May It Please The Court
Quote of the Day - A billion here, a billion there, and pretty soon you're talking about real money.
Two Towers, Two Planes, One Occurrence, Too BadThe World Trade Center owners in New York lost their battle with Hartford Insurance, Travelers Company, (formerly St. Paul) and a host of other insurance companies, but not Travelers. The WTC, owned by Silverstein Properties, LLC, wanted their insurance carriers to pay for the loss of the two buildings as two different "occurrences." That way, Silverstein could collect for the loss of both buildings. Obviously, the carriers only wanted the loss of the two WTC towers on September 11 to constitute one "occurrence."
The U.S. Court of Appeals for the Second Circuit ruled that the loss of the towers constituted one occurrence. In a heavily factual opinion, the Court cited the policy form developed by Silverstein's insurance brokers, Willis of New York. The Willis "form" defined "occurrence" as:
"... losses or damages that are attributable directly or indirectly to one cause or to one series of similar causes." Apparently, Silverstein was concerned with the insurance companies attempting to apply multiple deductibles to one "occurrence." Silverstein instructed Willis to customize (or manuscript) this language into the policies with the insurers.
Silverstein, along with the rest of us, never thought both towers would be lost in one accident. Silverstein wanted high deductibles to keep premiums low, but didn't want the carriers to avoid paying claims by applying multiple "occurrences" to each loss.
It backfired. In a big way.
To the tune of only $3.5 billion instead of $7 billion. Yes, that's with only one "B" instead of two.
In their decision, the Second Circuit agreed with Judge John S. Martin of the U.S. District Court for the Southern District of New York. He ruled that the "occurrence" definition agreed to by most of the various insurers meant that the damage occurred from one cause - a coordinated plan of attack on the two WTC towers. The Second Circuit affirmed his ruling.
Traveler's portion of the case, however, remains unresolved, and is set to be heard by a jury. The Second Circuit thought the definition in the Travelers policy was too ambiguous to grant Summary Judgment as a matter of law for Judge Martin to decide.
The case is actually much more complicated that I've presented here, and for lawyers, insurance brokers or others interested in the facts behind what happened, the case gives all the details, even down to quoting faxes and deposition testimony. Otherwise, the opinion is good for bedtime reading.
The case is also a Civil Procedure professor's dream come true. The Court's discussion of jurisdiction goes on for almost eight pages - a lot to slog through if you're not a lawyer.
If Silverstein hadn't tried to limit its own payout for multiple deductibles by altering the typical insurance definition of "occurrence," the Court would have had no problem awarding $7 billion dollars of coverage.
You know: two planes, two towers, two different times, two sets of highjackers.
Too bad for almost everyone ... but hope springs eternal for Silverstein and Travelers.
No Lift for this Lift KitIf you’re going to sue, sue. Don’t just sit there.
Anthony Choy installed a lift kit on his car, and then promptly lost control of the car and severely injured himself in an accident. How he got to sue anyone else is a mystery, but he did.
He bought the lift kit from Shamrock Tire, and Shamrock was insured by Redland Insurance Company, part of the Clarendon Insurance Group (rating recently downgraded). Not surprisingly, Choy sued Shamrock. Not surprisingly, Shamrock filed bankruptcy.
Here’s where it gets dicey. Choy tendered a policy limits demand to Redland for $500,000. Redland rejected the demand. Deals were made in Shamrock’s bankruptcy, and ultimately, Choy ended up with a bankruptcy claim for about $26K. The trustee approved the claim, the bankruptcy court approved the claim, but when the trustee sued Redland Insurance to collect the claim, the case was dismissed. The appellate court upheld the dismissal. Boom. Case over.
The trustee’s case was dismissed ultimately because no one ever bothered to prosecute to judgment the underlying case for liability. It’s very simple in insurance lingo. No judgment, no payment. No one ever proved that Shamrock was liable for Choy’s injuries. (See also the second paragraph, above). Now, the attorneys, trustee and practically everyone else is embroiled in litigation to sort all of this out.
That is, everyone but Redland. They’re just continuing to collect premiums and not pay out claims.
We Can Pay Any Punitive Damages You Can AwardHats off to my former partner, Dan Callahan of Callahan & Blaine, who just pulled down a $934 million dollar victory. The news hasn't made it to their website yet, but it is in the print version of today's Los Angeles Daily Journal (right most column, and third story down on this internet page).
Dan represented a medical equipment manufacturer, Beckman Coulter, and Gary Waldron of Waldron & Olsen and Scott Farrell of Call, Jensen & Farrell (I couldn't find either of their sites) represented Dovatron, whose parent is Flextronics. Supposedly trading was halted after the verdict, by it appears that the stock is still being traded, although it's fallen 4.73% at the time of this post. Not surprisingly, Waldron nor Farrell returned calls to the Daily Journal. Dan, of course, played to the paper.
According to the article, "The jury was instructed - at the behest of Flextronic's counsel, according to Callahan - that the company was capable of paying any punitive award it may deliver. 'They stipulated they could pay any punitive damage allowed by law,' he said. 'I believe that tactic backfired on them. Their rationale was they did not want to expose their financial records in any more depth to the jury, but I believe it gave the jury a sense of arrogance and lack of remorse.'"
In order to get to that little tidbit, you have to wade through the entire article. I don't think I would have put that revelation at the end of the article.
That revelation is $850 million of the verdict. Arrogance costs a lot these days.
Spam- Soon to be Illegal in CaliforniaJust a scant 30 minutes ago, Governor in Waiting Gray Davis signed SB 186, banning spam in California. The bill makes it illegal for spammers to send unsolicited email. The estimates in the bill are that 40% of all email sent is spam, and by the end of this year alone, it will reach 50%, costing us over $1.2 billion dollars.
Fines are stiff: $1,000 for each violation and up to $1,000,000 for a email blitz campaign. The bill also provides for an award of attorneys fees to the prevailing plaintiff. The Los Angeles Times article quotes the Bill's author, State Senator Kevin Murray, who says it will be easy to collect these fines.
The bill applies to "'Commercial e-mail advertisement[s']' [, which] means any electronic mail message initiated for the purpose of advertising or promoting the lease, sale, rental, gift offer, or other disposition of any property, goods, services, or extension of credit." The bill goes into effect January 1, 2004, and does not apply retroactively.
The bill also requires email senders to provide an opt-out method - either in the email itself or an 800 number. Most other states have Spam laws, but California's is comparatively harsh. It will likely set a new standard for other states and the federal government.
Plus, it will be a crime to send unsolicited email in California. So not only can regular citizens sue spammers, the AG and DA can file charges. Ouch!
The Death of an Indian ChiefThe Indian Chief may once again ride off into the sunset. Yesterday, Indian Motorcyles halted production and laid off its entire workforce of 380 in Gilroy, California.
Initially started in 1913, the company folded in 1953, but rumbled slowly back to life in 1999, according to an Associated Press article. The article points out that just last year, Indian introduced its own motor, the Power Plus, which creates an exhaust sound different than the infamous Harley-Davidson sound. (Check out the "Sounds of Harley-Davidson" box. After you scroll down, look on the right.) For a short sample of the Indian sound, click on the "Feel the Power" link on the site's home page.
Now, the Indian company has 200 dealers across the country and had hoped to produce 4,500 bikes this year. Before WWI, Indian had produced as many as 20,000 bikes. Just recently, funds ran low, and the company's main investor backed out, leaving Indian high and dry.
Dozens of investors have called offering help, but the company is weighing bankruptcy options. This sad event may have been coming for some time. The job application section of the company's website notes that no jobs are available at this time
If you were ever thinking about owning an new Indian, now may be your last chance.
The KozinskiI'm watching CSPAN right now, and trying to watch/listen to the oral arguments on the California Recall. CSPAN's servers must be overloaded. Although the video is good, the sound is intermittent. We don't have a cable feed at the office yet.
Oh well, I'll just have to wait for the pundits to tell me what was said.
Circuit Judge Alex Kozinski may have given a surreptitous signal during the oral arguments while on TV. This post is pure speculation (right - like any good lawyer, I think I already know the answer).
During his first question, Judge Kozinski gave a noticeable "tug" on his ear, a la Carol Burnett. The "Tug" is generally known as Burnett's signal as a greeting to her Texas family.
Was Kozinski (born in Bucharest, Rumania, a long way from Texas) greeting anyone? Enquiring minds want to know. Any ideas out there?
P.S. Kozinski may have been one of the first judicial bloggers, having written a 10-day electronic journal for formerly MSN's Slate magazine.
USEPA Just Can't Get It Right - 17 Years LaterLast week, while it wasn't fielding California recall briefs, the 9th Circuit decided a little-known case with very little fanfare. It will, however, have lasting effects. In three consolidated cases, the Environmental Defense Center, Natural Resourses Defense counsel and the American Forest & Paper Association sued the USEPA. These actions were first filed in the Fifth, Ninth and D.C. Circuits, and then consolidated in the Ninth.
The import of the case boils down to two changes in the USEPA Phase II rule for storm water discharges. Previously, when a construction site between one and five acres or a MS4 (essentially a small municipality) applied for a NPDES stormwater permit, the USEPA did not require review of the notice of intent to comply. In a word, the USEPA rule allowed self-regulation.
Now, however, with this Ninth Circuit ruling, the Court required USEPA to go back to the drawing board and add in provisions for public notice and public hearings. As a consequence of this ruling, the USEPA will eventually require review and comment before approving the permits, which will make the permits harder to obtain and subject to challenge by environmental groups like the Plaintiffs in these cases, the EDC and the NRCD.
It only took the USEPA 13 years to promulgate this rule, and four years to wind its way through the court system. We'll see how long it takes this time.
Harvard, IndeedFellow blogger Phillip Greenspun reports that Miss America is indeed on her way to Harvard.