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Quote of the Day - On Thanksgiving Day all over America, families sit down to dinner at the same moment - halftime. - Unknown
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A History of Thanksgiving Proclamations

The First Thanksgiving Proclamation issued by the governing council of Charleston, Massachusetts, is when the Pilgrims got Thanksgiving started. Think about it. Back then, Thanksgiving was when it was warm enough in the New England colonies to actually eat outside with the Indians. Here's what Council Clerk Edward Rawson wrote:

June 20, 1676

"The Holy God having by a long and Continual Series of his Afflictive dispensations in and by the present Warr with the Heathen Natives of this land, written and brought to pass bitter things against his own Covenant people in this wilderness, yet so that we evidently discern that in the midst of his judgements he hath remembered mercy, having remembered his Footstool in the day of his sore displeasure against us for our sins, with many singular Intimations of his Fatherly Compassion, and regard; reserving many of our Towns from Desolation Threatened, and attempted by the Enemy, and giving us especially of late with many of our Confederates many signal Advantages against them, without such Disadvantage to ourselves as formerly we have been sensible of, if it be the Lord's mercy that we are not consumed, It certainly bespeaks our positive Thankfulness, when our Enemies are in any measure disappointed or destroyed; and fearing the Lord should take notice under so many Intimations of his returning mercy, we should be found an Insensible people, as not standing before Him with Thanksgiving, as well as lading him with our Complaints in the time of pressing Afflictions:

The Council has thought meet to appoint and set apart the 29th day of this instant June, as a day of Solemn Thanksgiving and praise to God for such his Goodness and Favour, many Particulars of which mercy might be Instanced, but we doubt not those who are sensible of God's Afflictions, have been as diligent to espy him returning to us; and that the Lord may behold us as a People offering Praise and thereby glorifying Him; the Council doth commend it to the Respective Ministers, Elders and people of this Jurisdiction; Solemnly and seriously to keep the same Beseeching that being perswaded by the mercies of God we may all, even this whole people offer up our bodies and soulds as a living and acceptable Service unto God by Jesus Christ."

But pretty soon, others got into the act. Governor William Bradford of Plymouth Plantation issued this Proclamation on the Thanksgiving of the Pilgrims in July 30, 1623:

"But here I cannot but make a pause and stand half amazed at this poor people's present condition; and so I think will the reader, too, when he considers it well. Having thus passed the vast ocean, and that sea of troubles before while they were making their preparations, they now had no friends to welcome them, nor inns to entertain and refresh their weather beaten bodies, nor houses, much less towns, to repair to.

As for the season, it was winter, and those who have experienced the winters of the country know them to be sharp and severe, and subject to fierce storms, Besides, what could they see but a desolate wilderness, full of wild beasts and wild men; and what multitude there might be of them they knew not! Neither could they, as it were, go up to the top of Pisgah, to view from this wilderness a more goodly country to feed their hopes; for which way soever they turned their eyes (save upward to the Heavens!) they could gain little solace from any outward objects. Summer being done, all things turned upon them a weather-beaten face; and the whole country, full of woods and thickets, presented a wild and savage view.

If they looked behind them, there was a mighty ocean which they had passed and was now a gulf separating them from all civilized parts of the world.

What, then, could now sustain them but the spirit of God and His grace? Ought not the children of their fathers rightly to say: Our fathers were Englishmen who came over the great ocean, and were ready to perish in this wilderness; but they cried unto the Lord and He heard their voice, and looked on their adversity. Let them therefore praise the Lord, because He is good and His mercies endure forever. Yea, let them that have been redeemed of the Lord, show how He hath delivered them from the hand of the oppressor. When they wandered forth into the desert-wilderness, out of the way, and found no city to dwell in, both hungry and thirsty, their soul was overwhelmed in them. Let them confess before the Lord His loving kindness, and His wonderful works before the sons of men."

So how did it get to be the third Thursday of November if the Pilgrims wanted it in June? Well, George Washington may have had something to do with it (it is a common misperception that Lincoln started the November tradition):

"Whereas it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits and humbly to implore His protection and favor; and Whereas both Houses of Congress have, by their joint committee, requested me "to recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness:

Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquility, union and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted; for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us.

And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions; to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shown kindness to us), and to bless them with good governments, peace and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally, to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best.

Given under my hand, at the city of New York, the 3rd day of October, A.D. 1789"

Now, you're beginning to get the idea that Presidents like to proclaim things. Not to be left out, we have this one from Honest Abe:

"It is the duty of nations as well as of men to own their dependence upon the overruling power of God; to confess their sins and transgressions in humble sorrow, yet with assured hope that genuine repentance will lead to mercy and pardon; and to recognize the sublime truth, announced in the Holy Scriptures and proven by all history, that those nations are blessed whose God is the Lord (Psalm 33:12). We know that by His divine law, nations, like individuals, are subjected to punishments and chastisements in this world. May we not justly fear that the awful calamity of civil war which now desolates the land may be a punishment inflicted upon us for our presumptuous sins, to the needful end of our national reformation as a whole people?

We have been the recipients of the choicest bounties of heaven; we have been preserved these many years in peace and prosperity; we have grown in numbers, wealth and power as no other nation has ever grown.

But we have forgotten God. We have forgotten the gracious hand which preserved us in peace and multiplied and enriched and strengthened us, and we have vainly imagined, in the deceitfulness of our hearts, that all these blessings were produced by some superior wisdom and virtue of our own. Intoxicated with unbroken success, we have become too self-sufficient to feel the necessity of redeeming and preserving grace, too proud to pray to the God that made us.

It has seemed to me fit and proper that God should be solemnly, reverently and gratefully acknowledged, as with one heart and one voice, by the whole American people. I do therefore invite my fellow citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November as a day of Thanksgiving and praise to our beneficent Father who dwelleth in the heavens."

President Abraham Lincoln, October 3, 1863.

FDR, though, was the one who changed the date in 1939, and got the nation upset. You can even see some of the frustration expressed by Americans.

Here's what Franklin Delano Roosevelt had to say:

"By the President of the United States of America - A Proclamation:

I, Franklin D. Roosevelt, President of the United States of America, do hereby designate Thursday, the twenty-third of November 1939, as a day of general thanksgiving.

More than three centuries ago, at the season of the gathering in of the harvest, the Pilgrims humbly paused in their work and gave thanks to God for the preservation of their community and for the abundant yield of the soil. A century and a half later, after the new Nation had been formed, and the charter of government, the Constitution of the Republic, had received the assent of the States, President Washington and his successors invited the people of the Nation to lay down their tasks one day in the year and give thanks for the blessings that had been granted them by Divine Providence. It is fitting that we should continue this hallowed custom and select a day in 1939 to be dedicated to reverent thoughts of thanksgiving.

Our Nation has gone steadily forward in the application of democratic processes to economic and social problems. We have faced the specters of business depression, of unemployment, and of widespread agricultural distress, and our positive efforts to alleviate these conditions have met with heartening results. We have also been permitted to see the fruition of measures which we have undertaken in the realms of health, social welfare, and the conservation of resources. As a Nation we are deeply grateful that in a world of turmoil we are at peace with all countries, and we especially rejoice in the strengthened bonds of our friendship with the other peoples of the Western Hemisphere.

Let us, on the day set aside for this purpose, give thanks to the Ruler of the Universe for the strength which He has vouchsafed us to carry on our daily labors and for the hope that lives within us of the coming of a day when peace and the productive activities of peace shall reign on every continent.

In witness whereof, I have hereunto set my hand and caused the seal of the United States of America to be affixed.

Done at the City of Washington this thirty-first day of October, in the year of our Lord nineteen hundred and thirty-nine, and of the Independence of the United States of America the one hundred and sixty-fourth.

Franklin D. Roosevelt."

What happened next? In 1941, he changed it back to the fourth Thursday of November, where it remains today.

If you want a (mostly) historically accurate summary of Thanksgiving history, you'll have to look a long time and talk to a lot of people. It's out there. And yes, practically every President has issued a Proclamation.

Me? Oh yes. Here's mine: "Happy Thanksgiving to you and yours. May you remember and give thanks for everything you have."

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Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Thursday, November 25, 2004 at 13:45. Comments Closed (0) |

People v. Decker: A Moral Dilemma for the Second Appellate District? (Part 2)

A. Sliding-Scale Test Prone to Misuse
Second, and more problematic, the use of a sliding-scale test in emotionally-charged counts – where the gravamen of the case appeals to the feelings but distorts the judgment – unfairly introduces, albeit unintentionally, a moral factor into a legal equation. As the Adami court foreshadowed, “Merely soliciting one to do an act is not an attempt to do that act. In a high, moral sense, it may be true that solicitation is attempt; but in a legal sense, it is not.”

By applying the “sliding-scale” test to the same general set of facts that were present in Adami, the Decker court came to an exactly opposite conclusion, to wit: “Decker attempted her murder.” I suggest the “moral factor” explains this different result. For example, most telling are the 2nd District’s own words: “[Decker’s] specific intent to cause her death could not have been more unequivocal or emphatic,” and “[t]here was nothing more for Decker to do to bring about the murder of his sister.”

Without question, Decker – like Adami some 30 years before him– intended for the crime of murder to be committed. Both defendants are morally reprehensible and deserve to be punished for their despicable conduct. However, the issue here is not about their specific intent; rather, the issue here is whether the second element for the count of attempted murder has now been obfuscated through 2nd District’s judicial activism. Ask yourself, what act (other than preparation or solicitation) did Decker commit so that the murder of his sister “[would have been] consummated unless interrupted by circumstances independent of the will of the attempter”?

B. Murder-for-Hire Cases
In murder-for-hire cases, courts in other jurisdictions have uniformly looked at the actions of the agent to determine whether any steps toward perpetrating the crime took place. This is precisely the analysis that the Adami court went through before concluding that such a count could not be maintained under California law. Thus, in situations where, like here, the agent is really an under-cover policeman, an attempted murder charge can never be sustained because the agent lacks any intent whatsoever to carry out the crime. And that is the real rub here because, from a moral standpoint, it goes against our natural instincts to let anyone, who would commit such a heinous crime, get off on a mere technicality.

Convinced of Decker’s specific intent to kill his sister, the 2nd District misused the sliding-scale test to characterize Decker’s acts of preparation and solicitation as acts toward the commission of the crime to commit murder. When I handed my friend the Daily Journal and told him what I believed the 2nd District had done, he suggested that I was getting soft on crime (Me?), that – since Decker clearly possessed the requisite mental state to convict on solicitation and attempted murder – he should be punished for the more severe crime, and that Decker should not benefit from the fact that the would-be assassin was a police officer.

C. The Moral Pitfall
A problem arose, of course, when I asked him to step down off his lofty moral perch and simply explain the distinction between the two separate crimes in this murder-for-hire fact pattern: solicitation for murder and attempted murder. Using the 2nd District’s approach, there is none. That’s what happens when moral values influence legal decisions: waters become muddied and the law becomes less bright. The problem is not a new one. The maxim that “hard cases make bad law” was coined from an opinion by Justice Oliver Wendell Holmes in 1904. Time-tested, the point is equally applicable here.

After all, it doesn’t take a rocket scientist to figure out that neither the California Supreme Court nor the State Legislature have taken any steps in over a quarter of a century to overcome or reverse the result reached in Adami. So I ask: why the change now and why is the 2nd District leading the charge for change? Although Decker makes perfectly clear that the 2nd District didn’t think that solicitation of murder carried a stiff enough sentence, it is the Legislature’s province to determine the scope of punishment. Thus, by punishing defendants who are guilty of solicitation for the crime of attempt, the 2nd District has crossed over this well-known line and exceeded its jurisdictional powers. More to the point, its actions have needlessly created a conflict among the district courts, thereby contributing additional confusion in an area of law that has already seen too much.

Printer friendly page Permalink Email to a friend Posted by Gregory D. Granger on Wednesday, November 24, 2004 at 16:49. Comments Closed (0) |

Word and Word Perfect Wars Are About To Enter The Courtroom

Let's talk word processors and litigation. My two favorite subjects: law and technology.

Two disclaimers here: I'm a MicroSoft devotee. I think the company has done wonders for computers and software, and although there may be some truth to the rumors, the monopoly arguments don't bother me. Of course, I used to work for AT&T before it was broken up. Despite my devotion, however, I much prefer Word Perfect over Word.

In my humble opinion, Word Perfect makes it much easier to format documents than Word. Admittedly, I don't know Word all that well because I don't use it everyday, but I have struggled to use it. In fact, I generally have to convert to Word if I'm going to send a document to a client. It should be easier.

Word Perfect itself has had a checkered history. It was started by the Word Perfect Corporation, and then sold to Novell, who owned it for two years, and then to Corel. We have found upgrades difficult to install, so we just keep it on the last one that works. Perhaps Corel hasn't invested enough into the program.

So, what's happening now?

Novell is about to sue Microsoft for its monopolistic treatment of Word, to the exclusion of Word Perfect. Novell has tried to reach a settlement with MicroSoft, but hasn't been able to get satisfaction. I'm sure Corel will be watching these developments closely.

Word has become so prevalent, and is such an inferior product, that I hope Novell gets some recovery for losing market share to MicroSoft.

Maybe I have to rethink that MicroSoft devotion.

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Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Wednesday, November 24, 2004 at 14:07. Comments Closed (4) |

People v. Decker: A Moral Dilemma for Second Appellate District? (Part 1)

I. A Conflict Develops
Last week, the Court of Appeal, Second Appellate District (“2nd District”), issued its decision in People v. Decker, 2004 Cal.App. LEXIS 1921. The fact that the Second Appellate District chose to disagree with precedence established by the First Appellate District (“1st District”) over thirty years ago, while nothing novel, still raised enough curiosity in me to read about it in the Daily Journal. But truth be told, it was the knee-jerk reaction from my long-time colleague -- who is one of the smartest attorneys that I know -- during a discussion about Decker that prompted me to go further and write this blog.

A. The Adami Case
As you may know, in 1973, the 1st District decided People v. Adami (1973) 36 Cal.App.3d 452, a case involving a man who had solicited an under-cover policeman to murder his wife, giving him a down payment, a photograph of his wife, and written instructions on where she could be found. The defendant was charged with soliciting the crime of murder in violation of Penal Code section 653f, and attempted murder under Penal Code section 187 and 664.

Under California law, the elements of attempted murder are: (1) the specific intent to murder a human being; and (2) a direct, unequivocal but ineffectual act in furtherance of such intent. In construing the second element, the California Supreme Court has held that acts of preparation alone are insufficient and that “some appreciable fragment of the crime must have been accomplished.” In other words, the crime “must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.” See, e.g., People v. Gallardo (1953) 41 Cal.2d 57; People v. Buffum (1953) 40 Cal.2d 709.

After the trial court granted Adami’s motion to eliminate the attempted murder count, the 1st District affirmed the ruling, holding that Adami’s acts consisted solely of solicitation or “mere preparation.” Looking at decisions from other jurisdictions, the Adami court focused on the conduct of the third-party agent, or “solicitee,” and whether the would-be assassin had taken any steps toward carrying out the crime. Finding that the under-cover policeman in its own case had done nothing in that regard, the 1st District concluded that the crime Adami had committed could be no greater than solicitation of murder.

B. The Decker Decision
Facing almost identical facts in Decker, the 2nd District rejected the application of Adami, claiming it to be “inconsistent with later decisions of our Supreme Court.” In an effort to marginalize Adami, the Decker court relied upon language from the Supreme Court’s more recent decision in People v. Memro (1985) 38 Cal.3d 658, which noted that some appellate courts have been using a “sliding-scale” test to determine whether in fact the crime of “attempt” has occurred. In such cases, when “the design of a person to commit a crime is clearly shown, slight acts done in furtherance of that design will constitute an attempt.” The emphasis is mine.

II. The Second Appellate District's Flawed Approach
In my opinion, the 2nd District’s application of Memro to justify the reinstatement of an attempted murder charge against Decker is incorrect for at least two reasons. First, nothing in Memro is inconsistent with earlier holdings from the Supreme Court in either Gallardo or Buffum, both of which were relied upon by the 1st District in Adami. The Memro court did not dispatch the requirement that some act – however slight – must occur in furtherance of the crime after all preparations have been made. Consequently, the 2nd District’s excuse for disagreeing with the conclusion reached in Adami lacks merit.

(See Part 2, Wednesday 11/24/04)

Printer friendly page Permalink Email to a friend Posted by Gregory D. Granger on Tuesday, November 23, 2004 at 16:13. Comments Closed (0) |

Who Is Judge Selya And Why Does He Write Like That?

As a takeoff from Beanie's comment on my "logophilia" article yesterday, here's a quick round up of some of the unusual words used by The Honorable Bruce M. Selya, who sits on the First Circuit.

Feel free to add comments for any other wordsmiths out there.

Here we go:

Selya-cabulary;

Bashman's 20 Q's;

Language hat;

and,

The Puerto Rico Association of Criminal Defense Lawyers.

There's more out there, I'm sure, but you'll have to excuse my lethologica. You see, I am not at all lexiphanic, having put forth this post as a lucubrationous and lubricious effort.

All of which words were liberally liberated from The Superior Person's Book of Words. No, it doesn't belong to me. I borrowed it from my partner.

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Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Tuesday, November 23, 2004 at 12:26. Comments Closed (1) |

Slapped By An Anti-Slapp Motion

SLAPP and anti-SLAPP. It's enough to make your head spin.

SLAPP is Strategic Lawsuit Against Public Participation. Anti-SLAPP is ... well, you can figure that out. It's the opposite of being slapped.

Generally speaking, SLAPP lawsuits are those filed by someone who wants the defendant to drop a government challenge. Typically, it's a developer trying to shut down an environmental group that is opposing a housing project. Not always, but sometimes.

Anti-Slapp, then, is when a defendant thinks that a plaintiff is suing because the defendant tried to exercise its First Amendment rights.

With that, we're ready to delve into Northern California Carpenters v. Warmington. The City of Hercules removed contamination from an old oil refinery and turned it over to Warmington and other developers to build homes on 206 acres.

The City had earlier adopted a prevailing wage policy. Warmington and the other developers didn't think it applied to them, so they sought a coverage determination from the California Department of Industrial Relations.

In January. The Carpenters' lawsuit was filed in July alleging that Warmington and the other developers violated the City's prevailing wage policy.

So, the defendant developers reasoned that the Carpenters' lawsuit was -- you guessed it -- an anti-SLAPP suit. When the developers filed a motion thinking they were being punished for seeking the interpretation from the State, however, they ran into a hitch.

It was a recently added statute. The statute was designed to shut down the broad application that California courts have been applying to anti-SLAPP suits. Kind of like Prop 64.

But, it worked the opposite way that Warmington had intended. Warmington lost the motion, the appeal, and now will be defending the Carpenters' lawsuit.

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Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Tuesday, November 23, 2004 at 12:05. Comments Closed (0) |

The Ease Of Reading Index Is Off The Scale

Thanks to Rob Crisell for this article in the November California Lawyer magazine. The question is: how good is your vocabulary?

Did you know that you'd have to turn to the OED in order to read legal opinions? Legal jargon is bad enough, but now we're going to have to turn to another dictionary to get the full understanding of these words.

The California Lawyer article cites excerpts from twelve opinions by Judge Ferdinand Francis Fernandez of the Ninth Circuit.

Here's the dirty dozen (with the erudite words hyperlinked for your ease of reference):

1. Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir. 1999) (dissenting): "But let that be; at least after today's didactic exercise a district judge will be able to incant canorous phrases which will please our ears."

2. Committee to Save Mokelumne River v. East Bay Mun. Utility Dist., 13 F.3d 305 (9th Cir. 1993) (concurring): "They indicate that it takes no genius or epopt to see what the message will be."

3. United States v. Garett, 179 F.3d 1143 (9th Cir. 1999) (concurring): "To put it another way, absent a compelling reason the district court cannot have abused its discretion, but it would take a better haruspex than I to divine that from the opinion."

4. In re Daisy Sys. Corp., 97 F.3d 1171 (9th Cir. 1996) (dissenting): "The district court, with that perceptive and informed sententiousness that often characterizes the work of our district judges, said that: Merely because Bear Stearns was hired as an expert consultant to render financial services does not mean it was in a position of superiority in this relationship between two sophisticated business entities."

5. Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990) (concurring and dissenting): "I will not undertake to burden, bore, or ensorcell the reader by glossing what the Montana Supreme Court actually wrote when it decided this case."

6. United States v. Valdez-Gonzalez, 957 F.2d 643 (9th Cir. 1992) (dissenting): "Perhaps Congress should resile from its sentencing experiment."

7. Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201 (9th Cir. 2001) (dissenting): "So plain it seems, it would take a marvelous act of interpretation, bordering on thaumaturgy, to read the constitution as expanding the Tribe's jurisdictional reach beyond the norm."

8. Paulson v. City of San Diego, 294 F.3d 1124 (9th Cir. 2002) (dissenting): "No matter how timorous or cautious we are about religion, the city's action cannot be seen as minatory."

9. Gentala v. City of Tucson, 244 F.3d 1065 (9th Cir. 2001) (dissenting): "If the statement did present a problem, I hardly think that the City can place a tarnkappe [a magic cap securing the invisibility of the wearer] over the policy's reification of hostility at the threshold by adding that requirement."

10. Newdow v. United States Congress, 292 F.3d 597 (9th Cir. 2002) (concurring and dissenting): "My reading of the stelliscript suggests that upon Newdow's theory of our Constitution, accepted by my colleagues today, we will soon find ourselves prohibited from using our album of patriotic songs in many public settings."

11. Kang v. U. Lim Am. Inc., 296 F.3d 810 (9th Cir. 2002) (dissenting): "Moreover, the statute speaks with enough clarity to permit (nay require) one to stop with its own words, rather than undertaking to stravage in a wilderness of possible legislative purposes."

12. Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001) (dissenting): "To say that, does not enisle this country, although it does recognize that we are a separate nation."

Huh?

Exactly. What ever happened to plain English for lawyers?

That's why Latin is a dead language.

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Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Monday, November 22, 2004 at 12:05. Comments Closed (2) |

Insurance Companies Must Insure, And Not At The Risk of the Insured

Call me sentimental, but this one seems just right.

Here's the playbill. While trying to put out a prairie fire in Nebraska started by sparks from a Union Pacific train, Dailey suffered second- and third-degree burns over a significant portion of his body. He sued UP and settled, receiving over $1.2 million, plus $10K/month for ten years. Plus, UP agreed to defend Dailey if his health insurer, Blue Cross/Blue Shield, sued to recover part of the settlement. That agreement did not necessarily mean that UP would pay more.

Larry H. Parker may not have been able to do much better.

Trouble is, BC/BS was left out in the cold. It had paid almost $800K of Dailey's doctor and hospital bills, but had not received anything as part of the settlement. So, it sued Dailey for equitable subrogation and for breach of contract.

It wanted money.

If BC/BS recovered that money from Dailey, he was out of luck. He had signed a UP settlement, releasing it from paying any more. Dailey would have to pay BC/BS out his own recovery.

But, BC/BS had a contract with Dailey that allowed it to recover the money it had spent on Dailey's care if Dailey recovered in a settlement. So, it sued both UP and Dailey. UP denied the claim, and the lower court decided that if BC/BS wasn't entitled to recover from Dailey, it wouldn't be entitled to recover from UP.

The initial decision was that BC/BS was entitled to contractual recovery, reducing Dailey's recovery by the nearly $800K it had paid for Dailey's injuries. Remember - Dailey had released UP.

The Nebraska Supreme Court didn't like that result. Well, more than half of the Court. They decided that an insurer is precluded from any recovery unless the insured has been made completely whole by the tort-feasor. In other words, the insurer can't take any money from the injured insured until he has first been fully paid for his injuries.

The root of the rationale? The court said that " these are risks of loss that the insurer is paid to bear."

Hmm. Do they mean that BC/BS has to act like an insurance company? What a surprise.

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Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Sunday, November 21, 2004 at 12:39. Comments Closed (1) |



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