Corban v. USAA: A few (more) words about anti-concurrent causation
I've been meaning to write about this case for some time, and I even went down to Mississippi last October at the invitation of the University of Mississippi and spoke about the case at the Mississippi-Alabama Sea Grant Legal Program conference a couple days before Halloween. Mississippi is a great place, I love visiting there. I'd say it's probably my next favorite place after North Dakota. Don't get me wrong, Portland, Oregon is pretty nice otherwise I wouldn't live here, but there's a certain subtext of weirdness here consisting of getting all wee-wee'd up about needing to ban plastic grocery bags and create 600 miles of bike lanes at a cost of $1.5 billion. On my priority list, these things fall, oh I don't know, somewhere in the bottom .00001 percentile. Maybe a little lower. So anyway, as I mentioned, great visit to Mississippi, and best of all, while I was there no one subpoenaed my "ass."
Corban v. USAA was decided by the Mississippi Supreme Court in October. This, of course, is one of the Hurricane Katrina cases, and from my perspective, it was the most important, because the court got it pretty much spot on, and because as the state's highest court interpreting state law, it did away with some of the looseness of prior Katrina cases in the U.S. Fifth Circuit Court of Appeals, notably Leonard v. Nationwide. I've been critical of the Fifth Circuit for falling prey to false doctrine and ruling in Leonard and a later case, Tuepker v. State Farm, that the anti-concurrent cause language in homeowners policies was applicable to Hurricane Katrina damage. So I was pleased to see that the Mississippi Supreme Court said that anti-concurrent cause language did not apply at all to the type of losses suffered in Katrina. This is an important vindication of textualism in interpreting insurance policies -- reading what is there without supplying outside words, or importing concepts that are not supported by the text.
I won't lie to you, it's also a big deal to me because the analysis the court used on anti-concurrent cause is the one I long advocated and frequently wrote about, one that I wrote two lengthy scholarly articles about, and one that I advocated in Chapter 192 of the Appleman 2d treatise. So I created this analysis and was committed to it, and I recall spending approximately 60 hours of a 72-hour period one weekend to finish the chapter for the treatise by the Lexis-Nexis deadline. When I read Corban for the first time last October, I thought some of the language the court quoted sounded familiar, and then I realized that was because I had written it. Understand, I'm not boasting, I'm just saying when I started looking deeply in Katrina litigation, this is the analysis I came up with after a lot of late hours, and that I was able to do so and provide a simpler, more coherent and textually justified methodology is a source of satisfaction to me even greater than my Scruggsblogging. Intellectually, it was certainly a lot harder to master anti-concurrent theory than it was to report on Scruggs, although sadly, the former presents many fewer opportunities for comedy writing.
The court didn't agree with everything I've advocated. They had a somewhat different understanding than I have of what "in sequence" means, and they also gave a slightly different nuance to what "concurrent" means, compared to the way I have explained it. But these are small quibbles. The most important thing is the court realized the key thing to look for is to identify the "loss," because that is what the policy covers, not "damage." The Supreme Court also well understood that once loss has occurred and is covered, it can never become uncovered no matter what happens later. And also very significantly, the court understood that Katrina involved separate forces that caused separate losses, and that anti-concurrent cause language applies only to an instance where multiple forces combine to cause the exact same loss. You cannot possible understand what pleasure it brings me to read this case unless you go out on the road with me sometime and hear me speak about anti-concurrent cause language, because while a certain number of people buy my theory, these explanations generate an intense hostility in a certain number of people too. (I read the evaluations and try to learn from them, but I would have to disagree with one evaluation from an anti-concurrent cause talk I gave in San Antonio in March: my speech was probably not "completely worthless" -- I did have three really good lawyer jokes at the beginning).
It was also good to see that the Mississippi Supreme Court rejected some terms the Fifth Circuit had imported into the analysis, such as "indivisible" and "synergistically," which are extra-textual. Look, I know what the Fifth Circuit was driving at, and I don't want to be too hard on them, but these concepts are pretty difficult and even what seems like a minor miscaluation in methodology results in missing the target by a long shot. You hit the thruster on your space ship at the wrong time and instead of coming in for a nice soft touchdown on some salt flats you hit the side of Mt. Everest and go splat.
Enough for now, except I would like to mention two things. First, if you want to know about anti-concurrent cause language and intepretation enter "anti-concurrent" in my blog's search bar and you'll find a ton.
Second,I watched the webcast of the oral argument and I thought the lawyers, Judy Guice for the Corbans, and Greg Copeland for USAA, were amazing, really A+ oral advocacy. But also, in the decision I noticed -- and I am not making this up -- that the court said Attorney General Jim Hood was also granted permission to speak as an amicus. I missed this on the tape, but if true, it's hard to figure out. What was he there for, a little comedy relief, maybe? I mean, Hood doesn't know anti-concurrent from antipasto, I've seen him talk about it before. Hood thinks when you say "in sequence" that you're talking about Liberace. What was that he said in that Katrina testimony he gave before Congress? Oh yeah, "It's the wind, stupid!" Indeed.
To me, this is one of the hardest things to understand. I always get lost. If I remember correctly, your name came up during the arguments-you were a reference in their discussion.
"The most important thing is the court realized the key thing to look for is to identify the 'loss,' because that is what the policy covers, not 'damage.'" Right there--I had never thought about it that way. My brain is just too small for this stuff.
my speech was probably not "completely worthless" -- I did have three really good lawyer jokes at the beginning....HAHAHA, always funny.
Thank you for this helpful information.
Mention from the WSJ.
http://online.wsj.com/article/SB10001424052748703720504575377633267422258.html?mod=WSJ_newsreel_opinion#articleTabs_comments%3D%26articleTabs%3Darticle
From the article . . .
Another target was David Rossmiller, an Oregon attorney who did the nation a service by blogging the details of the Hood-trial bar insurance litigation. In response to one Rossmiller post, Zach Scruggs orders the Rendon team to dig into Mr. Rossmiller's life and "EXPOSE HIM!"