Some Legal Dictionary Entry Conjectures:”Order, Adjudged, and Decreed”

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“ORDERED, ADJUDGED and DECREED“

Michael Sean Quinn**

One frequently sees two or three of the above three words conjoined in court documents, such as final orders, final judgments, final decrees, judicial decisions, decisions of courts, and/or interlocutory entries of the same sorts. 

But what do these terms  individually mean? They are frequently jumbled together in quite unnecessary ways. BLACK’S LAW DICTIONARY is not particularly helpful, except to indicate that under most usages they overlap.  (The BLD is more clear about the various meanings of the word “ordeal” than it is about this topic.) 

Here I am going to try and more-or-less guess what these terms individually mean and/or what they have meant at various points in relatively modern legal history. To say that there is not a plethora of judicial decisions on these distinctions would not be an exaggeration.

Order. In an order, a judge commands one or more persons (including certain types of entities, e.g., corporations, government agencies, or governments) to perform specified actions or to omit performing them, i.e., not to perform them, stop performing them, or desist (or cease and desist) from performing them. The action(s) will be described to some extent in the order, though the description can be broad, vague, unclear, clear, precise, and/or narrow. When a judge commands performance (that something be done) or its opposite, s/he is speaking as (or for) a sovereign,* so the state is ordering that something be done (whether its a performance or a refraining). Injunctions are orders, as are many of the provisions of divorce “decrees,” aka “final judgments.”

Paradoxically, not all court orders contain orders. Final judgments can be (and often are) called “court orders,” by the general population, even they contain not a single “order,” as that term has just been defined. Obviously, this is sloppy lexus-linguistics or lego-lingo, e.g., something like defective lawyer-slang 

Decree. A decree of a court, which might also be called “the decree of a judge,”–though it never is called that but is sometimes called “a judicial decree”–is simply an authoritative statement that something is so or is to become so. For example, a court might rule, an thus decree,  that “‘THIS’ TREE BELONGS TO–IS THE PROPERTY OF–‘THAT’ PERSON.” 

Obviously, judicial decrees are not simply about physical objects, or about a variety of other factual matters, except when they are integral to some controversy in controversy. Thus a court would likely not ever rule that the word “insurance” contains contains 9 letters or that 67 is a prime number, while 69 is not.  On the other hand, one can easily imagine that a court might rule that a given distance is 100 yds in length, if that issue made a difference is a property or zoning dispute. (Then again, this sort of ruling is not a decree that the distance is absolutely exactly and precisely 100 yards in length, but only that it is to be so regarded. 

Significantly, decrees can be regarded as somewhat like orders of a court because the court is ordering that such and such be regarded by the parties to the litigation as the way things are.  This could mean, that such and such is to be taken to be (or treated as if) true by the parties, no further questions asked. 

It is tempting to say that that court decrees are judgments of a court (or courts) in which various things are decreed. However, if there is a distinction between orders and decrees, if a final judgment contained only an order it might be a decree in which nothing was decreed. 

Adjudged. This word is simply a way to say that the court has made a judgment about something and that this judgment is to be found in this or a related document, e.g., a final judgment or final decree.  Often when a court makes a judgment it is asserting (as an agent of a sovereign or as a component of a or the sovereign) that it has determined that something is so. Often this would mean that the judge or the court has determined that proposition p is true and it is issuing a decree to that p is true, or that proposition q, which is entailed or required by p is also true. Of course, if p has been adjudged to be true, a court might validly or appropriately issue a decree that it is true or a decree based upon the fact that it is.  (A court might even issue an order requiring parties to act (or refrain from acting) on the basis of the fact that proposition p is true or has been adjudged to be true.) Notice that this description of an “adjudgment” closely resembles what involved in something being a decree.

The term “adjudged” is really no different from the phrase “has been judged to be.” It is really nothing more that the past tense of “judge,” just like “judged.” The trouble is that lawyers are just used to that way of speaking. 

So why do these terms appear as a trinity or something close to it so frequently? I suspect it is for one or both of two different reasons. For one thing, lawyers are used to seeing them together in court orders or judgments so it never occurs to them to change. After all, that the way the standard form books look. Everybody does it that way. For another thing, lawyers always fear their missing something and causing trouble for their clients and hence themselves. Besides, what does it hurt to use them all together. “OK,” one might say, “they’re scrambled. So what?!” Or is it “So what!?”

*There are various levels of sovereignty. Setting aside kings, dictators, and tyrants, the sovereign is a ruling entity. In the USA, the federal government is sovereign over a range of issue; the states are over others (granted: a dwindling and in any case a limited number); and municipal entities might be sovereign to some extent over some others, e.g., parking ticket administration so long as constitutional rights are not at issue. In other words, the sovereign is the state and judges either are components of or agents of some sovereign or other.

**Michael Sean QuinnLaw Office of Michael Sean Quinn1300 West Lynn Suite 208Austin, TX 78703Office Phone: 512-296-2594Cell:512-656-0503Fax: 512-344-9466Email: mquinn@msqlaw.com 

 

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THE “LATE-NOTICE-FORBIDDEN” CLAUSES

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LATE NOTICE AND COVERAGE

Michael Sean Quinn**

Insurance policies, aka contracts of insurance, uniformly contain clauses requiring insureds seeking coverage notify the relevant insurer of their perceived injury “promptly,” “as soon as practicable,” (whatever that word might mean), or some temporal interval of the sort. Obviously, these clauses limit coverage, but they are seldom called “exclusions”; usually they are to be found in the “Conditions” section, as opposed to the “Exclusions” section.  For the sake of simplicity, I shall use the term “prompt” to cover all the various ways policies might say “pretty quick” or “pretty much straight away–no irrelevant, meaningless, or devious detours allowed.”

Of course, whether the policyholder has actually given  the carrier notice of the injury promptly is a question of fact, and–in fact–it has two dimensions with respect to speed. The first one is the question, “When did (and/or should have) the insured realize that he had something on his hands that might, “oughta” be reported?” The second question is “Was the notice given by the insured to the insurer within a temporal unit which can be counted as prompt, given the surrounding circumstances?” 

(In this blog/blawg, I am addressing only policies, whether first party or third party, where coverage is based on the time of the occurrence only. I am not discussing policies like professional malpractice policies where coverage usually exists in all respects only during a specified policy period or its purchased extension. Often professional malpractice policies are called “claims made policies” and/or “Error and Omissions” [E and O] Policies.” Of course, a claims made policy need not be a professional malpractice policy.)

Of course, since the issue of whether the insured’s notice was timely is a triable issue of fact, the insurer might wish to raise it. However, given its indeterminacy the the opportunity for policyholder oppression its use created, the sovereign began imposing a limitation or condition on carriers, and it was the following. A carrier could not succeed in denying coverage on the grounds of late notice unless it could prove that it was itself injured or damaged by the alleged lateness, i.e., when the report was actually made. Technical lateness does not by itself  justify denial. (This is not so with professional malpractice policies since they are often worded in such a way that there must be a report to the insurance company of a claim against the insured within the policy period.)

Putting the burden of proof on the insurer, of course, makes the clause very much like an exclusion, and that is appropriate, whether it is to be found in the “Conditions” section of the policy or yet elsewhere. This may be conceptually bothersome since even insurance agreements contain language limiting coverage–limiting language excludes some things or states of affairs from coverage–but the law still takes the insured to have the burden of proof when it comes to whether there is coverage.

(Maybe the courts are saying that exclusionary language will be treated as or like an actual exclusion–placed within the category of actually being “an exclusion”–where the burden of proof is shifted to the insurer when and only when the content of the clause is quite distinct from what is to be found in the insuring agreement(s). ((Consider the following two examples: Insuring Agreement: We cover only blue cars. [Grey cars and gray cars, among others, are excluded from coverage by being left out, but there is not an out-and-out exclusion.] Exclusion: Though we cover multi wheeled motor vehicles, we do not cover those with only three wheels or fewer.)))

In any case, over the years, the courts have come to ignore the general, categorical (as it were) language of the insurance contracts and require that carriers prove that they have been harmed by the lateness of the notice.  This is very hard to do in most kinds of insurance cases, when there is not something else justifying exclusion. This might happen if a person had an auto wreck and sold the care before it reported the accident.  It would be much harder for the insurer to avoid coverage if there was a wreck and the car simply sat enclosed in a reasonable garage for a few months. Of course, it would be even harder for the insurer if there are photos taken right after the tree in the insured’s front yard fell on the car as the result of a wind storm.

The period of harmless non-notification can be quite a while. There was a case some years ago when a building damaged from a snow storm was not revealed to the insurer for several months.  Of course, it was relevant that the building was in a far northern region of Canada where no one could go except on a sleigh being propelled faster than eagles by 8 giant–anything but tiny–coursers aka huskies. (For a visual exploration of these matter, see Cover Page, NEW YORKER, December 21-28, 2015.)

Many litigating coverage attorneys who represent insurers, not to mention some carrier claims departments have been discouraged. Sometimes insurers feel like public authorities, e.g., not just plaintiff’s lawyers but the courts as well, do not take seriously that insurance policies are real contracts. The addition of there-must-be-prejudice on to the explicit contract clause you-must-report-what-you-think-is-a-loss-promptly, especially where the insurer has to prove it was prejudiced, stimulates this feeling. 

The industry and their lawyers may take heart. Quite recently, the Fifth US Circuit Court of Appeals issued a pro carrier per curiam* and not-to-be-published opinion in the case of Alaniz v. Sirius Int’l Ins. Corp.,  #15-40497 (September 14, 2015). 

It may not be history making precedent, but it is still a boon.  It may not involve just late notice by itself, but it did involve what might be called at best “negligent delay in notification.” The Alaniz case involve a hailstorm and an building. Here are the court’s best words:

“The primary purpose of a prompt notice and proof of loss provision in a policy such as this one is to allow the insurer to investigate the incident close in time to the occurrence, while the evidence is fresh and so that it may accurately determine its rights and liabilities under the policy (and take appropriate remedial action).”

 Obviously, a skeptical claims department can do a lot with this language when they receive a notice that seems late. What it may not do, however, it sit idly by. It must investigate the loss, but at the same time, when first party policies are at stake it’s investigation can include issues about whether it was injured by the timing of the  insured’s report of loss. This might be called an integrated investigation. 

Third party, liability policy investigations are a bit more complicated.  These investigations cannot be integrated, if the defense counsel hired by the insurer to defend its insured is investigating the insured’s loss. Integrating the investigation would create a forbidden conflict of interest for defense counsel and would cause the insurer to be in bad faith.

*A per curiam opinion is one from an appellate court where identity of the judge writing the opinion es not given. 

**Michael Sean Quinn
1300 West Lynn Suite 208
Austin, TX 78703
Phone: 512-296-2594
Cell:512-656-0503
Fax: 512-344-9466
Email: mquinn@msqlaw.com

Law Office of Michael Sean Quinn

 

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Another Penda Prick Pricked

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PRIDE GOETH BEFORE Ch 7

Michael Sean Quinn*

The Prenda Law Firm was a mostly California establishment, with some lawyers elsewhere, whose business it was to obtain “‘intellectual’ property,” or stuff like that, and somehow get people to look at it or otherwise put it to use on the Net and then sue them, or threaten to sue them, for causes of action like, copyright violations. The material was often pornographic, and–of course–adult-porn downloading by adults can be a non-cardinal but compensable “lego-sin.” 

In any case, a number of down-loaders did not want to get dragged out into the public and have their visual proclivities displayed, so they would pay Prenda (or “Prenda People”) off.  Granted, we have only the vicious and avaricious against the weak and smutty, but this is a nation of laws, after all. 

In other words, the Prenda Law Firm was running a digital extortion racket in–or from–the new cyber world. I described this business in a little more detail in a blog/blawg entitled The Pricks of Prenda and dated 6/19/14. 

Now at least one of the principal Prenda pricks from outside California, a Minnesota lawyer, Paul Hansmeier (Paul) has himself been pricked, though in a different and more ordinary sense of the work. He has run up debts of approximately $2.5M and gone into bankruptcy, a legal institution with a name that might just as well describe his moral character, though the same is not true for all of its users.  

He applied for Chapter 13, but both the trustee and the creditors opposed his suggestion since his sworn statements–this time those about himself–could not be believed. The judge agreed. In other words, everyone involved agreed that Paul is now and has for some times been an inveterate lawyer as well as being a complete and total asshole. See Michael Sean Quinn, Lawyers as Assholes, 11/17/15. 

Chapter 13 and probably not his law license were not for him. He needed a new process for being declared really broke and, given his brokenness, he might need a new kind of job. The paralegal vocation is not to be recommended. 

Perhaps Paul believed that extortion based upon the extortee’s filth addictions was to be praised or at least permitted. Perhaps he believed that a cultured society would permit one to stamp out the other. Perhaps the Prick People though they were using a public forum to help wipe out a socially injurious practice of which most respectable people disapprove, as well as fear. 

Prick Paul missed the point that in a society like the USA, even smut and smut user have rights and that the rule of law applies not only to smut authors, creators, owners, and assignees, but to others as well, even if they are trying to hide their practices from their wives. (I am assuming that women are very light consumers of the product at issue.) 

Supplement for September 15, 2016. The Minnesota Supreme Court has ordered Paul’s indefinite suspension based on his many, many lawyer “sins,” including his “porn trolling” and consequent baseless litigation, some of it for Lightspeed Media Corp. He is also accused of shuffling funds around to avoid paying fines. “Indefinite” though there suspension be, he cannot apply for restoration for at least four years and until after he has based a professional responsibility exam administered by the State Board of Law Examiners. Any chance the Board has the opportunity to level and grade the examination appropriately. 

*Michael Sean Quinn

Law Office of Michael Sean Quinn

1300 West Lynn Suite 208

Austin, TX 78703

Office Phone: 512-296-2594

Cell:512-656-0503

Fax: 512-344-9466

Email: mquinn@msqlaw.com 

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LITIGATING LAWYER SANCTIONED: INCOMPETENCE,. IDIOCY, AND LYING COMBINED

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LAWYER’S BAD
FAITH SANCTIONED

Michael Sean
Quinn*

          In the case of Egan v. Pineda #15-2011 (7th Cir. December 23, 2015),
the plaintiff—her lawyer (“L”)—not she–was the appellant, accused the appellee
and his business of sexual discrimination by creating a hostile work
environment. The lengthy complaint made repeated accusations of sexual assault
of various kinds. In her deposition, the plaintiff admitted that none of these
claims were true.  Here case was
dismissed; that was not contested on appeal.

          The issue on appeal was a $5000.00
sanction the district judge has imposed upon L. 
For the less knowledgeable, it is worth noting that this is a relatively
small sanction for this sort of outrageous error.  

          At two different hearings regarding
the imposition of the sanction the district judge asked L how such a thing
could have happen.  L gave several
“explanations,” including editing error and poor proofreading.

          It is reasonable to speculate that
neither the district judge nor the circuit court judge, Posner, J., believed L.
Judge described his statements as “pathetic,” and this observation is too kind.
 Judge Posner’s opinions is based upon
federal law authorizing judges to sanction attorneys who perform acts in
litigation “in bad faith,” where it is understood that this phrase refers at
least to recklessly making frivolous claims. Chambers v. NASCO, 501 U.S. 32, 45-46 (1991), Johnson v. Cherry, 422 F.3d 540, 548-49 (7th Cir. 2005), and Mach
v. Will County Sheriff, 580 F.3d 495, 501 (7th Cir. 2009).

          Are there lessons to be learned
here?  Of course, a lawyer should probably
not, under most circumstances, file a Complaint this lengthy and detailed,
especially in a relatively simple case.   

          To be sure, a lawyer should have a
client, or prospective client, tell his/her story at least once, ask questions,
and maybe have the story told more than once. Unquestionably, the lawyer should
actually look at—watch–the client while he/she is speaking and actually
listen, as it were, carefully and  in
detail.  What might be called “intuitive
listening” is not good enough. A lawyer should not hesitate to cross examine
his own client. Gently, of course.

          Possibly, when filing a Complaint with
specific facts alleged, a lawyer should sit with the client and actually read
the draft to the client and repeatedly ask whether what is asserted is
true.  If the lawyer is working from a
written alleged summary prepared by the client, the lawyer should do the same
with what the client has written.

          With regard to L’s dealing with  the judge: consider telling the truth and
most definitely, do not appeal.  L should
have considered that he was going to be sanctioned in any case, that he was
likely to be reported to and disciplined by the bar, and that he should treat
his disgrace as an actual—and not just ostensible–learning opportunity.  Confession can be good for the license.

*Michael Sean Quinn

Law Office of Michael Sean Quinn

1300 West Lynn Suite 208

Austin, TX 78703

Office Phone: 512-296-2594

Cell:512-656-0503

Fax: 512-344-9466

Email: mquinn@msqlaw.com 

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TEXAS: AMBIGUITY AND INTERPRETING CONTRACTS OF INSURANCE

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Ambiguity and Reasonable Use

Michael Sean Quinn*

As everyone knows, if  and only if the language of a contract, including that of an insurance policy, is ambiguous, it is construed against the party that drafted the contract.  Almost invariably, in contracts of insurance, this rule favors the insured; it is virtually never the opposite.  How else could it work, so long as the typical insurance contract is a widely utilized form created by the insurer or some sort of committee of the industry?

Recently,  the Texas Supreme Court set forth a helpful formulation of the  of its rule on how to treat ambiguities. Its passage on this matter unifies virtually everything else it has ever said on the matter and should be treated as corner stone for any argument a litigant needs to give regarding ambiguity in the language of insurance contracts. 

Vast piles of citations are not longer necessary, if they ever were.  

Hence forth it is no longer necessary to cite long lists of cases on the matter  policies  It is henceforth not necessary to do this, unless one is trying to assert that “the Ambiguity Rule” (the Rule) has a long history, that the formulation of this court is somehow weak because it was a split decision, 6-3, or that a brief writer or oral advocate is some how an authority, since ostensibly learned. (In reality, the dissenting opinion does not disagree with the majority’s description of  the Rule, but only with the way it was applied it here.) 

The case is RSUI Indemnity Company v. The Lynd Company, No. 13-0080 (May 8, 2015). It  is a property damage case arising out of Hurricane Rita addressing the meaning of an unusual endorsement in an excess policy where several different properties were covered. 

In order to set forth here the doctrine elegantly set forth by Justice Boyd writing for a six justice majority, I shall simply recite it in essay form without quotation marks and without recording the several authoritative cases the court cites. The substance of what is written here is that of the court, mostly in its language. Where there are quotation marks they are one the court itself used when quoting an earlier case. I have adjusted some of the language the court used so that its doctrine applies to any court and to any rational analyst of insurance contracts. 

I have taken it that this would be the Supreme Court’s intent.  So here we go:

An insurance policy is a contract, generally governed by the same rules of construction as all other contracts. When construing a contract, one’s primary concern under the law is to ascertain the intentions of the parties as expressed in the document. Therefore, analyses begin with the language of the whole contract, because–again, under the established law–it is the best representation of what the parties mutually intended. Unless, the policy dictates otherwise, the accurate analyst, e.g., a judge, gives words and phrases their ordinary and generally accepted meaning, reading them in context and in light of the rules of grammar and common usage. One must strive to give effect to all of the words and provisions so that none is rendered meaningless. “No one phrase, sentence, or section [of the contract] should be isolated from its setting and considered apart from other provisions.”

When construing an insurance policy, a court must be mindful of other courts’ interpretations of policy language that is identical or very similar to the policy language at issue. “Courts usually strive for uniformity in construing insurance provisions, especially where. . . the contract provisions at issue are identical across jurisdictions.” The Supreme Court of Texas has “repeatedly stressed the importance of uniformity ‘when identical insurance provisions will necessarily be interpreted in various jurisdictions.'”

Sometimes insurers and insureds offer conflicting constructions of their contracts of insurance. If only one party’s construction is reasonable, the policy is unambiguous and [a court should] adopt that party’s construction. But if both constructions present reasonable interpretations of the policy’s language, we must adopt that party’s construction. If both constructions are present reasonable interpretations of the policy’s language, a court must conclude that the policy is ambiguous. In that event, a court “must resolve the uncertainty by adopting the construction that most favors the insured, and [when a court is] construing a limitation on coverage, [a court–{MSQ n. 1}] must do so “even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the parties’ intent.” “This widely followed rule is an outgrowth of the general principle that uncertain contractual language is construed against the party selecting that language,” and is “justified by the special relationship between insurers and the insureds arising from the parties’ unequal bargaining power.”

In contract law, the terms “ambiguous” and “ambiguity” have a more specific meaning than merely denoting a lack of clarity in language. “An ambiguity does not arise simply because the parties offer conflicting interpretations.” Instead, “a contract is ambiguous only when the application of pertinent rules of interpretation to the fact of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning.” Thus a contract is ambiguous only if, after applying the rules of construction, it remains “subject t two or more reasonable interpretations.” 

*Michael Sean Quinn, Ph.D., J.D., C.P.C.U.,  Etc.

The Law Firm of Michael Sean Quinn 
and that of 

Quinn and Quinn

        1300 West Lynn Street, Suite 208

       Austin, Texas 78703

           (512) 296-2594

             (512-656-0503)

                                E-mail:  mquinn@msquinnlaw.com

MSQ n. 1: The phrase “limitation on coverage” is among the most important parts of the court’s discourse. The reason is that the strongest component of the Ambiguity Rule is not restricted to exclusions in insurance policies.

The case itself will be discussed in another blog/blawg soon. 

  

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In different situations, even propositions which appear undeniable may not be true in all situations.~Michael Sean Quinn, PhD, JD, CPCU, Etc.Tweet

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