Quote of the Day - There is only one success - to be able to spend your life in your own way, and not to give others absurd maddening claims upon it.
Insurer Must Pay Attorneys Fees Of Third Party Suing On Assigned Claim
When you have insurance, it does you no good if your insurance company won't pay your claim, even though your lawyer tells you the claim is covered. It's just that much worse when you're being sued by someone else and your insurance company won't defend you, even though your insurance company owes you a defense against the lawsuit and payment for the claim.
That scenario happened to Luis Sanchez d/b/a L.A. Machinery Moving. Luis was transporting two commercial dryers for Five Star Dye House, but in the process damaged one. He dropped it, but didn't repair it fast enough. Five Star sued Luis, and he promptly turned the claim over to his insurance company, Essex Insurance, who just as promptly denied Luis' claim. The only problem Essex had, however, was that it should have defended Luis against Five Star's claim, and it should have actually paid the claim. Luis defended Five Star's lawsuit, but lost to the tune of $1.35 million.
A triple whammy for Luis - no insurance coverage for the claim, no insurance coverage for the lawsuit and a big judgment.
After reviewing Luis' policy from Essex, however, both Luis' and Five Star's lawyers agreed: Essex should have paid the claim. Five Star wanted payment, but Luis likely couldn't pay the judgment on his own (which is why he had insurance in the first place). Since Luis' insurance company at this point was balking, both Five Star and Luis were out of luck. Or so it seemed.
Not to be outdone by his insurance company, Luis assigned his rights against Essex to Five Star. Five Star sued Essex for bad faith failure to pay a claim, defend Luis and pay the judgment (all torts) and won. Not only did Five Star get Luis' judgment paid, but it also recovered its attorneys fees against Essex. If you're at all schooled in attorney's fees and contract law, you now have a question: since Five Star and Essex didn't have a contract with one another and Five Star sued Essex for a tort, which in America doesn't allow you to recover attorneys fees, how did Five Star recover its attorneys' fees?
There's a case called Brandt v. Superior Court here in California that allows just this kind of recovery for the insured - the concept is referred to as "Brandt fees." There, the court reasoned that because an insurance company is in a fiduciary relationship with its insured, when an insurer wrongly fails to pay a claim and forces that insured to sue it to recover the benefits of the policy, the insured should be placed back in the position the insured was in as if the insurance company paid the claim. That reasoning requires an insurance company to pay the attorneys fees of the insured in just that situation, like our friend Luis.
Here, though, there was a slight twist. It wasn't Luis the insured who sued Essex. It was Five Star, a third party whose only relationship with the insurance company was a claim against its insured. Essex wasn't in a fiduciary relationship with Five Star, so it didn't think it owed Five Star any amount of attorneys fees to recover for Luis' claim. Essex cited to another case that held it owed no such fees to third parties. Essex really must not have wanted to pay this claim, because it appealed the loss all the way to the Supreme Court.
Essex lost, and lost twice. It lost in the Court of Appeals and at the Supreme Court level. Both courts ruled that since Luis assigned his claim to Five Star, Five Star assumed all of Luis' rights, including his right to recover fees against Essex for successfully recovering the underlying claim for the damaged dryer.
Prisoners Back In The Doghouse
In the category of "you're never going to believe this," we have a 48-year-old dog trainer who allegedly helped a 27-year-old murderer escape from Leavenworth by using a dog crate. They were on the lam for two weeks, but now they're both back in jail. The prison is continuing the program where outside dog trainers teach inmates how to handle dogs from shelters to assist in their adoption into homes in the area.
They've also instituted a new search program for the dog crates. They look inside.
Rudolph Aside, We Need A Leader: Syncronize Traffic Lights
With all the hullabaloo about gas prices, you figure that sooner or later, America's cities would figure it out for us: synchronize traffic lights. Whether you live in New York or Irvine, California (opposite sides of the universe as we know it) the song is the same, red light, road block, bridge out ahead. You can't go anywhere for any distance without running into a red light, then another red light, then another red light, then another red light, then ... well, you get the idea. Heck, even Avram Grossman has calculated that he spends 68% of his time commuting waiting at red lights.
Unlike most Californians, I don't take a freeway to work. I might as well, though, given how many red lights I run into going to or coming from work. Some days, it can take longer than 30 minutes to go some ten miles. Freeway times aren't much better, for those of you sitting on the parking lots otherwise known as The 405, The 5, The 605, the 710 or any of SoCal's other transportation corridors CalTrans laughingly calls Interstate highways.
Yes, if you haven't figured it out by now, I'm a little frustrated, and I've taken about as many penalty shots as the Italian football team.
Not that others aren't too. Run this search, and you'll get the flavor.
Measure M in Orange County, California promises relief. If we vote it in this coming November. I'm working to get out the vote now. Anything to synchronize traffic lights on surface streets. Tonight on the way home, I think I hit every one - some thirty in all. Yes, that was a scream you heard from within my car. If I could only find a City traffic engineer, I'd only have half a brain left because I'd have given that engineer a big piece of my mind, and maybe a raise, if the engineer could solve the problem.
The question now is what should we expect for a town with hundreds?
Coast to Coast Internet Radio Tries Out E-Filing
Are you way behind on the legal technology curve? Do you know about e-filings? Join Coast to Coast and my fellow co-host and Law.com blogger Robert Ambrogi for an exclusive survey from the American Bar Association and our special guest, ABA Senior Research Specialist Laura Ikens from the ABA Legal Technology Resource Center.
You can hear important information from the ABA Legal Survey Report about how e-filings are underway nationwide. You'll also hear about e-filings in practical experience from Attorney Tom Mighell, Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Texas, who we welcome back to the show! If you’re still avoiding e-filings, then give a listen for all the details.
Fellow Bloggers Robert Ambrogi And Monica Bay Rake In Tabbie Awards
MIPTC's co-host on Coast to Coast, our Internet legal radio show, Robert Ambrogi, just won an award for his "Web Watch" column in Law Technology News. Bob won the 2006 Silver Tabbie Award for best regular column from Trade Association Business Publications International. The editorial and design competition honors English-language publications from throughout the world in 12 editorial categories. About his column, the judges wrote: "This column contains tons of useful information and the author did his research. I like the fact that one of the columns provoked a change -- the author is researching and writing about something that matters not only to him, but to others in the industry too." Bob also writes LawSites and Media Law, Law.com Blog Network sister blogs to MIPTC
As LTN editor Monica Bay reports, two other publications that she oversees took home honorable mentions in the same category: Small Firm Business, for the column "Practice Perfect," and Law Firm Inc., for Monica's column "Dirty Little Secrets." LTN's "EDD Showcase" won an honorable mention in the Special Section category. MIPTC also offers its congratulations to Monica, who also writes The Common Scold, which is likewise a sister blog. Thanks to Monica and Bob for the tip, and letting me steal copy from their sites for this post.
What's On Your Favorite Government Employee's Electronic Calendar?
Ever wonder how government employees spend your tax dollar with their time? Now you can find out. The United States Court of Appeals for the District of Columbia Circuit just ruled that electronic diary records of government employees are "agency records" and must be produced in response to a Freedom of Information Act request. That's right. You can look at what's on the government's electronic calendars.
Not that you'd want to, but you can. The ruling doesn't apply to Blackberrys, Palm Treos and Pocket PCs of government employees, but you can bet that's the next point of attack.
In this case, the Consumer Federation of America wanted to know if industry representatives were participating in ex-parte meetings with senior officials of the Food and Drug Administration about food-borne bacteria standards while regulations regarding those standards were pending. The Court ordered the FDA to cough up five of six sets of electronic calendar records for the applicable period. The sixth calendar, which the Court did not order the FDA to produce, appeared to be mostly personal, and shared only with that official's secretary.
The case makes interesting reading if you're seeking this type of information. It's certainly not a free-for-all; you can't expect to find out what low-level employees do on a day-to-day basis. Like the CFA, however, if you have a legitimate reason to see the calendars, then you likely can get access through a FOIA request, thanks to this opinion.
Craziness On The Internet, And Other Things You Probably Didn't Want To Know
Todd Hollis, a self-avowed "highly respected" criminal attorney from Pittsburgh, Pennsylvania, sued the website dontdatehimgirl.com for defamation. Hollis alleged in his suit that the site posted comments like this one alleging that Hollis gave one woman herpes, among other per se defamatory statements. It's unlikely, however, that Hollis will recover against the site itself, but highly likely he could recover against the women who posted these statements.
According to one of this blog's sister (should I say "familial"?) publications, the Miami-based Daily Business Review, Hollis' suit claims that "he and his attorney asked [site operator and defendant Tasha] Joseph to take down the comment," but she refused. He claims subsequent postings occurred, including one declaring he was homosexual or bisexual, another saying he had infected a woman with a sexually transmitted disease and another complaining about the quality of his home and his clothing."
Ouch. Some days it may not be worth getting out of bed in the morning. Or checking that website, if you're a guy in the dating market, even if you do get an apology.
The several posts from the site are chronicled on SoCalLawBlog if you want to exercise your prurient interest a bit further. The Don't Date Him Girl site is written by women, for women and refuses to accept posts that comment about women.
Turnabout is fair play however, and there is a nondiscriminatory site called Psychos and Players where you can find posts about both women and men. Posting about someone else might not only end up in a lawsuit, but making everyone involved more famous than they need to be.
Some things are better left unsaid. And unwritten.
Happy 4th of July, Grandpa Walker
Grandpa Walker would be proud - the flags are out and the fireworks are going off tonight. He used to say that the whole country celebrated his birthday. My grandfather was born on the 4th and raised in the area of Pennsylvania that's once again under water.
A jowly, slightly bald man, James B. Walker stood some six feet tall and put away about six cigars a day despite being a charter member of the West Pittston Fire Department. He taught me how to play pinochle and pool (almost as soon as I could see over top of the table) as a young boy at the Hose House, as he called it. But no matter what, his front porch flag was out and flying in all its glory every 4th of July, the staunch Republican that he was.
Hat's off to you, Grandpa. I'll smoke a cigar in your memory.