The Fifth Circuit yesterday rejected — for at least the fourth time this year — a claim that a homeowner’s insurance policy covered losses resulting from Hurricane Katrina.  Essentially, the court held that homeowners can’t recover for damage from gale-force wind if a later surge of water would have caused the harm anyway.  Leonard v. Nationwide Mut. Ins. Co., 06-61130 (5th Cir. Aug. 30, 2007) (applying Mississippi law).

Nothing remarkable in that, eh?  Perhaps.  But consider:

  • On July 17, 2007, the court refused to certify the "vitally" important questions that it did address to the Supreme Court of Mississippi.  On the same day, it declined to continue oral argument or consolidate the appeal with others pending before the court.
  • On August 6, the court heard oral argument.
  • Twenty-four days later, on August 30, it issued its opinion.
  • The principal question that the court addressed — insisted on addressing — concerned whether an exclusion barred relief that the Leonard didn’t get.
  • The court affirmed the verdict and judgment but spent zero time on the merits of the claim that the Leonards won.

Blawgletter doesn’t know about you, but we can’t recall an instance in which a federal court of appeals so quickly rendered judgment.  Or one where the court so tenaciously stretched to decide an issue.  And we won’t even mention the (to us) needless chastisement of the district court.

But what do we know?

Feedicon14x14_6 Our feed can use unseemly in a sentence.  Also deipnosophist, rhabdomancy, and ulotrichous.

Court also provides guidance on evidence and instructions.

In 1999, a Ford F-350 pickup truck rolled over three-year-old Walter White in his driveway.  He died.  His parents sued.  The jury awarded $2,305,435 in actual damages plus $150,884,400 in punitives.  The Ninth Circuit affirmed the compensatory part but reversed the punitive award and remanded for a new trial on the latter.  The second jury found only $52 million in punitives.  Ford appealed again, and yesterday the Ninth Circuit reversed again.  White v. Ford Motor Co., No. 05-15655 (9th Cir. Aug. 30, 2007).

The second reversal turned on the district court’s refusal to give an instruction.  Ford asked the court to tell the jury that it couldn’t award punitive damages to chastise Ford for injuring 54 other people when its pickups "rolled away".  The Ninth Circuit held that the failure to instruct ran afoul of the intervening decision in Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007).  The court declined to reduce the award to a constitutional level and instead ordered a third trial.

The court also gave guidance on evidentiary issues and on instructing the new jury:

  • The district court may, but need not, tell jurors that punitives must bear a reasonable relationship to actuals.
  • The court must inform jurors that the Whites received $2,305,435 in compensatory damages.
  • The court may summarize the liability facts that the first jury found and advise the jury that the court of appeals "upheld" the jury’s findings.
  • The court has to notify jurors that the first jury found no "defect" in the pickup (only a failure to warn) and that they found the Whites 40 percent at fault.
  • The court may admit Ford’s balance sheet as evidence of its "wealth" under Nevada law but may also allow Ford to introduce its full financial statements to put the balance sheet in context.

Barry Barnett

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The First Circuit held yesterday that a statute that confers a procedural right to bring a class action under a separate antitrust statute doesn’t trump the absence of a substantive cause of action under the antitrust statute.  Diaz-Ramos v. Hyndai Motor Co., No. 06-2026 (1st Cir. Aug. 30, 2007) (applying Puerto Rican law).

Blawgletter would say "duh" except that . . . okay, we’ll say it anyway.  Duh.

Barry Barnett

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Blawgletter don’t know much about the economy.  We ain’t got no stinkin’ Ph.D. in the dismal science, nor can we hang a masters degree certificate on our office wall.  But we do wonder whether Economics has anything to say about the effect of higher wages on business support for worker training and education.

We hear a lot these days about how things like pushing the minimum wage up and limiting immigration prevents willing workers from doing necessary jobs.  Okay.  We get that — at least in the short run.

But don’t those things also discourage bidnesses from investing in workers?  From lobbying for better education?  From becoming more productive and efficient to offset higher labor costs?

We suspect that some enterprises take advantage of cheap labor — immigrant and otherwise — at large societal cost.  Who pays for the employees’ health care?  Often, the people whose taxes support the county hospital’s emergency room.  Who finances their education?  Probably the same taxpayers.  And who gets the capital that would otherwise go to high-tech outfits?  The dinosaurs.

We don’t know about all this of course.  Just wondering.

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Today, the Third Circuit distinguished a recent Supreme Court decision in reversing a summary judgment against borrowers under the Fair Credit Reporting Act.  The court held that a mortgage insurer must send a borrower an "adverse action" notice if it relies on the borrower’s credit report in charging more than its lowest premium.  The court rejected Radian Guaranty’s arguments that it provided insurance only to the lender (instead of the borrowers, who paid the premiums), that it based the premium rate on the lender’s scoring of the borrowers’ creditworthiness (and therefore not on the borrowers’ credit report itself), and that it didn’t "willfully" misbehave.  Whitfield v. Radian Guaranty, Inc., No. 05-5017 (3d Cir. Aug. 30, 2007) (distinguishing Safeco Ins. Co. v. Burr, 127 S. Ct. 2201 (2007)).

Blawgletter apologizes for the title.  We couldn’t resist.

Barry Barnett

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Annereed
Trial lawyer and law blogger Anne Reed.

Blawgletter got a most kind write-up yesterday in Anne Reed‘s delightful Deliberations. 

A shareholder at Reinhart Boerner Van Deuren in Milwaukee, Ms. Reed writes with warmth, wit, and humor about law, news, and thoughts about juries and jury trials.  We subscribe, and so should you.

Barry Barnett

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Each state regulates gambling and marital bliss in its own way.  South Carolina, for example, doesn’t truck with gambling much at all.  And Utah has "forever prohibited" plural or polygamous marriages.

But what happens when somebody goes to federal court to challenge such state laws as unconstitutional?  Two circuit court decisions from today and yesterday, respectively, give us a glimpse.

In the South Carolina gambling case, Jimmy Martin and Luck Strike LLC sued state officials to stop them from enforcing two state statutes that criminalize certain "device[s] pertaining to games of chance."  The district court abstained, under Burford v. Sun Oil Co., 319 U.S. 315 (1943), to let the parties sort out the issues in state court.  The Fourth Circuit, by 2-1, reversed, ordering that the parties must roll the dice in federal court.  Martin v. Stewart, No. 06-1829 (4th Cir. Aug. 30, 2007).

The polygamy case aimed to decriminalize multiple connubiality in the Beehive State.  The district court dismissed on the merits, but the Tenth Circuit held it shouldn’t have.  The plaintiffs forfeited any challenge to Utah’s civil ban on plural marriage by focusing on the criminal prohibition, the court concluded.  And, because the plaintiffs didn’t allege a genuine threat of criminal prosection — the Salt Lake County clerk having rejected their bid for a marriage license — the court held that they lacked standing.  Bronson v. Swensen, No. 05-4161 (10th Cir. Aug. 29, 2007).

Barry Barnett

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Do you ever tire of reading federal court of appeals opinions?  How about Blawgletter’s handy-dandy encapsulizations of same?  If you do — and nobody would blame you — perhaps you ought to try beer pong.

In today’s WSJ, Shelly Banjo (awesome name!) gives the low-down on "the popular campus drinking game".  Ms. Banjo helpfully includes a video and graphics that show different ponging techniques — the "Lob", the "Bounce", and the "Straight Shot".  She ends by noting this about a law student and his buddy, Brandon Best:

[They] recently spent $3,000 of their college graduation money to launch Upong Outfitters, a line of what they call "classy" beer-pong polo shirts to sell online and at tournaments. Meantime, Mr. Best is studying for a December Law School Admission Test to prepare for what he calls his "backup career" as a lawyer.

Funny.

We presume that one could also take the law-to-pong career path.  Something to think about, eh? 

Barry Barnett

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Who will replace Alberto Gonzales as U.S. Attorney General? 

A gaggle of names has emerged, and just about all the list-makers include Senior Circuit Judge Laurence H. Silberman.  Judge Silberman has sat on the D.C. Circuit since Ronald Reagan appointed him in 1985.  He also has tons of other government experience.  So Blawgletter thought that we might mention something His Honor wrote back in March 2007.

The passage comes in his 2-1 majority opinion striking down the District of Columbia’s restrictions on handguns.  He first quotes from Dred Scott v. Sandford, 60 U.S. 393, 350 (1857) (emphasis his):

Nor can Congress deny to the people the right to keep and bear arms . . . .

Then he comments:

Although Dred Scott is as infamous as it was erroneous in holding that African-Americans are not citizens, this passage expresses the view, albeit in passing, that the Second Amendment contains a personal right [to own guns].

Parker v. District of Columbia, 478 F.3d 370, 391 (D.C. Cir. 2007).  Reminds us a little of purse-making and sow’s ears.

Barry Barnett

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