These are some links I missed last week:
The insurance world is buzzing over the decision permitting — with some limitations — insurers to use their own internal staff counsel to represent their insureds. Here is how Insurance Journal discusses the case.
Blawgletter’s gut reacted very badly to the Court’s recent uninsured-motorist decision, Nationwide Insurance Co. v. Elchehimi, No. 06-0106. Blawgletter said:
“We expect that the Elchehimi decision will earn the ‘followed’ designation in Shepard’s from zero of the Court’s sister courts around the nation. Because a persuasive legal opinion can’t simply string quotes and cites and sentences and paragraphs together and state a conclusion that seems colorable to the majority. The opinion must also make compelling sense. It helps if it seems fair. Elchehimi, in our view, may reach colorability, but it falls painfully short of convincing. Not to mention of fairness.”
My first impulse was to suggest that the more appropriate place to “simply string quotes and cites and sentences together and state a conclusion” is the blogosphere, but on re-reading and thinking more about Blawgletter’s post, I see that my jocular response would have been unfair. Although I disagree with how Blawgletter has been interpreting those “followed” statistics, the Elchehimi case does leave unanswered many more hypothetical tort-law questions than the narrow statutory-construction question it answers. While that is not a fatal flaw in a judicial opinion, it does frustrate those who are expecting a common-law tort rule (“what happens in each circumstance and why?”) rather than a textual analysis (“what did the Legislature say?”). I may have more to say about those divergent world views in the context of Elchehimi later.
The hypotheticals also frankly scare me. Do these hypotheticals of cars spontaneously splitting in half really happen often enough to create confusion in the law? If so, it seems like our biggest concern on the highways isn’t which insurance rider might cover the damage.
The BP Refinery case moves forward with the long-sought deposition of the former CEO Lord Browne. It was a one-hour telephonic deposition. As reported in the Houston Chronicle, the plaintiff’s counsel “said the deposition revealed no smoking guns, and Browne said nothing that would help or hurt plaintiffs in ongoing blast-related litigation.”
The idea that a one-hour telephonic deposition could result in “smoking guns” seems fanciful (especially because “smoking guns” are pieces of tangible evidence, such as documents, that either contradict testimony or make it immaterial), but I imagine that was how the reporter phrased the question.
Cases in Lower Courts
A state district judge has struck down the $5 fee assessed by the Texas Legislature on customers of strip clubs — colorfully named the “pole tax.” The L.A. Times article is more in-depth (one suspects there was a fistfight over this article assignment) and includes quotes from the principals, including a statement from the AG’s office that it will “vigorously appeal.”
It is no surprise that the word “vigorously” was used — that adverb seems almost required in press releases, as if it adds an extra heft — but I’ve never quite been sure what that word means in the staid, subdued world of appellate litigation.
Is “vigorously appealing” something like “strenuously objecting”? Or does it signal that perhaps the office will seek a permissive direct appeal to the Texas Supreme Court because this district court order invalidates a statute on constitutional grounds?
I will count “vigorously appeal” as this week’s “We’re taking it all the way to the Supreme Court!” winner, whether the State chooses to take that journey in one step or two.
The Fourteenth Court has decided that Michigan’s workers-compensation law bars relief pitcher Doug Brocail from bringing claims against the Detroit Tigers, his former employer, for injuries he suffered while playing there.
Brocail later pitched for the Rangers, the Padres, and (now) the Astros.