Declarations and Exclusions

In Which We Weigh In On a Dispute "Among" Lawyers Over the Uses of "Between" [Updated 11/7/03]

Mike O'Sullivan of Corp Law Blog is wrestling with the relative merits of using "between" and "among" in drafting contracts. Mike posits the problem here and reports on reader response (endorsing "between") here.

Having had the dispute brought to my attention via a back channel communiqué from David Giacalone (the Conscience of Us All), and being a longtime proponent of the proposition that good legal writing must first simply be good writing, I ran to my copy of The Grammatical Lawyer, which provided this additional insight:

The prepositions between and among have distinct uses. Between (originally by twain) is used when only two items are being considered -- 'The choice is between nolo contendere and a plea of guilty' -- and among, when there are more than two -- 'The files were divided among the five lawyers.'

The rule governing the use of between, however, is subject to one notable exception: between is correctly used even when more than two elements are involved if the elements are closely associated and, though considered individually, are related to one another. To illustrate: 'The Constitution regulates trade between the states.' 'Agreements were reached between the five nations.'

That last example persuades me that Mike and his readers who favor "between," even in contracts involving 3 or more parties, are in the right, and I so rule.

Update: The discussion of this issue is ongoing, and currently resides most prominently at Ms. Scheherazade Fowler's Stay of Execution, a site that makes for good reading even when lexicography is not the order of the day. Ernie Svenson is also monitoring the situation closely.

Only the Innocent Need Apply -- Criminal Defendant's Malpractice Claim Against Defense Counsel Rejected

In a claim for legal malpractice, the disgruntled client is generally required to prove that the prior representation would have produced a better result but for the negligence of the attorney. A new decision from California's Fourth District Court of Appeal reminds us that a convicted criminal can only prevail against his former defense attorney if he can prove that he was wrongly convicted, i.e., that he was in fact innocent of the crime.

Lindsel Redante was convicted on multimple charges of sexual offenses involving minors. Attorney Alan Yockelson was appointed to represent Redante in an appeal from his conviction. The appellate court affirmed the conviction, and the California Supreme Court decined review. Redante demanded that Yokelson draft a petition for habeas corpus. Yokelson did so and forwarded it to Redante for his use. Redante then represented himself in a series of unsuccessful habeas corpus cases in state and federal courts. Dissatisfied, Redante then sued Yokelson seeking damages for malpractice. The trial court granted judgment in Yokelson's favor, which the appellate court confirmed.

The Court of Appeal points out the following grounds on which it found no potential liability against the attorney:

♦ An appellate attorney need not make every argument the client demands. He is only obliged to raise those arguments that are potentially meritorious.*

♦ A criminal defendant "has no constitutional right to counsel in habeas corpus proceedings, and consequently, no right to effective assistance of counsel."

♦ A criminal defendant who sues for legal malpractice must prove his actual innocence of the underlying criminal charge. A non-innocent defendant cannot claim to have been harmed by an attorney's negligence. Redante never alleged or attempted to prove he was factually innocent in the context of his malpractice claim. Even if Yokelson had committed an error -- which the Court concluded he had not -- that error did not place Redante in any worse position than his own criminal conduct warranted.

The decision in Redante v. Yockelson (October 30, 2003), Case No. D041480, can be found at these links in PDF and Word formats.

Fatal Fistfight With Uninsured Motorist Does Not "Arise Out Of" Use of Uninsured Vehicle

Fistfights have been a fertile source of insurance law in California, most notably in the seminal case discussing a liability insurer's duty to defend it insured, Gray v. Zurich Insurance Company. Now, the Second District Court of Appeal has ruled that the death of a motorist after being punched in the head by another, uninsured driver while exchanging information after a collision did not "arise out of the use" of the uninsured vehicle and is therefor not a covered loss under the deceased driver's Uninsured Motorist coverage.*

John and Eva Hogan were driving their insured automobile when it was involved in a minor collision with a motorcycle operated by Giuseppe Lionetti. While Mr. Hogan was trying to exchange information with him, Lionetti became irate and threatening. Ultimately, he punched Mr. Hogan in the head with such force that Hogan fell and struck his head on the pavement. He died of his injuries five days later. Lionetti was uninsured.

Eva Hogan made a claim on behalf of her deceased husband and herself, seeking benefits under their own Uninsured Motorist coverage. The insurer denied the claim, on the ground that Mr. Hogan's death did not "arise out of the use of an uninsured motor vehicle." The trial court granted judgment in favor of the insurer and the Court of Appeal affirmed. After discussing a number of California cases addressing the concept of losses "arising out of" motor vehicle use -- including cases involving guns going off in cars, rape committed in an automobile, and arguments over switching from high beams to low beams -- the appellate court concluded:

All of these cases share a common thread: None of the injuries arose directly from the use or operation of the vehicle. Rather, the use of the vehicle, as transportation of the tortfeasor or as 'furniture,' was merely incidental to the direct cause of the injuries sustained in each case.

So it is in the case at bar. There is no dispute in this case that the immediate and direct cause of Mr. Hogan's fatal injuries was Mr. Lionetti's act of punching Mr. Hogan in the face with such force that he was knocked to the ground and hit his head on the pavement. The only role played by Mr. Lionetti's uninsured motorcycle was to transport Mr. Lionetti to the site where he then committed this crime against Mr. Hogan.

The court rejected a creative argument that the case should be deemed to arise out of the use of a motor vehicle because the fight arose while Mr. Hogan was attempting to comply with the Vehicle Code's requirement to exchange information following an accident.

The decision in California Automobile Insurance Company v. Hogan (October 29, 2003), Case No. B161245 can be found at these links in PDF and Word formats.

What Did You Expect? -- Helpful Plumber Has No Coverage for Accidental Fire in Friend's House

Jan Cox, a plumber and welder, helped out a friend, Micheline Zumbrun, by installing a propane water heater in her house. The house burned down in a fire started by Cox's work on the gas lines feeding the water heater. Does Cox's homeowners insurance policy cover him for his liability in the fire? The Second District Court of Appeal thinks not.

Cox's homeowners policy included a pair of exclusions providing that the insurer (Allstate) would not provide coverage for loss or damage arising from Cox's "rendering of or failure to render professional services" or from Cox's "past or present business activities." (These are common exclusions, intended to limit the homeowners coverage to purely personal, non-business liabilities.) Cox's representatives (Amex) argued that he should not be affected by these exclusions, because he was simply performing a good deed. The court disagrees:

Amex argues that at the time Cox was installing the water heater, he was neither providing professional services to Zumbrun nor was he engaged in business activities. He was simply helping out a friend. But the undisputed evidence is that Zumbrun has sometimes paid Cox for similar work in the past, and that Cox was installing the water heater in the hope it would induce Zumbrun to pay him for prior work. Cox was more than simply helping out a friend, he was seeking compensation.

In any event, it is the type of activity, rather than the actual compensation, that controls whether the professional services or business activities exclusions apply. . . .

Under the circumstances, the Court concludes, Cox can have had "no reasonable expectation" that his homeowners policy would apply, so that Allstate was relieved of any obligation to defend him or to satisfy any judgments against him arising from the fire.

The decision in Amex Assurance Company v. Allstate Insurance Company (October 28, 2003), Case No. B162493 can be found at these links in PDF and Word formats.

Los Angeles Area CPCU All Industry Day, November 4, 2003

Caution: Shameless self-promotion follows . . . .

Readers who find themselves in the Los Angeles area next Tuesday, November 4, might consider attending the annual All Industry Day sponsored by the Los Angeles area chapters of the CPCU [Chartered Property Casualty Underwriter] Society. The editor/author of this site will be speaking in the afternoon on the subject of "Punitive Damages: What Insurance Professionals Need to Know."

Other educational programs -- all of which have been approved for Continuing Education credit by the California Department of Insurance -- include Cargo & Transportation Insurance, the Terrorism Risk & Insurance Act, workplace violence and corporate ethics under the Sarbanes Oxley act. A luncheon is included, honoring the local recipients of the CPCU designation. Registration and information available through the link above.

Should Clients Bear the Risk When Attorneys Risk Going Bare?

"Going bare" is the term commonly used when an attorney or other professional elects not to carry insurance against his or her liability for professional negligence or malpractice. The usual reasons for choosing to go without malpractice insurance are economic: the attorney estimates that the likely cost of responding personally to any liability will be less than the often high cost of paying the insurance premiums. The attorney's economic self-interest in this calculation is clear, but what of the attorney's obligations to clients who have retained his or her services in the expectation that there will be insurance available to respond should the attorney, heaven forfend, provide those services in a negligent fashion?

Recovering web journal-ist David Giacalone has passed along this exchange from the American Bar Association's Dialogue magazine between the manager of a Lawyer Referral and Information Service (LRIS) -- a service devoted to providing members of the public access to attorneys who may be able to meet their needs in a particular field or locale -- and Richard Zitrin, director of the Center for Applied Legal Ethics at the University of San Francisco, writing as Dr. Ethics:

[10/31/03: This post has been updated in its continuation.]

The End of the Affair -- School District Not Liable for Parents' Emotional Distress on Discovery of Daughter's Sexual Relationship with Teacher

Continuing its busy day of ordering its earlier decisions published (see following post), the Court of Appeal for the Fourth District has ruled that the parents of an 11th grade daughter may not recover damages from the school district for the emotional distress that they sustained when they discovered -- despite her best efforts to hide it from them -- that their daughter had become involved in a sexual relationship with one of her teachers.

The case concerns only the emotional distress of the parents; all claims involving injury and damage directly to these plaintiffs' daughter were resolved on terms not discussed in the decision. The appellate court concludes that the parents -- who unquestionably sustained a significant emotional shock on the discovery of their daughter's situation -- have no cognizable claim under any of the theories permitting emotional distress recovery under California law:

1. The parents were not "bystanders" who directly perceived physical harm being inflicted on a family member. To the contrary, their daughter apparently went to no little trouble to see to it that her parents did not perceive what was happening between her and her teacher.

2. The parents could not claim status as "direct victims" of any negligence in the school district's supervision of the teacher. The court concluded that nothing in the district's action or inaction had been "directed at" the parents. While the parents' distress might have been a consequence of the district's negligence, the direct cause of that distress was not that negligence but the daughter's sexual relationship itself.

3. The parents could not recover under the theory of Bro v. Glaser -- a case whose value as precedent is open to doubt -- which suggested that "outrageous" conduct toward a family member will allow a relative to recover. While the teacher's conduct might be deemed outrageous, the conduct of the district or his fellow teachers was not.

4. Finally, the court found that the broad, general analysis by which California courts can recognize new "duties" giving rise to liability did not favor imposing liability on the district in this case.

The decision in Steven F. v. Anaheim Union High School District (Sept. 22, 2003, publication ordered Oct. 22, 2003), Case No. G026457 can be found at these links in PDF and Word formats.

When Procedural Policies Collide: Right to Seek Summary Judgment Trumps Policy of Speedy Disposition of Cases

Responding to a request for publication -- previously reported at The Southern California Law Blog -- the Court of Appeal for the Fourth District has directed the publication of its decision in Polibrid Coatings, Inc. v. Superior Court (Sept. 24, 2003), Case No. G032459.

In that case the Court concludes that when a conflict arises between (1) a party's right to seek resolution of a case by means of a motion for summary judgment and (2) the courts' stated policy of bringing as many cases as possible to conclusion within two years of filing, it is the latter policy that must bend. The need for flexibility in this regard has been heightened by the Legislature's extension of the required notice period prior to a summary judgment hearing from the former 28 days to at least 75 days.

In the case before the Court, defendant Polibrid had only been brought into the litigation 14 months after the case had commenced. The appellate court emphasized the need for basic fairness in proceedings:

We think it plain that in a case where a litigant is brought into litigation after 14/24ths of the time to litigate it has passed, these factors would dictate at least enough time for that party to reasonably complete discovery and bring a summary judgment motion.

The decision -- with the order for official publication, making it citable as precedent -- can be found a these links in PDF
and Word formats.

Insurers Need Not Reimburse Insured for Investigation Costs in Response to Pollution Clean-up Claim

In a new decision the Court of Appeal for the Sixth District reaffirms that the terms of a typical Commercial General Liability policy and related excess or umbrella policies do not obligate the insurers to reimburse their insured for expenses incurred in investigating and responding to an administrative order charging the insured with contributing to soil and groundwater pollution. Based on the particular language of the policies under consideration, the Court interprets earlier decisions, particularly from the California Supreme Court, to establish these operative definitions:

♦ "Damages" payable by an insurer mean only sums of money the insured has been ordered to pay by a court.

♦ A "suit" to which an insurer must respond for its insured means a court proceeding. An administrative order in an investigation without litigation having been filed is not a "suit," but only a "claim."

♦ "Expenses" incurred on orders of an administrative agency are thus not "damages," nor must they be reimbursed as a cost incurred in "defending" against a "suit."

The decision in CDM Investors v. American National Fire Ins. Co. (Oct. 15, 2003), Case No. H024142, can be found at these links in PDF and Word formats.

As the Curtain Rings Down, The Sound of One Persona Posting

The elusive Jack Cliente, who is suspiciously never seen in the same room with David Giacalone, has posted a last minute addition to David's farewell at ethicalEsq?:, including this sound bit advice to me and to all my fellow toilers in the fields of the law:

Don't send e-flowers to honor ethicalEsq?, but actively work for the consumer of legal services both out in the real world, and through the power of weblogs:

(1) help make bar associations at the local and state level client-oriented, instead of guild-oriented (e.g., improving the Discipline System would be a great place to start);

(2) harness the power of the web to make the self-help-law revolution a reality, and

(3) with or without new laws or ethical rules, get more information to consumers about their rights and options -- with enough information, consumers can create their own powerful competitive forces for innovation, improved services, lower prices.

Words to live by, and a worthy goal toward which to strive.

[Cross-posted to A Fool in the Forest.]