Nowdy and I have kicked this news back and forth all afternoon and we’re inspired in completely different directions so I’ll go first with some Pink Floyd. Turn up your speakers, press play and read on.
Every year is getting shorter never seem to find the time.
Plans that either come to naught or half a page of scribbled lines
Hanging on in quiet desperation is the English way
The time is gone, the song is over,
Thought I’d something more to say.
Home, home again
I like to be here when I can
And when I come home cold and tired
Its good to warm my bones beside the fire
Far away across the field
The tolling of the iron bell
Calls the faithful to their knees
To hear the softly spoken magic spells.
I was reminded of Time as I read the brief submitted by Team Insurance in AIG’s en banc reconsideration motion in the recently decided Dickerson v Lexington. We’ve been here before and as the lyrics in my post title suggests it seems the gang lead by Allstate thinks softly spoken magic spells will put a new spin on well established case law. Let’s take a look at what the best legal minds big insurance could buy have to say about Dickerson: Continue reading “It’s Deja Vu All Over Again: Rossie’s New Appleman’s analysis of Anti Concurrent Causation anyone? Big Insurance Chips in Big Time with AIG’s Lexington unit in Dickerson. Softly spoken magic spells….”
From our growing number of Louisiana readers comes news of an appeal of the 5th’s decision in Dickerson v Lexington (AIG) filed by amici curiae of Lexington (AIG) and the company’s application for a rehearing by the 5th en banc.
You aint nothin but a hound dog
Cryin all the time…
0000uuuuuu, cried the hound dogs, oooouuuuuuu, ..this case needs a rehearing if no one on the court is going to make sure our go-to folks sit on these panels….oooouuuuuuu, we’re going to have to pay under the same terms we sold these policies under if this this decision stands … oooouuuuuu, talk about emotional distress, we’re all going crazy over this decision… oooouuuuuuu, it’s not our fault people weren’t tough enough to do business without taking it personally …oooouuuuuu.
You aint never caught a rabbit and
You aint no friend of mine
What a lucky court! Not only does it have lots of friends (re: Interested parties, pages 18-28 of the brief), they’re all in the insurance industry and will personally and professional benefit if the Court en banc reverses the panel’s decision in Dickenson v Lexington – none more than the court’s and Lexington’s best friend, the Amicus taking the lead in this case…
Allstate Insurance Company…Liberty Mutual…American Bankers Insurance Company of Florida andAmerican Security Insurance Company…Louisiana Farm Bureau Mutual insurance Company, Louisiana Farm Bureau Casualty Insurance Company and Southern Farm Bureau Insurance Company…Arnica Mutual Insurance Co….The Hanover Insurance Company, The Hanover American Insurance Company, and Massachusetts Bay Insurance Company…Horace Mann Ins. Company, Horace Mann Property & Casualty Insurance Company, and Teachers Insurance Company…The Standard Fire Insurance Company and The Travelers Indemnity Company…Casualty Insurance Company, American National Property andCasualty Company, American National General Insurance Company, and ANPAC Louisiana Insurance Company… Republic Fire and Counsel for Lafayette Insurance Company and United Fire and Casualty Company…Metropolitan Property and Casualty Insurance Company…(list in formation, emphasis added)
The two issues driving the request for an en banc rehearing are burden of proof and emotional distress.
As demonstrated in defendant-appellant’s Petition for Rehearing En Bane, the Panel’s opinion could be read as incorrectly suggesting that the burden of proof remains with the insurer to show which damages are not covered once it becomes clear that a policy exclusion applies, and likewise incorrectly holds that emotional distress penalty damages may be awarded even where the insurance contract protects only pecuniary interests and where there is no proof that the insurer intended to cause emotional injury. Continue reading “Amici, “they said you was high-classed, well that was just a lie…and you ain’t no friend of mine…””
In what has to be some sort of record-setting rapid response, Judge Senter considered Gagne’s motion and issued what can best be described as a related marching order:
This matter is referred to the United States Magistrate Judge for proceedings consistent herewith.
An overly simple description of what those consistent herewith proceedings might be is that it’s put up or shut up time. Continue reading “Judge Senter issues marching Order in Gagne v State Farm”