AN OLD ENGLISH FIRE INSURANCE POLICY ISSUED BY THE FRIENDLY SOCIETY

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A PROPOSAL FOR INSURING HOUSES BY                      THE FRIENDLY SOCIETYMichael Sean Quinn, Ph.D. & J.D. Austin Texasmquinn@msqlaw.comThe “Friendly Society” (“FS”) began insuring houses as early as 1684, around the time of  Great London Fire according to the Proposal discussed here.  FS, like the few other homeowners insurance policies that came into existence around that time, began by issuing “PROPOSALS.” They appear to be partly ads, partly offers, and partly public relations ploys. What follows here are some passages from this document and some summaries. I have changed/updated capitalizations and spellings. I issue no warranty of absolute correctness and guarantee incompleteness. The first topic of the document is the length of the life of the policy and how payments are handled A policy could be as long as 7 years, but it could shorter. Money is paid-in by an insured’s making a deposit with the insurer. It may be returned at the end of the policy depending on losses paid out to the insured or others that are part of what might be called the “mutual group.” In order to obtain a return of the deposit (or part thereof), the insured must demand it before a specified date.  (The Proposal uses the term “mutual” at at-least one point.)The amounts to be deposited are to some degree clearly specified: one amount for brick homes and twice that amount for those made of wood. There appear to be variations. There is an obscure or arcane discussion of how much may be paid out and how that will affect the insured’s (aka “member’s”) right to what we might call a refund. It’s almost like the two sides (Friendly and its insured) are investing in each other, with the insured something like lending the Society money which is held in trust but also used for specified purposes. FS goes out of its way to indicate what kind of security it has.FS also indicates it also has its own fire brigade to be used to limit or extinguish fires. FS not only pays losses, but it “also keeps in livery, with Silvery Badges, about 10 [?] men, who, on occasion, have power to employ any other number that may be necessary, to extinguish fires, and are all at the charge of the Undertakers, and are not members of the Society, as it is in the Hand in Hand office. . . . [The intent here to take a swipe at another insurer “Hand in Hand” which in successive forms exists to this day.]The Proposal also states the coverage at least in part: “If any house insured is demolished by or by reason of fire (which it is accounted to be, when from the first floor upward, and [the] roof are burnt or fallen in) the whole sum insured is paid in sixty days after, or sooner, if sound requires [s]; but if the house is only damnified [partly damaged], the Office [i.e., the insurer] do [will] immediately repair and put it in as good condition as the same was when injured; upon notice of such loss given to the Office. “The Proposal contains a number of “Notes.” They are largely a series of attacks on Phoenix [Assurance], another instance company that has lasted for several centuries.  Here are some of the “Notes”:“That what the Phoenix Office pretend[s] as to contributions [premiums] being less in their Office than the Friendly Society, for the same loss, it is utterly false and an imposition on the public, the Society having the Phoenix own accounts to show the contrary. [Size premiums?]“Also, that the Phoenix Office never settled and Fund for insuring by way of contributing. . . , and not a farthing returned, but the Friendly Society covenant to return. . . . [More efficient and honorable organization?]“Thirdly, that on these and other accounts[,] one of the Phoenix principal proprietors insured [a large sum or high house] in Friendly-Society, as another of their undertakers (lately deceased) did several hundreds.“And there are several Advantages, besides those above, by insuring in this first society of Mutual Contributors. . . .”This Proposal is to be found at pp. 113-115 of an anthology of policies edited by David Jenkins and Takau Yoneyama, entitled HISTORY OF INSURANCE, Volume 1, FIRE. (LONDON: PICKERING & CHATTO 2000)

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“Hughes Tolling Rule,” Legal Malpractice, Very Brief Summary

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Hughes Tolling Rule for Texas Legal Malpractice ActionsMichael Sean Quinn*A tolling rule requires that some other rule does not apply for a period of time. Tollin can result from a statute, a case, or from equity. This sort of rule arises most often in statutory of limitations cases–at least in Texas.  The “Hughes Rule” in Texas tolls the statute of limitations of two years in legal malpractice cases when the act(s) allegedly giving rise to the malpractice case occur in or “microscopically” close to litigation, and the “toll” lasts until the litigation is completely over, i.e., when appeal(s) are “finally concluded.” This tolling rule does not apply to alleged malpractice arising out of activities or omissions which do not occur in litigation, e.g., “mere transactional work.” For that kind of malpractice case, the statute of limitations begins when the cause of action for legal malpractice accrues and that is when the action or omission which is malpractice occurs, or maybe very shortly thereafter, except, under some circumstances when the act or omission is first discovered much later, or when it should have been discovered. Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 157 (Tex. 1991). See Apex Towing Col v. Tolin, 41 S.W.3d 119, 123 (Tex. 2001).This case, Brian Erikson and Quilling, Selander, Lownds, Winslett & Moser, P.C.,v. Renda [collectively, Erickson], 18-0486 (Tex. December 20, 2019) has a very complicated scenario involving two litigation processes, multiple corporate entities, a key business individual, suits between vendors of service, an individual, and the United States government, all pertaining to work on a ship channel, as well as federal statutes. There is a string of related lower court decisions. The accused lawyer was involved in both the relevant litigation and transactional events. Many millions of dollars were at stake. This suit was actually the second legal malpractice against Erickson arising out of the underlying morass (or should it be, “morasses”). The actual story is extra-ordinally complex. Reading the whole case is not for the faint-hearted and is only for those who love cases with twists and turns. Even reading a more detailed summary of the Court’s Opinion will feel oppressive. On the other hand, this case contains a helpful history of the Hughes rule and provides a list of decided cases in which that rule has been applied. (The ruling of this Court was a reversal of a decision of a Court of Appeals. This fact makes no difference to a study of the Opinion.) The upshot is that the Hughes tolling rule does not apply to advise and business transaction-type legal services unless they are “integrally connected to the prosecution of defense of a claim.” Merely being about a litigated matter, even if close in time to it,  and having some impact on the litigation, is insufficient to trigger the Hughes tolling rule. This case was decided below on summary judgment. Assuming that integrally connectedness is a matter of fact, this would a hell of a case to try to a jury of the laity. At least there is a string of shenanigans that many audiences might find amusing, though distressing. *Michael is a Partner in the firm of Quinn and Carmona. The firm’s website is www.QClaw-adr.com. His email is quinn@QClaw-adr.com. The firm’s phone number is (512) 768-6840, and its fax number is (512)768-642. The mailing address is P.O. Box 162344, Austin, Texas 78716. Michael’s cell phone number is (512) 656-0503, and for now, he can also be emailed at mquinn@msqlaw.com. 

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Legal Malpractice, Insurer Sues Coverage Counsel, Writ of Mandamus

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LEGAL MALPRACTICE CASE:CLIENT INSURER AGAINST COVERAGE COUNSELIn re Houston Specialty Insurance Company, RelatorOn Petition for Writ of Mandamus17-1060Opinion Delivered: January 25, 2019 Michael Sean Quinn*          This is a piece of a legal malpractice action that an insurer (“HSIC”) brought against its coverage counsel (“TCCI” or “TC”) arising out of how the law firm handled its interests in an underlying case. Specifically, HSIC complained that TC had mistakenly advised it that it had no duty to defend in an underlying case and advised it to deny so-called indemnity coverage as well.  HSIC had done as it was advised and sustained a loss thereby         HSIC had provided Commercial General Liability (CGL) insurance to South Central Coal Company (“Coal”). Coal was sued by property owners for mining coal under their property without their consent and for its own profit.  In this opinion, that is called the “Carter lawsuit.” It settled, and that resolution is called the “Carter settlement” by the Court.         Coal sued HCIC as a third-party in the Carter lawsuit alleging breach of contract and insurer bad faith. The Carter settlement included a settlement between Coal and HSIC. In this case, it was named the “Insurance settlement.”         Thereupon, HSIC demanded $2.8M from TC. The law firm preemptively  filed a declarative judgment against HSIC under the Uniform Declaratory Judgment Act (“UDJA”). [Qunn’s Comment: Lawyers love initials.] TC’s live petition—he once considered by the courts–contained requests for ten different declarations.         HSIC filed a motion to dismiss under Rule 91a of the Texas Rules of Texas Civil Procedure. That rule covers relevant motions to dismiss, the motion at issue here being one of them. While that motion was pending HSIC filed a malpractice action in Oklahoma where the underlying litigation had proceeded. The trial court in Harris County, Texas (Houston) denied HSIC’s motion to dismiss, and a court of appeals denied HSIC’s petition for a writ of mandamus without addressing its merits. TC than filed a motion in Harris County seeking an “anti-suit injunction” barring HSIC from pursuing litigation in Oklahoma and filed a motion in the Oklahoma case seeking to abate or dismiss HSIC’s claims. The Oklahoma court granted the motion to abate, and that is where this case stood when HSIC petitioned the Texas Supreme Court for a writ of mandamus.         I stop here for a moment to sketch was a writ of mandamus is in Texas.  A litigant can obtain mandamus relief if and only if two propositions are true and the party seeking the writ must prove them. First, the trial court must have abused its discretion in granting or refusing to grant something, and second, the petitioner must have no adequate remedy by appeal. In re Essex Ins. Co., 450 S.W.3d 524, 526 (Tex. 2014)(orig. proceeding).         The Supreme Court ruled in this case that the trial court abused its discretion in denying HSIC’s Rule 91a notion to dismiss. As the Court points out, there is a very important and controlling earlier Supreme Court of Texas opinion, Arbor v. Black, 695 S.W.2d 564, 565 (Tex. 1985)(orig. proceeding). That case answers the following question: “whether a potential defendant in a negligence action can choose the time and forum for trial by beating the potential plaintiff to the courthouse and filing suit seeking a declaration of non-liability under [the UDJA].The answer in Arbor was no. The rule has stood the test of time; other Supreme Court decisions stand behind it; at the same time, the rule in Arbor has not been extended to include breach of contract. Nevertheless, the rule in Arbor seems to control even the jurisdiction of lower courts. According to the Court in this case, there is one case which appears to be to the contrary, but the Court also says that case was wrong since it  got things backwards. One thing for sure, “[a] legally invalid claim cannot be saved by accompanying claim that may be valid.”The remaining second question is “whether a traditional appeal after summary judgment provides HSIC an adequate? The court held that “it does not.” There was a time when mandamus relief in situations like this one was available only if the court granting a stay also enjoined the other court from proceeding further. That stringent rule has been tossed aside for some time now, said the court. “[M]andamus relief is appropriate to ‘spare private parties and the public the time and money utterly wasted enduring eventual dismissal of improperly conducted proceedings.’”The Court has already held twice that the impact of an improperly conducted proceeding makes awaiting a later appeal destroys there being an adequate appeal.On this basis, without oral argument, the Court granted mandamus relief and directed the trial court to grant HSIC’s Rule 91a motion to dismiss. The writ will issue, however, only if the trial court fails to comply.         This was a “per curiam” opinion. What does that mean? The phrase itself means “by the court.” No judge is identified as writing the opinion for the court, and that distinguishes a per curiam opinion from a unanimous opinion. Generally, per curiam opinions rule on simple (or simple looking) matters about which there is no real or genuine controversy.  Per curiam opinions tend to be short and straight forward. If the Supreme Court of Texas—and all other supreme courts, for that matter—whomsoever set up a case to be subject to a per curiam opinion for the Court will be and then is embarrassed. In a mandamus case, the lower court is also embarrassed. (He who “sets up” is not the Relator or necessarily the Petitioner.)*Michael is a Partner in the firm of Quinn and Carmona. The firm’s website is www.QClaw-adr.com. His email is quinn@QClaw-adr.com. The firm’s phone number is (512) 768-6840, and its fax number is (512)768-642. The mailing address is P.O. Box 162344, Austin, Texas 78716. Michael’s cell phone number is (512) 656-0503, and for now he can also be emailed at mquinn@msqlaw.com. Although the following plays no role in the case, it may be some interest to note that HSIC is part of or affiliated with Houston International Insurance Group.

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Legal Malpractice and Writs of Mandamus

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LEGAL MALPRACTICE CASE:CLIENT INSURER AGAINST COVERAGE COUNSELIn re Houston Specialty Insurance Company, RelatorOn Petition for Writ of Mandamus17-1060Opinion Delivered: January 25, 2019 Michael Sean Quinn*          This is a piece of a legal malpractice action that an insurer (“HSIC”) brought against its coverage counsel (“TCCI” or “TC”) arising out of how the law firm handled its interests in an underlying case. Specifically, HSIC complained that TC had mistakenly advised it that it had no duty to defend in an underlying case and advised it to deny so-called indemnity coverage as well.  HSIC had done as it was advised and sustained a loss thereby         HSIC had provided Commercial General Liability (CGL) insurance to South Central Coal Company (“Coal”). Coal was sued by property owners for mining coal under their property without their consent and for its own profit.  In this opinion, that is called the “Carter lawsuit.” It settled, and that resolution is called the “Carter settlement” by the Court.         Coal sued HCIC as a third-party in the Carter lawsuit alleging breach of contract and insurer bad faith. The Carter settlement included a settlement between Coal and HSIC. In this case, it was named the “Insurance settlement.”         Thereupon, HSIC demanded $2.8M from TC. The law firm preemptively  filed a declarative judgment against HSIC under the Uniform Declaratory Judgment Act (“UDJA”). [Qunn’s Comment: Lawyers love initials.] TC’s live petition—he once considered by the courts–contained requests for ten different declarations.         HSIC filed a motion to dismiss under Rule 91a of the Texas Rules of Texas Civil Procedure. That rule covers relevant motions to dismiss, the motion at issue here being one of them. While that motion was pending HSIC filed a malpractice action in Oklahoma where the underlying litigation had proceeded. The trial court in Harris County, Texas (Houston) denied HSIC’s motion to dismiss, and a court of appeals denied HSIC’s petition for a writ of mandamus without addressing its merits. TC than filed a motion in Harris County seeking an “anti-suit injunction” barring HSIC from pursuing litigation in Oklahoma and filed a motion in the Oklahoma case seeking to abate or dismiss HSIC’s claims. The Oklahoma court granted the motion to abate, and that is where this case stood when HSIC petitioned the Texas Supreme Court for a writ of mandamus.         I stop here for a moment to sketch was a writ of mandamus is in Texas.  A litigant can obtain mandamus relief if and only if two propositions are true and the party seeking the writ must prove them. First, the trial court must have abused its discretion in granting or refusing to grant something, and second, the petitioner must have no adequate remedy by appeal. In re Essex Ins. Co., 450 S.W.3d 524, 526 (Tex. 2014)(orig. proceeding).         The Supreme Court ruled in this case that the trial court abused its discretion in denying HSIC’s Rule 91a notion to dismiss. As the Court points out, there is a very important and controlling earlier Supreme Court of Texas opinion, Arbor v. Black, 695 S.W.2d 564, 565 (Tex. 1985)(orig. proceeding). That case answers the following question: “whether a potential defendant in a negligence action can choose the time and forum for trial by beating the potential plaintiff to the courthouse and filing suit seeking a declaration of non-liability under [the UDJA].The answer in Arbor was no. The rule has stood the test of time; other Supreme Court decisions stand behind it; at the same time, the rule in Arbor has not been extended to include breach of contract. Nevertheless, the rule in Arbor seems to control even the jurisdiction of lower courts. According to the Court in this case, there is one case which appears to be to the contrary, but the Court also says that case was wrong since it  got things backwards. One thing for sure, “[a] legally invalid claim cannot be saved by accompanying claim that may be valid.”The remaining second question is “whether a traditional appeal after summary judgment provides HSIC an adequate? The court held that “it does not.” There was a time when mandamus relief in situations like this one was available only if the court granting a stay also enjoined the other court from proceeding further. That stringent rule has been tossed aside for some time now, said the court. “[M]andamus relief is appropriate to ‘spare private parties and the public the time and money utterly wasted enduring eventual dismissal of improperly conducted proceedings.’”The Court has already held twice that the impact of an improperly conducted proceeding makes awaiting a later appeal destroys there being an adequate appeal.On this basis, without oral argument, the Court granted mandamus relief and directed the trial court to grant HSIC’s Rule 91a motion to dismiss. The writ will issue, however, only if the trial court fails to comply.         This was a “per curiam” opinion. What does that mean? The phrase itself means “by the court.” No judge is identified as writing the opinion for the court, and that distinguishes a per curiam opinion from a unanimous opinion. Generally, per curiam opinions rule on simple (or simple looking) matters about which there is no real or genuine controversy.  Per curiam opinions tend to be short and straight forward. If the Supreme Court of Texas—and all other supreme courts, for that matter—whomsoever set up a case to be subject to a per curiam opinion for the Court will be and then is embarrassed. In a mandamus case, the lower court is also embarrassed. (He who “sets up” is not the Relator or necessarily the Petitioner.)*Michael is a Partner in the firm of Quinn and Carmona. The firm’s website is www.QClaw-adr.com. His email is quinn@QClaw-adr.com. The firm’s phone number is (512) 768-6840, and its fax number is (512)768-642. The mailing address is P.O. Box 162344, Austin, Texas 78716. Michael’s cell phone number is (512) 656-0503, and for now he can also be emailed at mquinn@msqlaw.com. Although the following plays no role in the case, it may be some interest to note that HSIC is part of or affiliated with Houston International Insurance Group.

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Some Reflections on Well-Being for Lawyers

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ATTORNEY EXCELLENCE AND WELL-BEING Michael Sean Quinn*One hears a great deal these days about the law of lawyering, the core concepts of disciplinary rules and responsible lawyering, the ethics of lawyering, the moral principles governing sound practice, and so forth, each of which is important. We also hear a good deal about the rate of depression manifesting itself in and among lawyers, the degree to which lawyers do not like what they do, at least after they’ve been doing it a while,  and one often hears about the amount of partially disabling anxiety one finds in younger lawyers.  (Of course, manifesting this state of affairs is virtually forbidden.)One hears little about the joys of lawyering or the positivity which can be found in the practice of law.  One almost never hears about the love one can have for justice, the law, and the practice of law.  One hears nothing or next to nothing about the love one can have for a client.  Usually, that phraseology and its message have a sexual framework and we can all agree that love affairs with clients are almost always a bad idea, may be illegal, unethical, immoral, and unwise. Subtract sexuality and the erotic from the idea of loving someone, and those who render personally important complex services might find it a good thing to think in terms of having love for or toward some, many, most, or all their clients. It seems to me that Jesus got this one right. How he was and is interpreted is a different matter.  I personally cannot think of loving some of my clients. They are too awful for words. Is that my failing. I guess Jesus and St. Paul would say yes. I myself am not even trying. I have better and more important things to do, and I’m a busy fellow? Good, rightful, and non-sinful omissions on my part?Maybe I and my compatriots are too idealistic or too saccharine, but if one loves justice–as all lawyers must (or, at least, should)–then representing people in the process of finding and rendering justice is a sacred calling and not merely a job. (This proposition is true even if there is a kind of pluralism as to what counts as genuine justice.)So, what to do; what to do?  I come to think that many parts of our lives accentuate the negative. Some call it a “negativity bias.” Of course, this wording implies that we are unnecessarily dominated by a belief and a feeling that things are–at least often–worse than they actually are. Maybe, immensely self-confident lawyers escape this malaise, to be sure. But then the question becomes how many of the apparently maximally self-confident lawyers have learned to falsely manifest something which does not exist or exists to a much smaller extent.  If so, then this sort of apparent self-confidence is a huge source of anxiety and eventual depression. It becomes a living “false self,” a “phony-self.  My understanding is that the great John O’Quinn died of alcoholism. *Michael has studied and participated in insurance lawyering and litigation of many sorts, including legal malpractice, for more than 30 years. He is currently a partner in Quinn and Carmona a law firm that focuses in part on problems in insurance disputes and mediations thereof. quinn@QClaw-adr.com. Office (512) 768-6840, Quinn Cell :(512) 656-0503. Mail: P.0. Box 162344

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All aphorisms and adages are false when taken to be universal. Some adages have wisdom.~Michael Sean Quinn, PhD, JD, CPCU, Etc.Tweet

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