The oil spill attorneys advertising for a mass of clients and recent advertisements in Texas regarding Hurricane Ike claims, seem to indicate that all my colleagues always win, and win big. Nothing could be further from the truth. The truth is that if you are going to trial or push for what should fully be paid, at least one party to the litigation will lose and, sometimes, lose after a lot of money is offered to settle. Everybody loves to talk about their wins. Losses happen, and I am reminded of that bitterness and horrible feeling of injustice every now and then.
This post is written after a lot of extreme debate and disagreement over the value of a number of cases in a lot of different venues. We are preparing for trial in a case where we cannot agree with our opponents. Sometimes, I wonder whether the easy thing to do is let a jury decide the amount of fair compensation. I currently have settlement offers in other cases where everybody seems to disagree as to what would be a "fair" amount. And, as I am writing this post late on Wednesday night, my email indicates that BP is "chickening out" and filing a motion to prevent an evidentiary hearing (a sort of mini trial) to happen this Friday in a very public disagreement over how the oil claims process and other matters involving the oil spill should work.
Ruck DeMinico sends all our firm’s attorneys case updates in our field of law so we can keep up on the most recent developments. Most law firms do not invest in a "knowledge manager" like Ruck, and I am certain our attorneys are better for the support we get from him. He will have reviewed my prose before you read this.
Ruck forwarded a very recent Mississippi insurance agent negligence case, Marmillion v. American International Insurance Company, that should serve as a reminder that judges and juries do not always agree with what a party or an attorney thinks about a case. The case also serves as a reminder about how important it is to obtain experts in insurance negligence cases to provide evidence of duties and obligations of care rather than rely upon the simple interaction between agent and policyholder.
The Court noted that Mississippi law recognizes an insurance broker’s “duty to his principal to procure insurance policies with reasonable diligence and good faith.” First United Bank of Poplarville v. Reid, 612 So. 2d 1131, 1137 (Miss. 1992). That is about as good as the case would get for the policyholder. The facts indicate why:
In a letter dated August 18, 2005, a Willis employee informed Marmillion that the beach house policy had been cancelled effective April 6, 2005, and that Willis would make no attempt to have the policy reinstated or replaced absent receipt of a written request from Marmillion. Marmillion never contacted Willis to seek reinstatement or replacement of her policy.
Hurricane Katrina struck on August 29, 2005, and damaged the beach house. On September 15, 2005, Marmillion overnighted the check drafted in August, and Willis assisted Marmillion in filing her claim on the beach house policy. Her claim was later denied by AIG on the basis that AIG cancelled her policy before the claim arose.
After AIG denied her claim, Marmillion filed suit. The case proceeded to trial. But, at the close of Marmillion’s case in chief, the district court granted AIG’s motion for judgment as a matter of law on one of Marmillion’s theories of breach of contract and dismissed AIG Marketing, Inc. The district court also granted Willis’s motion for judgment as a matter of law on one of Marmillion’s theories of negligence and dismissed Willis North America, Inc. At the close of the case, the district court granted judgment as a matter of law on Marmillion’s remaining claims.
Parties have to apply both the facts and the law to the case when analyzing the probabilities of success. Just because the plaintiff has lost everything, does not mean that judges and juries will side for the plaintiff out of sympathy. Indeed, it has been my experience that just the opposite happens. I am not saying that policyholders should not pass on unfair settlement offers. I am suggesting that each case should be coldly analyzed in the framework of true facts, not the facts the plaintiff wished he had, along with the applicable legal rules that the judge and jury will apply. This is much easier said than done.
