about the video of oral arguments in Corban v USAA

Submitted as comment, this review of the Corban video is a must-read that contributes much to the discussion. h/t Brian Martin

Aside from interesting reading, these comments provide background for the post  I’m writing on cases currently in litigation and I’ve taken the liberty of adding links and bringing the comments forward as a post.

I recommend the video of the oral arguments.

USAA’s attorney tries to make their position seem reasonable by acknowledging some burden of proof in the oral arguments though he did not acknowledge that burden in motions and USAA has not applied that burden in practice.

Nationwide’s attorney then clumsily stated ACC the way most companies actually applied it and the Justices jump all over him. Continue reading “about the video of oral arguments in Corban v USAA”

Merlin picks up SLABBED post on State Farm’s anti-concurrent causation language and drives the point home

Somehow  I missed this post when I went by Property Insurance Coverage Law for a read earlier today; but, I don’t want anyone else to miss how Merlin advances the discussion of anti-concurrent causation.

Sabbed posted an excellent discussion of an often missed legal point today in “Anti-concurrent causation intended to contractually overturn efficient proximate cause – according to in-house attorney for State Farm.” It notes that State Farm wrote its anti-concurrent policy for judges and how difficult it is for the layperson to decifer.

Slabbed referred to David Rossmiller’s discussion of the history of the anti-concurrent causation language. Rosmiller, as part of his analysis, cited to an in-house State Farm attorney I knew through the American Bar Association’s Property Insurance Law Subcommittee, Michael E. Bragg. Bragg wrote an article long ago, Concurrent Causation and the Art of Policy Drafting: New perils for Property Insurers, 20 Forum 385 (Spring 1985), which discussed State Farm’s attempts to draft language trying to exclude certain types of mudslides, landslides, and earth movement scenarios which gave rise to the anti-concurrent language.

Everybody reading articles from this time frame should appreciate that many of the authors were insurance counsel trying to demonize certain coverage decisions as a reason for the re-drafting of policy language. I think many authors were just trying to pander publicly to their insurance clients in these journals–my opponent and respected adversary Doug Houser being a prolific example of such prose.

Nevertheless, in his opening, Bragg noted Continue reading “Merlin picks up SLABBED post on State Farm’s anti-concurrent causation language and drives the point home”

1:30pm CST live from Mississippi Supreme Court – Oral arguments in Corban v USAA

Click here to access the Mississippi Supreme Court broadcast.

The Court is hearing an Interlocutory Appeal of the Corban decision – a decision based on the application of the Fifth Circuit’s Erie guess in Leonard v Nationwide.

Anti-concurrent causation intended to contractually overturn efficient proximate cause – according to in-house attorney for State Farm

…and that I know because David Rossmiller said it was in an article he wrote on Plain English for the Spring 2008 issue of the Oregon Association of Defense Counsel.

In a 1985 article about the drafting of State Farm’s anti-concurrent-cause provision, Michael E. Bragg, an in-house lawyer with the insurer, said drafters made attempts to reduce the clause to language the layperson could understand, but they failed. When the drafters made the language understandable to the average person, they considered the language insufficiently precise to do what it was intended to do, which was (1) to contractually overturn the so-called “efficient proximate cause” analysis, a common law default rule that almost all jurisdictions use to analyze first-party property loss in the absence of a different, contractually mandated analysis; and (2) to stop the spread of new, judicially created causes of loss,and confine covered causes of loss only to those that companies intended to insure. This is important to remember because it is the key to the limits of Plain English laws.

As the Bragg article shows, simplified language was unsuitably risky because it did not address the court precedents that insurers wanted to cancel out. It did not contain the terminology and phrases used by the courts, nor did it accurately state the jargon of insurance causation, where words like “concurrent” and “sequential” have meanings far different and more complicated than their meanings in common parlance. Insurers, then, do not write for consumers, they write for courts.

This revelation was written as support for the points Rossmiller makes points questioning the value of Plain English laws for consumer contracts that have been enacted in some 35 states, including Oregon. Continue reading “Anti-concurrent causation intended to contractually overturn efficient proximate cause – according to in-house attorney for State Farm”

SLABBED Daily – June 4

As promised, more on the pro se plaintiff v anticoncurrent causation (Lexington/AIG) starting with Lexington’s position.

Lexington has a right under the insurance policy to deny payments for damage that was caused by (a) flood water (as defined by the policy) or (b) a combination of flood and wind…In other words, it matters not whether the egg or chicken came first…

The water exclusion and the anti-concurrent clause provisions are valid and enforceable under Mississippi law. See e.g., Tuepker v. State Farm Fire & Casualty Co., 507 F. 3d 346 (5th Cir. 2007); Leonard v. Nationwide Mutual Ins. Co., 499 F.3d 419, 428 (5th Cir. 2007).

Consequently, the anti-concurrent cause clause bars any claim, or parts of a claim, that Plaintiff may make regarding wind damage that preceded flood damage or for damage caused by flood or a combination of flood and wind.

Even if the wind first damaged a portion of the home which portion was thereafter flooded, there is still no coverage under the Lexington policy for the flood damaged portion of the home.

Oops, Lexington did not mention the Rooster’s decision! Continue reading “SLABBED Daily – June 4”

Good intentions, the road to hell, and the pro se plaintiff in insurance claim litigation

In its Requests for Production to Plaintiff, Lexington requested specific information regarding designated experts. Plaintiff responded as follows:

I have not yet retained any experts. When I get one I will let you know. I
consider myself somewhat as an expert on Hurricanes. I have experienced first hand all of the ones that have hit the area since 1947. My mother told me about the ones she experienced….

Let’s start this update on  77-year-old Lexington (AIG) policyholder acting pro-se files hand-written complaint with federal court with my good intention of posting and complimenting Judge Ozerden’s Amended Order for Mediation:

Pages from pro se plaintiff amended mediation

Reading between the lines suggests the pro se plaintiff may have taken Judge Ozerden’s initial Order of Mediation as an offer and declined.  Continue reading “Good intentions, the road to hell, and the pro se plaintiff in insurance claim litigation”