May It Please The Court
Quote of the Day - Although golf was originally restricted to wealthy, overweight Protestants, today it's open to anybody who owns hideous clothing.
Unknown Consequences of Gaining WeightRegular readers will know that I have admitted in this space to being obese. Friends and acquaintances know now that's no longer true (compare that current picture against the one on the Way Back Machine). Yep, I've lost over 70 pounds, and am well within reach of my college/high school weight.
And I'll get there.
But on the way, some interesting things have happened. I no longer take high blood pressure medicine. All that weight, according to my doctor, has lost miles of blood vessels and dropped about two pints of blood that my heart no longer pumps.
Imagine, then, my surprise at this news: California's Carcinogen Identification Committee will consider on Monday, November 1, 2004, whether to add Verapamil to the list of chemicals known to the State of California to cause cancer.
I took that medicine. Not that long ago.
Need any motivation to lose weight?
Tipskate Arrestee Asks For Legal RepresentationJust a little over a month ago, I commented on the travails of a guy in New York who was arrested for not leaving a tip. Well, the guy sent me an email, and gave me permission to post it.
Typically, his email would just be a comment to the original post, but because of his request, I thought it deserved some attention. Here it is, edited only slightly, mostly for capitalization and punctuation:
My name is Bert Taveras (the small tip guy you reported on), I read your article posted on 9/19. Seems yours was one of the few thousand reports that got most of it right. Thank you.
My family and I were unfortunately victims of this ridiculous custom of ours here in the states, 'Gratuity' and the vagueness of the laws surrounding it, which have been in the past causing law enforcement and restaurant owners everywhere to abuse or at times even discriminate as they see fit.
I truly believe there is more to it though. I believe that this system, loved and backed by the restaurant lobbyists, sides with restaurant owners and leaves the public, including the "poor" waiters, at its mercy.
These are the same guys that want to keep the minimum wage down or as close to a “slave-labor” category as possible.
On that evening, after being arrested in front of my friends and family, fingerprinted, having my mug shot taken by the local police for not leaving a big enough tip and then, having the news hit over 30,000 publications the next few days was humiliating to say the least.
This ridiculous charge against me or as the official notice stated: 'The People of New York vs. Humberto Taveras for Theft of Services' was, after 10 days, dismissed by the DA's office.
I think that in itself, the dismissal does nothing to correct the system, let alone help me through the grief my family and I endured. I want to add that to date, we haven’t even received an apology from either the restaurant owner or the County and truly believe that if it wasn’t for the press, I may have faced true jail time.
Consequently, being drawn into this, I feel it is not only my right, but my responsibility as a taxpaying citizen to stand up and ensure the law is made clear everywhere as well as being compensated for the misery we endured.
We are looking for someone to represent us in a civil lawsuit. If you know of any good lawyers who have the will to stand up for something that is right as we did, I would appreciate your references.
Bert Taveras, a.k.a. 'TIPSKATE'"
There you have it. Bert's perspective on his 15 minutes of fame. Admittedly, I'm neither a Plaintiff's lawyer nor admitted in New York, so Bert's desire to not only clear his name but also right a wrong is not a charge I'm going to pick up.
But I did write about him, and he deserves my help in his quest to find a Plaintiff's lawyer in New York who's interested in his case. Any lawyer who meets these criteria out there? If so, send me an email, and I'll put Bert in touch with you.
The Tail Wags the SkunkIt's a rare day when I choose to take on a panel of appellate judges, but this one seems an easy task. Here's the pitch, with apologies to one of my favorite teams:
Skunk gets under house, homeowner calls insurance company. Insurance adjuster sends out restoration company to deodorize the house. Restoration company allegedly uses chemicals and deodorizers, and homeowner gets sick. Homeowner sues restoration company, restoration company makes a claim to its insurance company.
Then, of all things, restoration company gets its claim denied. Surprise. Strike three, yer out.
Insurance company says there's an absolute pollution exclusion in the policy. Restoration company sues.
Twice now, Courts have upheld the insurance company's position. Deodorizers are a pollutant, they say.
Let me see here. The policy exclusion says not covered if the cause of the injury is a "irritant or a contaminant." I don't know whether the deodorizer used was this product, but even if it wasn't, what happened here?
Let's look at it again. What is the original pollutant?
Right - the skunk smell. What is the deodorizer designed to do? Right again - remove the smell. Make it smell better, less like a skunk.
Nowhere in the Court of Appeal's ten-page opinion do they explain how a deodorizer - that makes things smell better - qualifies as an irritant or contaminant.
It's the exact opposite. Call me silly, but I would have reversed the trial court.
Maybe the judges would have gotten the idea better with an actual demonstration of the effects of the skunk smell, followed by the deodorizer. Think about the possibilities. How about a scratch and sniff patch in the brief to the Court, followed on the next page by the deodorizer?
Nothing like reality to drive home a point.
Insurance Coverage Crammed Into Eight CornersConventional wisdom wags say that insurance companies don't like to pay out money. You know, the part where they collect premiums but don't pay claims.
Well, here's a new twist on that old saw.
The Fielder Road Baptist Church in Arlington, Texas was sued for sexual misconduct because of a former pastor's alleged abuse. It's a familiar claim.
Here, the Church was insured by GuideOne Insurance, and both the Church and the insurance company agreed that the pastor was not employed by the Church during GuideOne's policy period.
That should be the end of the story, right?
That policy reads: "We shall have the right and duty to investigate any claim ... and to defend any suit brought against you seeking damages, even if the allegations of the suit are groundless, false or fraudulent." (Emphasis not in original.)
It's that nasty little word, shall. It denotes a mandatory requirement, as in shall defend the Church.
And the Complaint against the Church is broad enough to trigger coverage under the policy because it doesn't say anything about when the pastor was employed. Now, confusion starts to set in. If the policy says the insurance company must defend, but the insured and insurer agree there's no coverage....
My head hurts. Yours probably does, too.
See, you forgot that Texas has the eight corners rule, didn't you? Eight corners are really two, four corners. The four corners of the Complaint's allegations and the four corners of the insurance policy.
In Texas, those two documents are the only things that determine whether coverage exists under an insurance policy. So, if there's a third document, such as the Church and insurance company's stipulation that the pastor wasn't covered, the Court can't consider the third document to decide whether the insurance company has to defend the Church.
Right now, the score is one to one. The trial court said no, there's no coverage because of the stipulation, then the appellate court said yessiree Bob - we stick to the eight corners rule here. The Complaint says something that triggers coverage, and the policy says "shall," so there's coverage.
Yep, you guessed it. Maybe we go see the Texas Supremes now to find out if there really is coverage.
We'll see whose head hurts after this whole thing is over. Stay tuned.
Can You Endorse A Hanging Chad?Go ahead if you dare.
Open your mailbox. I opened mine today, and voter mailings poured out.
Literally. My mailbox was overflowing. But you already knew that. Yours is too.
Now for the real news. Drum roll, please. You may already know this, but I didn't, and neither did a bunch of my friends.
Candidates can buy endorsements from various groups. That's right. Cold, hard cash.
To the highest bidder. Candidates can get endorsements not on the merits of their positions or anything else, but instead by investing. Money, nothing else, ranging anywhere from $5,000 to $40,000 and up, just for a local, county election.
At the same time, the endorsing entity usually does not disclose that it received money to make the endorsement. You and I believe that the endorsement really means something. That someone actually interviewed a candidate and made a decision for one candidate over the other.
And, we fall for it. We vote, sometimes based on the endorsement. That's not to say that all endorsement are based on money. Some are based on merit. But not all are. Be careful out there.
Vote based on the candidate, not the endorsements.
Copyright & Creative Commons: A Marriage Proposal?You may have run into the Creative Commons symbol (two c's in a circle - sorry my software doesn't offer that option) as you cruise around the internet. According to an article published on lexisONE, it's a framework where "copyright holders can let others use their works for free while stipulating limits - for instance, requiring attribution while prohibiting sales. They can't veto individual projects - the way copyright holders now can deny rights to filmmakers with whom they disagree."
It is an alternative to the government's copyright laws that now extend rights to copyright holders 70 years, and beyond death.
The two concepts are in direct conflict with one another, but it's up to the artist to choose which style of protection needed. Creative Commons proposes changes to the copyright act. On the other hand, not everyone is happy with Creative Commons' scheme of protection.
There's apparently no perfect system for everyone, and no way to marry the two styles of protection.
My ideas are expressed on this blog with no protection. Now on the other hand, our firm's logo, the blog names and the artwork are either protected by service marks or on their way to being protected.
Seems to me a suitable compromise. Copy my comments, but don't copy my logos and names without my permission.
Maybe we all can get along.
Brazilian Air Force: Not An OxymoronIt's DEL in DEN.
In airplane lingo, that means parked in an airline lounge in Denver (that white stuff in the video is snow in the mountains). I'm not blaming United Airlines, but then again, who else can I blame?
When I checked in, my bags apparently weren't. Ah, the perils of air travel.
At least, though, I'm not flying over Brazil today.
Today is the first day that the Brazilian Air Force gets to shoot small planes out of the sky if they are suspected of carrying drugs. OK, fine, but how do you tell? Are there labels that drug-runners attach to the sides of their planes that say, "Shoot me, I'm carrying narcotics"?
I mean, there you are flying your Brazilian fighter plane, and you spot a Piper Cub. So you want to get in some target practice.
Blam! Right out of the sky. Red-baron style.
Maybe I should be glad I'm flying the friendly skies.
Hawkeyes Battle Ohio State, Send 'Em PackingHere I sit in Iowa City in the Old Capitol Mall in an internet gaming salon, surrounded by 14-year olds playing games in a darkened room, not a light in the ceiling, and lots of neon.
For an old guy, pretty cool.
Got to watch the Hawkeyes romp over Ohio State, 33 to 7 (scroll down a bit).
Yep, it's homecoming weekend for me and several law school buddies.
It's the old U of I, the black and gold, home of Herky the Hawk.
Went to the game (wobbly video) with my son, Michel, and his wife, Stacy. It was a cool 45 degrees, with a rather brisk wind out of the northeast. We sat in the southwest section of historic Kinnick stadium. My face is still stinging from the cold.
We left at the half, after the band played their halftime show, a tribute to, of all things, Styx.
Walked over to the Boyd Law Building and reminisced.
All in all, a great day.
Brisk fall weather, family and 70,000 of my closest friends.
Plus, we won.