contamination exclusion – which was also raised by the carrier and rejected by the judge in this case – "it is reasonable to read the policy as defining the presence of a 'communicable disease' as non-excluded 'physical damage'[.]"  Sacramento Downtown Arena, 2022 WL 16525947, at *5.

The actual language used in the policy at issue also distinguished this judge's decision in Sacramento Downtown Arena from another ruling the same judge made on the same day in a different case denying all coverage for COVID claims under a differently written policy.  Vision Serv. Plan v. Ill. U. Ins. Co., No. 2:22-cv-00743-KJM-DB, 2022 WL 16530097, at *1, *4-*5 (E.D. Cal. Oct. 28, 2022).

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

TODAY'S ORDER DENYING INJUNCTION AGAINST INTIMIDATION IS ALREADY ON APPEAL.

Today, Friday, October 28, 2002, a federal Court Order denied an injunction against voter intimidation in Maricopa County, Arizona.  Download Arizona Alliance for Retired Americans v. Clean Elections USA et al. Doc. 32 Order filed Oct. 28 2022 (D. Ariz. No. 2.22.cv.01823.MTL).

The Court held that the Ku Klux Klan Act requires intent to intimidate.  The Court did not cite any authority in support of its ruling in this regard.  Id. at 11.  There is nothing in the Ku Klux Klan Act that requires intent, and no Court has ever said so, until today; the intimidation is the point.

The Order is already on appeal the same day.

Please see the previous articles published here and here.

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

P.S. MARICOPA COUNTY VOTER VIGILANTE INTIMIDATION; KKK CORRAL OK IN ARIZONA?

 

(Image by the U.S. District Court for the District of Arizona)

With this postscript to yesterday's article published here, here are some further details about the lawsuit filed by Arizona , and the Maricopa County Voter Vigilantes.  Not everyone necessarily knows these things, so I will add them here.

The plaintiffs brought their lawsuit under the Voting Rights Act of 1965 and under the Ku Klux Klan Act.  They are requesting an injunction of voter intimidation by vigilantes with guns at polling stations in Maricopa County, Arizona.  As they alleged, there have been reports that the armed vigilantes are doing more than standing by drop boxes with loaded weapons; they are also accosting voters with accusations that people who are simply going to cast their vote are committing various crimes.   

The Voter Vigilantes of Maricopa County display the guns they carry (their point of having a gun is openly being seen with a gun), they cover their faces with masks to conceal their identity (not to stop the spread of COVID-19 of course), and they wear special uniforms of camouflage (to sit in a parking lot at a polling place in a city).    Arizona Alliance for Retired Americans v. Clean Elections USA, et al., Doc. 1, Complaint for Declaratory and Injunctive Relief, filed Oct. 24, 2022 (D. Ariz.  No.  2.22.cv.01823.MTL).

The Ku Klux Klan Act was enacted in the first place to allow people to ask a Court to stop voter intimidation by people with guns who cover their faces and conceal their identity, and not just by the KKK.  Parenthetically, like the Voter Vigilantes of Maricopa County,  the KKK wears uniforms too.  The KKK wears sheets representing dead Confederate soldiers, but they are uniforms in every sense of the word.

The observation expressed in yesterday's article still remains:   Perhaps we will learn after the 1:00 (Arizona time) Hearing whether this judge will enjoin voter intimidation in Maricopa County, Arizona, or not.  Stay tuned.

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

ANOTHER GRIEVANCE BOY JUDGE. THIS TIME, MARICOPA COUNTY VOTING VIGILANTES.

(Image by the U.S. District Court for the District of Arizona)

Judge Aileen Cannon of the Southern District of Florida has found notoriety with her recent rulings.

Another judge appointed by the Grievance Boy has been assigned to another case that is significant to the United States of America.  Judge Michael Liburdi has been assigned to rule on the request for a preliminary injunction filed against any continued voter intimidation by Maricopa County, AZ vigilantes.  The lawsuit was filed on behalf of the Arizona Alliance of Retired Americans, et al., in the U.S. District Court for the District of Arizona.

The assignment is stated on the PACER [Public Access to (Federal) Court Electronic Docket] as "random."  A different judge, Judge John J. Tuchi, was assigned when the case was filed on October 24.  Judge Tuchi was appointed by President Obama.  However, Judge Liburdi has now replaced Judge Tuchi. 

Judge Liburdi set a hearing on the plaintiffs' request for a preliminary injunction against voter intimidation, for 1:00 PM (Arizona time) on Wednesday, October 26, 2022.  The case number is 2:22-cv-01823-MTL.

Perhaps we will learn then whether this judge will enjoin voter intimidation in Maricopa County, Arizona, or not.  Stay tuned.

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

PUBLIC ACCESS PRESUMPTION OVERCOMES SEALING COURT ORDER CONSTRUING WRITTEN DOCUMENT.

Courtroom (Public Standard)

The presumption of public access is under attack.  There is no other way to approach the current litigation surrounding the presumption.

Parties are even attempting to seal Court Orders that construe their written instruments.  In Araujo v. E Mishan & Sons, Inc., No. 19 Civ. 5785 (JPC) (SN), 2022 WL 11812348, at *1 (S.D.N.Y. Oct. 20, 2022), "Plaintiff … filed a motion to seal the Court's Opinion and Order construing two terms in one of the claims of his patent."  The Court declined the opportunity to seal in this case because of the First Amendment and common law presumptions of public access to judicial documents.  Araujo, 2022 WL 11812348, at *1-*2.

You might say that sealing a Court Order that construes your own choice of words, with the result that no-one outside of your litigation could ever understand the Court's construction of the meaning of  those words of yours, is a seal too far.  The implications are clear for other cases, including insurance cases.

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

LITIGATION CONSOLIDATED, DISMISSES ALL Cincinnati COVID-19 B/I CLAIMS.

Public Health Workers Testing for COVID-19 (Irfan Khan / Los Angeles Times)

In an aggregation of cases (but not certified as Multi-District Litigation) involving Cincinnati Insurance Company's coverages for alleged business interruption losses under its commercial property insurance policies, the same federal judge that decided the Erie MDL featured here on Monday, October 17, 2022, ruled the same way, dismissing the plaintiffs' claims for coverage.

The Court summed up the In re Cincinnati collection of cases this way:

    Plaintiffs in this case consist of dental practices, restaurants, minor league baseball operations organizations, and a salon, all of whom bring claims against their commercial property insurance carrier—The Cincinnati Insurance Company (“Cincinnati”) —alleging that Cincinnati wrongfully denied them coverage for claims stemming from the global coronavirus pandemic (referred to herein as COVID-19). Pending before the Court is Cincinnati's Motion to Dismiss Plaintiffs’ claims pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF No. 95). As this Court explained in its Opinion granting the defendants’ Motion to Dismiss in In re: Erie COVID-19 Business Interruption Protection Insurance Litigation—a multidistrict litigation (MDL) consisting of over 30 cases brought by policyholders of Erie Insurance Group based on nearly identical claims as Plaintiffs’ claims here—the types of claims that Plaintiffs assert are far from unique, as they mirror those asserted by business owners in thousands of similar cases nationwide.

Hirschfield v. Cincinnati Ins. Co., Nos. 2:20-cv-00386, 2:20-cv-00604, 2:20-cv-00816 (Lead Case), 2:20-cv-01238, 2:20-cv-01245, 2:20-cv-01261, 2:20-cv-01266 & 2:20-cv-01727, 2022 WL 7932986, at *1 (W.D. Pa. Oct. 14, 2022).

As noted, the Court ruled in the Cincinnati group of cases the same as it ruled in the Erie MDL and dismissed all of the plaintiffs' coverage  claims.

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

MULTI-DISTRICT LITIGATION DISMISSES ALL Erie COVID-19 B/I CLAIMS.

 

Public Health Workers Testing for COVID-19 (Irfan Khan/Los Angeles Times)

In In re:  Erie COVID-19 Business Interruption Protection Ins. Litig., Master Docket No. 1:21-mc-1 & MDL No. 2969, 2022 WL 7933018 (W.D. Pa. Oct. 14, 2022), the Multi-District Litigation Court summarized the nature of the COVID-19 insurance claims that it had before it:

    Plaintiffs in this multidistrict litigation all operate distinct businesses—from a retail clothing store in the Shadyside neighborhood of Pittsburgh, Pennsylvania, to a Ford/Lincoln car dealership in Cook County, Illinois, to a mussel bar in the Nation's Capital, and more. Different as their businesses may be, Plaintiffs’ legal claims are far less so—as compared to each other and to claims asserted by business owners in a multitude of similar cases nationwide.

In re:  Erie COVID-19 Business Interruption Protection Insurance Litigation, 2022 WL 7933018, at *1.

The MDL Court granted Erie's motion to dismiss based on the gathering precedents that business interruption COVID-19 claims under any coverages in commercial property insurance policies like Erie's, which depend on "direct physical loss of or damage to" covered property, are simply not covered.  This was certainly true from reading the Erie insurance policies at bar, the Court observed:

Under the Policies, a “covered cause of loss,” also called a “peril insured against,” is a “direct physical ‘loss,’ except ‘loss’ as excluded or limited in th[e] [P]olic[ies].”...  In other words, a “covered cause of loss” must itself be of a physical nature, and the impact that it has on property—i.e., what it causes—must meet the definition of “direct physical loss of or damage to” covered property.

In re:  Erie COVID-19 Business Interruption Protection Insurance Litigation, 2022 WL 7933018, at *11 (citation to the record of this particular case omitted).

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

ANOTHER "SO-CALLED JUDGE" APPOINTED BY THE GRIEVANCE GUY HEARD FROM.

(Matt Whitaker / New York Times)

Federal District Judge MATTHEW J. KACSMARYK in Texas was nominated twice by the Grievance Guy and finally was sworn in the second time, in 2019.

Previously, Judge Kacsmaryk ruled that President Biden needed to keep the Grievance Guy's previous position that immigrants need to be outside the United States when they apply for asylum.

This represents one ruling in a disturbing trend of federal decisions for Catholic lawyers like me.  My faith regards this kind of willful infliction of cruelty as sinful.   It is surprising to see judges ruling in defense of cruelty.

Even though Judge Kacsmaryk self-identifies as a Catholic, the Catholics on the U.S. Supreme Court overruled him in that case.

Judge Kacsmaryk's latest ruling is cut from the same cloth as his earlier ruling, it appears.  His latest ruling is that lesbians, gays, bisexuals, transgender people and queers/questioners have no protection against discrimination.  The U.S. Equal Opportunity Commission or EEOC issued Guidance following a United States Supreme Court decision that held to the contrary, i.e., that LGBTQ people are entitled to the same protections against discrimination as other Americans everywhere in the United States.

It will be interesting to see how the Supreme Court's current majority of Ratzinger Catholics rule now, whether they rule as this Texas judge did rendering people defenseless to discriminatory cruelty, or whether they follow their own precedent as the EEOC tried to do.

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

"RISK," EXPERTS CAN TESTIFY; BUT "WHAT" WARNING, MDs CANNOT SAY.

(Sun Sentinel)

In Freeman v. Ethicon, Inc., No. 20-cv-10661 -CBM (SKx), 2022 WL 4692596 (C.D. Cal. Aug. 26, 2022), the Court ruled without hearing and without even a court reporter or a clerk present.  It appears that the Court's ruling was just even if it was not made in public.

The Court was faced with a motion in limine filed on behalf of the manufacturer and distributor (Ethicon and Johnson & Johnson, respectively) of a mesh contraceptive implant that allegedly caused horrible problems.  (This specific case was "on leave," as it were, from a Multi-District Litigation.)  The defendants wanted to bar the plaintiffs' expert medical doctors from testifying to the sufficiency of its supposed warning.  To be more exact, the defendants wanted to bar the plaintiffs' listed experts from testifying as to what should have been in the warning.

The Court formally "GRANTED" the motion, but following an earlier ruling in the MDL, in doing so the Court ruled in a way that may or will affect the reception of expert testimony in other cases including in insurance cases.

The Court ruled that the expert medical doctors could testify concerning the "risk" of the product, something about which they have relevant expertise as medical doctors.  On the other hand, the same experts could not also testify to something beyond their expertise, namely, what should have been including in the warning except that the medical doctor experts can testify whether or not the risk was in the warning.  Freeman v. Ethicon, 2022 WL 4692596, at *2.

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

"QUALIFICATIONS, RELIABILITY, AND FIT."

Hurricane Seen From Space (Photo by NASA)

In Great Lakes Ins. S.E. v. Sunshine Shop. Ctr., Inc. d/b/a Sunshine Mall, Nos.  2019-0039 &  2020-0033, 2022 WL 4598829 (D.V.I. Sept. 30, 2022), the Court applied the prevailing Third Circuit test for the admission of Expert testimony following the Supreme Court's decision in Daubert:  qualifications, reliability, and fit.

Having just gone through Hurricane Ian, I chose this case because it involves a Hurricane too:  Hurricane Maria which struck the U.S. Virgin Islands and allegedly caused damage to a shopping mall.  The mall owner purchased "all risks"  commercial property insurance.

The mall owner proffered the expert opinion and testimony of a licensed professional engineer to prove its covered damages. 

This case stands at the head of a long line of cases in which Courts decline to permit proffered experts to over-reach.  The Court in this case held that the licensed professional engineer did not have the qualifications to render the opinion she reached, and her methodology was not reliable in reaching her opinion.

All in all, the lesson after a Hurricane when the skies are their bluest, it seems, is that the feeling of release and joy of at last getting to go someplace besides the inside of your house does not mean that you are freed from all constraints.  In other words, proffered experts, like the rest of us, should stay in our lane for our best chance to please the Court.

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

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

(Gridview_Imagefull / Florida Department of Agriculture & Consumer Services)

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

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

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

Apex Roofing, 343 So. 3d at 1227.

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

FILED RATE DOCTRINE DEPENDS ON FILED RATES THAT ARE APPROVED:

THAT INCLUDES INSURANCE RATES.

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

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

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

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

United States Supreme Court (AP / Jacquelyn Martin)

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

U.S. Supreme Court Justice Clarence Thomas.

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

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

MEET THE JUDGES WHO RESTORED THE REPUBLIC FOR NOW.

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

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

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

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

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

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

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

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

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

EFFICIENT PROXIMATE CAUSE DOCTRINE, EXPLAINED.

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

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

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

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

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

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

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

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

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

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

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

FEDERAL COURT PROCEDURES FOR ASSIGNING JUDGES TO CASES AFFECT OUTCOMES.

Judge's Gavel (Thomson Reuters West via LinkedIn)

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

Editing (LexisNexis)

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

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

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

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

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

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

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

(One of the last photographs taken of Abraham Lincoln)

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

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

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

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

'The Constitution represents popular opinion.'

(Sun Sentinel Handout)

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

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

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

Today, he is rightfully called Judge.

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

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

(Peter Ringenberg / University of Notre Dame)

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

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

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

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

CONSUMER PROTECTION ACTS AND INSURANCE BAD FAITH ACTIONS

(Blue Moon Image by NASA)

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

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

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

THE LAW AND UNSEALING SEARCH WARRANT MATERIALS.

 

Editing (LexisNexis)

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

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

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

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

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

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

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

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

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

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

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

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

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

UNFAIR & DECEPTIVE PRACTICES ACTIONS AND IMPLIED COVENANT BREACH ACTION TOGETHER.

(Aurora From ISS Image Courtesy of Captain Kelly & NASA)

In a decision that has just been published, Precision Cranes, Inc. v. Tester Drilling Serv's, Inc., No. 4:18-cv-00019-JMK, 2020 WL 13538683 (D. Alaska Nov. 18, 2020), the plaintiff Precision was allowed to amend its complaint against two defendant insurance carriers that issued payment bonds on a project in the Arctic.  Precision had already sued on what is generically known as a UDAP (Unfair & Deceptive Practices) statutory claim, in this case, specifically under the Alaska Unfair Trade Practices and Consumer Protection Act (“UTPCPA”).  Now Precision requested leave to add a claim for breach of the implied covenant of good faith and fair dealing, apparently at common law.

The District Court granted Precision's motion for leave to amend its complaint even though the motion came late and over the objections of the defendant carriers.  Precision, 2020 WL 13538683, at *3.  This case involved Alaska substantive law, which the federal Court clearly read as allowing both a UDAP action and a bad faith action based on the same facts, even though the two causes of action are similar but distinct on the law.

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

SOMETIMES PARTIAL PAYMENT MAY NOT BE ENOUGH GOOD FAITH.

 

(Black Hole Image Courtesy of NASA)

Sometimes even partial payment may not be enough to establish good faith as a matter of law.  In Rutledge Inv's L L C v. Scottsdale Ins. Co., No. 2:21-CV-00364, 2022 WL 3704212 (W.D. La. Aug. 26, 2022), the Court denied the property carrier's "motion for partial summary judgment to dismiss" a "bad faith claim related to Hurricane Laura."

This despite the fact that the record shows that the carrier made an advance payment one week after the Hurricane struck and, further, that the carrier agreed to "issue payment on the undisputed claim" five weeks after that.  Rutledge, 2022 WL 3704212, at *1.

Proof of loss:  advances are the subject of § 2:10 by Dennis J. Wall, in JOHN K. DiMUGNO, STEVEN PLITT, and DENNIS J. WALL, CATASTROPHE CLAIMS / INSURANCE COVERAGE FOR DISASTERS (Thomson Reuters May 2022 Edition).

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

TFG v. USA UPDATE: WHY IS THIS CASE HERE, JUDGE ASKS.

(C.D. Cal.)

 

On August 23, 2022 Judge Aileen Cannon entered the following paperless Order in Southern District of Florida Civil Case No. 22-cv-1894-AMC, which has been copied from the electronic docket on PACER:

08/23/2022

10

PAPERLESS ORDER: The Court is in receipt of 1 Plaintiff's Motion for Judicial Oversight and Additional Relief. To facilitate appropriate resolution, on or before August 26, 2022, Plaintiff shall file a supplement to the Motion further elaborating on the following: (1) the asserted basis for the exercise of this Court's jurisdiction, whether legal, equitable/anomalous, or both; (2) the framework applicable to the exercise of such jurisdiction; (3) the precise relief sought, including any request for injunctive relief pending resolution of the Motion; (4) the effect, if any, of the proceeding before Magistrate Judge Bruce E. Reinhart; and (5) the status of Plaintiff's efforts to perfect service on Defendant. Signed by Judge Aileen M. Cannon on 8/23/2022. (AMC) (Entered: 08/23/2022)

As we said in an article published yesterday, Judge Aileen M. Cannon was appointed by the alleged owner of the searched premises.

So it's on to Friday, August 26, 2022.

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

TFG v. USA CIVIL COVER SHEET: "NO RELATED CASE"?

There is a Civil Cover Sheet in the new civil case addressed yesterday, which I write here for algorithm purposes to protect the innocent as they used to say on Dragnet, as:  TFG v. USA, Southern District of Florida Case No. 22-cv-81294, .  Here is the Civil Cover Sheet:

As we said yesterday, the signature appears to come from Evan Corcoran, Esquire, one of the attorneys of record for the alleged owner of the searched premises.  

Lawyers will immediately recognize the standard question in this form, which is question numbered VI, RELATED/RE-FILED CASES, in particular the standard question in every federal Civil Cover Sheet in the country:

b) RELATED CASES

___ YES  ___ NO  DOCKET NUMBER:

Although this question was left blank in this case, the answer of course is that there is a related case, and its Docket Number is Southern District of Florida Criminal Case No. 22-mj-8332-BER.  That of course is the search warrant case involving the alleged owner's searched premises.

The question is simple.  Why do you think it was not answered?

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

CLAIMS BARRED AGAINST "PAY TO PLAY," BRIBED AND APPROVED RATES.

(Image of Jupiter / NASA & AP)

In South Branch LLC v. Commonwealth Edison Co., Nos. 21-2861, 21-2872 & 21-2873, 2022 WL 3581782 (7th Cir. Aug. 22, 2022), two judges on a Seventh Circuit panel led by Judge Diane Sykes reached for an immunity that the trial court did not touch to bar claims against ComEd:  the filed rate doctrine.

Judge Sykes has reached out to the filed rate doctrine to bar claims in other cases; in this case the trial court dismissed the plaintiffs' RICO claims against ComEd on other grounds entirely.

The record left no doubt but that the rates in question were approved by the regulatory agency as a result of favorable legislation for higher rates.  "To secure passage of favorable legislation, ComEd engaged in a yearslong 'pay to play' scheme[.]"  The scheme in short involved bribes paid to Illinois State Government officials in order to secure the legislation.  ComEd, 2022 WL 3581782, at *1.

Because of the filed rate doctrine, the plaintiffs could not sue.  The two judges on the panel held that they were not "injured" under RICO as a result.  ComEd, 2022 WL 3581782, at *3.

The remaining judge on the panel concurred but expressly stated that she would not rule on the basis of the filed rate doctrine in this case.  Instead, she based her vote on an 1810 decision that in her eyes prohibits judges from inquiring into the motives of legislators.   ComEd, 2022 WL 3581782, at *6

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

VIRGINIA UNFAIR CLAIM SETTLEMENT PRACTICES STATUTE NOT ACTIONABLE IN 2022.

(Bridge Collapse / USA TODAY)

Virginia's Unfair Claim Settlement Practices Act is codified in VA. CODE ANN. § 38.2-510.  It parallels the National Association of Insurance Commissioners' Model Unfair Claim Settlement Practices Act in pertinent part.  See generally 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH, § 3:28 (addressing statutory bases of bad faith in third-party claims) (3d Edition West Publishing Co., 2022 Supplements in process); 2 id., §§ 9:14 & 9: 15 (Express and Implied Causes of Action, respectively, under bad faith statutes in first-party cases).

The Virginia Unfair Claim Settlement Practices Act does not convey a cause of action, however.  Sustainable Sea Prod's Int'l, LLC v. Am. Emp. Surplus Lines Ins. Co., No. 3:21cv697, 2022 WL 3573247, at *4 (E.D. Va. Aug. 19, 2022).

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