Please Just Give Me a Trial by Ambush
I came in this morning to an email from my partner, Justin Gilbert. Justin lost a jury trial last week in Decatur County Circuit Court, and offered some insightful thoughts about the experience in a short article he entitled, "Please Just Give Me a Trial by Ambush." Here's an excerpt:
The point is this: The cost of our normal legal rules is a price too steep for most
Tennesseeans. Often, we cannot enforce our laws because it is too expensive to follow our rules.Today, motions for summary judgment -- intended to weed out frivolous cases and
conserve on the cost of litigation -- are filed in every discrimination case. Most
depositions are taken not because they are needed to better understand a case; they are taken to mount and respond to summary judgment. And electronic discovery requirements can overwhelm, regardless of the actual merits or size of the case.Many employment discrimination cases do settle, particularly if it’s done early.
But something is fundamentally unsettling where the basis for the settlement is the
monetary price of the alternative: Our own judicial system. It makes companies feel
“extorted” by the judicial system. And employees feel cheapened because their
discrimination complaints are processed by system costs.I’ve practiced fifteen years now. I had grown accustomed to, if not wary of, some
of the rules and their costs to individual claimants in Tennessee. If my recent experience was a “trial by ambush,” or one resembling “the days of old,” can you please just give me some more of that?
Justin practices employment discrimination law with Gilbert Russell McWherter PLC. You may write to him at jgilbert@gilbertfirm.com or at www.gilbertfirm.com
Revisions to Local Rules in Western District
Several attorneys have been appointed to revise the Local Rules for the federal courts in West Tennessee. The committee is scheduled to meet in mid-October and the committee members are actively seeking input from the local bar for suggestions and comments regarding revisions to the present Local Rules. A very significant portion of my firm's cases are in federal court so we fully intend to take advantage of this opportunity, as should other members of the federal bar. If anyone has an interest in offering suggestions or input but doesn't know who to call, send me an email and I'll be happy to send you contact information for the committee members. The deadline for comment is October 16, 2009.
Cell Phones and Spoliation of Evidence
An Oklahoma insurance lawyer, Steven Buckman, recently started a new blog called Oklahoma Insurance Law. Its well written with a bit of comedy, including frequent accounts with "Bubba" (the redneck policyholder) and the "tall building lawyer" (the insurer's counsel).
In the latest post, the topic was whether deleting photographs from a cell phone constitutes spoliation of evidence. Here's a taste of Buckman's writings:
The "tall building lawyer" found out during the EUO that Bubba took photos of all the hand guns one week before the fire. Bubba was going to send the photos to a disabled vet who just returned home due to a medical discharge for combat injuries. Bubba has a big heart and wanted to do something for one of our soldiers wounded in the service of our country. He was going to let this soldier have his pick of any gun he wanted and give it to him as a gesture of appreciation. The fire destroyed the guns so he never sent the photos. The insurer learned about the photos and wanted a copy to document the claim.
The photos no longer exist. Bubba, while scouting his favorite deer stand, saw a "buck with a rack that makes ya as giddy as a schoolgirl gettin' ready for her first date." He took so many pictures of the buck that he overwrote the photos of the guns.
Is this spoliation? Maybe, depending on whether litigation was anticipated at the time the photos are deleted.
Good luck with the new blog Steven.
General Contractors' Overhead and Profit Charges - Recoverable?
This is one of those topics that comes up regularly. Does an insurer have to pay general contractors' overhead and profit charges? The short answer is "Yes" but there are some exceptions. According to a 2005 Sixth Circuit Court of Appeals case (interpreting Tennessee law), the costs of a contractor (overhead and profit) are recoverable if the the insured would reasonably be expected to hire a contractor to repair its property. See Parkway Assoc., LLC v. Harleysville Mut. Ins. Co., 129 Fed. Appx. 955 (6th Cir. 2005).
Several nationwide class actions have been filed over the past few years concerning insurance companies' refusal to pay profit and overhead. Despite such class actions and the clear statement of the law by the Sixth Circuit, I still hear about this occurring from time to time. If an insurance company tries to tell you its not going to pay overhead and profit, stand up for yourself and point out this case to the adjuster. Somehow I doubt it will be the first time he or she has heard of it.
Experts Hired by Insurance Companies to Assist with Claim Decisions Should be Unbiased
As a result of the numerous tornados that have passed through Tennessee over the past decade, I have become acutely aware of the fact that insurance companies use the same engineering firms over and over again in their investigation of whether a claim constitutes a covered loss. The obvious problem with insurance companies' repeated use of the same engineering firm is the fact that the engineering firm's opinions are clearly going to be biased. After years and years of repeat business, the engineers rely on the income generated by the insurance claim inspections in order keep their lights on. If an engineer finds in favor of the policyholder too often, he or she could soon feel the pain of a drop in referrals, and a corresponding drop in cash in his or her pocket.
I believe that an insurance company's reliance on biased expert opinions can constitute bad faith, especially when combined with other aggravating factors. If an insurance company is going to use the same engineer over and over again, it should certainly make sure the expert is qualified, that the engineer considers all possibilities, and that the expert utilizes accepted methodologies in determining the cause or scope of a loss. Unfortunately, many experts hired by insurance companies go into the investigation looking for a reason that the claim should be denied rather than giving an independent assessment. So for those policyholders out there who have recently been told by their adjuster that an engineer will be sent out to inspect the loss, you should consider hiring your own as well. Although it can be expensive, it sure beats a denial. You might even consider having your own expert present when the insurance company's engineer is conducting his site visit to make sure all appropriate factors are considered.
For a discussion on this same topic with references to a recent case out of Texas, click here for a post by Chip Merlin on his blog, Property Insurance Coverage Law Blog.
The Florida Sun
You may have noticed I haven't posted any entries for a few days, but I've got a good excuse - - sunny, beautiful Florida.
While I was out basking in the sun, banging a golf ball from sand-trap to sand-trap, and watching my little girls explore the ocean, John Day made reference to our new blog at his very popular weblog, Day on Torts. John must have quite a following because the hits on this site skyrocketed after that post. Thanks for blogging about us John!
Top 10 Reasons Complaints are Made Against Insurance Companies
According to an April 28, 2009 report by the National Association of Insurance Commissioners ("NAIC"), the top ten reasons consumers complain about their insurance coverage are as follows:
- Claim Handling - Delays
- Claim Handling - Denial of Claim
- Claim Handling - Unsatisfactory Settlement/Offer
- Claim Handling - Other
- Underwriting - Premium & Rating
- Underwriting - Cancellation
- Policyholder Service - Coverage Question
- Policyholder Service - Premium Refund
- Policyholder Service - Premium Notice/Billing
- Policyholder Service - Information Requested
For the complete report, click here.
