Quote of the Day - May you have a lawsuit in which you know you are in the right.
Mold Contamination Covered By InsuranceMold is a four-letter word in the insurance industry. So much so that the insurers have acted swiftly to put exclusions in practically every policy to eliminate coverage.
Which means, consequently, that policies that don't have such an exclusion actually have the coverage. Read your policy carefully.
That's the case I have to report today. Late last month, a Texas federal district court ruled that an insurer couldn't use the definition of "occurrence" or the expiration of the policy to deny coverage for mold contamination.
The background of the case involves a homeowner who contracted to have a company to design and install a heating ventilation and air conditioning system. Apparently, the company didn't do a good job installing it in 1998 and servicing it in 2000 and 2001.
Mold grew all over the home. The homeowner discovered it while conducting a home inspection, and sued the HVAC company.
The HVAC company tendered the claim to Liberty Mutual Insurance Company, which denied the claim on two grounds. First, LMIC said it wasn't an occurrence (an accident) as defined by the policy. Second, LMIC claimed the policy had expired, and the tender was too late.
The Court ruled ($20 to get the report, $30 for the case if you're not a Lexis subscriber, which is why the details are here) that the HVAC company surely didn't intend for the mold to grow, so it must have been as the result of an accident.
That's the easy way to say it. In the judge's parlance, he said that an accident exists where an action is intentional but is performed negligently and that the effect is not what would have been intended or expected had that action been performed non-negligently.
Right. What ever happened to plain English for lawyers?
Next came the issue of whether the law in Texas required the application of a continuous trigger of coverage. Fortunately for the homeowner, Texas, like California, has applied that doctrine to insurance policies. Since the homeowner alleged that the damage occurred during the time the policy was in effect, the insurance company couldn't deny coverage because the claim was submitted after the policy expired.
Adding icing to the cake, the judge also ruled that since the insurance company failed to defend the HVAC company against the homeowners claims, it looks like the HVAC company may also get its attorneys fees and costs back.
It warms my heart.
FCC Ruling Leaves Many Unanswered QuestionsYou were waiting on the edge of your chair for this one, I know. So much so that you couldn't sleep.
Well, now you can relax. It's over.
No, it's not the Peterson trial (but yes, there was a collective sigh of relief that the case is finally over).
It's internet telephone calls. What, you say, you didn't know?
Well, now there's a final decision by the FCC that it regulates internet phone companies, not the states.
But the battle's far from finished. There are still some questions. Like whether internet phone providers have to pay for the lines they're using. Or Universal service that other carriers pay for.
You knew it wasn't going to be free, didn't you?
Sharks Killed at Long Beach Petting ZooWhat a waste. Not that crime or cruelty to other living things ever makes any sense. For those of us who are parents and have taken our children to the Aquarium of the Pacific in Long Beach, California, we can tell you stories about the faces and sounds our children have made while looking at, and interacting with, the wildlife located there. In particular the Shark Lagoon exhibit, where small sharks and rays swim around in shallow pools and children (okay adults too) are permitted to touch these playful creatures (I swear when the rays swim by they flip their fins at you in a gesture of goodwill).
Given my fond memories of this place, I was truly saddened to read about the brutal attack on two sharks and a ray last Tuesday. Michelle, a 3-foot-long, nurse shark, was one of the first sharks introduced to the exhibit back in 2002. At only 5 years-old, her life span of 30 years was tragically cut short. Also killed were a cow-nosed ray and a 2-foot-long, striped bamboo shark that was found in a bird exhibit. Each of the animals appeared to have been poked to death with plastic pipes.
I don't know, maybe it's me. But at times like this, where Americans are sacrificing their lives on a daily basis in far-away places like Iraq and Afghanistan, you would think that those of us here, in the relative safety of the United States, would somehow come to cherish life more, in all of its forms. Having said that, and being fully aware that nothing can adequately explain the maiming or killing of defenseless animals, I'm left with a hollowness inside me that yearns to understand why people can perpetrate such despicable and heinous acts.
9th Circuit Orders House of Reps Split in HalfIn a surprise move, the 9th Circuit published a concurring opinion that split the House of Representatives into two bodies.
The newly named bodies, Congless and Congmore, will set up bicoastal offices with representatives on the Eastern side of the Mississippi River now required to report to Washington, D.C. Those representatives West of the Mississippi will report to the newly-vacated 9th Circuit offices in Pasadena.
Rep. Mike Simpson of Idaho, the architect of the effort to split the Ninth Circuit reportedly said, "I don't want to travel to Washington, D.C. in the winter, so I welcome the chance to office in Pasadena." Current studies of the split of the House indicate that it will cost approximately $130 million to build out the Court's offices here in California to accommodate the Congless (there is a fight over which coast will receive the "lesser" designation). Simpson allegedly admitted that the pricetag will far exceed the $130 million, especially given the cost of hammers these days.
Apparently, according to the concurring opinion that was allegedly written by Kozinski and Thomas, the split will result in an increased efficiency in Congless. According to early reports of the opinion, which has not been published for public review, the feeling is that Congress in it's current state can't get anything done anyway with 432 representatives, so splitting it in half will make it twice as efficient.
Plus, now we'll have two sets of laws. Wags in Washington were rumored to say, "Those liberals out on the left coast can do whatever they want, as long as we have our own laws here."
I don't know about you, but I kind of liked Congress the way it was.
Wink, wink, nudge, nudge. Know what I mean?
Award Someone You KnowYou have a little more than a month left. If you're a lawyer, that is.
To nominate someone you know for the Law Technology News Law Firm and Law Department awards. The deadline has been extended to December 13.
This is a great opportunity to get recognition for your firm or law department, for the hard work you've done during the last year. There are five categories, including Information Technology director, IT champion, most innovative use of technology in a trial by a law firm and by a law department.
The winners will be honored at LTN's second annual Awards dinner in New York City during Legal Tech New York, on January 31, 2005.
Details and an application form are available at the LTN Awards site or you can download the application form right here.
Go State! Win One For the Gipper! We're #1!Law school rankings are the bane of every law school Dean. They're kind of like the legal version of a football coach's win-loss record.
Rumor has it that Deans have been fired (middle of the page) if their rankings drop.
So, how about this story of a New Jersey Judge banning other New Jersey judges from voting on law school rankings?
Brilliant idea. That's only going to hurt New Jersey law schools, says UT Law Professor Brian Leiter. In Leiter Reports he opines that "removing the New Jersey judges from the pool will simply penalize the New Jersey law schools, which are, presumably, rated more highly by New Jersey judges than judges in neighboring jurisdictions."
Those schools, Rutgers-Newark (78 in Assessment by Lawyers and Judges in 2004, 72 overall), Rutgers-Camden (89 & 72, respectively) and Seton Hall (89 & 89, respectively), as noted by the TaxProf Blog, may see a dip next year in their ratings. The TaxProf is Professor Paul Caron of the University of Cincinatti.
Many criticisms exist of the ranking system, presumably though not by many in the top tier but more so by those at the bottom. But they do mean something. Most lawyers, after asking your name and practice area, will ask where did you go to law school? Law firms and most companies still determine whether to hire lawyers based on what law school a prospective attorney attended.
Maybe it should be, "How many trials have you won?" or "How many of your contracts have been broken?"
Maybe it should just be, "Hi, nice to meet you."
How Not To Disqualify Your Favorite Federal JudgeA recent Los Angeles Daily Journal (the local lawyer's rag) newspaper featured an article about hiring a hitman as an alternative to recusing a federal judge. The article requires a paid subscription, so you'll just have to trust me on this one. The author opined that the federal judiciary needs a better system to recuse judges.
Here's the short version. Federal judge dismisses a corporate case, believing the CEO perjured himself. Federal judge follows up with prosecutors, and writes a letter seeking to have the CEO charged. Prosecutors oblige, but file the case against the CEO in a different court. Federal judge orders the case transferred to his court. CEO seeks to have the dismissing / charging / transferring federal judge recuse himself. Federal judge not only refuses to recuse himself, but also revokes bail, throwing the CEO in jail. CEO, while in jail, is caught on tape by the FBI while attempting to hire a hitman to recuse the judge permanently.
Why should it have to come down to hiring a hitman to get rid of a judge?
In state court, we have a lovely little mechanism called a Peremptory challenge. It can only be used once per side, which really causes a quandary whether to use the challenge mechanism.
That way, it's not up to the judge to determine whether to back out of a case. It's up to the parties. Look at the mess with Scalia and Cheney. Does it really take 10 pages to explain why you're not prejudiced in favor of one party? Like the Daily Journal article said, if it takes 10 pages to explain that, you've missed the point.
The federal system has no similar mechanism that allows the parties to disqualify a judge.
Maybe it's about time we considered putting one into place that doesn't involve a hitman.
Should We Reconsider Case Management Conferences?Court this morning was not interesting. Boring, in a word. And expensive. But it didn't have to be.
Unfortunately, it was.
Let's look at it this way. Years ago, cases in California used to take five years to get to trial, maybe more. The people revolted. The legislature reacted.
We got Fastrack.
Cases are now tried in an average of eighteen months or less. Most courts hope for less. In fact, most judges pretty much push the attorneys to get cases handled in just over a year.
And that's fine. Good for the people.
Not necessarily, however, good for the clients. Take, for example, a fellow attorney who drove two hours this morning to appear in Court for three minutes. For a case management conference. All that happened was that the Court found out a little (very little) about what was happening in the case, and then set a further status conference.
So the attorney could drive another two hours for three minutes in front of the judge. But you argue that the attorney could have appeared telephonically. Not in this court.
So the attorney gets to do it all over again, and the client gets to pay for it all over again. Four hours for three minutes. Indeed, I had the same experience myself, but I only had to drive 20 minutes each way.