On the Rhetoric of the Ridiculous

On the Rhetoric of the Ridiculous

0

Overdoing rhetoric in briefs, motions, pleadings, etc., is poor, tasteless, and below-grade “C” lawyering. There has recently been direct and unequivocal explicit support for this obviously true proposition.  Perhaps the pronouncement of the 6th Circuit will encourage those who do not realize that stridency of semantics, as opposed to restrained assertion and calm clear argument, is almost never a good idea. Let the ideas produce the desired effect; if they don’t do the job, try a different approach if possible. 

Never resort to the crude bluster, cliche-ridden, the always overdone language of the pool-hall loudmouth. Grade C lawyers at this point might say that such a position is absurd.  Such lawyers still would not have learned the lesson.—MSQ

An illustration of this point is to be found in a recent insurance case.  Barbara Bennett et al v. State Farm Mutual Automobile Insurance Company, No. 13-3047, 2013 WL 5312398 (6th Cir. September 24, 2013)

In this case, Ms. Bennett was struck by an automobile as she was walking her dog. As a result of this accident she ended up in the car–not next to on the roadway, not standing next to the car, and not under the car.

She argued that she “occupied” the car under the State Farm policy.  The District Judge held that State Farm’s defense was correct: she did not “occupy” the auto, since she was not in it.  State Farm called Bennett’s position “ridiculous” and did it on the first page of their brief.

The court criticized this linguistic behavior for four reasons: first, where the language was in the brief, second because it was worded as it was; third because State Farm’s argument was fairly obviously invalid; and fourth because State Farm was wrong.

With regards to points #1 and #2 the court, quoting another opinion from which  it wrote its opinion: “There are good reasons not to call an opponent’s argument ‘ridiculous,’ which is what State Farm calls Barbara Bennett’s principal argument here. The reasons include “civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief, and that even when  the record supports an extreme modified, ‘the better practice is usually to say out the facts and let the court reach its own conclusion.’ Big Dipper Entm’t, L.L.C. v. City of Warren, 641 F.3d 715, 719 (6th Cir. 2011).”  Trying to, in some sense, compel opinions by the use of “battle-station” rhetoric is ill-advise.*

With regard to the third point,  the court criticized State Farm’s argument.  It argued that coverage analyses proceeded on the basis of how whole types of policies are interpreted: auto policies for example, and the “occupy” language of those types of policies. The court informed State Farm that contracts of insurance are to be interpreted one at a time and not as whole classes. That a court has decided a similar-looking policy in the way the insurer wants it interpreted does not bind a court, even itself.  Nor is the “type of” versus “this language for this situation” valid reasoning.

State Farm also tried to argue that only someone who has an “intrinsic relationship” with a car can be said to “occupy” it, and hence the court ought to be examining whether Ms. Bennett has such a relationship with the car that struck her. Instead, the court observed, there was an authority in Ohio, where this suit was brought, that the intrinsic relationship test was one of several that can be applied “‘where a  gray area exists concerning whether a person was an occupant of a vehicle and thus entitled to coverage. In this case, however, the policy marks out its zone of coverage in primary colors. The policy terms therefore control.”

On this ground, the court reversed the district court and entered judgment in favor of Bennett. And it did this without remanding.

One can wonder about the decision. Oddly enough the court does not include a quote from the policy. That is unusual but not really interesting as to the court’s reasoning. More interesting is the fact that the court does not give a specific argument–perhaps based on a hypothetical–supporting the proposition that being in a car entails the proposition that one is occupying the car.

It also clearly, though impliedly, rejects the idea that the term “on” in this situation is ambiguous. It seems to me that one can be on a car, e.g., on top of a car, without actually occupying the car. The man that washes, waxes, and cleans out my car every Saturday, does not occupy my car all the way through its work. He stands next to the car while is washing it; he climbs up on it to wax the top and gets in it to clean out the interior in various ways. It is plausible to say that only for the third part of the operation does he occupy the car.

Although the following example–nor anything like it–should ever be found in a brief (or anything like it), except as taken from a transcript of testimony. One can easily imagine a couple denying that they occupied the car while having sex on the front hood of the car (or even the roof), but “admitting” that they occupied the car when they did so in, for example, the back seat.

Perhaps–just perhaps–the court is impliedly suggesting that Bennett was occupying the car because she did have an intrinsic relationship with it. After all, she suffered further injuries as a result of being placed in the car–injuries that she would not have received had she not been knocked up onto the car.  I suppose one could argue that if one has been put onto something it occupies it.  One can easily have subscribed to this argument if the word is “into,” not “onto.”

One might oneself not be convinced by the court’s reasoning.  Consider the dog belonging to the 2012 candidate the Republican Party recently ran for president.  It did not occupy the family car when he was attached to the roof of the car as they all drove to Canada for a vacation.  The disclosure of this fact caused a furor. Obviously, part of the general population agreed: the dog did not occupy the car. In some respects, although certainly not in other very important respects, Bennett and the dog share properties.

*I tried “battle” rhetoric first long ago in the presentation of an argument to the 8th Circuit.  It was a covenant not to compete for the case with federal jurisdiction on grounds of diversity.  I had tried the case and lost. Anyway, I opened by informing the court that “This case is one of national significance.”  The head of one of the judges almost jerked up, and he immediately and a bit disdainfully asked, “How? Why?”  My answer had to do with the lack of case authority on how to interpret a “Uniform” act that had been passed in the relevant state.  I actually thought that a specialized uniform act, used in various ways around the country but enacted only here and there, made the matter then at hand one of national significance.  My clients loved it, but. . . . 

 I suppose  I must confess that my address there was not the last time I did that, though all the (few others, I hope and believe) were somehow triggered by a mysterious outside source, and therefore have been instances of unintended rhetorical idiocy so that  I am not really responsible.

Read More

An Ironshore CyberPolicy–Part VII: Insuring Agreement I.F.

0

TechDefender
Tech E&O, Network Security, Internet Media, and MPL Insurance Policy
Insuring Agreement I.F: Regulatory Proceeding Coverage

Remember: This Blog is organized around insuring agreements, definitions, and exclusions. Conditions, etc., may be remarked upon briefly, but they often resemble not only each other but those found in currently existing policies. It also ignores policy limits, retention matters, notice requirements, time intervals for coverage, etc., important as these are. As usual, the discussion of everything in this blog is tentative, partial, and perhaps mistaken here and there.  It is a new and relatively uncharted ocean.

*********************************************************************************

This insuring agreement is entitled Internet Media Liability Coverage.  It departs from the topics of privacy and network security and injury.

The principal topics here are Electronic Publishing Wrongful Act and Damages.  The definition of Damages was covered in Part IV, so it will not be explicated again here, since it is lengthy, cumbersome, complex, and easily accessible.; there will be only a brief mention.

The focus will be on the first of these two, Internet Publishing Wrongful Act.  It is complicated enough considered just by itself, partly because it hinges on another definition, Electronic Publishing, which–in turn–hangs in part on yet another definition, and it too. . . . down the pillar of definitions. Obviously, this discussion cannot complete the whole, dependent group of definitions.The idea of a wrongful act is not itself defined in any general way, though it is sort of defined in terms of different key activities. Nevertheless, what it probably is, at least in part,  in different contexts is clear enough from the two words themselves, knowledge of the English language, and common sense.

The substance of the insuring agreement reads this way:

 The Insurer will pay on behalf of the Insured all Loss that the Insured is legally obligated to pay as damages as a direct result of any covered Claim alleging an Electronic Publishing Wrongful Act (EPWA), provided. . . .

EPWA includes a number of actionable acts, some of which are also found in Coverage B of the Commercial General Liability policy, and there are more. The EPWAs are all linked to the Insured’s Electronic Publishing.  Here is a list of some of them, which give the reader a general idea:

defamation,
trade disparagement,
plagiarism,
false light,
false advertising,
violation of the right of privacy,
the seclusion of a right to publicity
copyright infringement,
many trade infringements, of various sorts,
unauthorized use of various things, formats, plots, etc.

Significantly, the so-called “cyber-world” and “real-world” can overlap here.  Here is a crucially important example, copyright violations.  The object taken can originate in one of the worlds and the violation occurs in the other. Of course, they can both happen in the “cyber-world,” and this coverage applies.

Hacking is a highly publicized example of this sort of thing.  It starts in the “real world,” passes into the “cyber world,” and then impacts the real world.]

[Here is another, rather different, recent, distressing example. Someone got a hold of a copyrighted pornographic video, obtained the copyright for itself, and then posted them.  It found those who were then downloading it illegally (even once), sued many of them (using boilerplate pleadings), and quickly settled with those downloaders who were willing to settle for less than their costs of defense. Many people either didn’t want to spend the money on defense or didn’t have it.  Besides, who wants to know about your habits when it comes to porn. These scum bag lawyers and their minions made a good deal of money before getting caught and sanctioned by the court. The judge also sent information to disciplinary committees of various bar associations,  relevant information to other courts where they appeared and saw to it that they were left open to civil suits. (Of course, criminal prosecutions may also turn up, since this was probably some sort of swindle using federal courts.)  Ingenuity 13 LLC v. John Doe, 2013 WL 1898633 (C.D. Cal., May 6, 2013).]

So an EPWA is a “WA” committed in relation to EP.  Now, how–more or less–is the phrase
Electronic Publishing defined.  It is “the reproduction, publication, dissemination, transmission or release of information, including Electronic Data and other various cyber-type things on a website or operated and owned by the Company or Computer System of the Company, provided [it is that of the Company by itself.]”  Notice that the definition of EP contains other definitions, of which–that of Electronic Data–is on the complicated side.

Several features of the insuring agreement as portrayed here are worth noting.

First, as with some of the other insuring agreements, the insured has a very long list of propositions it has to prove in order to begin to qualify for coverage. (And this doesn’t even address the exclusions, even those are for the insurer to prove, so long as they are not exceptions to the exclusion built into the exclusion.)  This is not an easily played game.

Second, the Insurer has a duty to “pay on behalf of the Insured all Loss[es]. . . .” that the “Insured is legally obligated to pay as Damages as the direct result of any. . . .   The phrase “pay on behalf of” is a crucial phrase here.  It means that the Insurer will not wait to pay the Insured until it has spent money on necessary activities; it will pay upfront to whoever has a right  to be paid by the Insured

Third, the Insurer’s duty to pay applies only to damages that are the “direct result” of an action.  As has already been pointed out in another Part, there is a slew of disputes arising out of so-called “real world” policies regarding the meaning of that phrase. Presumably, it is a jury question, but it can be contested for a very long time.

Fourth, it is extremely important to remember that the term Loss includes not only Damages but Claim Expenses. The two ideas are obviously different. The latter includes the Insurer’s duty to defend, and, so far as I can tell, not much else.

Fifth, it is tempting to say this: the insuring agreement I.F is saying that the Insurer has the obligation to pay defense costs only if the Insured is legally obligated–and so have been found to be legally obligated–to pay Damages.  This idea is absurd from a temperate view, among others.  If I have read the language correctly, then the insurer would have no duty to make payments on behalf of the insured until after it was determined that the Insurer was legally obligated to. . . .  Hence this is not a really possible reading.

Sixth, another way to read this insuring agreement is this one: the agreement says that the Insurer will pay on behalf of the Insured all Loss “that the Insured is legally obligated to pay as damages.”  But the term Loss contains two parts.  Only one of them pertains to Damages.  The Insurer has promised to pay Damages only.  It has not promised to pay any other component of the definition of Loss.  If this is right, then the Insurer has no duty to pay for any part of the Insured’s defense.  Insuring agreement I.A. does not restrict the Insurer’s obligations to Damages only.  It covers all Loss, so it covers costs of defense as well.  (Now, I must confess that I have a feeling I’ve missed something.  Intuitively, it doesn’t seem probable that a liability insurer selling a policy like this one, would not include a duty to defend. Nevertheless. . . .)

Seventh, this problem is one of appearance only.  There is a separate section in which the duty to defend liability cases is set forth.  This fact may be confusing even to the more experienced reader.  The reason is that the duty to defend it is usually set forth in the insuring agreement section of a policy. Here the opposite is true.  That duty  gets its own section,  The insurer’s duty to defend in this policy may be weaker than in many so-called real “world policies.”  Most policies of the so-called “real world” require a liability insurer to defend its insured if the plaintiff’s pleading states–or, probably in many jurisdictions, sketches a covered claim; it does not require that the claim actually be covered.  The plaintiff (and possible victim) can be wrong about what is asserted in the pleading or even lying, and there is still a duty to defend. The liability sections of this policy don’t appear to say that.  It at least appears that the claim must actually be covered.  I don’t see how that can be true, but if I have understood the language, that is what it says.

With respect to exclusions, there are a lot of them.  Almost all or all of them are subject to exceptions. Both of them are complicated. The list of exclusions, however, is very similar to that found in so-called “real world” policies. For example, there is no coverage for dishonest actions and actions performed for the purpose of profit.

One significant difference is that, like most cyber insurances but unlike many “real-world policies,” injuries to human bodies and tangible property are excluded.

Another exclusion quite specially connected to I.F is an exclusion for most “unsolicited electronic dissemination, faxes, emails, or other communications by the Insured or any other third party,” including those which violate statutes, with various exceptions.

Much more can be said and argued, but enough is enough.  Coverings of coverages can run on forever, and maybe this has already gone on too long. So it’s time to pass on.

Read More
Stunning Racism and Very Poorly Performing Lawyers

Stunning Racism and Very Poorly Performing Lawyers

0

I. Introduction

Words like “outrageous” have largely been ruined by the legal profession.  In many briefs, for example, if an author does not like the views, and/or the arguments of the opposing author s/he calls it, or various “things” in it “outrageous,” and/or uses similar words. (“Ludicrous” is one of these; “fanciful”  is another, as is “absurd.”) The list of similar words is a long one.

The idea of using actually appropriate terms such as “invalid,” “unsound,” “unlikely,” and/or “wrong” seems more and more seldom to be embraced. 

Does the profession–or, lots of members of the profession–really believe that decisions are made on the basis of the use of strident language?  I actually do not remember a court ever calling an argument “outrageous,” although they sometimes say that about the conduct of lawyers.—MSQ

Some of the conduct of some clients, however, really is, out-and-out outrageous. This doesn’t have to be a violent act; it can be running naked through a church with a hard-on, a husband calling his pregnant wife a “cunt and a whore” in public (as recently happened to my pristine daughter), or calling the presentation of arguments in a trial and in front of both the jury and the judge, nothing but “foul spelling chicken-shit.”

One would never expect to hear about that kind of conduct at a university (whether distinguished or not) perpetrated by an upper mid-level member of the administration and tolerated, perhaps even supported, but a very high ranking member of the administration, who is also an elected political figure in state government. Yet this is what happened at Alabama State University (ASU) not so long ago.

Weatherly et al v. Alabama State University, et al, 2013 WL 4712727 (11th Cir. September 3, 2013)

First, there is the story.  Second, there is the opinion of the 11th Circuit.  Last there comes the part about lawyer performance.

I. The Story

There were three women (Weatherly, Williams, and Burkhalter) who were the plaintiffs in this case.  Two are African-American, while one was biracial (part African-American, part Caucasian). The direct perpetrator, Bartley, also an African-American woman, was an associate executive director in the Office of Special Assistant to the President. Bartley’s boss, Knight, was the special assistant to the president, then acting president, and then chief operating officer. They were defendants, along with ASU.  Most of the abuse was carried out by Bartley, but not all; Knight, a male, was also sexually abusive.

The plaintiffs were office personnel and were supervised by Bartley.  The testimony of the plaintiff will be summarized in the next three paragraphs.

Bartley repeatedly used the forbidden words “nigger,” “nigra,” “nigger shit,” in their presence, often to their faces, for example, about something they had done or left undone.

Bartley’s abuse of Weatherly went on from 2002 until 2008, except for briefly in 2003 when Weatherly moved to a separate department. At one point a physician “took her off work.”  When she complained to HR nothing was done, and eventually, she was moved to another department.

Burkhalter was a senior administrative secretary for Knight from 2007 to 2009.  She was treated to virtually all the same language as Weatherly plus various combinations of derisions with “bitch.” Even Burkhalter’s 7-year old son was called a nigger. And there was abuse by imagery.  At least once, Bartley looked her up and down and curled up her nose. The verbal harassment was not restricted to racial comments.  Burkhalter said, for example, comparing Burkhalter’s breast to “melons.”  And the descriptions of verbal abuse go on and on. This plaintiff also testified that Knight made similar remarks. There was even some physical touching of a suggestive nature.

At one point Knight told Burkhalter that she was not allowed to document “anything” that happened to her in his office. 

The conduct of Knight and Bartley apparently caused health problems for Burkhalter, and eventually, she was fired for “abandoning” her job.

In the case of Williams, it all went more quickly.  She was hired in January 2008.  She immediately received the same kind of abuse as Weatherly and Burkhalter, but when she went to HR, they refused to receive her complaint on the grounds that they had already received a number, but had already had a hearing. She tried to file twice more but was turned down again and again. In mid -November 2008, she wrote a letter complaining of the hostile work environment of the past few months and sent it to Knight, Bartley, HR, and the EEOC. ASU promptly fired her, and she was unable to find another job for a year.

The plaintiff went forward. There was a motion to separate the suits. There was a discovery. There was a trial. The jury decided. The plaintiffs prevailed. They asked for “front” pay from the judge, and it was granted.  And there was an appeal. (In the district court, the judgment was over $300k for each of them, and in two cases closer to $400k.)

II. Lawyer Performance

And now we’ve arrived at the point where the discussion of the lawyer and their performance begins.

The procedures followed by the lawyers are simple:

They claimed that the district judge abused his discretion by not granting ASU’s motion to separate the cases.They argued that the district court “should have found that ASU’s untimely renewed motion for judgment as a matter of law timely, or in the alternative, granted relief under Federal Rule of Civil Procedure 60(b).”The district erred in awarding “front pay.”

Basically, the Circuit court says that errors of ASU severely limit the jurisdiction of that court. It failed to follow the Federal Rules of Appellate Procedure, and it failed to perfect the record before the district court.

Right out of the block, as the saying goes, ASU moved to separate the cases. The motion was denied, but the judge noted that discovery might provide a reason to do so. Thus, the judge’s denial of the motion at that time was without prejudice and he virtually invited the ASU lawyers to file it again later.  After discovery, ASU’s lawyers could have tried again with the evidence for discovery, but they did not do so.  Consequently, the only motion for the circuit to review is the first one, and there was nothing wrong with it.ASU’s motions regarding its post-trial motions were filed past the required time specified by the rules, and it did not file appeals on the needed issues: one on the motion to renew and one on the final judgment itself. The court was disapproving the ASU lawyers waiting until the last minute to file what was needed and as a consequence was not timely filed. It does not say so but it probably implicitly finds that the lawyers attempt to blame the problem on the court’s computer system “low class,” as the saying goes. It explicitly states that the reason it decided not to blow off demanding conformity with the rule was that the lawyers waited until just 3 or 4 minutes before the deadline to try to start filing. (One can hear in one’s head,  “You made your bed, now lie in it.”) The court also decided not to set aside the deadline as something like an act for forgiveness on the grounds that the new motion was virtually identical to the first one. (“Why bother?” rings in one’s ears.)  Because of the late filing, says the court, it lacks jurisdiction to even hear the matter.With regard to “front pay,” the court’s discussion is swift and certain. (a) The plaintiffs are entitled either to reinstatement or front pay, and both sides agree that reinstatement is an unacceptable remedy.  In addition, the affirmative defenses are hard to take seriously implies the court. Do the plaintiffs have dirty hands?  One of the plaintiffs did not mitigate since she eventually accepted a lower-paying job? (The phrase “Get serious” crosses the mind.)  This part of the opinion, while more substantive than procedural, is just as scorching.

III. Court’s Last Word

“We are left to speculate who is in charge at ASU.  Regardless, however, we are unnerved by the apparent acquiescence to, if not outright condoning of, the abusive work environment created by its high-level employees. Such conduct has no place in a work environment, especially in a publicly funded university.  Additionally, we are troubled by ASU’s attorneys’ inability to adhere to court procedures and deadlines. Timeliness is imperative in the practice of law, and attorneys should not expect sympathy from this court due to their own carelessness.” 

IV. Quinn’s Speculative Comments

One of the conjectures is about what happened at ASU, and the other one is about the lawyers.

A. Inside the University

I speculate that the continual racial, n-word remarks, were not regarded by her as racist.  I’d guess that she did not see them that way since she regarded the context as “Black v. Black.”  She might be saying to herself, “How can what one African-American says to another in racial terms be racist?  It’s a lingo we all use.  Everyone does it. You hear it all time in rap music, etc.?”  The response is twofold, although it played no really explicit role in the court’s decision.  

First, at best, it calls attention to the subordinate nature of her victim in terms of race. It is an assertion of superiority formulated in terms of race. Second, while it is true that the acceptable lingo contains the terminology used by Bartley is part of the lingo legitimately usable only by African-American’s addressing one another–it is not to be used as an instrument of tyranny, or even social class. Its use there laps over into racism, after all, it is reminiscent of the fact that during the slave years, there were black foremen–if that is the right word–in command of black field workers, etc., who were in the tyrannical control of the “Master.”

The conduct of Knight, the senior officer, was just the same and worse. He should have been in charge. He appears to have been educated to the “doctoral” level, and yet he did nothing.  His conduct, in particular, because of his high status in the chain of command, was not only scandalous, it besmirched the entire public institution. 

My comments do not address the physical aspects of the outrageous behavior. Neither do they address the stunning conduct of the HR department?  Perhaps they refused to respond because of Knight’s command position. If this is true, it increases the level of tyranny to such a degree that it is absolutely inconsistent with public obligations in this county. One can only hope that Bartley was sacked, that Knight was too or demoted to an appropriate position, and that the HR department was disciplined and reformed.

B. Now for the Lawyers

I begin with the proposition that very few lawyers, especially those retained by large institutions, are as poor–indeed, as incompetent–as this crew.  Their performance was outrageous.  It was a scandal. An affirmative evaluation of these folks–to use the President’s popular jargon–would be absurd.  (It is in contexts like this one that those words make sense.) The court clearly implies this with the word “unnerved.”)

Perhaps there are other interpretations. One of them might be that the lawyers wanted to make sure that ASU did not stand a chance in the appeals court. Another is to try and “go under the bus” for good ol’ ASU so that it could blame its disgusting conduct, namely, on the idiot lawyers it hired. 

Implausible, I suppose, but politics is a weird business. Besides, there isn’t a ghost of a chance that there would be a malpractice case awaiting here.  The university wouldn’t expose itself to the huge probability of another public disgrace. In addition, a malpractice case could not be won because of the “CASE WITHIN THE CASE” RULE.  Furthermore, it is unlikely that there will be a bar complaint. The defense would be “Granted we did a bad job, but we tried hard, and hence we zealously represented our client, even though not very well.”       

Read More
An Ironshore Cyberpolicy–Part VI: Insuring Agreement I.E.

An Ironshore Cyberpolicy–Part VI: Insuring Agreement I.E.

0

Tech E&O, Network Security, Internet Media, and MPL Insurance PolicyInsuring Agreement I.E: Regulatory Proceeding Coverage

Remember: This post series is organized around insuring agreements, definitions, and exclusions. Conditions, etc., may be remarked upon briefly, they often resemble not only each other but those found in currently existing policies.

The first specific thing to notice here in I.E. is that the Insurer agrees to reimburse the Insured.  Be mindful of the fact that this concept is quite different from “pay on behalf of” or “pay for.”  “Reimburse,” literately understood, means that the insured pays first. There is no reason to believe that a court will not take this language literally. Second, and very important, this entire section is attached to two concepts: Privacy Incident and Regulatory Proceeding.  The first of these concepts was discussed in Part V, and a concept related to the second one, Privacy Regulation, was also discussed there. Much of what was written there is reprinted in the next paragraph. The phrase Privacy Incident briefly put includes (i) the disclosure, etc., of some information or another, that is secret, or close to it; and the disclosure is in the care, custody, or control of the Insured or Service Provider.  (ii) That disclosure must result from a Privacy Regulation or a failure of the Company to comply with its own privacy policies. The concept of Privacy Regulation includes a slew of  named statutes, both state and federal, plus regulations under those statutes, and “any similar state, federal or foreign identity theft or privacy protecting statute.”

Does the reader realize how controversial the phrase “care, custody, and control” can be in insurance disputes?  And here only immaterial entities are involved. Will that complicate matters? Does the reader recognize that there may be controversies generated by the word “similar”?  Or what about this what about the word “any”?  What about when they don’t apply? Are Bolivian privacy administrative rules applicable to problems in Oklahoma?  (Perhaps not; but consider the twists and turns, “New York lawyers” might generate out of these two ideas.)  Remember: the phrase “care, custody, and control” has caused lots of insurer-insured disputes for many years.—MSQ

Now for the second of the two crucial concepts, Regulatory Proceeding.  This topic has not been written about in this (group of) blog(s).  The idea is pretty clear from the language.  The phrase means (1) a governmental investigation of an Insured, e.g., perhaps leading up to an adjudicative governmental hearing concerning a Privacy Incident, and/or (2) an adjudicative administrative hearing on either a Privacy Wrongful Act or a Network Wrongful Act including an appeal, either of them begun by the receipt of “a subpoena, a formal investigative demand, complaint or similar document.”

It seems odd to me, at least appears, that one of the types of wrongful acts is covered for investigations and the other one is not. Indeed, this seems so unlikely that I think I must have missed something.

The Insured’s right to be paid for its expenses in this arena is huge. This fact indicates that the insured should make sure that everyone in the organization involved knows well the terms of the policy, consults with risk management, stays in close contact with the IT and IS departments, and ask in-house or outside counsel for advice.  (Perhaps there will be an appropriately specialized attorney included within the in-house counsel department. This is not uncommon in really large law firms.) In addition, the Insured should monitor its work on these matters carefully, make sure that accurate records are kept, make sure that confessionary, personal, and other assorted messages are not entered into the cyber-systems.  It would be a good idea for the insured to institute a special, nearly unique kind of specialized “Product Management,” as it is now called.

The Insured should also make sure that it has enough coverage. The problem here is that no one really knows what is adequate coverage.  The whole field is too new; there has not been enough time to develop helpful statistical data.

On to I.F.

Read More

“Cyber-[Somethings]”–A Readily Rejectable Revolutionary Nomenclature

0

No policy of insurance should ever be named “Cyberworld Insurance” or “Insurance for the Cyberworld” or anything of the like.  This blog explains why.

Discussions of  the Internet and it’s numerous “cousins” haft  to use language naming the group or set of “somethings.”  Obviously, that language–those names–must be somehow conjoined to the word “cyber.”  Here are some widely used locutions: “cyberworld,” “cyber-world,” “cyberspace,” “cyber-space,” “cyber-reality,” “virtual-[all the preceding],” and more. 

Many are nervous, frustrated, irritated, upset, etc., by the fact that these new semantic constructions are MISLEADING, par excellance. And rightly so.  Of course, history changes language.  “The phrase “fuck you” has a whole new–and now widely used–meaning.  The new active verb “to text” is grating to the ear; the noun “mouse” is an odd addition, but what the hell.

The nouns “cyber-something]” is a wholly different matter.  They are terms with a kind of revolutionary (implied) meaning which–get this–dangerously transforms most acceptable metaphysical, ontological theories of (or overall views of)  the real world, of everything that exists.

Calling something a “cyberworld” or “cyber-world” implies that there are two separate worlds.  Any conception of any world involves the world consisting of some sort of something, whether it is a physical object, ideas in the mind of the Creator, ideas in the mind of each person, and so forth.  In every case, they are part of the same world.  There is no physically respectable view in which there are two separate worlds.  There is no such thing even possible as a “real world” and a “virtual world,” both of which exist.  The whole idea of a “virtual world” suggests that such a world does not really exist but almost does.

Even if the mind and the body, something about which there has been a philosophical controversy for well more than 2500 years, are separate and “made out of distinct substances,” one material and the other not, they are not part of the same world.  It is not the case that one exists, and does not but comes close.

Even those who believe in God or gods and make Him/Her/or/It the creator(s) of the universe are still part of the same world.  Neither of them is somehow “virtual reality.”  This is a phrase for psychologists trying to deal with an atheist or agnostic possessed by a huge but befuddled imagination.  Not even those who believe in flying dragons–or, better yet–splendid and glorious angels, believe that they are not part of this world if they exist.

Every term that is a name of an existing something, virtually on its face, that which is named is part of this world, if it exists. If mathematical concepts and/or equations exist independent of minds, they are part of this world–the one and only existing world.

There is no reality opposed to a cyber world.  Yet the opposite is exactly what the phrases being discussed suggest. The opposition suggests that there is real opposition between something which is real and something that is unreal.  There is no something that is not real. Even if the mind and the body are not, as it were, made of the same stuff–thus there is the “Mind-Body Problem”–they still inhabit the same world. The idea that there exists something that is not real also warps the imagination; it stands in the way of grasping true reality–as if anything else could possibly exist, and it retards (and will retard) intellectual progress in the heads of both young and old.

The iniquitous phraseology, will–alas–lead to a whole new system of words. Here are some examples: “cyberworldology,” “cyberworldification,” cyberworldmystification.”  Phrasings somewhat like this are not problematic; consider “cyber bullying”; however, most of them contain no suggestion of a separate reality.  That would pop into implied virtual being if the phrase was “cyberworld bullying.”  Rest assured! Such bullying is fully and not just virtually real.  Now consider a genuinely puzzling case.  Is there such a thing as cyber-world bullshit?  What would this be?  Virtually existing manure from a type of cow? Of course, “cyber-shit” is a good usage; all that says is that there is metaphorical shit to be found “on” the Internet.  The idea of cyber mysticism seems to work as well, although there cannot be such a thing as mystical knowledge of the cyber world, since the latter does not exist, even if the former does.

Alas, many will continue to use the phrases; I certainly will, even though it causes the very oddest of dreams.  Most of the true, unbelieving, anti-cyber-world advocates continue this dangerous course because no one can come up with an alternative usage–a usage that would actually work. 

Maybe we all are simply stuck.  There is a problem with that reality.  It is a misrepresentation to have an insurance policy named “Cyberworld Insurance.”  But since there is no such thing as a cyberworld, is not the name of the policy suggesting that there is such a thing, and isn’t that a misrepresentation?

Read More

Quinn Quotes

Asserting a proposition one believes in a certain situation and asserting its opposition in a substantively different situation, is not necessarily inconsistent. Neither one, taken alone or together, entails advocacy.~Michael Sean Quinn, PhD, JD, CPCU, Etc.Tweet

The books shown are NOT affiliate links.
MSQ (site) does not receive any compensation for books listed or sold.
Books are shown for the reader's convenience only.

Newsletter

Michael Sean Quinn, PhD, JD, CPCU, Etc*., is available as an expert witness in insurance disputes and other litigation matters. Contact