Declarations and Exclusions

"You Can't Fool Me: There Ain't No Sanity Clause"

At this season of kindness, calmness, sweetness and good cheer, let us wish for a world in which every  legal negotiation could be as simple as this one:

Marx Brothers - Sanity Clause

Chico is mistaken, of course, although the gentleman in question prefers to go by the name Saint NicholEsq.

Decs&Excs wishes a Happy Christmas to lawyers everywhere, and wishes it tenfold for those who tolerate or even love us.  Ladies and gentlemen of the Bar, let us strive always give them good cause to do so.

~~~

"Santa, Esq." illustration via Harrisburg, PA, violinist/broadcaster John Clare's Classically Hip. 

[Do click through to see what a mess the Legal Department has made in retitling Christmas carols.  "Vertically Challenged Adolescent Percussionist"?  Humbug!]

Put the Picture in the Box: Advice on Instructing Juries in Insurance Litigation

On his Insurance Scrawl weblog, Marc Mayerson offers up a lengthy, detailed and, yes, instructive post on "Jury Instructions in Insurance-Coverage and Insurance Bad-Faith Cases."  Marc provides plenty of practical advice for practitioners on either side of an insurance law dispute, and valuable reading for claims professionals or claimants who want to understand just What Their Lawyers Are Up To in trial preparation. 

Jury instructions can be compared to the wire armature underneath a clay sculpture: whichever side of the case he or she is on, counsel wants to be able to point to that armature and impress the jury with how well his or her side has fleshed it out with evidence.  ("My case hangs on those bones much more persuasively than my opponent's, ladies and gentlemen.")  The practical value of this bit of advice, in particular, cannot be overstated:

One mistake that lead counsel often makes in my view is not to personally take ownership of the jury instructions and instead delegates their preparation to the junior member of the team.  Ultimately, it is the jury instructions that determine the case – and the appeal.  Thus, it should be the responsibility of lead trial counsel to be intimately familiar with the drafting, submission, and argument over instructions to the jurors.

A highly recommended post.

I, The Jury

Judge:    How does the jury find?
Foreman:  We find the defendants incredibly guilty.
        -- The Producers (1968)

Today, I will be putting in an appearance at the Clara Shortridge Foltz Criminal Justice Center -- Los Angeles County's central criminal courthouse, renamed in recent years in honor of California's, and America's, First Practicing Female Lawyer -- to answer the call of jury service.  The odds of my actually being impaneled as a juror are slim, given my status as a practicing attorney.  Usually the question isn't whether I will be peremptorily challenged, but which side will do it first.

In the unlikely event of my actually serving as a juror, I resolve not to emulate these jurors or these.  Unless, of course, such a result is warranted by the operative facts and law.

~~~

Update [11/1/05 1733 PST]:  Don't let anyone tell you that they never keep a lawyer on a jury panel.... Beyond that, I can say no more at this time.

Veterinarians: Dogged by Lawyers

Ted Frank at Overlawyered points to a USA Today article recapping the state of play in malpractice suits against veterinarians.  Using the death of a dog (the ironically named  "Lucky") following a dental procedure as its starting point, the article describes what it claims is a growing trend toward expansive veterinary liability:

Barry Silver, the attorney for Lucky's owners, says that when the case goes to trial this year in Broward County, Fla., he intends to ask jurors to award hundreds of thousands of dollars to the dog's owners, Adam Riff and his mother, Ellen.

If Silver is successful, Lucky's case would join a series of recent court decisions that essentially have treated animals as human under the law. In a reflection of the special place that pets have come to hold in Americans' hearts, U.S. courts are bucking centuries of legal decisions that have defined animals as property.

In recent years, courts in New York, Maryland and Texas have resolved custody disputes involving pets by deciding what's best for the pet. Judges in 25 states have administered financial trusts set up in pets' names.

And as Lucky's case indicates, there has been another turn in animal law: Courts have begun to take claims of veterinary malpractice seriously.

As usual in these stories, there are several references to the case of Marc Bluestone, whose $39,000 judgment in Orange County last year is generally described as the largest veterinary malpractice award to date.   Decs & Excs commented on the Bluestone case, in which our firm played a minor part prior to trial, in a December 6, 2004, item, here. 

The Bluestone verdict has been appealed by the defendant veterinarians, with a cross-appeal by Mr. Bluestone (who apparently contends that he is entitled to an even larger award).  The matter is before Division 3 of the Fourth District Court of Appeal, which has one of the more congested appellate dockets in the state: written briefing is just now getting started, and it is probable that it will be at least another year before the appeal is actually argued and ruled upon.  Interested readers can follow the progress of the case via the Court's on-line docket.

Of related interest: A wide-ranging trove of resources on the law and its relation to animals can be accessed through the Animal Legal & Historical Center, a service of the College of Law of Michigan State University.

What a Relief!

The story (not available online to non-subscribers) actually turns out to be about the California Supreme Court's reversal of convictions that were based on a prosecutor's having argued inconsistent theories to two different juries in trials arising from the same crime, but insurers and claims professionals will surely take heart from this headline on the front page of today's edition of the Los Angeles Daily Journal:

Justices Toss Death Sentences for Bad Faith

Now if we can just get rid of those pesky punitive damages . . . .

Other Voices, Other Rooms - Week 2

• The Southern California Law Blog reports that a U.S. District Court Judge in Fresno was so put out by what he perceived to be misstatements, frivolous objections, and willful delay of proceedings that he has ordered an entire law firm to receive ethics training. 

• I am reminded of something my bar review instructor said when I was preparing to take the Professional Responsibility Exam:  "This test can determine whether you know the difference between right and wrong.  Whether you will actually do the right thing is another matter . . . ."

• Shapes of Risks to Come?: L.A. Observed points to a story in the Los Angeles Times reporting that under new owner Frank McCourt the Los Angeles Dodgers "have halted seismic improvements to Dodger Stadium that began under News Corp. ownership, saying the project was unnecessary and the 43-year-old ballpark is safe."

• It is too much to hope that Los Angeles will remain free of major earthquakes, but the Dodgers' insurers and lawyers should certainly hope that the next one doesn't happen during a crowded ballgame, in light of management's calculated (and publicly acknowledged) decision to forego additional seismic precautions.  The Ford Pinto was "safe" without moving that gas tank, too, right?

• In Other News:  From the "If What Thine Eye Sees Offends Thee" Dept., take a look at this:

Man Blinded Four Times in Same Eye Sees Way to Plead Guilty to Insurance Fraud

. . . But They Can't Hide

An intriguing bit of phrasing in this Insurance Journal headline:

Farmers Survey: Red Light Running Among Top Causes of Crashes;
Men More than Women Feel Need to Run.

No word yet on whether the study puts the blame on Bruce Springsteen.

Landslides and Litigators

Within the comparatively small area that it has affected, the landslide north of Los Angeles at La Conchita  -- with at least ten dead, several others still missing and more left homeless -- is nearly as devastating as the Asian tsunami.   It is something of a cliché to suggest that "Where There's a Tragedy, There's a Lawsuit," but La Conchita may yet provide a fresh example.

Although no one died, the town of La Conchita sustained significant property damage in 1995 when the same hillside collapsed.  That slide did produce litigation, directed against the avocado grower at the top of the hill.  As the Sacramento Bee reports:

La Conchita residents tried to blame irrigation at the La Conchita Ranch Co. atop the hill for the 1995 slide. One group of residents settled a lawsuit before trial, and another case ended with the judge ruling irrigation hadn't caused the slide. The ranch has continued to irrigate the crops at the top of the hill.

The Los Angeles Daily Journal, our local legal newspaper, had a more extensive report yesterday on the prior litigation and the prospects for more.  [No link; the DJ does not make its stories available online to non-subscribers.]  Representative excerpts from that story:

Robert Brace, a partner at Santa Barbara's Hollister & Brace, who lost a friend in Monday's tragic slide, represented more than a 100 residents in a negligence suit against La Conchita Ranch Co. after a 600,000-ton slab of earth slid into the town in March 1995, leveling nine homes but sparing lives.

Brace argued the overirrigation of citrus and avocado crops atop the bluff contributed to instability within the hill, while the heavy rains brought on by El Nino that year were simply 'the straw that broke the camel's back.'

* * *

Ranch lawyer Frank Sabaitis of Los Angeles' Sabaitis O'Callaghan said Brace's claim that overirrigation had reactivated ancient landslides didn't hold water, and Ventura Superior Court Judge Henry Walsh ruled the ranch could not be held liable for future slides based on that premise.

* * *

Brace said he wasn't yet sure if liability suits, which could easily top eight figures due to the fatalities and community destruction, would be filed against the county.  But while he conceded that residents deserved at least some blame for sticking around after the first slide, Brace said the activities atop the hill should not be forgotten.

'That town should never have been there in the first place. It's a dangerous spot to be,' he said.  'But once you have those facts, you don't want to water the landslide [area].  If there was any question that irrigation may cause a landslide, then you shouldn't irrigate.

'It was crazy for the people to continue to live there, but crazier for the ranch to keep irrigating that hill.'

The potential target for new litigation is the County of Ventura, which installed motion sensors and a retaining wall -- as well as warning signs throughout the community -- after the 1995 slide.  The sensors reportedly did not sound an alert in advance of Monday's collapse, and the retaining wall came down with the rest of the slope. 

In the DJ story, an unnamed county official is quoted asking rhetorically: "[W]hen you get a year's worth of rain in a week, how do you defend against that?"  To which one can only counter: What are the odds that at least one expert witness out there is preparing even now to provide an answer to that question in court?

Cave Canem* -- Emotional Distress Damages for Negligent Injury to Animals

Via David Giacalone comes a link to this article from the latest issue of Time magazine: Woof, Woof, Your Honor, a brief overview of the expanding horizons of litigation involving dogs and other animals.  This paragraph holds particular interest for me [see "Disclosure" below]:

Some pet cases have reaped surprisingly large awards.  Marc Bluestone of Sherman Oaks, Calif., won a $39,000 jury award last February after Shane, his mixed-breed Labrador retriever, valued by the court at $10, died just days after coming home from a two-month stay in a pet clinic.  Although the suit took five years, cost more than $300,000 in legal fees and is on appeal, Bluestone says it was all worth it: 'I can't get my baby back, but I did get justice.'

Dogs and other animals have, historically, been viewed as items of personal property, to be valued in exactly the same way as any other property.  That is, the usual measure of damages is the difference in the property's market value before and after the harm is done by the defendant: either the cost of repair or the cost of replacement, whichever is less.  The discrepancy between the dog's value ($10.00) and the jury's verdict ($39,000) represents an award of damages largely for Mr. Bluestone's claimed emotional distress at the loss of his pet.

Although a minority of states -- Hawaii and Florida among them -- have permitted an animal owner to recover damages for the owner's distress when the animal is injured through negligence, the majority of states that have considered the question have come down on the side of the established common law rule: despite the well-known emotional bonds that can and do exist between humans and their non-human companions, the distress that the human may suffer when his or her pet is injured through negligence is not a loss for which any monetary compensation will be awarded.  No published California appellate case has addressed the question, though there are several cases indicating that merely negligent loss or destruction of other types of personal property -- irreplaceable family heirlooms, for example -- will not support an award of damages for emotional distress.  The Bluestone case will likely present that question squarely as it relates to animals.

It is worth noting, before anyone leaps to the conclusion that the very real emotional consequence of injury to a pet "must" be compensated, that there are numerous situations in which those same emotional damages are denied for injury to a fellow huma.  In California, the emotional distress attendant to serious injury sustained by your child or spouse is usually recoverable only if you were a near-direct witness to that injury -- for example, by being personally present when your child or spouse is struck by a negligent motorist, as opposed to hearing about it a few minutes later -- and there is no recovery at all for direct perception of the injury of a person to whom you are unrelated by blood or marriage -- such as your long-time companion or fiancé -- no matter how close and genuine the emotional bonds between you and the other.  Spouses can recover for the loss of one another's companionship or "consortium" in California, but no similar recovery is available for the relation between parent and child.  These are largely public policy decisions: to avoid the prospect of infinite and unpredictable liability, the line must be drawn somewhere, and these are the lines the courts have elected to draw.

Also notable: The emotional distress claim in Bluestone was framed in terms of recovery for the "peculiar value" of the damaged property (the dog).  While California and other states have long permitted additional damages to be recovered when property is shown to have a particular value to its owner greater than that same property would have to someone else, the courts have generally held that "peculiar value" does not include the emotional or sentimental value of property.

For Further Reading: A newspaper report [pdf] on the Bluestone verdict being used in a course at the veterinary school at UC, Davis, and commentary on the case from the American Veterinary Medical Association.

Disclosure:  I represented a veterinarian who was briefly joined as a defendant in the Bluestone litigation.  The doctor in question had an extremely tenuous connection to the treatment of Mr. Bluestone's dog and did nothing wrong.  My client was not named as a defendant until more than four years after the case commenced, and was dismissed voluntarily prior to trial in exchange for a waiver of the right she would otherwise have to recover certain of her legal costs.

*For Further Non-Legal Reading: This post's Latin title comes from the famed mosaic warning sign found at Pompeii.  Much more information than you might expect about the particular Roman breed immortalized there can be found here.

Hooves Who in Wildlife Insurance

He beat me to the punch in alerting his readers to the menace of angry sheep, but it appears I am ahead of Martin Grace in spotting the latest fauna-related risk: disoriented deer.

In Ohio, the state's Insurance Director advises motorists to be sure that they are prepared to deal with the consequences of deer collisions: 

According to an industry report, there were 31,729 deer-vehicle collisions in Ohio in 2003, a 4.7 percent increase over the previous year.

'Fall is the time of year when most deer-vehicle accidents occur,' said [Insurance Director Ann] Womer Benjamin. 'Ohio's large deer population, coupled with its vast roadway system and numerous vehicles, increases the likelihood of an accident. It is important to know what to do should you strike a deer and to understand the insurance implications of such an incident.'

Meanwhile, in Tennessee, it appears the deer are coming for the agents:

Tom Jones has been an insurance agent for 28 years, but he's never had to file a claim like this.

Jones, a State Farm Insurance agent whose office is in Brentwood, was the victim of a break-in yesterday morning — by a disoriented deer. The intruder crashed through a seven-foot window, knocked pictures off a shelving unit, then traipsed down a flight of stairs and into a storage room, where authorities contained it until help arrived.

[Illustration for this post found here.]

UPDATE [11/12/04]: Reason magazine science writer Ronald Bailey wrote in 2001 on deer as America's Most Dangerous Mammals.  Now he links to a (possibly fictitious) genetic solution.  A bright idea, indeed.