Memorial Day 2009
I first ran the post below for Memorial Day in 2006 as a tribute to my Dad, who served as a soldier during World War II. This is the fourth straight year for this post, and I'll continue to run it every year.
I've thought of his service often, and have read many books about war and military history to try to understand what he did, what he went through, and also who he was. As Dickens pointed out in A Tale of Two Cities, the human heart is a mystery even to those closest to us, and there are many things I know about my Dad, but so much I don't.
I do know this much. He was born to farmers, he farmed before he went to war, and he came back home to farm. In a way, he was a descendant of the citizen-soldiers during the Peloponnesian War -- farmers who left the land to put on armor and engage in a widespread conflagration, shipped out to fight in places they knew little about. For soldiers in the era of classical Greece, the highest honor was not to kill or stand out as a hero, but to stay in line, not run away, and support the man standing next to you. And so it is to this day. (The classicist Victor Davis Hanson has done impressive work in tracing the origins of Western military discipline, methods of fighting and ethos back to ancient Greece). I also know that my Dad was wounded once -- some shrapnel from an exploding artillery shell struck him in the neck -- but he must have refrained from applying for a Purple Heart, because it is not among his battle decorations. I know of it only because I directly asked him once if he had been shot during the war, and he never mentioned it to me again. Knowing my Dad, he would have been embarrassed to get a decoration for his wound when so many others were hurt much worse or killed.
I also know this: he was a tough, tough man in every sense. He did whatever work he could find to earn money during the Depression -- he was one of 12 kids in his family. He did some farming for his father, he dug ditches and planted trees for the government. He enlisted before the United States entered World War II, and came back home after a brutal war in which he had seen a great deal of savage behavior by the Japanese Imperial Army, but I never heard him say one word of hate against the Japanese. He was the kind of man who worked on the oil rigs in 40-below weather in the winter to feed his family during years the crops had failed. When it was too cold to start the car, he walked four miles to town in a blizzard to get kerosene and supplies. He was tough enough to fight some of the best soldiers that ever lived -- Japanese Imperial Marines -- in jungles and mountains (how much he must have hated that, being from flat, treeless North Dakota). He was tough enough to have seen many people killed -- besides deaths in straight-up combat, his unit was chronically short of officers because they were constantly killed in camp and behind the front lines by Japanese snipers -- and never talk of wanting to hurt other people. And he was also tough enough to deliver me and one of my older sisters when we were born, with the nearest doctor 20 miles away. I guess he had helped so many calves to be born, he thought how hard can it be to bring a baby into the world. He taught me how to work hard, how to see humanity even in people you don't like, how to keep going ahead when things don't go your way and you feel like quitting. He died in 1984. I don't think a single day has passed since then that I haven't thought of him.
Here's the original post from 2006, updated to make the year current. By the way, last year someone sent me a pdf of a battle report in the Philippines by, I think, my Dad's company commander. An interesting tale, full of all the usual elements of the human condition: boredom followed by extreme danger, getting lost, someone screwing up, the need to find something to eat.
_____________________________________________
Sixty-four years ago this month, the men of the Sixth Infantry Division, U.S. Army, were in their fifth month of fighting the Japanese Imperial Army on the island of Luzon, the Philippines. They had just cracked the Shimbu line after a two-month battle in which the division's three regiments were thrown into a battle against 14,000 Japanese soldiers waiting in bunkers, pillboxes, trenches and caves. During the Shimbu line battles, every attack was met with a counterattack from the Japanese, who favored night actions and the banzai charge. Many of the Sixth's soldiers were ill with diseases like malaria from fighting in the jungles of New Guinea the prior year against elite Imperial Marines.
At that time, in late May 1945, plans were being drawn up for Operation Coronet, the invasion of Honshu, Japan, which was to begin on March 1, 1946. Operation Coronet was to follow Operation Olympic, the invasion of Kyushu, which was scheduled for November 9, 1945. How many American dead and wounded were expected from these two invasions is disputed, but this much is known for sure -- the Army manufactured 500,000 Purple Hearts in anticipation of the battle for Japan, a stockpile it has yet to exhaust in all the years since. The Order of Battle for Operation Coronet included the landing of eight armored and infantry divisions west of Tokyo Bay. These divisions were then to fight their way north and take the city in conjunction with other U.S. forces. Among those divisions was the Sixth. Among the three regiments of the Sixth was the 63rd Infantry Regiment, and among the 63rd's 12 companies was Company C. Among the soldiers of Company C that would have fought their way toward Tokyo, presuming they had not already been killed in their landing transports before they hit the beaches by one of the 10,000 kamikaze planes assembled to oppose the landings, was a young staff sergeant named Fred Rossmiller, my Dad. In addition to the perhaps 400,000 American dead expected in the battle, it was thought 5 million to 10 million Japanese soldiers and civilians would die.
As we now know, Operation Coronet never happened, because the war ended in September 1945. If it hadn't, my Dad might never have made it back to Wildrose, North Dakota, where years later, he delivered me, the fifth of five children, one October morning on our farm. My Dad never said much to me about the war. I asked him once if he had killed in battle. He said he didn't know: he fired at the enemy and they fired at him. If he had killed someone, he had not personally seen it. He then told me a different story, about how when he was fighting in Luzon, he and his unit came upon some members of the Filipino Army, who had captured a Japanese soldier, tied him to a tree and were beating him. My Dad stopped them, but his unit was involved in a battle, and had to move on. They couldn't take the prisoner with them. After his unit moved out, my Dad said, he didn't know what happened.
The mutual enmity between the Japanese and American armies in World War II was extremely high. Yet my Dad had tried to protect this enemy soldier, and apparently thought this a more appropriate lesson for his child than his other combat experiences, because he never talked to me about them in the same kind of detail. Mostly, what I know of the Sixth and its battles I have read in the official division history and elsewhere.
In the abstract, it may sound like a cliche to talk about honoring those who have served and sacrificed for our nation. But that abstract concept of service and sacrifice is made up of millions of individual real acts by real people who did things like carry a 70-pound machine gun on their backs through dense, mountainous jungle, and sleep with their boots on both to keep snakes and bugs out and to be ready for an enemy suicide attack. People like my Dad, who fought in 306 days of combat, the last 219 of them consecutive, and then went home and farmed, didn't complain, and didn't talk much about what he had done. There is a word for people like that, people like my Dad: heroes. And they have Memorial Day lest we forget.
Posted By David Rossmiller In Miscellaneous
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Blogging schedule
I'm speaking today and tomorrow at the PLRB conference in Seattle, so blogging will be limited for the next couple days. What am I talking about? Anti-concurrent cause, what else? If I can sneak in a post before Thursday, I will.
Posted By David Rossmiller In Miscellaneous
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Return to blogging
In the past few months, I've had about, let's see, I've got the number written down somewhere here, about eleventybillion inquiries about when I am going to return to blogging, why I'm not blogging, if I'm dead, abducted by aliens, living in a Buddhist monastery, etc. These are fair questions, and the answers are:
1. I'm returning to blogging starting this evening. I don't know that I am going to be able to keep up the pace I once did -- blogging Monday through Friday, federal holidays excepted. More realistically, a couple times a week seems more probable, but we'll see.
2. Last year I had a crushing workload, and something had to give. Blogging, although an important life activity and something I really like doing, had to take a back seat. My workload has returned to manageable levels now, however.
3. The worst thing about not blogging? I'd have to say a couple things: not writing any more Trailer Lawyer songs, and not having cause to link to YouTube songs and videos that catch my fancy and which I work into a post. Such as this: last week I became aware that, on a temporary basis, XM satellite radio has a channel devoted purely to ex-Beatle Paul McCartney, who, for reasons I still have not divined from listening to the channel, is now calling himself "The Fireman." Among the songs I heard on this channel is one I have not thought about for years and years, called Junior's Farm. Now, this is a fairly strange piece that contains a weird anecdote, which I confirmed by looking up the lyrics:
I took my bag into a grocer's store,
The price is higher than the time before,
Old man asked me why is it more.
I said you should have seen me with the poker man,
I had a honey and I bet a grand,
Just in the nick of time I looked at his hand.
At first, it seems like this is an attempt at some kind of social commentary about 1970s inflation, British decline, indifference to the elderly, post-industrial "future shock" and the like: rather unbelievably, multi-millionaire celebrity Paul McCartney is standing in line in a grocery store, and pathetically, an old man starts complaining to him about not being able to afford food.
But the next few lines tell a different tale -- McCartney responds to the old man's complaints (perhaps a not-so-subtle hint that some celebrity millionaire should buy the old man's food or maybe even bestow other largesse on him) with a fairly aggressive tale about a recent gambling event. The point of this gambling story seems to be that McCartney is rich enough that he thinks nothing of betting a grand in a poker game, and what should be more sobering to the old man, McCartney is also the kind of poker player who doesn't think twice about cheating to protect his investment, even when he holds a great hand. The overall lesson? While one might risk appearing uncompassionate in front of others by simply ignoring the old man or saying no, there are any number of ways to make the existential point that ultimately we all face the maelstrom by ourselves and have to find our own way to afford our dinner of Friskie's Gourmet. In other words, according to Mac: "I'm not your insurer, old man."
Posted By David Rossmiller In Miscellaneous
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Free Dickie
The smart new fashion statement for this fall, besides Sarah Palin eyeglasses and Obama flag lapel pins, is of course the Free Dickie T-shirt, as seen below.
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I got this T-shirt from Alan Lange of the blog Y'all Politics. Not sure what Alan's price points are, but he can tell you if you're interested. I know I'll wear mine proudly as I join the next omnibus protest march in Portland, or on visiting day in Ashland, Kentucky.
Interestingly, I heard the other day -- indirectly, from his researcher -- about a journalist writing what is supposed to be the definitive book on Dickie Scruggs. I think I remember which paper he works for, but maybe he's trying to stay below the radar for now, so I won't say. My suggestion for a title? Sweet Potatoes, Lies and Videotape. Exit question: where is P.L. Blake? Might make for a nice interview for the book if someone knows where he is -- I'm sure he'll be glad to sit down with the writer for a good chin-wag. As someone once said to me, if you want to find Blake, you'll have to put the corn on the ground.
More blogging to come this morning about the McIntosh case. It appears I'll be able to get back to somewhat of a normal blogging routine -- knock on wood.
Posted By David Rossmiller In Miscellaneous
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Memorial Day 2008
I wrote the post below two years ago for Memorial Day as a tribute to my Dad, who served as a soldier during World War II. This is the third straight year for this post, and I'll continue to run it every year. I've thought of his service often, and have read many books about war and military history to try to understand what he did, what he went through, and also who he was. As Dickens pointed out in A Tale of Two Cities, the human heart is a mystery even to those closest to us, and there are many things I know about my Dad, but so much I don't.
I do know this much. He was born to farmers, he farmed before he went to war, and he came back home to farm. In a way, he was a descendant of the citizen-soldiers during the Peloponnesian War -- farmers who left the land to put on armor and engage in a widespread conflagration, shipped out to fight in places they knew little about. For soldiers in the era of classical Greece, the highest honor was not to kill or stand out as a hero, but to stay in line, not run away, and support the man standing next to you. And so it is to this day. (The classicist Victor Davis Hanson has done impressive work in tracing the origins of Western military discipline, methods of fighting and ethos back to ancient Greece). I also know that my Dad was wounded once -- some shrapnel from an exploding artillery shell struck him in the neck -- but he must have refrained from applying for a Purple Heart, because it is not among his battle decorations. I know of it only because I directly asked him once if he had been shot during the war, and he never mentioned it to me again. Knowing my Dad, he would have been embarrassed to get a decoration for his wound when so many others were hurt much worse or killed.
I also know this: he was a tough, tough man in every sense. He did whatever work he could find to earn money during the Depression -- he was one of 12 kids in his family. He did some farming for his father, he dug ditches and planted trees for the government. He enlisted before the United States entered World War II, and came back home after a brutal war in which he had seen a great deal of savage behavior by the Japanese Imperial Army, but I never heard him say one word of hate against the Japanese. He was the kind of man who worked on the oil rigs in 40-below weather in the winter to feed his family during years the crops had failed. When it was too cold to start the car, he walked four miles to town in a blizzard to get kerosene and supplies. He was tough enough to fight some of the best soldiers that ever lived -- Japanese Imperial Marines -- in jungles and mountains (how much he must have hated that, being from flat, treeless North Dakota). He was tough enough to have seen many people killed -- besides deaths in straight-up combat, his unit was chronically short of officers because they were constantly killed in camp and behind the front lines by Japanese snipers -- and never talk of wanting to hurt other people. And he was also tough enough to deliver me and one of my older sisters when we were born, with the nearest doctor 20 miles away. I guess he had helped so many calves to be born, he thought how hard can it be to bring a baby into the world. He taught me how to work hard, how to see humanity even in people you don't like, how to keep going ahead when things don't go your way and you feel like quitting. He died in 1984. I don't think a single day has passed since then that I haven't thought of him.
Here's the original post from 2006, updated to make the year current.
_____________________________________________
Sixty-three years ago this month, the men of the Sixth Infantry Division, U.S. Army, were in their fifth month of fighting the Japanese Imperial Army on the island of Luzon, the Philippines. They had just cracked the Shimbu line after a two-month battle in which the division's three regiments were thrown into a battle against 14,000 Japanese soldiers waiting in bunkers, pillboxes, trenches and caves. During the Shimbu line battles, every attack was met with a counterattack from the Japanese, who favored night actions and the banzai charge. Many of the Sixth's soldiers were ill with diseases like malaria from fighting in the jungles of New Guinea the prior year against elite Imperial Marines.
At that time, in late May 1945, plans were being drawn up for Operation Coronet, the invasion of Honshu, Japan, which was to begin on March 1, 1946. Operation Coronet was to follow Operation Olympic, the invasion of Kyushu, which was scheduled for November 9, 1945. How many American dead and wounded were expected from these two invasions is disputed, but this much is known for sure -- the Army manufactured 500,000 Purple Hearts in anticipation of the battle for Japan, a stockpile it has yet to exhaust in all the years since. The Order of Battle for Operation Coronet included the landing of eight armored and infantry divisions west of Tokyo Bay. These divisions were then to fight their way north and take the city in conjunction with other U.S. forces. Among those divisions was the Sixth. Among the three regiments of the Sixth was the 63rd Infantry Regiment, and among the 63rd's 12 companies was Company C. Among the soldiers of Company C that would have fought their way toward Tokyo, presuming they had not already been killed in their landing transports before they hit the beaches by one of the 10,000 kamikaze planes assembled to oppose the landings, was a young staff sergeant named Fred Rossmiller, my Dad. In addition to the perhaps 400,000 American dead expected in the battle, it was thought 5 million to 10 million Japanese soldiers and civilians would die.
As we now know, Operation Coronet never happened, because the war ended in September 1945. If it hadn't, my Dad might never have made it back to Wildrose, North Dakota, where years later, he delivered me, the fifth of five children, one October morning on our farm. My Dad never said much to me about the war. I asked him once if he had killed in battle. He said he didn't know: he fired at the enemy and they fired at him. If he had killed someone, he had not personally seen it. He then told me a different story, about how when he was fighting in Luzon, he and his unit came upon some members of the Filipino Army, who had captured a Japanese soldier, tied him to a tree and were beating him. My Dad stopped them, but his unit was involved in a battle, and had to move on. They couldn't take the prisoner with them. After his unit moved out, my Dad said, he didn't know what happened.
The mutual enmity between the Japanese and American armies in World War II was extremely high. Yet my Dad had tried to protect this enemy soldier, and apparently thought this a more appropriate lesson for his child than his other combat experiences, because he never talked to me about them in the same kind of detail. Mostly, what I know of the Sixth and its battles I have read in the official division history and elsewhere.
In the abstract, it may sound like a cliche to talk about honoring those who have served and sacrificed for our nation. But that abstract concept of service and sacrifice is made up of millions of individual real acts by real people who did things like carry a 70-pound machine gun on their backs through dense, mountainous jungle, and sleep with their boots on both to keep snakes and bugs out and to be ready for an enemy suicide attack. People like my Dad, who fought in 306 days of combat, the last 219 of them consecutive, and then went home and farmed, didn't complain, and didn't talk much about what he had done. There is a word for people like that, people like my Dad: heroes. And they have Memorial Day lest we forget.
Posted By David Rossmiller In Miscellaneous
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Y'all Nation, March 5: can y'all be used as a singular pronoun?
We had such an interesting array of comments on the proper use and meaning of "y'all" in the (Zach) Scruggs Nation post yesterday, I took some time last night to do a little independent research on the subject.
The comments overwhelmingly favor "y'all" exclusively as a plural, although a few commenters thought it might be used as a singular pronoun on occasion. The private e-mails to me offline ran exclusively in favor of plural. So when I found a scholarly article online in the journal American Speech entitled Can Y'all Function As A Singular Pronoun In Southern Dialect, I had to read it.
The article is from Spring 1984, and was written by Gina Richardson -- the article doesn't further identify her except to say she was affiliated with Georgetown University. Also, from the article, one learns her father had an office of some sort in Columbia, South Carolina, so we might make an educated guess that is where she grew up.
Her conclusion?
In short, the traditional interpretation of y'all is indeed the valid one -- y'all is an exclusively plural second person pronoun meaning "more than one." Careful examination of the reactions of 123 informants and informal conversation with more than twenty others revealed not even one instance of y'all in normal usage that manifested anything other than a plural referrent.
She tells a story about how her confidence in this conclusion could have been shaken when she stopped by her father's place of business to greet some friends. Her father led the way to the new office of one of these friends, John. As the author's father stepped in, John did not know Gina was in the hallway and thought the father was alone. John said to Gina's father, "Hi y'all." However, as it turns out, John's greeting was a private joke: the father's name was Elwood, the same first name as the Jimmy Stewart character in the movie Harvey, about a man with a giant invisible rabbit friend. So John had jokingly been greeting the father and his invisible friend -- a plural use of y'all.
It is a good article. If you care to read it, go to www.jstor.org and you can search for it by title. If you don't have a login for the JSTOR website, it has links to your local public library, and you can log in by entering your library card number.
This article is not the first or last on the subject of "y'all" in American Speech, the premier journal on American dialects and idiom. A 1928 article by Estelle Rees Morrison came to the opposite conclusion, as did a 1975 article in the same journal by Nancy Spencer. Gina Richardson also cites H.L. Mencken's The American Language, Supplement Two (1948) for the proposition that, although 99 percent of uses of y'all are plural, a tiny percent are singular.
Richardson's answer to these views is that all of them are held by non-native speakers. In her examination, including an empirical study employing a written test and follow-up interviews, she found that non-native speakers may confuse the fact that only one person is being addressed by a speaker with the fact that the speaker is using "y'all" to refer to a broader context, the addressee and some other person or persons not present but who are in some way contextually relevant to the conversation.
Two things in Richardson's study convinced me she is right. First, she employed a test using the following lines, in which respondents had to fill in the blank with a pronoun.
"That was quick! Mike must have given y'all good directions."
"He sure did; _____ didn't have any trouble finding it."
The responses were overwhelmingly plural -- in other words, "we didn't have any trouble" dominated. But second, Richardson also found that, in such situations, where the person answered "I," it was only because the person was taking it upon himself or herself to answer for the group, not because the person understood "y'all" as addressed only to the one who answered. For example, the person who actually drove the group there would answer "I" on behalf of the group.
For more views, here is a post on the word y'all on a history blog; the Wikipedia article referred to by a commenter yesterday; and an entry on dictionary.reference.com, which is based on one of the great dictionaries, the Random House Unabridged Dictionary.
So there it is. Might be a good plot for the next Grisham novel -- an ear-witness heard the victim say "This is not right what y'all brought me here, when I said I needed a delivery of sweet potatoes I didn't mean for y'all to actually bring me sweet potatoes" just before the fatal shot rang out, and the witness turned the corner to see the accused standing there by himself over the body.
The questions for the jury: What was the difference in meaning, if any, between the two uses of "y'all"?
Did "y'all" refer to a second person the accused claims was present and who fired the shot before placing the smoking gun in the accused's hands and running off?
Did "y'all" refer to the accused, who was there by himself, and to additional criminal conspirators who were not present?
Or did "y'all" refer to only the accused, as the victim may have been merely impersonating a true Southerner but was in fact from Oregon and didn't know the right way to use the word?
Could the Oregonian victim have been addressing the real killer who ran off, or perhaps the real killer and an accomplice unseen by the accused?
Or was the victim watching a video called "Best of Y'all's Bloopers" at the time of the killing, and was the voice that of a New Jersey-raised actor speaking with a fake Southern accent?
And what of the Manchurian Candidate "stealth" judge on the state supreme court who stands ready to review any conviction -- a hot supermodel turned jurist and secret linguistics expert who unbeknownst to herself is the twin sister of the victim, separated at birth and raised by sweet potato farmer "parents" who are really members of a criminal gang specializing in the brainwashing of children, and who have long been plotting the ultimate, perfect murder?
Posted By David Rossmiller In Miscellaneous
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Blogging schedule January 30
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Regular blogging may resume Thursday
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Blogging schedule
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Appearance on the Paul Gallo Radio Show on Monday
MS Smitty reminds me in the comments to the previous post today that I forgot to mention I'll be interviewed on the Paul Gallo Radio Show on the Supertalk MS Network at 8:05 a.m. Monday morning on the Scruggs mess. I'm looking forward to it. For those of you across the state of Mississippi, and anywhere else you might care to listen to the program live streaming on the web, I hope you're able to catch it. If you want information on the stations that broadcast Paul's show or on live streaming, check the web site at this link. And when you hear me talk, no, that accent is not Canadian, although many people say I sound like one. I grew up a few miles from the NoDak border with Saskatchewan.
UPDATE: It's 8:05 Mississippi time, Central Standard. Which means I have an early day on the Pacific Coast, far from the first time that has occurred.
Posted By David Rossmiller In Miscellaneous
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A Wednesday bleg
"Blegging" is the term used to refer to the act of using your blog to ask for a favor. Normally, I pay no attention to internet awards and even less to the American Bar Association, but I see that Walter Olson, my co-blogger at Point of Law, is in hot competition for best general law blog in the ABA Journal Blawg 100 for his blog Overlawyered, and needs some votes to pull into the lead on this, the final day of voting. You may have read Walter's great posts on the Scruggs scandal, or you may have followed his blogging at Overlawyered over the years -- he is one of the pioneers of legal blogging and Overlawyered is one of my favorite stops on the internet, right up there along with www.shredderchess.com. If you enjoy Walter's Scruggsblogging and other writing, please visit http://www.abajournal.com/blawgs/blawg100 and cast your vote, it only takes a second.
UPDATE: As often happens, I got to thinking about this post after I posted it, and I neglected to mention the outstanding work of Ted Frank at Overlawyered, not to mention some great regular contributors like Jason Barney. It's a truly fine site, consistently excellent.
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Blogging schedule January 2
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Maniloff's Top 10 coverage cases of 2007
One of the bright lights of legal writing and insurance coverage writing in particular is Randy Maniloff, a coverage lawyer in Philadelphia. With a truckload of new readers here, this is a good time to bring you Randy's annual look at the year's ten most significant coverage decisions, the seventh consecutive time he was written this really difficult piece for Mealey's Litigation Report.
I read it all -- you've got to really like a writer who can make you laugh aloud when writing about insurance (the item on the global warming case broke me up) -- and I guess I can't disagree with the selections, except that if I was writing it, the Top 10 would all be Katrina cases, because that's mostly what I've written about for the past year, so much so that I haven't paid much attention to anything else. I'd probably also make it the Top 11 and include Woo v. Fireman's Fund, the case about Dr. Woo, aka " the pig-slayer," a dentist who put fake pig teeth in an anesthetized patient's mouth and took pictures, which I wrote about at length here and here.
Randy has been a good friend of this blog since back in the day, when my daily visitors were measured in the dozens (if I was lucky) rather than the thousands. If you like the piece, let him know, his e-mail address is in the article. When you've got a long piece of careful analysis that is also written with style and humor, you've got something pretty rare on your hands. It took a lot of effort and skill to do what he did. Without further ado, here it is, 2007's Top 10 coverage cases.
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Some server issues this morning
Several people reported problems accessing Insurance Coverage Law Blog this morning, and when I checked on this, there were indeed some server issues that now have been resolved. Thanks for your patience and thanks for letting me know about the problems. Funny thing about a blog, it's not all that different from my time on the farm in NoDak as a kid: blogs, like farm animals, seem to require constant feeding and watering.
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Thanksgiving blogging schedule
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I find this to be one of the most disgusting things I've read this year
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This is a high honor
I was honored to see Insurance Coverage Law Blog listed as one of Ted Frank's 10 favorite legal blogs in a post at Overlawyered. The kind words are much appreciated, particularly in that the other nine include some pretty amazing sites. I've never done one of those Top Tens, I guess I'm afraid of leaving some people out, but certainly any list I would put together would include Overlawyered and its sister blog Point of Law, and I don't say that merely because I'm lucky enough to be a contributor to Point of Law. Ted Frank and Walter Olson are among the outstanding legal bloggers, and Walter was a pioneer of legal blogging. The Becker-Posner Blog, with Gary Becker and Judge Posner, is always good with highly intellectual posts on a variety of topics, usually with lots of provocative comments. Peter Lattman at the Wall Street Journal Law Blog does an incredible job of reporting and writing really interesting posts.
There are others I like a lot, not all of which I read regularly, what with my day job and the need to focus my internet reading on insurance as much as possible. Any list I would put together therefore would vary from one three-month span to another, depending on where my attention happened to be directed at a particular time. So it would be unjust and only partially true for me to put together a Top Ten -- however, the four blogs named above would appear at the head of any list if I ever do put one together.
I am prepared to say, however, what I like and don't like in a legal blog. Some of the things I look for:
- good writing first and foremost, which includes proactive measures to avoid being boring and to arrange things so the writer, not the reader, does the work;
- some degree of interactiveness, either with a comments feature or links to other blogs discussing the same topic;
- a tone that suggests the writer is more interested in discussing ideas than blatantly shilling to sell legal services or aggrandize himself;
- a willingness to take a stand on issues. A lot of legal bloggers make the mistake of writing with a painfully "objective" voice that may steer well clear of offending anyone but also provides no value and no sense there is a person behind the blog the reader can connect with (in addition, one might point that this voice, along with its other faults, is horribly, unspeakably boring -- as the great Tanya Donelly once sang, if you bore me, you lose your soul to me); and
- either a sense of humor or tacit acknowledgment that the writer knows a sense of humor would be a good thing to have, if one were available.
Readers? What are your favorite legal blogs? Favorite non-legal blogs?
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Potpourri Wednesday
Stuff has been piling up that I want to write about, and I've got to post on these things before they get stale. There is only one possible solution -- a Potpourri Wednesday. So here it is.
- This story from the Boston Globe is fascinating, it's about Bay State insurers trying to learn how to advertise after emerging from a state-controlled market. Here's an excerpt:
But with auto insurance competition scheduled to launch April 1, local companies are starting to adopt much higher profiles, unveiling branding campaigns designed to tell drivers who they are and what they stand for.
Unlike Geico's off-beat cavemen and gecko ads, the local ads are very serious, stressing safety, responsibility, and knowledge of the local market.
"When you grow up in a socialist system, it's hard to be light-hearted," quipped Peter Robertson, Massachusetts legal counsel for the Property Casualty Insurers Association of America.
Personally, I get tired of efforts to sound serious. So much of what passes for legal writing and legal discourse is a desperate attempt to act serious to cover up what you don't know with that false, boring "voice of authority" persona. This is often what I deal with all day. So ads that lighten my day, that show recognition of my personhood, are ones that I remember.
- This is a good story by Becky Mowbray of the Times-Picayune about a forum on coastal insurance that drew members of Congress, state insurance commissioners and officials from insurers such as Allstate, State Farm and Travelers. The discussion about a national catastrophe fund is interesting, as was the reaction of state insurance commissioners to Travelers' proposal involving limited federal regulation -- I've said it before, states will scream like banshees if you try to take away their profitable regulation of insurance.
But Travelers' plan was met with skepticism by the insurance commissioners, who would lose territory under the proposal. They questioned whether it was a back-door way for insurance companies to get a long-desired system of federal regulation -- a suggestion that Miletti denied.
Alabama Insurance Commissioner Walter Bell, president of the National Association of Insurance Commissioners, questioned why Travelers couldn't accomplish its goals through a system of interstate compacts and accreditation under the existing state regulatory structure.
Donelon expressed concern about what would happen to local regulations, such as Louisiana's statute that makes it difficult for insurance companies to drop customers after three years. "I'm very concerned about the Travelers approach being a vehicle for federal regulation, which I believe to be the same as deregulation of the industry, which would leave the consumer at greater risk," he said.
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Florida's insurance fiasco continues. Watch out, there have been calls for Gov. Crist to exercise leadership, so things might get much worse!
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This story from Kentucky is about a $1.4 billion lawsuit against Allstate. This is another one of those stories that deals with a plaintiff lawyer that is going around the country with wild tales about Allstate. I don't really know about the allegations that get made in stories and some lawsuits, except that when I try to focus on them, they seem just a little like a headline in the Weekly World News -- "Abe Lincoln Was A Witch," or something of that sort. As I said, I don't really know. Maybe someone who knows more about this case can leave a comment or send me an e-mail.
- You know, the state election in Mississippi is just next month. Attorney General Jim Hood and challenger Al Hopkins have been ripping each other to shreds. Witness this story, where Hopkins says Hood is engaged in illegal activity regarding awarding state legal contracts. This story says the state may seek to recover some of the money. In the first story, Hood says Hopkins got his own no-bid state contract for $100,000. Hood has also accused Hopkins of padding his resume to make it seem he has more legal administrative experience than he actually does. Y'all Politics has this entertaining riposte to those charges.
This is going to be a fun race to watch.
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Lastly, I've liked Chrissie Hynde since way back when the Pretenders sang Talk of the Town. Always looked tough, like she would smash a guitar over your head as soon as look at you. Reminds me a lot of people, men and women, boys and girls, that I grew up with. The band around her changed over the years, wasn't as innovative, but she actually got better as an artist and a singer. Most singers, I don't believe a word they say, it's all technique. But she's different, totally sincere, totally believable. Take a look at these two videos and see if you agree. Here she's singing Back on the Chain Gang and here she's singing I'll Stand By You.
Posted By David Rossmiller In Miscellaneous
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Dickie Scruggs asks that criminal contempt charges be dropped
I've had requests for an update on United States of America v. Richard F. Scruggs -- the criminal contempt case against attorney Dickie Scruggs. The latest news is that last week Scruggs filed his response to an order requiring him to show cause why he should not be held in criminal contempt. More on this after this brief reminder of what we are talking about here.
(Remember, the reason for the charges is that Scruggs allegedly violated an injunction by federal Judge William Acker requiring him to turn over documents to lawyers for E.A. Renfroe, a State Farm contractor. The documents were claims files taken from Renfroe by two employees, the so-called "whistleblower" Rigsby sisters, who while working for Renfroe secretly copied thousands of pages and gave them to Scruggs, Mississippi AG Jim Hood and the FBI. Renfroe sued the "whistleblower" Rigsby sisters for breach of their confidentiality agreements, and in that civil lawsuit, Judge Acker ordered that the documents be returned to Renfroe's counsel. However, instead of turning them over, Scruggs called Hood and sent his copies to Hood -- keep in mind Hood already had his own copies).
Not a really big surprise here -- the Scruggs response says the charges should be dismissed for various reasons, such as:
- He didn't do anything wrong;
- Judge Acker had no jurisdiction in the underlying E.A. Renfroe lawsuit against the "whistleblower" Rigsby sisters;
- Judge Acker's injunction was ambiguous;
- Scruggs lacked the requisite intent to violate the injunction;
- The independent counsel that brought charges against him were not truly independent but rather puppets of Acker;
- Etc., etc. Here's a pdf of his response brief.
The brief deals extensively with what Scruggs sees as a saving loophole in Acker's injunction in the Renfroe case, which Scruggs allegedly violated -- the documents could be disclosed to law enforcement. Instead, as mentioned, he called his good friend Mississippi AG Jim Hood and arranged to give them to Hood, who already had copies, in what looked to Judge Acker like a ploy to evade the judge's order. As you might remember, earlier this year Hood tried to bail Scruggs out and asked the U.S. Attorney not to prosecute Scruggs because he is a "confidential informant" of Hood's and, well, it just wouldn't be right to break up a great crime-fighting team. After all, what would Batman be without Robin? What would the League of Justice be without the Green Lantern? Sherlock Holmes without Watson? Inspector Clouseau without Cato?
The United States is due to file a reply brief October 12. I'll let you know what it says when it is filed. Here is an Associated Press story on developments in this case.
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Is anti-concurrent cause language 'unethical'?
I saw this question discussed at a recent post on Sam Friedman's blog at National Underwriter. Plenty of comment by readers, both pro and con. You might be able to predict what I think. The question itself arises from a misconception of what anti-concurrent cause language is and what it addresses -- in other words, I don't believe the question makes sense. Is the notion of exclusions in insurance policies unethical? Is the notion of covering collapse but defining collapse extremely narrowly, and excluding many causes of collapse, unethical? Is it unethical to define a policy's coverage as excess to any other available insurance? Is it unethical to define ongoing property damage as uncovered if any part of it began before the policy period commenced? Is it unethical to define an intentional act as one that is expected and intended by any insured, meaning one who did not intend the harm is excluded from coverage along with the one who did? Answer all these questions, and then we can have a debate about the ethics of anti-concurrent cause language.
As the above questions make plain, insurance policies contain all kinds of provisions that normal people don't expect or think about. So do other contracts. You ever gone on a cruise? Chances are your ticket contract contained a forum selection clause stating you have to sue in Florida if you have a beef with the cruise line. Does the average person have a clue about choice-of-law provisions in contracts or their significance? How many investors anticipate that they will have to engage in NASD arbitration instead of going to court?
The issue is not one of ethics, but public policy. If a contractual provision is not against public policy, there is nothing wrong with including it in the contract. Anti-concurrent cause language merely defines the causation analysis that must be used by the court. Other potential choices for causation analysis, such as efficient proximate cause or concurrent cause analysis, were neither carved into stone tablets by God, nor have courts found the specific type of causation methodology used in property insurance causation to be a mandatory contract rule, or in other words, a matter of public policy.
To all who would say anti-concurrent cause language is unethical, answer these questions. Why is the efficient proximate cause methodology of defining the cause of a property loss superior analytically to the methodology contained in anti-concurrent cause clauses? What endows efficient proximate cause with greater moral stature than anti-concurrent cause methodology? For property insurance contracts with no defined method of analyzing property loss causation, is it ethical not to reveal to the consumer that the default method will be efficient proximate cause? Come on, I don't really need to go on, do I? You can see the whole ethics argument can be shredded like cheesecloth without even breaking a sweat. Who can answer these questions, and having answered them, will anyone then argue to me that anti-concurrent cause language is unethical?
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Hood spokesman says challenger needs to cowboy up
Look for Mississippi AG Jim Hood to strap on a gun belt, wear a 10-gallon hat, and ride into his next press conference on a steer while saying "that ain't no bull," after his campaign spokesman called out Hood's challenger this way:
"There's an old saying that applies to make-believe cowboys who dress and talk the part, pretending to be what they aren't. Alben Hopkins is 'all hat, no cattle.'"
Read this great story by John O'Brien of Legal Newsline for more details. Just as a point of future reference for the spokesman, however, I would like to point out that the correct phrasing is "pretending to be what they ain't." I like how the candidates in the Mississippi AG race aren't fooling around, pretending to respect each other, and how they realize that negative campaigning is what we all really want to see, no matter what we say. The campaign isn't quite up to Citizen Kane levels yet ("Gettys! I'm going to send you to Sing Sing! Sing Sing, Gettys! Sing Sing!"; "Candidate Kane found in love nest with quote, singer, unquote") but give it some time.
For his part, Hopkins has been pointing out Hood's fondness for campaign contributions from folks who, as luck would have it, happen to get state contracts. In a hilarious satire of a dumb explanation of this phenomenon, Hood said as follows, according to the story:
Hood has said state contracts are given on a "first-come-first-serve basis."
"It's kind of like intellectual property. They're bringing you an idea," Hood said. "And we give it to whomever it is, and if they've got the ability to handle it and the wherewithal to handle it and the money to back it, they've got the case."
That's pretty funny, he got us real good with that one. That's the key to a good joke -- why, just imagine if he had been serious! I've said it before, Hood has real comedic talent -- he's the best straight man since maybe Bud Abbott, or at least Bob Newhart.
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No post today
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Final version of Appleman's anti-concurrent cause/Katrina litigation article
Here is the final version of the article appearing next month called Interpretation and Enforcement of Anti-Concurrent Policy Language in Hurricane Katrina Cases and Beyond.
Because this is an exception to the Lexis policy of not allowing stuff to be seen until it actually is published by them, I agreed to post the following copyright notice. Below is also some information on how you can sign up for an Appleman's teleconference where I am going to talk about this article, as well as some of the later developments that aren't covered as extensively in the article, like the Fifth Circuit's recent Katrina decisions.
Copyright © Matthew Bender & Company, Inc., a member of the LexisNexis Group. Republished with permission from New Appleman on Insurance: Current Critical Issues in Insurance Law. All rights reserved.
This article is also the subject of a New Appleman's™ Insurance Coverage Teleconference: The Impact of Mass Catastrophies on Insurance Coverage to be held on October 16. Click here for information on how to attend.
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Thanks to readers
One of the highlights of my day is receiving e-mails from readers -- although I've been lucky in that a fair number of people post public comments, a lot more send me private e-mails, and that is one of the great joys of blogging: meeting new, interesting people, with fascinating takes on the issues we discuss here. Doesn't matter whether they agree or disagree with me, I enjoy hearing from people, and I keep their identities to myself, and the information too, unless they say it's OK to use it.
Thanks especially to those who read my anti-concurrent cause article and commented to me on it, including correcting a few errors I had in it. I took these comments to heart and made a few changes for the final draft that will appear in Appleman's. That is one of the new paradigms of the internet, to put out a product and invite public comment before it's set in stone, and that is something I hope to do again. I will be writing a follow-up article on the implications of Katrina appellate decisions for the April edition of Appleman's Critical Issues, and I'm still forming my opinions on those decisions, so input is always welcome -- writing this blog is a continuing education for me.
This blog and the reader response I've received is just another reason why I say I must be the luckiest man on Earth to have had the life I've had -- growing up in NoDak with the finest folks in the world, then getting paid to be a journalist and then a lawyer, not to mention the great family I have and living in Portland, Oregon, the friendliest city I've ever seen. Life is a great adventure, with the oddest twists and turns -- never did I imagine in my younger years I would be writing about insurance and having a ball doing it. Always feel free to e-mail me at dpr@dunn-carney.com with questions, comments, ideas for posts, news or criticism. I read every e-mail, and I try to respond to each one, with the exception of those that ask me to send money to bribe Nigerian customs officials for the purpose of extracating a large fortune from the country. I currently have all my money tied up helping some folks get a large fortune out of Malaysia, for which -- I think it's OK to reveal this -- I have been assured I will shortly receive some rather handsome compensation!
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Tuesday potpourri
The posts have been getting lengthy recently, so to mix it up, just a few short items today:
- This item in a Massachusetts newspaper is on the subject of car insurance reforms in the state and is apparently some sort of column, but without a point and without a clue. It lost me when it came to this part:
Driving and auto insurance rates are definite problems in Massachusetts. But at least the auto segment isn't as messed up as homeowners insurance, where anyone who lives within a certain distance of the ocean has to buy inferior coverage from the state. All homes on places like Cape Cod were dropped by their insurance companies a few years ago even if they hadn't put in a claim in 50 years.
I suppose we should be grateful the auto insurers have not followed the same philosophy and put disclaimers on policies stating they won't be covering motor vehicle accidents occurring in high winds or hurricanes.Like I said, no point, no clue.
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Some group of homebuilders is backing the bill in the U.S. House that would add wind insurance to the National Flood Insurance Program. They figure it will create more home building. You know, actually, if the people didn't live on the coast wouldn't they just build a house somewhere else? I'm just sayin'.
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Florida insurance officials are subpoenaing records from State Farm after the insurer, which has a million homeowners policies in the State, says it is dropping 50,000 coastal customers.
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Potpourri Wednesday
Here are some stories that may be of interest:
- In Massachusetts politicians recently became unhinged over Insurance Commissioner Burnes' plan for limited auto insurance competition and made numerous dumb statements to the press -- what a surprise.
- In Florida, Gov. Charlie Crist and other state officials continue to be in shock that they have not been able to alter human nature and economic self-interest with central planning. More than seven months after the state's latest insurance fix, insurers continue to drop homeowners policies. The latest? Nationwide announced it is dropping 40,600 homeowners and business insurance policies next year. A year ago, Nationwide had 261,300 home policies, but it has only 176,000 now.
- Louisiana has finally fired the top official of the state's high-risk auto pool, "after auditors told the agency's board that an audit will show he may have been involved in questionable spending practices." He was earlier removed from the top spot for the state-run property insurer after auditors found that the entity's books had not been balanced for two years and had a computer program that could not retrieve information the auditors wanted.
- Did you see this story, the one about the insurance company that hired detectives who joined a church and tape recorded support group sessions in an effort to uncover possible fraudulent claims by a couple who attended the church? You know, this is going too far, as the head of the company acknowledges, but how come the story doesn't mention what led the insurer to suspect fraud in the first place? It's legit to hire detectives to investigate fraud, as long as it is done by means that don't violate social values: it's OK to videotape someone who is supposedly injured working out at a public gym, it's not OK to plant secret microphones in the baseball cap of the guy's son to catch secret conversations in their home.
- You remember that Bloomberg story a few weeks ago, the one about insurers ripping people off, committing fraud just for fun and stealing old ladies' purses, as their evil laughter echoes through the land while their plans to rob the world blind go off with nary a hitch? At that time, I wrote that I didn't care for the story: for one thing, the lead anecdote was poorly chosen as an example of insurer rip offs, when in fact it appeared to be a case of someone who got caught short on their coverage and never read their policy. As human beings, we can all surely sympathize with this homeowner, because I'm sure we've all made our fair share of mistakes too, but I don't confuse my sympathy with analysis of insurance contracts. As you may know, I used to be a newspaper reporter, have many friends that are journalists and respect and like journalists, so my bias is to avoid finding fault unless I can't help it. But in this case I can't help it. I thought the story was deficient and that it got carried away with a premise that was assumed rather than proven. The Bloomberg story used evidence very selectively and contained gaps in both knowledge of the subject and logic. I recently saw a Sam Friedman piece in National Underwriter that made me think of this again: Sam calls out insurers for sitting back and taking it when it comes to stories like this, a point I made yesterday when talking about Katrina issues.
However, I see that State Farm has on its website a pretty good "Fisking" of the Bloomberg story -- this is the kind of thing insurers should do more of, and if they don't get anywhere with traditional media, the internet not only allows them to tell their own story, but contains numerous new media that may be more receptive. Here's my favorite part of the State Farm piece, because it talks about those e-mails from the McIntosh v. State Farm Katrina case that have been endlessly hyped as definitive proof of fraud, when to an observant reader all they show is a guy who is completely clueless and who is hardly an authoritative source:
Further, as evidence that there was wrong-doing, the reporters cite an e-mail from a Mr. Down at Forensics Engineering questioning motivations. What the reporters fail to provide is the under oath deposition of Mr. Down where he denies there was any problem and says that his e-mail inquiry was taken out of context. Robert Kochan, President of Forensics Engineering, additionally has made this clear. We further gave your reporters copies of AP news articles that confirm Mr. Down did not even work Katrina claims and had written the so-called incriminating emails based on rumor. So why didn’t Bloomberg include this information or an excerpt from sworn deposition?
I know that to some saying anything that is remotely favorable to insurers, or suggesting how insurers might better communicate with the public, is equivalent to defending the New York Yankees to the Washington Senators. But to me, discussing insurance coverage is not about good guys vs. bad guys. Precepts of logic, reason and fairness have to apply across the board -- and these standards apply even when discussing those one may not agree with or like.
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Special prosecutors file contempt charges against Dickie Scruggs
I don't know much about criminal procedure -- just what I learn watching Boston Legal, Law & Order and The Wire -- but this Associated Press story has got me wondering if Dickie Scruggs is going to be doing a perp walk. Here's a couple grafs so you can see what I mean:
BIRMINGHAM, Ala. (AP) — Special prosecutors charged prominent Mississippi attorney Richard F. Scruggs and his law firm with criminal contempt Tuesday in a Hurricane Katrina insurance dispute.
A motion to summon Scruggs and the Scruggs Law Firm was also filed Tuesday by the prosecutors, who requested that the court schedule an arraignment in the contempt of court case.
If you are new to this story, or just want to refresh your memory, here's a link to one of the posts I've written on this matter, with a ton of other links to answer any questions you may have.
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'When you ride alone you ride with Hitler'
That's the title of one of the great World War II propaganda posters, sometimes mistakenly referred to by the title "When you drive alone you drive with Hitler," which sounds better. That's our modern idiom, and probably was back then too, but it's evidently not what the government agency that produced the poster considered proper English. It's fairly hilarious now, but some variation of it was used in other posters, and you can well imagine it must have worked.
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Northwestern University has a collection of these propaganda posters available online, and while this poster apparently isn't part of the collection, there are a lot of good ones there. I find these posters fascinating and many of them I find very moving, which is a testimony to how good they were, and are, as propaganda. Here are some from the collection.
I'll leave you with one last poster, one of the most famous, that for some reason is not in the Northwestern collection.
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Potpourri Thursday
There's been too much going on for me to blog about everything I would like to, so I'm going to stuff it all in this post like I'm a college student again jamming my laundry in a duffle bag to take home to Mom.
Mississippi elections. I thought this was a fine story by John O'Brien of Legal Newsline about the defeat of Mississippi Insurance Commissioner George Dale by a Dickie Scruggs-backed candidate. Here's another story about results from the Sun Herald.
Bloggers of the world unite, you have nothing to lose but your chains! This is perhaps the stupidest thing I have heard this summer. Some bloggers want to form a bloggers union because they are spending a lot of time blogging and not getting paid for it. Check this out from the story:
Few bloggers are paid for their posts, and even fewer are able to make a living doing the work. But many say they often devote as much energy and time to their online musings as they do to their salaried careers.
I think they have a word for that -- a hobby. Do you think there is a reason they aren't earning a living from their blogging? Such as -- and I'm just taking a wild guess here -- that no one places enough value on it to pay for it? Another supposed benefit of the union: health benefits. How would the union get the money for benefits, go on strike against readers of the Internet? Another demand: press credentials and being taken seriously as journalists. You know, you can't make people love you and you can't make people take you seriously, they either do or they don't.
I am not from the South and I've never been there, but I like to say y'all. Southerners, is this OK? Does it offend you to have someone with a NoDak Norwegian accent say y'all? It's such a great word, I don't think Southerners should have exclusive rights. Maybe someone can give me pointers on the proper use of the word, so at least I don't dishonor it by misuse.
The "whistleblower" Rigsby sisters are starting to bore me. I saw a story by Mike Kunzelman of the Associated Press earlier this week about another one of those qui tam lawsuits alleging insurers ripped off the Treasury in Katrina claims by pushing wind payments onto federal flood policies. Here's a version of it I saw yesterday in the Insurance Journal. I've written a whole bunch about this wind-water-federal flood policies issue and, frankly, this lawsuit just seems like more of the same old. We'll see. This one involves the Rigsby sisters -- about whom I have one question: isn't their one year, $150,000 consulting contract with Scruggs just about up? Is the contract going to be renewed? This lawsuit should just about cover all the potential political, public relations and legal fronts Dickie Scruggs can create to enhance his leverage.
I thought the reasoning here was pretty weak. This Times-Picayune story on the Fifth Circuit's decision in In Re Katrina Canal Breaches Litigation made no sense to me: the decision was wrong because two of the three-judge panel were appointed by Bush and all three are from Texas and therefore don't understand Louisiana law. I guess I really don't need to say any more than that, nothing I could say would make that argument look as flaccid as just repeating what it says.
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Scruggs-backed candidate 'toasts' Mississippi Insurance Commissioner Dale
I'll tell you what, before I started blogging about Katrina issues, I never would have dreamed that I would spend a Tuesday night in August watching streaming TV coverage of a Mississippi primary election. But that's exactly what I did last night: heck, I know more about some of these people than I do the elected officials in my own state. Plus I got to hear all the great inside dope on the live feed, like the election anchors on WAPT-TV bickering at the break -- the phrase "Stay with me, Joyce" comes to mind.
The race I was most interested in, of course, was the Insurance Commissioner position. For those that don't follow this much, the eight-term incumbent, George Dale, ran afoul of tobacco, asbestos and policyholder lawyer Dickie Scruggs and many other Mississippians who believed he was too soft on insurance companies. In the Democratic primary, I watched as Dale started out at 45 percent and then began creeping up, slowly, slowly, slowly as the night went along, like a guy fighting his way forward in the face of hurricane force political winds fueled in part by big Dickie Scruggs dollars, but ultimately stalling about 11,000 votes short out of 400,000 cast. Those 400,000 votes were by far the most in any of the statewide races. Speaking of Scruggs, did you see the news about the Mississippians for Fair Elections, the anti-Dale PAC? According to Y'all Politics, here's the scoop:
Mississippians for Fair Elections, the inaptly christened PAC that is supporting Gary Anderson in his Democratic campaign challenge to Insurance Commissioner George Dale, missed Tuesday's filing deadline for its campaign finance disclosure. When the Mystery PAC finally did file, late, its disclosure showed only two transactions: the $250,000 contribution bragged about by Dickie Scruggs, and a $250,000 disbursement to Murphy Putnam Media, LLC. Neither the contribution nor the disbursement is dated as required by law. And no one other than Scruggs has given a dime to the PAC.
Remember when Scruggs called Dale a toadie of State Farm and a pig with lipstick, and said he was "political toast"? You remember when he did that? Although this PAC looks a little like a pig without lipstick, it was effective. It may not matter in the general election this fall, however. One of the commentators on WAPT said that "Republicans are on the march" in Mississippi and are expected to sweep all the statewide offices, with the possible exception of Attorney General.
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Scruggs contempt roundup
Judge Acker's appointment of special prosecutors in the Dickie Scruggs criminal contempt matter has been generating the following buzz:
Jonathan Adler at Volokh. The real fun is in the comments, make sure to read them. One commenter calls it a "minor . . . infraction." Minor? For a lawyer, it's never a minor thing to willfully disobey a judge's order, if that is what Scruggs did.
The InsiderExclusive TV show "is currently investigating how the U.S. attorney in Alabama [Alice Martin] earlier this week declined a federal judge’s request to prosecute Dickie Scruggs and his Mississippi law firm for criminal contempt in a case relating to Hurricane Katrina insurance claims." I don't know of this show but I'd certainly be interested in the results of the investigation.
Here's a post called "Alice Martin: Queen of Schemes." This post is at a site calling itself "Legal Schnauzer," it has a picture of a schnauzer jumping in the air with the caption "You want to mess with me?" and bills itself as "One couple's encounter with corrupt judges, slimy lawyers, and incompetent prosecutors in Alabama. . . and how you can avoid being cheated by the vermin who make a mockery of our justice system." Have to admit I've never liked schnauzers, especially ones that jump.
John O'Brien of Legal NewsOnline has a story on developments.
Amir Efrati has a good post at the Wall Street Journal Law Blog, including comments from one of the special prosecutors. Again, check out the comments.
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Scruggs post redux
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U.S. Attorney's Office declines prosecution of Dickie Scruggs
U.S. Attorney Alice Martin of the Northern District of Alabama has declined Judge William Acker's request to prosecute Dickie Scruggs for alleged criminal contempt stemming from the E.A. Renfroe lawsuit against the "whistleblower" Rigsby sisters.
According to this story, Martin didn't say much about her reasons. Acker, of course, has a back-up plan: he said he would appoint another attorney to prosecute if Martin declined. No word yet on when that is going to happen or who will be chosen. You can read more about this whole hullabaloo at this post I did earlier this year. I looked for Martin's declination letter to Acker on Martin's website, but didn't find it. I was relieved to find, however, that the website lists a "Kids Page" so youngsters can get the full flavor of the justice system. Among the useful information on the Kids Page is this:
What does the judge wear?
Judges wear robes in court and under the robe the judge wears regular clothes.
I notice they left out one important fact, however -- the best thing about wearing that black robe has got to be that you never have to worry whether your belt matches your shoes.
I know what some of you are thinking, I'm a day late with this story. Well, it's true, but you try finding a place to get decent Wi-Fi in Newport, Oregon, where my family was vacationing this week. After sitting in the Newport Public Library for two hours trying to keep connected, I just about whipped out that reserve telephone cord I keep to try dial-up, but to be honest, I couldn't face doing that. It would be unbearably primitive, like plowing a field with a mule instead of a tractor, or writing on a typewriter instead of a laptop. I mean, if we're going to go back to caveman days I might as well forget about blogging and try to communicate with a big drum, a newsletter or some such other troglodytic accoutrement.
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Coverage College
If you long to return to that college setting you remember so fondly, the White and Williams firm, in Philadelphia, will be holding a Coverage College at the University of Pennsylvania on September 19. The subject of the discussions will be claims handling, as the attached brochure shows.
Best features of the Coverage College:
- Includes discussions led by Randy Maniloff, my good friend and one heck of a coverage lawyer and insurance writer.
- No tuition -- totally free of charge. You will emerge from this program no further in debt than you already are!
- No need to hit up Mom and Dad for spending money.
- No pants worn at thigh level; ball caps may not point backwards or to the side, bills must face the front.
- No SATs.
- A very comprehensive-looking one-day program.
- Easy curve in grading.
- I have been assured there will be no freshman hazing this year.
- No worries about how you are going to support yourself when you get out of school -- you already have a job!
I'm informed that space is limited, and those who wish to attend should sign up soon, or as they used to say on ESPN's Sports Center: those who are late will not get fruit cup.
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More on Judge Robert Keeton
I wrote about the passing of Judge Robert Keeton, an outstanding scholar, teacher and jurist in this post recently. I just found out about this fine tribute to him on the University of Texas website, and thought you might like to read more about him. As you may or may not know, he was the younger brother of W. Page Keeton of Prosser and Keeton on Torts renown, and was himself involved with revisions to the book.
UPDATE: After I wrote this post, I was doing some thinking and reading about mentor programs in law firms -- specifically why they so seldom work -- and was reminded of a question someone asked me once: what's the primary characteristic of a good teacher? The answer: a good teacher is primarily a student himself. One who is always looking for more answers, and better answers, knows the questions you will ask, because he has already asked them of himself. From what I hear and read, Judge Keeton certainly fits that description.
Posted By David Rossmiller In Miscellaneous
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New reinsurance blog
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Another survey finds consumer misperceptions about auto, home insurance
It's not so surprising when surveys show that the public doesn't understand what their auto or home insurance policies cover -- frankly, many people only have them at all because the law or a mortgage or car lender requires it. If the law didn't require minimum limits on auto insurance, what percentage of people do you think would buy it anyway? I don't know if anyone has ever tested for that answer, but my guess is a third to a half of the public would not buy any liability insurance at all.
Here's a survey done on behalf of MetLife that contains a perplexing fact. About 45 percent of people who rent cars purchase one form or another of insurance over the counter, even though most of them are covered by their own primary auto policies. What is the thinking behind these purchases? Let me ask the question this way. If someone knew their auto policy had lapsed, but needed to drive to work that day and wouldn't be able to renew the policy until tomorrow, what percentage of folks would go ahead and drive the car uninsured for just one day? A lot. After all, we drive every day and the chances of being in an accident on any given day are small. So why, even leaving out the fact that most people are covered for collision and liability by their own primary insurance, does the analysis change when it comes to renting a car? You tell me, I don't know the answer.
This post on Slate concerns a similar phenomenon -- people overinsuring against small risks. This is something that has been measured in a variety of contexts: for example, if you ask people how much they would pay in the increased price of a product to reduce the chance of being severely harmed by that product from one in a million to one in 10 million, it is surprising that most people would pay a substantial premium for this, even though their chance of being hurt is already so small as to be disregarded, and even though they nonchalantly face much greater risks every day. Some see this a evidence that models that assume rational economic behavior in all instances are incomplete at best and at worst examples of foolish intellectual pride and blind faith in the cosmos of rationality. Or perhaps it is not the assumption of rationality that is flawed, but the implementation of it: people may misunderstand basic facts that lead their calculations of rationality to false conclusions.
Posted By David Rossmiller In Miscellaneous
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Judge Robert Keeton, RIP
One of the great intellects of the law, Judge Robert Keeton of Massachusetts, died earlier this week. Back when he was a professor at Harvard in 1970, Keeton, in a pivotal law review article, gave a name to the "reasonable expectations" doctrine, which he said was merely an empirical observation of what courts were already doing in insurance contract cases. Although the doctrine is recognized in some form by half to three-quarters of the states -- depending on who is doing the counting and when -- the "hard" form of the doctrine as explained by Keeton has actually been repudiated in the overwhelming majority of states.
The reasonable expectations doctrine was summarized by Keeton as follows: "The objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations." In other words, even when the policy is unambiguous and clearly does not cover a loss, in some cases a court could find the policy nevertheless should provide coverage based on the insured's reasonable expectations at the time of contracting. An example of a state where this doctrine was used for some time and then discredited as a tool for judicial rewriting of contracts is Michigan, where in Wilkie v. Auto-Owners Ins. Co., 469 Mich. 41 (2003), the court had this to say:
In contrast to this legal pedigree [of strictly enforcing the clear language of contracts] extending over the centuries, the rule of reasonable expectations is of recent origin. Moreover, it is antagonistic to this understanding of the rule of law, and is, accordingly, in our view, invalid as an approach to contract interpretation.
The rule of reasonable expectations had innocent origins in 1970. Professor Robert E.Keeton of Harvard Law School wrote an article entitled Insurance law rights at variance with policy provisions, 83 Harv. L.R. 961, 967 (1970), in which he examined and attempted to rationalize a number of cases in which the results appeared to defy the principle that contracts will be construed according to their unambiguous terms. To explain this phenomenon, as best he could, he concluded that certain courts would evidently not enforce clear contract language in the face of one of the parties' “reasonable expectations” of coverage . . . .Whether Professor Keeton intended this analysis to spawn a frontal assault on the ability of our citizens to manage, by contract, their own affairs, it had that effect because numerous courts, to one degree or another, adopted some form of the rule.
I have always thought there might have been an easier explanation to the phenomenon Keeton said he observed -- what most would simply call results-driven judging, or perhaps in some instances, simple boneheadedness. That would not have made for an explosive law review article, however, because it focuses on the judge's motive or competence rather than the safe harbor of applying a purportedly objectively observable principle.
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Guest blogging
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London bombing
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Guest blogging
I continue my guest blogging at PointofLaw.com today and tomorrow, if you're shocked by my meager output here I have a number of posts up at PoL.
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Scruggs among top contributors to North Dakota politics: it doesn't take much
As many of you know, I am a NoDak in exile and keep tabs on what goes on back in paradise, a word I use in all sincerity because I had a great time growing up in NoDak. This item intrigued me: it says Dickie Scruggs is among the top six contributors to North Dakota Democrats. His contribution: $10,000. Politics is pretty cheap in NoDak, if any of you are thinking of making a run for U.S. Senator, that's the place to go. If you weren't born there, of course, that is going to be a huge handicap because it will be assumed you are crazy and know little to nothing about what really matters in life, but the voting population is less than half a million, and with some effort you could meet nearly everyone and convince them you're not some wacko with weird big city ways. Below are some guidelines.
Fashion tip: get used to wearing jeans, solid color dress shirts or blouses are OK, plaid is better.
Choice of campaign vehicle: club cab pickup is mandatory. Do not wash pickup too often: too flashy.
Headgear: male candidates should have cowboy hat handy, I am willing to serve as paid consultant to tell you when it is appropriate to wear it and when you should merely have it nearby, it's too complicated to explain here. For women, no headgear is necessary, but always don baseball caps with "fun" slogans and sayings when they are presented to you.
Accent: Norwegian accent is best. High Plains nasal intonations work -- if you can fake a Canadian accent without using "Eh" or saying "beauty" or "hoser," that will be close enough.
Drink: Soda is "pop." Do not forget this. Repeat: do not ask for "soda." Avoid potential faux pas by drinking only coffee or alcohol, both are very popular beverages.
Meals: breakfast, dinner, supper. There not only is no free lunch, there is no lunch at all. You must drop "lunch" from your vocabulary. UPDATE: A reader was perplexed by this and asked whether NoDaks don't eat at noon. The noon meal is called dinner, supper is the evening meal. Breakfast is eaten in the morning, or according to the advertising of certain restaurants, anytime. Thus, there is no lunch, and I might add, also no "brunch." SECOND UPDATE: Someone else asked me why this is. I don't know, it has never occurred to me to wonder why, it just is a fact of life in North Dakota like lots of wind, lots of cold and lots of mosquitoes. Wondering why would be crazy, like asking my dad why I had to haul hay bales or drive tractor when I was a kid -- that's just the way it is. By the way, you must master this thought process or you will not make it in NoDak at all, much less be elected senator.
Tips on driving on gravel roads: speed up when a vehicle approaches, it will build an air pocket that will deflect flying rocks and keep your pickup from getting pelted. When vehicles approach at high speed in the middle of the road, do not pull further to the right, you may lose control in the soft gravel of the shoulder. Instead, drive fast down the middle of the road yourself -- they will probably eventually get over to their own side. Hold the wheel casually with three fingers of one hand to show passengers and other driver you have no fear: avoid the two-handed white-knuckle death grip at all costs, it will brand you as unfit to drive and to lead.
Political affiliation: Republican is best, moderate to conservative Democratic also works well (both senators and the state's lone U.S. Representative are Democrats). Pro-farm subsidy is mandatory, as is pro-Second Amendment stance and demonstrated ability to use guns. The local definition of moderate to conservative may surprise you -- state's heritage is being stepped on and mocked by the powers that be, and most residents are descendants of semi-serfs who fled oppressive regimes: radical populist talk goes over very big.
Where to be seen: county fairs, high school and college sporting events, duck hunting season, fishing derbies, demolition derbies (people drive old cars and crash into one another in a big dirt arena), tractor pulls, rodeos, parades, senior citizen centers, American Legion posts, lutefisk suppers. If the idea of eating lutefisk -- codfish soaked in lye -- shocks you, rethink political plans. Remember that secretly, no one else really likes it either, it is merely a cultural artifact.
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Guest blogging
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Lott: 'I've already offended everybody'
Some people have a way with words; for others, words have their way with them. You decide which category Sen. Trent Lott falls into. Here's a story from the Sun Herald about his latest, and here is the money quote:
"I don't worry about offending anybody anymore, " said Lott, "because I've already offended everybody."
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New coverage blog
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Where is Jim Hood's lawsuit?
Back on May 1 when I did this post, I wrote on my electronic calendar to check in a month if anything had been done. The subject of the post is something you may remember: Mississippi AG Jim Hood announced that he was in the final stages of drafting a new lawsuit where he would sue State Farm for allegedly breaching its agreement to get a class of hurricane victims certified, and then settle the class action. Well, today is June 8, and I haven't heard of this lawsuit being filed. Did it get filed and I missed all the stories on it? I thought it was in the "final stages" a month ago, what is Jim Hood doing, billing by the hour?
I ran across this verbiage yesterday that looks like a newspaper editorial about the Hood lawsuit, but it's difficult to tell from the words what is going on, which is not an attractive quality in a newspaper article. Part of it speaks of a "plan" to renew Hood's lawsuit against State Farm. Another part suggests the lawsuit has been filed, otherwise why would one "withdraw" it? But seeing as I have a word search on my feedreader that combs the Web 24/7 like hungry electronic ants looking for stories about Jim Hood to bring back to the ant hill, I would think it is about as likely that I would miss this news as that I would fail to hear the relentless jackhammering of the street under my office window for the past three months as Portland installs more light rail tracks.
Posted By David Rossmiller In Miscellaneous
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A senator's wild ride
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Blogging schedule
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Memorial Day 2007
I wrote the post below last year for Memorial Day as a tribute to my Dad, who served as a soldier during World War II. I've thought of his service often, and have read many books about war and military history to try to understand what he did, what he went through, and also who he was. As Dickens pointed out in A Tale of Two Cities, the human heart is a mystery even to those closest to us, and there are many things I know about my Dad, but so much I don't.
I do know this much. He was born to farmers, he farmed before he went to war, and he came back home to farm. In a way, he was a descendant of the citizen-soldiers during the Peloponnesian War -- farmers who left the land to put on armor and engage in a widespread conflagration, shipped out to fight in places they knew little about. For soldiers in the era of classical Greece, the highest honor was not to kill or stand out as a hero, but to stay in line, not run away, and support the man standing next to you. And so it is to this day. (The classicist Victor Davis Hanson has done impressive work in tracing the origins of Western military discipline, methods of fighting and ethos back to ancient Greece). I also know that my Dad was wounded once -- some shrapnel from an exploding artillery shell struck him in the neck -- but he must have refrained from applying for a Purple Heart, because it is not among his battle decorations. I know of it only because I directly asked him once if he had been shot during the war, and he never mentioned it to me again. Knowing my Dad, he would have been embarrassed to get a decoration for his wound when so many others were hurt much worse or killed.
I also know this: he was a tough, tough man in every sense. He did whatever work he could find to earn money during the Depression -- he was one of 12 kids in his family. He did some farming for his father, he dug ditches and planted trees for the government. He enlisted before the United States entered World War II, and came back home after a brutal war in which he had seen a great deal of savage behavior by Japanese Imperial Army, but I never heard him say one word of hate against the Japanese. He was the kind of man who worked on the oil rigs in 40-below weather in the winter to feed his family during years the crops had failed. When it was too cold to start the car, he walked four miles to town in a blizzard to get kerosene and supplies. He was tough enough to fight some of the best soldiers that ever lived -- Japanese Imperial Marines -- in jungles and mountains (how much he must have hated that, being from flat, treeless North Dakota). He was tough enough to have seen many people killed -- besides deaths in straight-up combat, his unit was chronically short of officers because they were constantly killed in camp and behind the front lines by Japanese snipers -- and never talk of wanting to hurt other people. And he was also tough enough to deliver me and one of my older sisters when we were born, with the nearest doctor 20 miles away. I guess he had helped so many calves to be born, he thought how hard can it be to bring a baby into the world. He taught me how to work hard, how to see humanity even in people you don't like, how to keep going ahead when things don't go your way and you feel like quitting. He died in 1984. I don't think a single day has passed since then that I haven't thought of him.
Here's the post from last year, updated to make the year current.
_____________________________________________
Sixty-two years ago this month, the men of the Sixth Infantry Division, U.S. Army, were in their fifth month of fighting the Japanese Imperial Army on the island of Luzon, the Philippines. They had just cracked the Shimbu line after a two-month battle in which the division's three regiments were thrown into a battle against 14,000 Japanese soldiers waiting in bunkers, pillboxes, trenches and caves. During the Shimbu line battles, every attack was met with a counterattack from the Japanese, who favored night actions and the banzai charge. Many of the Sixth's soldiers were ill with diseases like malaria from fighting in the jungles of New Guinea the prior year against elite Imperial Marines.
At that time, in late May 1945, plans were being drawn up for Operation Coronet, the invasion of Honshu, Japan, which was to begin on March 1, 1946. Operation Coronet was to follow Operation Olympic, the invasion of Kyushu, which was scheduled for November 9, 1945. How many American dead and wounded were expected from these two invasions is disputed, but this much is known for sure -- the Army manufactured 500,000 Purple Hearts in anticipation of the battle for Japan, a stockpile it has yet to exhaust in all the years since. The Order of Battle for Operation Coronet included the landing of eight armored and infantry divisions west of Tokyo Bay. These divisions were then to fight their way north and take the city in conjunction with other U.S. forces. Among those divisions was the Sixth. Among the three regiments of the sixth was the 63rd Infantry Regiment, and among the 63rd's 12 companies was Company C. Among the soldiers of Company C that would have fought their way toward Tokyo, presuming they had not already been killed in their landing transports before they hit the beaches by one of the 10,000 kamikaze planes assembled to oppose the landings, was a young staff sergeant named Fred Rossmiller, my Dad. In addition to the perhaps 400,000 American dead expected in the battle, it was thought 5 million to 10 million Japanese soldiers and civilians would die.
As we now know, Operation Coronet never happened, because the war ended in September 1945. If it hadn't, my Dad might never have made it back to Wildrose, North Dakota, where years later, he delivered me, the fifth of five children, one October morning on our farm. My Dad never said much to me about the war. I asked him once if he had killed in battle. He said he didn't know: he fired at the enemy and they fired at him. If he had killed someone, he had not personally seen it. He then told me a different story, about how when he was fighting in Luzon, he and his unit came upon some members of the Filipino Army, who had captured a Japanese soldier, tied him to a tree and were beating him. My Dad stopped them, but his unit was involved in a battle, and had to move on. They couldn't take the prisoner with them. After his unit moved out, my Dad said, he didn't know what happened.
The mutual enmity between the Japanese and American armies in World War II was extremely high. Yet my Dad had tried to protect this enemy soldier, and apparently thought this a more appropriate lesson for his child than his other combat experiences, because he never talked to me about them in the same kind of detail. Mostly, what I know of the Sixth and its battles I have read in the official division history and elsewhere.
In the abstract, it may sound like a cliche to talk about honoring those who have served and sacrificed for our nation. But that abstract concept of service and sacrifice is made up of millions of individual real acts by real people who did things like carry a 70-pound machine gun on their backs through dense, mountainous jungle, and sleep with their boots on both to keep snakes and bugs out and to be ready for an enemy suicide attack. People like my Dad, who fought in 306 days of combat, the last 219 of them consecutive, and then went home and farmed, didn't complain, and didn't talk much about what he had done. There is a word for people like that, people like my Dad: heroes. And they have Memorial Day lest we forget.
Posted By David Rossmiller In Miscellaneous
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Another wind vs. water debate
Federal and Louisiana officials are at each other's throats over a shortfall in the Louisiana Road Home aid program, which was supposed to compensate Hurricane Katrina victims for flood damage, even where they didn't have federal flood insurance. The program, stocked with federal money but administered in large part by the state, will come up an estimated $2 billion to $6 billion short. Why? Because Louisiana officials paid out the money not only for flood damage but for wind damage too, and there wasn't enough to go around.
Louisiana officials are incensed that the feds aren't necessarily ready to roll out a convoy of money trucks, and the reason they are incensed is because -- you guessed it -- they say the people have already been ripped off by the insurance companies that didn't pay for wind damage, and now the federal government doesn't want to pay for it either! Wait a minute, I thought the story line was that insurance companies had raided the federal Treasury by dumping all the wind damage onto federally backed flood policies. But I guess that story doesn't sell if people didn't have insurance at all, or if they had coverage that was less than the value of the wind damage.
Here is some of the action from a story in the Times-Picayune:
Gov. Kathleen Blanco and Andy Kopplin, executive director of the Louisiana Recovery Authority, the state agency that created the Road Home, were incensed by the latest federal rebuke of the program.
"It comes as no surprise to anyone in the administration that we believed our program should not discriminate between houses ruined by wind versus water," Blanco said Wednesday. "Insurance companies left many people shortchanged, and now our own federal government wants to do the same. I had hoped that we had grown past these evil political winds."
Setting aside for the moment the question of how one can grow past winds, evil or not, doesn't this strike anyone as the last refuge of state authorities that have botched everything from the Katrina evacuation to managing the state-run insurer to handing out aid money? What's next, are they going to blame their problems on Sasquatch, or as I believe some call him in Florida and possibly Louisiana, the Skunk Ape?
Here's another story that is less accepting of the line from Louisiana officials, by Peter Whoriskey of the Washington Post.
Incidentally, if you follow the link above to the Sasquatch video, the authenticity of this has been questioned many times. I've watched this very closely, and it appears to me he is wearing a pair of white Keds sneakers. Doesn't mean it's not real, of course, but come on, his name is Bigfoot, where is he going to find a pair of size 36 shoes? In a big, tall and hairy men's shop?
Posted By David Rossmiller In Miscellaneous
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Blog business
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Damage from hurricanes and tsunamis alike
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Justice: external reality or human construct?
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New coverage blog
This is a welcome development. Pennsylvania lawyer Richard Victoria has started an insurance coverage blog devoted to Pennsylvania insurance law. I wish there were more folks blogging about coverage law, because I consider it the most intellectually stimulating and challenging field of law on the face of the Earth, and I love to read and write about it. Although, due to some absences in our office, not long ago I had to step in and write an amicus brief on an anti-trust issue, and I will admit that was also pretty challenging and fun. But as attractive as anti-trust is, coverage is the one that stole my heart.
I often try to get other lawyers interested in blogging, but mostly I'm afraid I actually scare them off, because when they hear how much time I put into this blog, they fall silent and find sudden interest in looking at the floor or examining their fingernails. But that is the great thing about blogging, I'm just being me here. I'm doing what I like to do. You are someone else and you undoubtedly do things a different way, and that is what would make your blog unique and valuable. Blogging about insurance coverage is all about contributing to the debate, stripping away the blah blah blah and getting to the essence of communication with other people. Some of you out there -- and you know who I am talking to -- really ought to seriously consider it.
You would have your own reasons for blogging: for myself, I keep doing it because I enjoy storytelling. Many people think of NoDak, where I grew up, as a bland, colorless place, but it is far from that. NoDaks tend to be uncomfortable with direct speech, viewing it as rude, a sort of invasion of another's personhood, and so communicate in allegories, metaphors and stories. One of my favorite stories is about our nearest neighbor on the farm, Earl Nelson. I have heard my brother tell this story at least 30 times, and to me, it just gets funnier every single time I hear it. Now that Earl has passed on, it has taken on a special poignancy to me, a tale of a time that was and is no more. One day Earl was out baling, and some malfunction occurred with the baler, probably the baler got jammed with hay. Now, a baler is pulled behind the tractor, and runs off the tractor's power take-off, or PTO, which is a rotary shaft that turns at an incredibly and dangerous high speed. As Earl got the baler unclogged, he activated the PTO to make sure the baler was working, and the PTO caught his pants, tore his clothes off and threw him a good distance. Fortunately and somewhat remarkably, he was unhurt. He walked across the fields to his home, now wearing only his shorts and boots. As he walked in the door, his wife, Leone, said, "Earl, what happened to your clothes?" Earl responded, "Well, I got caught in the PTO and it tore them off." Leone said, in that strong Norwegian accent of hers, "Dammit Earl, them was a brand new pair of overalls."
Posted By David Rossmiller In Miscellaneous
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Mississippi Insurance Commissioner Dale back on Democratic primary ballot
The kind of story that really interests me is one where, say, a multi-gajillionaire plaintiff lawyer takes out after a state insurance commissioner, a position most people, under normal circumstances, don't even know exists much less care who is in it, and depicts him as a pig wearing lipstick. But as we have been discussing for some months now, the circumstances in Mississippi are pretty far from normal right now.
Well, this is a further development in that story: George Dale is back on the Democratic primary ballot, although it's not entirely clear he wanted to be. I can't wait to see the campaign: undoubtedly, the anti-Dale folks will be handing out plenty of bacon and lipstick at campaign rallies.
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Blogging Schedule
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Amibiguity in insurance policies
I was reading this article on one court's decision when confronted with a difficult-to-decipher policy term. Somewhat surprisingly, even though the judge said the provision was "nonsensical," an "absurdity," and "does not make sense," he found it unambiguously excluded all asbestos-caused diseases, not merely asbestosis. The words used in the exclusion were "exposure to or the contracting of asbestosis." I have seen courts find ambiguity on much, much less: some courts need about as much prompting to find ambiguity as I do to play chess against Shredder. In other words, not much prompting. Ambiguity is the great deus ex machina of coverage law: you never know when a judge will drop it from the sky and just end the whole shebang.
In any event, read the article, which is by Randy Maniloff and his colleague Jennifer Wojciechowski, a name which, I have on good authority, is sometimes shortened to J-Wo for ease of pronunciation.
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Florida no-fault insurance
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Should insurers decide to pay based on 'moral' considerations?
I agree with the reasoning reflected in this post -- insurers' obligations to pay must be determined by the language of the contract and the facts of the event, not squishy concepts of what people need when they suffer a loss. And I have to say that if I didn't agree with it, engaging in coverage analysis and litigation, whether for insurers or policyholders, would be the wrong field for me: the right field for me would be politics, where you can say anything you want, no matter how stupid, as long as you posit some supposed moral imperative.
Now, contract interpretation and performance are not inherently amoral -- Kant's concept of a categorical imperative would say the same thing. Obviously, bad faith laws also recognize that there is a duty to treat others as you would be treated yourself. But that is not what we're talking about. Instead, we are talking about the idea that deciding to just say the heck with the contract and pay to each according to his need can itself be an immoral act. If you don't buy that, run it through Kant's three categorical imperatives and you will see that I am right. That is as much philosophy as I am going to talk today, because I have a friend who has an advanced degree in philosophy and he is the kind who always wants to correct some aspect of what you say about any given ethos. So the less I say, the less the danger I will have to listen to him.
One last thing. In writing this post, I was doing some channel surfing on the Web, going from a search window on, say, NFL mock drafts to a search window on morality in contract law, and I ran across this scholarly article. Let me ask you a favor. Read the first big paragraph, and give me a summary in one sentence of 20 words or less of what the author is saying. I am almost totally at a loss as to what is being said, but here is my guess: "Theories about how contracts should work depend on assumptions about how contracts actually do work, but these assumptions can be wrong." You see? I couldn't do it in less than 21, and my guess may be way off base. I made a determined effort to read this article, mostly out of curiosity as to what the author is talking about, but I got to only about page 8. The biggest stumbling block? Besides the obvious, the word qua is used, and I hate the word qua. If I met qua on the street I might physically attack it -- at the very least I would call the authorities. About page 8 these resentments built up to such a degree I couldn't go on.
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Full text RSS
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Blog business
As one blogger to another, today I give a shout out to Zach Scruggs of the Scruggs Katrina Group for taking the time to fix his post by signing his name, after I wondered if someone else was posting on the Scruggs blog.
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Sacramento flood vote
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The 'toast' of Mississippi
Dickie Scruggs has declared Mississippi Insurance Commissioner George Dale "political toast," and took out a full-page ad in a Jackson newspaper depicting Dale as a pig with lipstick. Yes, you read that correctly.
The link above has a further link to a TV news video on the ad. The TV clip contains an interview with Scruggs in which he says something true: the Katrina claims are not just legal battles, they are public relations and political battles. However, if he thinks this cartoon ad is effective public relations, I'm not convinced. The ad, which when I read about it sounded merely pretty dumb, turned out to be uncreative, childish and disreputable when I actually saw it. I suppose the only ad that would have been more hackneyed and stale would be a cartoon in the old Marxist style: one that depicts Dale and State Farm officials as top-hatted swells with long-tailed tuxedos standing on the battlements, wielding rolled up insurance policies that they use to club down ragged and desperate Mississippians as the people try to climb the walls to flee rising Katrina flood surge.
UPDATE: Here's a better view of the ad, which is featured prominently on the Scruggs Katrina Group website. (Originally I said it was the Scruggs blog but was mistaken). The ad was also linked to on mississippipolitics.com, which has a few interesting comments from state residents about Scruggs and the ad.
Posted By David Rossmiller In Miscellaneous
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The Night They Drove Old Dixie Down
I'm taking a break from all the Katrina coverage today (but don't forget to scroll below and read my post from yesterday afternoon about Dickie Scruggs being sued). I was thinking about the many people I've gotten to know in Mississippi and elsewhere in the South, and I thought of The Band playing The Night They Drove Old Dixie Down. Seven great things about this song:
- I'm told it's totally authentic from the South's perspective, even though it was primarily written by Robbie Robertson, a guy from Canada. He did have a lot of help from Levon Helm, from Arkansas.
- It's got the right lyrics, not the fake lyrics in the Joan Baez version.
- If you ever want to see a singer completely nail a song, watch Levon sing this -- nothing but raw emotion.
- No Joan Baez, who does a bubblegum version and is not convincing singing a song in which she is supposed to be someone named "Virgil Caine" from Tennessee.
- The line where Virgil's wife says, "Virgil, quick come and see, there goes Robert E. Lee." Even though it is known Lee never visited Tennessee after the war, the line makes sense, because there were many false sightings of Lee throughout the South. Just like Elvis, some people wanted to see him so badly, they did. Similarly, many African-Americans reported seeing Abraham Lincoln. Here's a link to comprehensive discussion of this song including the interpretation of the lyrics. Some say the line is a reference to a riverboat named the Robert E. Lee. However, the official sheet music apparently has no "the," and since Levon's autobiography shows he was anxious that the song pay due respect to Lee, it's unlikely that respect would take the form of singing about a boat. Another reason not to believe the riverboat tale: Baez sings "the Robert E. Lee" and this video of her version has a picture of a riverboat. Al Capp sure had her number when he tagged her "Joanie Phonie."
- The reference to "Stoneman's cavalry" tearing up the Danville tracks again. Authenticity. George Stoneman was passe even before the Civil War was over -- no one was talking about him 100 years later, except in this song. Somehow in Baez's version it becomes "so much cavalry." So much cavalry came? You've got to be kidding me. Who would say such a stupid thing? Not Virgil Caine. Fake.
- The line "You take what you need and you leave the rest, but they should never have taken the very best." To me, that ranks among the most memorable and chilling lines I've ever heard. Number one for me, of course, having grown up in NoDak on tales of the sky turned black at noon as the wind blew the fields away during the Depression, and drove tens of thousands from the land, is T.S. Eliot's line from The Wasteland: "I will show you fear in a handful of dust." But it's right up there with Eliot.
In fairness, I don't know if Baez had anything to do with the pictures on the version I linked to above, because you can find the same pictures on another version of The Band's song on You Tube. But whoever did the pictures must have lost their mind: one image is of a big sign that says "Danville, Pa." You think Stoneman, a Union Army commander, is going to be raiding railroad tracks in Pennsylvania? Wake up, Pennsylvania was on his side! The song is clearly referring to Danville, Virginia and the Richmond and Danville Railroad. Of course, if you think the words are "so much cavalry," maybe you'd also think there was so much cavalry they got crowded out of the South and had to make do with tearing up whatever they could find up North.
UPDATE: Here is a version of the song by an older, and I would be tempted to say wiser, Joan Baez, except for the fact that I've heard her talk. In this version, she got "Stoneman's cavalry" right and also left out the "the" before Robert E. Lee. Still no soul to her singing of the song, however. And what's with the part where she is still singing "I took the train to Richmond that fell?" Didn't she just admit that Stoneman's cavalry tore up the tracks again, and that's why Virgil isn't on the Danville train anymore? What did the train travel on, long strings of hippie beads? A reader gave me some grief for not linking to the Grateful Dead singing this song, which they probably did at every concert. I love Garcia and the Dead but couldn't find a video on You Tube. Hard to believe, I know, with all the video that was shot at Dead concerts.
SECOND UPDATE: I get an incredible number of hits on this post and some very positive response, which is good to hear considering I am an insurance lawyer and by no means a music expert. One inaccuracy in the UPDATE above, but the same reader who gave me grief later informed me it was not the Dead that sang this song (he said he knows of no concert at which they sang this), but it was instead the Jerry Garcia Band that made the song one of its standards. Different animal entirely. Couldn't find a link on You Tube, sorry.
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March 22 Grab Bag
Some unfinished blog business:
-- A couple days I posted further about the Florida insurance mess. Before I did, I wish I had seen this post at another site, by Prof. Seth Chandler of the University of Houston Law Center. He makes some good points that, frankly, when I wrote my post late at night, I was too tired to get into. This is some very clear thinking on the part of Prof. Chandler. It would have been a good link with my post, but better late than never.
-- Thanks to Ted Frank of PointofLaw for the kind words recently. Ted is an outstanding legal mind, scholar and blogger, so those words mean a lot. Thanks also to Martin Grace at RiskProf, Mike the Actuary and Steve Rosenberg for recent links.
-- Remember the contempt hearing for attorney Dickie Scruggs and the Rigsby sisters? The hearing got moved a second time, from March 21 to March 19 and 20, and so far the results aren't in. I checked the electronic docket in the case yesterday, and saw Judge Acker had ruled in a minute order that criminal contempt would not be pursued, and that he would consider only civil contempt. He apparently is taking the matter under advisement after the hearing, which, from what I can divine from this story, looks like it was a pretty intense affair.
-- George Dale, insurance commissioner of Mississippi, a Democrat, is being kept off the primary ballot by his party because he backed George Bush over John Kerry in 2004. He vows to fight. I suspect some influential and monied elements, perhaps like Dickie Scruggs, may have had a hand in this, and that it might have as much to do with Katrina cases as it does with George Bush.
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Coverage litigation and the magic 8-ball
Randy Maniloff has written a really useful article called Coverage Litigation and the Magic 8-Ball, about the difficulties of predicting the outcome of coverage disputes. This article analyzes something that may not sound exciting, but is actually one of the most philosophically challenging aspects of coverage law: rules of insurance contract interpretation and the process of how courts make their decisions.
As Randy points out, despite the fact that the policy and policy terms are the origin and most important aspects of coverage law, policy language doesn't really mean anything until courts have interpreted it, and there is a lot of coverage litigation. What I like to say is that coverage litigation is the Great Laboratory of the Common Law. Forget about statutes, forget about drafting policies, insurance law is being created right before your eyes in the Katrina cases I discuss daily.
However, despite a mass of case law on many issues, it is surprising how vague, poorly written, incomplete, idiotic or unhinged many coverage decisions are. Often, it appears the person writing the opinion was as unsteady with the subject as a kid on her first bike ride. Courts also vary their approaches to insurance contract interpretation from state to state or frequently, from judge to judge. Randy's article is a useful look at all these issues.
Sidenote -- someone asked me not long ago what I'm going to do after coverage law peters out. This question was based on the assumption that, because many insurers have merged, there must be fewer coverage cases. Take a look around, there are more insurance products, more insurance being bought and sold than ever before in the history of Earth. Just based on that alone, there are going to be more coverage disputes.
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Another Katrina casualty
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Should Jurors Be Allowed To Blog?
A friend sent me a link to this story from the upcoming issue of National Law Journal about a jury foreman who had been blogging, and I was disappointed to find out the juror had not actually live blogged the trial, but had posted a few comments on his blog about not looking forward to jury duty. I had pictured a running commentary something like this:
10:19 a.m. This guy talking must be the lawyer for the criminal. Boooorrrrinnnggg. The judge is sure messing with his computer a lot. You know, I bet he's playing cards up there and isn't paying any attention at all. I think I might be playing him online right now in a Hearts game.
11:37 a.m. Holy cow, this is taking a long time. Can't we just vote guilty and get out of here? My leg is asleep. The Young and the Restless is going to be on soon. I can see the defendant/creep/guilty guy has tattoos. I've noticed that 99.99999 percent of criminals wear tattoos. You know, it's an old saying, but it's a saying because it's so true: they don't arrest you unless you're guilty. On second thought, let's not wrap this up until after lunch, if I have to go through this much, I at least want some free food out of it. I'm the foreman, so I'm voting for Thai food.
3:30 p.m. Just woke up from nap. That Thai food made me sleepy. If anyone is reading my blog from the courtroom audience, can you post a comment on what I missed?
3:51 p.m. Thanks to Angie in the comments for filling me in on what happened during my siesta, you're right, this dude is one bad hombre. I know just how I'm going to deliver the verdict: "Your honor, we the jury find the defendant guilty as hell!"
4:30 p.m. Jeez, looks like the criminal isn't even going to testify. You know, I've watched enough legal shows on TV to know that means you're guilty, but hey, I knew that already. I'm pretty bummed tho, the criminal looks like he has a tattoo of an ax on his Adam's apple, I wanted to see if it makes a chopping motion when he got up and talked and lied about not doing it.
5:30 p.m. There's some really good people on this jury, looks like we're gonna get this done quick, we'll take a vote just as soon as all the jurors get done with their blog entries.
5:47 p.m. Whew, what a relief! I thought this one juror might be some hippie, power to the people, let 'em go type of guy, but he was totally like, let's pull the chain on this loser, man, I want to get back to my crystal store for the beading class I'm teaching tonight.
6:15 p.m. Justice in the rear view mirror. Glad that's done. You could see the criminal guy expected it because you know why? Because he knows he's guilty, that's why, he knows what he did. See you in about 40 years, loser. I just wish there was one final part and that's where the jurors and the whole courtoom get to pelt the convict with rotten fruit and eggs. That would be the real People's Court, baby. OK, baliff, just hand me my 35 bucks per diem or whatever, give me my lovely parting gifts, validate my parking and I'm out of here. What a waste of time!
It was nothing like that at all, so I'm not sure what the big deal is. The blog posts weren't even about this particular case, and didn't seem particularly biased against criminal defendants. Sure, he had an entry about having to listen to "the local riff-raff," but he was probably referring to the lawyers.
I did look up the case in question -- New Hampshire v. Goupil -- and it's from last year. Here's a link. The stuff you want to read starts on page 4, third paragraph. Kevin O'Keefe has some more thoughts and some links to still more thoughts on this issue. (Full disclosure: Kevin is a consultant for this blog and hundreds more through his company Lexblog).
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Blogging Today
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Information And Relevance
Looks like Steve Rosenberg has been eating his Wheaties. This post on Steve's blog about law review articles is well-written and insightful: legal information has a fairly short shelf life, so to be of value, it must be accessible. Information that contains a high barrier to access is like a concrete bunker with machine guns shooting out of it -- you will bypass it in favor of information that is easier to get to. Also, thanks to Steve for the nice compliment about my blog in this thought-provoking post.
Access, of course, implies more than just whether it is easy to find something on a topic, but also whether you care to read it. When I first started practicing, having recently come from journalism, I got into it with some partner who tried to tell me my style of legal writing lacked gravitas. I recall one sentence that set him off was actually pretty conventional, nothing at all like some of the techniques I now use. It went something like this: "The economic loss doctrine, according to the court, arose out of product liability law and has not yet been extended to construction defect cases in this state." This was a guy whose favorite word was "hence," and he just couldn't stand it that I deviated from orthodoxy by putting that attribution in the middle of the sentence, something journalists do frequently to vary the rhythm and cadence of a story. I still remember exactly what he said: "This is not journalism, Dave!" My response? "Obviously not." I completely reject any manner of thinking about writing that places the needs of the writer above those of the reader. The most important thing is to communicate a message: what the delivery system for that message is, I don't particularly care as long as it works, nor do I believe in subordinating the message to a desire to look smart or full of gravitas.
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Happy Valentine's Day
I've been putting in some brutal hours at the office -- and when I say brutal I'm talking World War I trench warfare brutal, I'm talking brutal like going 12 rounds with a Wookie -- and I realized Valentine's Day is here, I've hardly been home in three weeks and there are other things in life to think about. If you can't have some fun in life and be human it isn't worth living, and that applies to insurance blogging too. So Happy Valentine's Day to you and your loved ones. I thought maybe you might enjoy a break to listen to The Long and Winding Road by the Beatles, which is just an absolutely fantastic song on any level, but has a special meaning for my wife and me, because it was the song that played at our wedding at the Boyce Thompson Arboretum in Arizona. What a great, great day that was, and is.
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'Horses Chewed My Car'
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Talk Show Host Convicted Of Auto Fraud
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This Is Good To Hear
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Insurance Litigation And The Attorney-Client Privilege
Today is the end of a week where I've been working so hard colleagues are telling me to put a sleeping bag in my office. Fortunately, on days like this, I can still provide value by pointing out the work of two fine insurance bloggers and free ride on them. Here is Steve Rosenberg's post on the tripartite relationship and attorney-client privilege, and here is a masterwork by Marc Mayerson on policyholders' privileged communications. Fantastic stuff, guys.
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And Now For Something Completely Different
I admit it, I get bored with too much heavy, serious stuff. So here is a video shot by a Portland resident during our snowstorm last week of cars careening out of control on the slippery streets. This first appeared on local TV in Portland and has since gone to YouTube, which will soon have every video ever created. Fortunately, it appears no one was hurt by the car crashes shown in the video. In addition, here's a small story from the Oregonian about who pays the bills for all this.
The Oregonian story surprised me by saying that some might interpret these crashes as "weather events" without any driver fault (Oregon is a fault-based state), meaning a car owner who had his vehicle hit several times would be responsible for his own damage through his own insurance and have to pay a fresh deductible for each collision. Can that be right? As between someone who slides out of control and hits your car, and you, who are just sitting lawfully in a vehicle that is not obstructing traffic, who is more at fault?
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500th Post
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Do Directors Commit Dereliction Of Duty By Failing To Prepare For Bird Flu?
I tell you what, I suspect most directors of companies are like me in that concerns about being wiped out by bird flu fall somewhere behind fear of UFOs at the Chicago airport and anxiety over the possibility of encountering shirtless rednecks on the corner brandishing boorish accouterments like accordions and doing some kind of Irish lord-of-the-dance step.
So I enjoyed this post at the D&O Diary about the hype over possible director liability for failing to prepare adequately for avian flu. The post contains a link to an overdramatic story that concludes with this paragraph (access to the story involves a fairly painless registration):
Directors could find themselves targeted in lawsuits for dereliction of duty. Attorney Mark Mansour, a Washington, D.C.-based partner in the public-affairs practice at Foley & Lardner, points out that Sarbanes-Oxley requires boards to take into account almost every conceivable problem that could put the company in jeopardy. “Not acting to impel management to create a pandemic plan when there’s been all this publicity could be viewed as a lack of fiduciary exercise,” he argues. Adds Kathleen Scott, an attorney with White & Case in New York City: “If the business has trouble functioning, you could have shareholders saying, ‘Why wasn’t there a plan in place?’ You aren’t going to be able to say you hadn’t heard about it.”
Riiiight. Nice try, but let's get real. When the bird flu hits, we'll all be dead: who's going to be around to file suit, some pigeons? More importantly, what contingency plans do the boards have in place about flying saucers and guys wearing farmer pants obstructing a public right of way?
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Dubious Insurance Advertising/Trying To Portray Insurance As Fun
By accident during a Google search, I found this post on a polka website in which the polka artists are featured in an ad for the insurer CNA. (Scroll down a bit and look in the center of the screen, you'll see it among the clutter). I'm going to have to think hard about whether this makes me more or less likely to buy insurance from CNA.
Coincidentally, a friend also made me aware of this website, which proclaims that "Insurance Is Fun" and has a lot of stuff like magnets and hats with wacky messages like "Love Hurts, Insurance Doesn't." Try telling that to my policyholder clients. Now, I'll be the first to tell you that insurance coverage, as an area of intellectual study and as a subspecies of commercial litigation, is very cool. Insurance itself, however? Not so cool. But that's OK. Let's all just remember that it's better to be not cool than to fool yourself that you are cool by wearing hats that say "Bind Me Baby, Insurance Is Fun." If a slogan could change reality, we'd all be seeing ads for "Bismarck, North Dakota: the New Paris." And we're not seeing those. There is a reason for this.
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I Didn't Think These Warnings Were All That Wacky
My experiences growing up in NoDak and later working as a crime reporter may not be typical, and perhaps the people I came to know were by some measures outside, shall we say, the social mainstream, but my first thought when I saw these purportedly wacky, useless warning labels was this: "I can see someone doing that!" Personally I've seen folks do much more ridiculous things many times.
UPDATE: thanks to Ted Frank at Overlawyered for the link. I agree with much of Ted's analysis of the social cost of warnings, particularly his observation that the real issue is whether people have a cause of action for their own lunkhead actions that cause them harm, or in other words, whether they are self-insured for these actions or insured by the manufacturer.
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Blogging Schedule
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Last Post of 2006/Happy New Year
I've had a good time in my first year of blogging and met a lot of great people. What better way to end the year and bring in the new than with this wonderful version of Auld Lang Syne from the 1940 movie Waterloo Bridge, starring Vivien Leigh and Robert Taylor. Here's more information about the movie.
And here, as a bonus, is the Voice, the greatest singer of all time, Frank Sinatra, in his prime with those 1950s muted trumpets blaring, really belting out The Way You Look Tonight. Happy New Year to everyone, may 2007 bring you much joy and prosperity.
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I Wish I Could Defend This Lawsuit
I've had a few contractor problems in my day, so I feel this woman's pain. These plumbers apparently think they are the Real Slim Shady -- it would be fun to mix it up with them.
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Season's Greetings
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Friday Potpourri
-- If you lack sufficient information as to why lawyers are hated as a class, you need only read the comments to this post by Peter Lattman of the Wall Street Journal Law Blog. The commenters appear to agree on only one thing: let pomposity, self-righteousness and rudeness ring throughout the land!
-- News You Can't Use. From the Deccan Herald, in Bangalore, India, here is a headline you don't see much: "Come January, sheep will be insured!" Limit is 10 per shepherd, some income limits apply.
-- December has been a crazy month for me for work, so I haven't had much time to look at new coverage cases. Here's one from a couple weeks back that bears mention: Blue & Gold Fleet, Inc. v. St. Paul Fire and Marine Ins. Co., 2006 WL 3480419 (Cal.App. December 1, 2006). The appeals court found St. Paul had no duty to defend under the Advertising Injury provisions of a CGL for allegations of "unfair business practices" made by a cruise line's competitor. These had to do with alleged below-cost pricing and anti-trust violations. The court said these allegations did not fit into the advertising injury endorsement, which covers injuries arising out "libel, slander, defamation, violation of rights of privacy, piracy, unfair competition, or infringement of copyright, title or slogans." The unfair competition covered by the policy, the court said, is what is often called "passing off" your goods as those of another, and does not include all unfair business practices.
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Wednesday Insurance Melange
A couple quick items for you today:
-- As a result of Hurricane Katrina complications over wind vs. water coverage, State Farm will sell neither along the Mississippi coast. (Homeowners policies traditionally include wind coverage, but flood insurance is available only through a federally backed insurance program). Here is Ted Frank's take at PointofLaw.
-- Here is a good example of cognitive dissonance about insurance. This is a perfectly fine little story that has modest goals -- to put a smile on your face, or plant a seed of frivolity in your mind that may later bloom into the equanimity that protects against life's slings and arrows -- but as Melanie Safka might say, Look What They've Done To My Song, Ma. Look at the readers' comments underneath the story, and see how some people take it seriously and digress.
-- I know there is supposed to be an accent aigu on the word "melange," but I hate looking for symbols and trying to import them over to my blogging program.
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The Tort System As Liability Insurance
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New York DRI Seminar
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What Words Do You Hate?
In response to my post last week about my distaste for the word "blawg," a friend e-mailed me about how he can't stand the phrase "the Supremes" when used to refer to the U.S. Supreme Court. As he says, "It makes me cringe because it is so unoriginal, yet the person writing it thinks they are so creative for using it. I'm cringing just thinking about it."
I concur. I suppose someone who writes or says this phrase might want to be viewed as an insider, but instead they look like some pathetic wannabe. Plus, there is only one group worthy of being called the Supremes, and John Paul Stevens never was in it.
I thought it might be interesting to see what words readers hold in revulsion. What words or usage do you dislike, despise, detest or disdain? Send me your thoughts by e-mail, or, if you prefer, leave a comment below. I'd like to put another post together sometime with responses.
All this has got me thinking about specific words or phrases to which I give the skunk eye, and why. I hate all the Latin and archaic English words I see sprinkled in legal prose, as if the writer thinks they are magic powder. How many times have you gotten a letter that says something "is attached hereto." Of course it's attached hereto, what else is it going to be attached to, your face? I dislike use of the word "literally," because it's almost always used to refer to something that isn't, and "clear" or "clearly," for the same reason. I'm not sure who the writer who pops a "clearly" into every second paragraph is fooling -- probably only himself.
Side note: Here's Kevin O'Keefe's blast against the word blawg. Kevin, of LexBlog, is the blogging consultant for Insurance Coverage Law Blog and many other law blogs. Besides being the St. Paul of legal blogging (not literally), he is a fine blogger in his own right.
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Check This Out
I see a lot of websites and a lot of internet gimmicks, so I'm not easily impressed, but I love this site: BlawgSearch.com. It's got a clean design, it's easy to use, and by clicking on Blawg Directory, I found some great law-related blogs I hadn't heard of before, like this one that I will read closely.
At first, I was not a big fan of the word "blawg," which some people use to describe law blogs. It sounded a little pretentious, which is anathema to NoDaks and NoDaks-in-exile like myself, whose devotion to egalitarianism is so strong as to verge on the snobbish and elitist. I also felt it obscured the fact that legal blogging is the same as any other kind of writing: the author has to be helpful, creative, entertaining and original, or what he writes isn't worth your time. I also admit that the very look of the word "blawg" gave me the willies: it had a sort of redneck appearance to it, and a kind of adolescent "Kilroy Wuz Heer" quality to its unorthodoxy. However, over time "blawg" bugs me less and less. I'm still not going to use the word, but to each his own.
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Potpourri
Work is calling, and calling, and calling, and I was out late last night at the Trail Blazers game (I have three young kids, late for me is anything past 9:30), so there is time only for a couple quick items today.
-- I saw this hyped on a couple of relentlessly shrill sites this morning as a court ruling on Farmers' alleged practice of tying adjusters' compensation to the amount of claims paid out. Instead, it looks like a pretty unremarkable discovery ruling. Here's the ruling: judge for yourself, it's only a few pages long. Credibility is hard to come by, easy to squander. You can't fool people on the Web, they can check it out for themselves.
-- This caught my eye because it started out talking about Jacques Barzun and his recent book, From Dawn to Decadence, which I really liked. This piece is good in its own right: it discusses whether society has actually grown more illiterate, not less, over the centuries. Incidentally, I'll link to anything that talks about Jacques Barzun, because I have fond memories of discovering, while in college, a series of taped discussions between Barzun and Clifton Fadiman on literary matters. It would be difficult to find two more erudite, well-reasoned people, and I spent many an hour listening to their talks.
-- In my never-ending search for Katrina coverage news, one of my 24/7 robot searches returned this item about a federal judge in Louisiana who found flood exclusions in some policies ambiguous. If this is an accurate description of what happened, it would be significant, but because the ruling is 85 pages long, I'm not going to be able to look at it for a while. I take any news reporting on insurance coverage with a grain of salt: reporters have no better idea what a case really says or means than I would have had back in my reporting days, and consequently are dependent on interviews and subject to spin.
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Insight Into The Mind Of A Doctor Sued For Malpractice
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Blogging Schedule
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The Gospel Of Blogging
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Thanks To Readers
With Thanksgiving coming up, I was thinking about all the things I have to be thankful for, including getting the chance to have two wonderful families: first my Mom and Dad and brother and sisters and all the people of Wildrose, North Dakota; and then my wife and three kids and the great folks of Portland, Oregon, one of the friendliest, most supportive cities you will ever find. What a great life I've had, growing up on a farm, then working as a newspaper reporter and earning a living as a writer, and then becoming a lawyer and practicing insurance and commercial litigation at Dunn Carney. Along the way I've met so many amazing people who make me appreciate how varied and resilient life is. I wouldn't change places with anyone on Earth, not if it meant giving up my memories.
I'm also thankful for all the readers of Insurance Coverage Law Blog, especially you folks who take the time to make this blog a regular part of your daily routine. I've gotten to know a number of you and count you as friends, and that is a truly remarkable thing to me, because before I started this blog I can vividly remember a few people who told me insurance coverage is boring and no one would read what I wrote. However, I devoutly believe that it is not a subject that is boring, but the writer. It's been true since the time of Homer and it will always be so: any writing that is any good whatsoever tells a story. A story features some kind of conflict, and there are only three: man vs. man, man vs. nature, man vs. himself. Legal analysis in itself must tell a story to be effective, and that's what this blog is about: a place where we share stories.
One story I want to share today is about Bobbi Fortier Talmadge. When I was a teenager in Wildrose, Bobbi was one of the kids I coached in T-ball and drove to swimming lessons. Her real name is Roberta, but I don't think I've ever heard anyone call her that. I grew up as a Lutheran, but sometimes I went to Mass with Bobbi's family: her mom, Marlene, and sisters Shelley, Denise, Jackie, Suzi and Lois. Now, in case you didn't know, in a very small town or rural area your individuality is constrained somewhat: there just aren't enough people to make things work unless some consensus or group norm emerges. To get anything done, you need to be able to accept people as they are, accept life as it is and make the best of it. Once you decide to do this, a hidden world opens to you, and you can find a current of strength underlying life that ties us together in all sorts of ways you did not suspect. Maybe it is this upbringing that is helping Bobbi tap into a reservoir of strength now. Not even two weeks ago, Bobbi found out she has leukemia, and she's now in the Mayo Clinic getting chemo. Bobbi has three kids, all young. Last week I e-mailed Bobbi and asked her to please let me know what I can do for her and her family. She said just pray for her. Her attitude is that of a fighter who is going to beat this disease -- I've known Bobbi my whole life and that is typical of her. I'll tell you what, that's the kind of person I admire. If you're the praying kind, maybe you'd say a prayer for Bobbi too.
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Blogging Schedule
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A Legal Blog Taxonomy
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Let's Go Blue!
UPDATE: Well, I was totally right. I just missed two things in my prediction: the score and the team that won. Rematch in January, anyone?
As everyone surely knows by now, this Saturday Michigan plays Ohio State in Columbus. The winner will be ranked number 1 in the nation, with a clear path to the national championship. One of my colleagues believes it is "lame" for me to follow the football team of the place where I went to law school, rather than the team of my undergraduate college. (This is a person, obviously, who did not go to Michigan and has never sat in the student section at Michigan Stadium). I am proud of my undergraduate school, Minot State University, but it just so happens it's pretty hard to get worked up over who is going to win the Dakota Athletic Conference in NAIA football this year. Actually, I suspect this person may harbor some Buckeye sympathies, and may in fact be an Ohio State fellow traveler. Or this person may be a mere provincial who lacks understanding that Michigan-Ohio State is the greatest rivalry in North American sports, and that Michigan has dominated this rivalry.
In any event, I'm calling it right here and now. Despite 100,000 Buckeye fans screaming to hang the helmets (Michigan Stadium, by the way, holds more and is the biggest football stadium in the country), here's the score: Michigan 23, Ohio State 17. But no matter who wins, both sides should remember one very important fact: Michigan, not Ohio State, is among the world's top universities academically.
Oh, I almost forgot -- one final thing. Go Blue.
Posted By David Rossmiller In Miscellaneous
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The Fall Of America's Meanest Law Firm
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Hotel Valet Service Lost Her Car, Then Billed Her For Parking
When I worked at the now-defunct Phoenix Gazette, one of my editors dreamed of being named the paper's ombudsman, or more precisely, he dreamed that the paper would create such a position and then appoint him to it. "Ombudsman" is a Swedish word that translated literally means "bought-and-paid-for shill of management," from all evidence. In practice, what an ombudsman does is dither over reader complaints and make tiny concessions to give the appearance but certainly not the reality of addressing reader concerns, for the purpose of making management look better to the board of directors, and to give a stamp of objectivity to journalistic bias from a purported neutral party. It was impressive to me that this fellow wanted the job not for the usual reasons folks wanted to move up at the paper -- more lunches with the publisher, more chances to hold confidential conversations with the managing editor about how dumb everyone else was -- but because he sincerely wanted to serve readers.
I can understand his motivation when I read a piece like this help column, where the writer actually helped a woman whose car had been lost by her hotel's valet service, which then billed her for the parking. That's a good day's work.
Posted By David Rossmiller In Miscellaneous
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Lead Paint And More
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Blogging Schedule
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Luke Debevec Article In The Legal Intelligencer
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When Does Advocacy Pass The Boundaries Of Intellectual Honesty?
I recall that about seven years ago, in a case which featured both tort and contract claims, I was reading an opponent's brief with a sense of amazement. The case law and the legal principles seemed so bizarre and unexpected I had to wonder for a minute if I had completely misunderstood the case. Then I pulled out the Oregon State Bar Tort CLE book to check out some legal principles, and saw what was going on. Opposing counsel had opened the same book, picked a section, and simply cited every case listed on the page. Counsel had apparently written her argument and then plugged in some cases from the book. Didn't matter that the cases had no relevance to our case, or that they didn't actually say what counsel claimed, they filled out the page.
Not more than a couple months later, I was in oral argument for a summary judgment motion in a different case. Opposing counsel got up and spun what I admit was a very engrossing story, although regrettably, almost none of it was consistent with the facts on record in the case. I'd like to report that in both cases judges took note, got ticked off and threw down on these lawyers, but that did not happen. If the judges noticed or cared about getting bad facts or bad law, they kept it a well-hidden secret.
Every lawyer can tell similar tales of folks whose interpretation of "zealous advocacy" includes deviations from basic standards of intellectual honesty. I was thinking about these and other similar examples recently when I was talking with a colleague about giving coverage advice and running coverage or commercial litigation. When doing a coverage analysis, of course, there is no margin for fooling yourself, engaging in sloppy thinking or ripping pages from a CLE and pasting them in your opinion. A coverage opinion is not a piece of advocacy, it is a forthright evaluation of the client's liability, and it is your own legal opinion, your best opinion. While often there is no absolute "right" answer, the analysis must be objective and do honor to the process of reason, not merely seek to tell the client what the lawyer thinks the client wants to hear. In the course of litigation, I sometimes come across coverage opinions that are alarmingly deviant from this model and indulge in partisan argument. I would no more consider writing a legal opinion like that than I would walk down the street juggling jars of nitroglycerin.
Litigation, whether it is coverage litigation or commercial litigation, has a different model from coverage analysis, but the same fundamental intellectual principles apply. To me, advocacy is most effective when it is tied to simplicity and honesty, so that the judge or jury can have faith that, even though you represent just one side of the argument, you are trying to be helpful in giving as complete an explanation and analysis of the law and facts as you can. That's why in my briefs the section analyzing legal principles is not called "Argument," it is called "Discussion." Sure, there are examples like the two cases I mentioned where lawyers engaged in flagrant disregard for reality and didn't pay an immediate price, but counting on luck or inattentive judges is extremely limiting. In the long run, analysis fulfills its potential and is at its most persuasive only when it remains disciplined. Paradoxically, you stand a much better chance of winning when it is apparent you won't say anything to win.
Posted By David Rossmiller In Miscellaneous
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Blogging Schedule
I've been fortunate with this blog to have a lot of dedicated, loyal readers, many of whom visit the site early in the morning, at least early in my time zone. To you folks, good morning. I'm slightly delayed today, so I'll be posting somewhere around 9 a.m. Pacific Time.
Posted By David Rossmiller In Miscellaneous
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Mass. School Bans Tag As Dangerous And Likely To Lead To Liability
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Friday The 13th: Why Is It Unlucky?
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Uninsured Art
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Allegedly Murderous Pair Sued By Feds For Insurance Money
You remember the two women in L.A. who allegedly conned homeless men into applying for life insurance and then killed them for the payoff? The pair are now being sued by the U.S. Attorney's Office, which seeks a forfeiture of $1.8 million seized from the alleged killers. You can't make up stuff as good as this quote by the lawyer for one of the two women:
Golay's lawyer, Roger Jon Diamond, questioned the motivation of the federal lawsuit.
“The government is simply doing the dirty work of the insurance companies,” he said. “Why should federal taxpayers finance a lawsuit designed only to benefit the insurance companies?”
That's the spirit!! When things are looking bleakest, say something outrageous and you never know what might happen. But I've criticized this lawyer in the past for failing to make his best arguments, and I have to do it again. I think the best bet, rather than hoping that even alleged murderers are more popular than insurance companies, is to frame it as a civil liberties thing: when government and insurance companies team up, none of us are safe. How long till they come for you and the insurance money you obtained through alleged fraud and alleged murder?
If you want more sensationalism (and really, who doesn't), this link is your huckleberry and will take you to all my previous posts on this story.
Posted By David Rossmiller In Miscellaneous
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A Blog About Reinsurance
Steve Rosenberg and I were talking the other day about how, among the millions of blogs in the blogosphere, only a few are dedicated to discussing insurance coverage law. This surprises me a little, because I know a lot of lawyers read this blog and because a number of lawyers have asked me about starting a coverage blog. Generally, their interest decreases when I tell them it takes up to two hours a day of unbillable time, that it is really hard work and that I don't view a blog as a great means of communicating with a firm's clients.
I tend to view blogging not as another means of distribution of the same information I already disseminate, but as a new form of communication in which the medium becomes part of the substantive product. It's a good way of meeting new people, learning new information and sharing it with others, and having fun. Despite the hours it takes, blogging is highly idiosyncratic and brings a freedom you may not find in the daily routine of your practice. Give it some thought.
All this is long-winded introduction to ReRisk, a reinsurance blog written by Jolyon Patten, a lawyer in London. Because he is from the UK and I am from NoDak, I can understand only about four-fifths of what he says, but I fill in the 20 percent with my best guess on a translation into NoDak-speak. I enjoy reading his blog and I encourage you to check it out.
Posted By David Rossmiller In Miscellaneous
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Blogging Schedule
Posted By David Rossmiller In Miscellaneous
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Blogging Schedule
Traffic from regular readers is normally pretty heavy early in the morning, so I like to post as early as I can. Regrettably, today I'm slightly delayed and will be posting in about an hour and a half.
UPDATE: I forgot that my blog, unlike some others, doesn't tell you what time I posted, only the day, so saying 8:30 a.m. Pacific Time would have been more informative.
Posted By David Rossmiller In Miscellaneous
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Coverage Quiz: Is Dip In Raw Sewage During Test Drive Covered?
When I was in high school, my math teacher suggested the best way for us to get really good at math was to run numbers through our heads at times where our minds were otherwise unoccupied, like driving tractor somewhere off in a field all day (this was a rural area in NoDak where there was hardly a kid in school whose parents didn't farm). The idea was that if you practiced long enough at, say, multiplying 1,356 times 1,099, math would start to get a lot easier. Right. You know how far that went. I tried it once. If there is anything more boring than sitting on a tractor 12 hours a day it's multiplying large numbers while sitting on a tractor.
However, I find it a lot more interesting to run coverage problems through my head. This post on a message board caught my eye. A couple intended to sell a motorcycle to an acquaintance. Before sealing the deal, he wanted to take a test drive. According to the post, here is what happened next:
He didn't even make it out of the driveway and shot across the street and into the ditch totally submerging the moto in raw sewage.
The buyer then reneged on the deal and threatened to sue, inducing panic in the couple about whether they are covered when the lawsuit hits. What do you think?
I don't know specifically what their policy says, and I can't quite make out what country they are in, but the first step in my analysis would be this question: why is there raw sewage in a ditch across from their house?
This is probably not covered under a homeowners policy because it involves the use of a motor vehicle. Under a vehicle policy, it looks like we're talking about a liability claim rather than a first-party medical claim. Even though the driver was a permissive user, that probably is relevant only if he had collided with a third person and injured them. In that case, the couple would have been covered for claims made by the injured person. Whether he was a permissive user isn't really relevant, however, to whether the couple is covered against liability to him as a result of his operation of their vehicle.
I've seen some test drive cases, but those involved the liability of a dealership to a person who was injured by the negligent test driver, so I'm not sure I've seen this issue addressed before. Consider this: if the bike had merely rolled off the kickstand and knocked this guy into the raw sewage, they'd be covered, because the injuries arose out of their negligent operation of the vehicle. But here, injuries arose out of the guy's own negligent operation, so does that make a difference? I checked my own auto policy, and it says that I'm covered for liability for bodily injuries that arise out of the "ownership, maintenance or use" of a private passenger automobile. So if that's what their policy says, I say they are covered. Liability clearly arose out of their ownership of the bike. They get a defense under the policy, which is the important thing, because this guy's injuries could evaporate like the morning mist, not to mention the issue of his own comparative negligence.
Anyone have another opinion? Think it over on the tractor today.
Posted By David Rossmiller In Miscellaneous
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Blogging Schedule
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Man Who Took Boat To Rescue Katrina Victims Sued By Owner
As a former newspaper reporter, having spent a lot of time around both criminals and politicians, I have a pretty good ear for what bears some semblance of reality and what falls into the category of, to put it politely, blarney. So when I heard about a New Orleans man who was being sued for not returning a boat that he borrowed to rescue Katrina flood victims, I strongly suspected it was a hoax, an urban myth. After all, the tale contains not just one but two of the most popular urban myth themes: a person does good or even heroic deeds and is then punished for them; and a crazy legal system facilitates the committing of injustice by mean, selfish or irrational people. (Note that I do not deny that such things happen. I merely point out that these themes are the backbone of many stories that people feel a deep desire to believe in but are in fact untrue). The role of the supporting characters in the story and their quotes also seemed to fit somewhat too perfectly into the themes.
However, to my surprise the story turned out to be real. Don't be fooled by the fake, cheesy look of the link I provide here, which is to a newspaper forum page (the discussion contains the full text of the story, and I suspect this link will be around longer and will be easier to access than the original story in the New Orleans Times-Picayune). Just to prove the reality to you, here is a link to a pdf of page A-1 of the Times-Picayune the day the story appeared. Mind you, I make no judgment about whether the story is the full story or completely accurate, only that the main events really happened.
Posted By David Rossmiller In Miscellaneous
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Lawsuits For Dummies
You know it's not your day when you get whacked by a store mannequin. Not only are you injured, but other people think it's funny, as this story in the L.A. Times shows. I wasn't aware of the slew of lawsuits spawned by people being flattened by dummies, but it could bring new meaning to the phrase "Shop Till You Drop."
Posted By David Rossmiller In Miscellaneous
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Alleged Lawyer Misbehavior Costs $1.1 Million
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Had Enough Katrina?
No, Insurance Coverage Blog has not been renamed Katrina Blog 24/7. It just seems that way to a few readers who have taken what I see as a very unjust dislike of Katrina coverage news and analysis. However, I like to see everyone happy, except in litigation, of course, where I like to see my side happy and the other side unhappy.
What these folks really want, I sense, is More Cowbell. So I offer this item about what may turn out to be the first time someone has refused federal money: a Texas town apparently doesn't want a ridiculous looking, motorized, power parachute that the sheriff's office was supposed to test to determine its usefulness in crime fighting. County authorities purportedly are concerned about liability and insurance and have grounded the craft for the time being. However, as you can see by clicking on the link in the story for the so-called Buckeye Dream Machine, the real reason may be this: deputies don't want to fly around wearing a Snoopy helmet in something that looks like it was built by Wile E. Coyote. If the Red Baron appears in the skies above the town, however, county leaders may change their minds and order it up to do battle.
Posted By David Rossmiller In Miscellaneous
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Pirates: Not Just In The Caribbean
Posted By David Rossmiller In Miscellaneous
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When Life Insurance Fraud Goes Awry
Posted By David Rossmiller In Miscellaneous
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Blogroll Additions
If you haven't done so yet, visit some of the blogs on my blogroll (scroll down on the right side of the screen and look under "Links"). These are blogs that I enjoy reading, mixed in with some links to insurance news sources. I don't mess with the blogroll that often, but last night I added Boston ERISA & Insurance Litigation Blog and Declarations and Exclusions to go with some old favorites like RiskProf, Miserable Donuts and Insurance Scrawl. There are others I read and I'll get around to including them sometime soon. In case you are wondering, the blogs listed under "Blogs" are other blogs that have service contracts with our consultant, LexBlog, which is a business run by blogging guru Kevin O'Keefe that touts legal blogging. I've checked out a fair number, and the quality of some is pretty good, although regrettably almost all of them deal with areas of the law much less exciting than insurance coverage.
Posted By David Rossmiller In Miscellaneous
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Here's A Useful Dictionary For The Cutting Edge Attorney Or Insurance Professional
Coming from a background in journalism, I think of legal writing as just another form of expository prose with a somewhat more specialized audience. So I apply the same standards to legal writing as any other writing: it must inform and entertain. This is heresy to some, but it's the only way for me: how can you persuade someone if they tune you out because you're boring? In a brief, I once referred to an insurer's coverage position as the "Big Rock Candy Mountain" defense, explaining that the reference was to a hobo anthem by folksinger Woody Guthrie about a fantasy land where no one has any responsibility. The brief was very well received by a pretty tough judge.
So I was pleased to run across this dictionary of new slang and jargon in my Bloglines feeds. Check out some of the new words and phrases, and see if you might like to incorporate some of the following into your work product or everyday speech: "dinosaur wine," "rankism," "turkey peek," "peoplerazzi" and many others.
Posted By David Rossmiller In Miscellaneous
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Murder Charges Filed In Alleged Life Insurance Fraud
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Yellowstone Blogging
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Greetings from Billings, Montana
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Blogging Schedule
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