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.
If the Panel’s ruling on these points is allowed to stand, it could arguably become erroneous precedent for the thousands of hurricane-related cases pending in the Eastern and Western Districts of Louisiana in which numerous insurers, including the Amici Insurers, have been named as defendants. The interest of the Amici is therefore substantial.
It’s pointless to ask Can you believe it? when the Amici have been so bold that even Elvis holds you ain’t high classed. Maybe even a dumb hound dog is smart enough to know there’s not a disguise that will cover the self-interest involved in their claiming to be Ameci and offering three arguments on Lexington’s behalf:
- The Standard for Rehearing En Banc Is Clearly Met Here, As The Panel Opinion Raises Issues That Are Unquestionably of Great Importance and Conflict With Prior State Law
- Dicta In The Panel Opinion Incompletely And Incorrectly States The Burden of Proof for Damages In Insurance Cases
- The Panel Opinion Allowing Mental Anguish Damages In Insurance Contract Cases Was Also Erroneous
IMO, all of the Ameci arguments fall short when their self-interest is compared to their claims a rehearing is needed because of the “great importance” of the likelihood the Ameci Insurers will have to pay claims that they should have been paid, at least in part if not total, within the time period established by law.
Their attempt to use the “who didn’t beat their wife last night” strategy to stick policy holders with the burden of proof is as sick as any we’ve seen to date in Katrina litigation.
As to the Ameci’s effort to refute the 5th’s opinion on emotional distress, it not only falls short, it rings hallow. Once the first court considered such a claim, regardless of the decision rendered, the Ameci were adequately noticed that policy holders were experiencing emotional distress – and to their common shame, they ignored the significance of such claims and did absolutely nothing to offer relief. Whatever else these Ameci are, good Samaritans they are not!
No doubt Sop will add substance to my reaction; so, I’ll stop and attempt to get over the “emotional distress” caused by reading the 43 most self serving pages of excuses filed to date in Katrina litigation in any State.
High five!
You got it! Have you ever read a bigger crying, titty baby brief in your life?
If the judges of 5th circuit aren’t insulted by the implications of this brief, there is something terribly wrong at the Court that a new President would want investigated immediately.
The issue of “great importance” is the Amici paying people what they owe and the panel of judges took care of that – with the full panel they could end up owing more given the tone of this brief.