See more Jack Black videos at Funny or Die
Thursday, December 4, 2008
Friday, November 21, 2008
Saturday, November 15, 2008
Diary of a Third Party Bad Faith Trial (This Will Be Boring)
We recently went to trial in a common law third party bad faith case in Hillsborough County, Tampa, Florida. It was a rare occurence because the risk involved with a bad faith trial usually pushes the insurer to settlement. A brief primer on insurance bad faith and the difference between third and first party cases would be helpful for understanding this post, luckily I already wrote one. In the first party context there are often issues at play which can inflate the value of a case against an insurer which are not present in a third party case. Furthermore, damages are usually limited in a third party bad faith case to the extent of the excess judgment in the underlying case. For example, if you have an insurance policy with $10,000.00 in bodily injury coverage (like most auto policies in Florida) and your insurance company misses an opportunity to settle a case against you within that $10,000.00, the excess judgment of the Plaintiff from that underlying case is the most that can be recovered in a bad faith case against the insurer; e.g., if the Plaintiff was awarded $110,000.00 at the underlying trial of the injury claim then the total exposure for the insurer in a common law third party bad faith case would be $100,000.00. Generally, (there may be some exceptions), the jury does not determine the amount of the award in the common law third party bad faith case because the jury from the underlying case has already set the value of the damages; the common law third party bad faith jury is only charged with determining whether an insurer acted in bad faith, yes or no.
This is a tremendous advantage over a first party situation where a bad faith jury could be determining values for additional damages related to an insurer's failure to treat it's own insured fairly. Because there is no opportunity for a jury to negotiate a value among its members, I believe that the third party scenario presents a problem for jurors resulting in a hung jury, assuming that you can convince a single stalwart juror that the insurer has acted reasonably. Alternatively, the third party bad faith case presents a problem for the Plaintiff because a single factor in favor of the insurer may prevent a Plaintiff's verdict. I've digressed, back to the case at hand.
This is a tremendous advantage over a first party situation where a bad faith jury could be determining values for additional damages related to an insurer's failure to treat it's own insured fairly. Because there is no opportunity for a jury to negotiate a value among its members, I believe that the third party scenario presents a problem for jurors resulting in a hung jury, assuming that you can convince a single stalwart juror that the insurer has acted reasonably. Alternatively, the third party bad faith case presents a problem for the Plaintiff because a single factor in favor of the insurer may prevent a Plaintiff's verdict. I've digressed, back to the case at hand.
Our recent trial mirrored a specific kind of common law third party bad faith scenario wherein there are multiple claimants against in insureds limited policy proceeds. Florida courts have dealt with the situation previously and one case in particular has laid out an insurer's specific duties in a multiple claimant situation, Farinas v. Florida Farm Bureau. Generally, an insurer has to attempt to resolve as much exposure for their insured as possible and must act to achieve that goal by reasonably investigating the claim and keeping their insured advised throughout. The Farinas case also mentions that a good way to try and resolve all the claims might be to schedule a mediation inviting all the claimants, presumably to have them reach an amicable split of the insurance proceeds.
In our case there had been four serious injuries. The three potential claimants in the insured's vehicle, plus one potential claimant from the other car in the accident. The three potential claimants from the insured's vehicle all had serious injuries, broken bones, hospital stays, and astronomical medical bills; the claimant from the other vehicle had some knee pain and a surgical recommendation for an ACL repair. Predictably, there was not enough money to go around as the insured had $50,000.00 in aggregate liability limits (considerably more than most people but woefully insufficient to fully compensate any of the claimants for their injuries). The carrier in our case conducted an investigation, reviewed the accident report, interviewed the participants, sent correspondence to all the parties, and considered who was at fault. They hired defense counsel for their insured, kept the insured informed, and scheduled a mediation where they attempted to settle all of the claims within the $50,000.00 limit.
The single claimant (with the least serious injuries) walked away from mediation without a settlement and pursued her claim against the insured. She ultimate received a judgment against the insured approaching $90,000.00. The other three claimants allowed the insurance company to retain a few thousand dollars from the 50k to try and settle with the one claimant who would not settle at mediation. This is where the greatest problem in a Farinas style bad faith case arises, how do you prove what occurred at mediation, specifically, that an offer and attempt to settle all the claims actually took place. Florida Courts like those in many states have been loathe to invade any mediation privilege (an earlier statute in Florida only kept mediation which was conducted during litigation confidential); so an insurer is seemingly without recourse to prove that reasonable attmepts to settle all claims took place at a mediation. As the insurer did in our case, all of the correspondence prior to mediation and afterwards should indicate that it is the purpose of the mediation to settle "all of the claims." This is also the province of a "bad faith expert" who can explain the purpose of the mediation as well as the reasonableness standard for investigation and communication with the client. The jury must/should conclude that the insurer would not have invited the claimant to the mediation if they did not intend to settle with the individual. A jury of laypeople unfamiliar with the process may not take that step.
In our case there had been four serious injuries. The three potential claimants in the insured's vehicle, plus one potential claimant from the other car in the accident. The three potential claimants from the insured's vehicle all had serious injuries, broken bones, hospital stays, and astronomical medical bills; the claimant from the other vehicle had some knee pain and a surgical recommendation for an ACL repair. Predictably, there was not enough money to go around as the insured had $50,000.00 in aggregate liability limits (considerably more than most people but woefully insufficient to fully compensate any of the claimants for their injuries). The carrier in our case conducted an investigation, reviewed the accident report, interviewed the participants, sent correspondence to all the parties, and considered who was at fault. They hired defense counsel for their insured, kept the insured informed, and scheduled a mediation where they attempted to settle all of the claims within the $50,000.00 limit.
The single claimant (with the least serious injuries) walked away from mediation without a settlement and pursued her claim against the insured. She ultimate received a judgment against the insured approaching $90,000.00. The other three claimants allowed the insurance company to retain a few thousand dollars from the 50k to try and settle with the one claimant who would not settle at mediation. This is where the greatest problem in a Farinas style bad faith case arises, how do you prove what occurred at mediation, specifically, that an offer and attempt to settle all the claims actually took place. Florida Courts like those in many states have been loathe to invade any mediation privilege (an earlier statute in Florida only kept mediation which was conducted during litigation confidential); so an insurer is seemingly without recourse to prove that reasonable attmepts to settle all claims took place at a mediation. As the insurer did in our case, all of the correspondence prior to mediation and afterwards should indicate that it is the purpose of the mediation to settle "all of the claims." This is also the province of a "bad faith expert" who can explain the purpose of the mediation as well as the reasonableness standard for investigation and communication with the client. The jury must/should conclude that the insurer would not have invited the claimant to the mediation if they did not intend to settle with the individual. A jury of laypeople unfamiliar with the process may not take that step.
In our case, all three claimants who did settle had sent demands stating that they would pursue bad faith damages if the carrier did not tender its limits by a date certain. The carrier was able to then arrange the mediation before that date passed. The majority of the jury did not understand the complexity of the Farinas fact pattern. Additionally, despite diligent questioning during voir dire, two jurors revealed after the trial that two others would never side with the carrier regardless of the facts. We ended with a hung jury after hours of deliberation and an instruction in response to juror questions that they should look at the "totality" of the circumstances. I should also note that this case did not involve an assignment of rights to file the suit from the insured to the claimant/judgment creditor which would have increased the risks involved by allowing the Plaintiff to collect attorney's fees in the event of a verdict in their favor. From the defense perspective I consider it a win based on the two predisposed jurors and we came away with some important lessons.
- There is a great advantage in the third party format because of the jurors inability to negotiate the value of the claim among themselves, it's an up or down vote.
- Time must be taken to explain to the jurors the limitations of a carrier when investigating the claim, i.e., they cna only get records a claimant is willing to provide them and whether an investigation is reasonable or not can be determined by the end result for the insured. (Nobody argued that the exposure for the insured wasn't appropriately reduced by the settlements).
- A hung jury may be the best possible result at any bad faith trial.
Monday, October 27, 2008
Sunday, October 26, 2008
The Sidewalk to Nowhere, McCain Supporters in Bethlehem, PA
How are all these folks going to react if Obama wins?
Friday, October 17, 2008
Monday, October 13, 2008
Columbus Day
My office was open on Columbus Day this year, I think it was open last year as well. I can't help but think of this holiday as past its prime. Many states and countries have alternative versions of the holiday at this point and I'd like Florida or the whole country to follow suit. Columbus is like many things, the more you know about it, the less enticing it becomes.
Columbus, or one of his sailors to be more precise, saw an island in the Bahamas on October 12, 1492. Instead of buying some straw hats and going home, Columbus had the motivation to make a second trip and reached Cuba and the island of Hispaniola, where the Santa Maria ran aground. He had failed in his attempt to reach Asia and the gold Spain was hoping India would provide. He believed when he died that Cuba was a promontory of Asia because he failed to circumnavigate the island. He had met some very nice indigenous people and his relationship with them is really the entire problem with Columbus Day. Aside from making them all sick with disease which had not yet been introduced in the New World, he slaughtered them. The Arawaks and other native people were viewed as potential new Christians and slaves, the inquisition in Spain had vanquished or murdered all Jews and Moors from Spain and those policies rang true across the Atlantic. There are numerous texts which identify the horrors tribal people suffered at the hands of Columbus's crew and the first colonists. Those brutal acts are sufficient to taint Columbus in such a way that we should change the way he is celebrated.
First a little history about Columbus Day here at home. The first Columbus Day was in 1792 to celebrate the 300th anniversary of Columbus's landing, they celebrated again on the 400th anniversary in 1892. Italian-Americans started celebrating in 1866 (Columbus was Genoese), but the holiday didn't gain in popularity until a lawyer, the son of Genoese immigrants who settled in California, popularized the holiday. They started celebrating in San Francisco in 1869. The lawyer moved to Colorado where the first statewide Columbus Day celebration was held in 1907. Denver, which has the longest running Columbus Day parade, has seen the parade protested by Native American groups for the last two decades. The Knights of Columbus got FDR and Congress to make October 12th, Columbus Day, a Federal holiday in 1934. Since 1971 it's been the second Monday in October. Most businesses are open, mine was.
In light of the gruesome treatment of the natives at the hands of colonists, many locales have altered their observance of the holiday. Berkley, California has changed the day to Indigenous People's Day, they have a pow wow. There is no Columbus Day in Hawaii, some Hawaiians have advocated a Discoverer's Day to include James Cook, but neither holiday is recognized by the state government. Even though State offices are open, there are still protests in Hawaii of any discoverer's holiday with some advocating an Indigenous People Day instead. It's not a holiday in Nevada, and in South Dakota it is a state holiday, Native American Day. In the Virgin Islands they call it Puerto Rico - Virgin Islands Friendship Day, when were they not friends. In Virginia, Columbus Day coincides with Yorktown Victory Day which celebrates, well you can figure it out.
In Latin America, Dia de la Raza is celebrated and it's largely scene as antithesis to Columbus Day and is primarily a way to celebrate the resistance to colonization and the indigenous peoples. Venezuela, under Hugo Chavez, has actually changed the name of their holiday to the Day of Indigenous Resistance. In 2004, activists toppled a statue of Columbus in Caracas. Chavez supporters compared the toppling of the statue to removing the statue of Saddam Hussein in Baghdad.
Children are fed myths about Columbus because history is not often pretty. They will not teach in elementary schools that Columbus's first thought upon meeting tribal men and women was that they could be easily subjugated as slaves and that some were immediately transported with Columbus back to Spain, many dying en route. When history has been sweetened and edited for so long that it becomes our reality, the most stalwart people describe any more accurate retelling as revisionist. Teaching history the way it happened is not revisionist, it's a lesson in humility and regret because we should all know the roots of our good fortune and come to terms when the roots are distasteful.
Scroll down and play the video to hear how Columbus discovered Ohio. Also Columbus made it into Dickipedia.
Scroll down and play the video to hear how Columbus discovered Ohio. Also Columbus made it into Dickipedia.
See more funny videos at Funny or Die
Saturday, October 11, 2008
Alexithymia, on the grand scale...,What happens in Carrabelle, Florida...
The image is Narcissus by Caravaggio.
I've had some conversations in this political season, usually with my wife about our shared opinions but also with people who don't see things the way I do and I've come to some medical conclusions. More specifically, psychiatric conclusions. Republicans are diseased, they have a very specific disorder.
I am making one big assumption as the basis when I conclude that the Republicans are sick, i.e., nobody actually believes that supply side economics helps poor people. The con of "trickle down" economics has been disproved to the detriment of our nation's majority yet again. I appreciate the optimism of it, "if rich people get more money, they'll do the right thing with it." Unfortunately the premises are wrong, when wealthy people get more wealth, it doesn't ever make its way to the homeless guy loitering by the McDonald's downtown. Additionally, government is not an inefficient delivery mechanism for help. In fact, from an economic standpoint, taxation and spending is the only way to ensure that funds are consistently recycled and spent in an economy that relies on the citizen to spend, not save. We all remember how Bush II advised us to fight back against Al Qaeda, I rushed to my neighborhood Target, well one of my neighborhood Targets.
I've had some conversations in this political season, usually with my wife about our shared opinions but also with people who don't see things the way I do and I've come to some medical conclusions. More specifically, psychiatric conclusions. Republicans are diseased, they have a very specific disorder.
I am making one big assumption as the basis when I conclude that the Republicans are sick, i.e., nobody actually believes that supply side economics helps poor people. The con of "trickle down" economics has been disproved to the detriment of our nation's majority yet again. I appreciate the optimism of it, "if rich people get more money, they'll do the right thing with it." Unfortunately the premises are wrong, when wealthy people get more wealth, it doesn't ever make its way to the homeless guy loitering by the McDonald's downtown. Additionally, government is not an inefficient delivery mechanism for help. In fact, from an economic standpoint, taxation and spending is the only way to ensure that funds are consistently recycled and spent in an economy that relies on the citizen to spend, not save. We all remember how Bush II advised us to fight back against Al Qaeda, I rushed to my neighborhood Target, well one of my neighborhood Targets.
If there is one truth about government and public administration it is that it spends what it gets. The simple reason behind that is self preservation. The government committee that doesn't come back in its second year to say it needs more funds to get the job done having spent its allotment, whatever the job is, clearly is not considering its own survival. This is the shortcoming of any public administration and also why it's hard to find an honest politician, but it does not work any less effectively to bolster our economy. Government spending is still spending. I've digressed.
So assuming there are no Republicans out there who actually believe in the trickle down farce, what would explain any one's inclination to support Republican policies and the agenda that has become the red state mantra? Alexithymia, sort of, and elements of Narcissistic Personality Disorder. Shock and disbelief, how can this be, an entire voting block needs therapy? Yes, intensive psychotherapy, actually, we all do.
Alexithymia, comes from Greek words meaning "without words for emotions," it's actually a personality trait, not a disorder, in individuals who have a difficult time expressing emotions. It is also connected to their ability to sense emotions in the people around them and is directly related to an individual's ability to empathize with others. That lack of empathy is an element of Narcissism that threatens to disconnect people from each other in a very real and permanent way. Do you see where I'm going with this. We live in a disjointed society. People in Waukesha, Wisconsin have increasingly less in common with people in Manhattan, which makes absolutely zero sense in the era of mass communication. But it's not just geographic rural vs. urban lack of empathy, it's across financial, religious, and racial strata as well. I don't mean to intimate that this is a one way street, city dwellers can't empathize with farmers either, we all exhibit this nasty little personality trait because even as we learn more about each other, we become more and more divided. Those divisions then contribute to the lack of empathy we feel for each other. It is circular and it's a problem.
I'm not sure who said it first or if it's just a bastardization of Gandhi's quote about how a nation treats its animals but, shouldn't we be judged as a nation by how we treat the poorest among us. Those last two words color the issue, "among us." The poorest are largely not "among us." We all become callous when the scandal of American poverty is out of view, let alone the poverty of Africa with it's shocking qualities. The separation from those neediest people allow the richest to exhibit their base lack of empathy, maybe disguise it behind economic policy, but essentially admit out loud, "I already pay enough, I don't care." Is it any wonder that in the states where population density is the lowest, you hear the most fervent opposition to the expansion of civil rights. If your only exposure to a homosexual is the guy from What Not To Wear (one of my wife's favorites), it's no wonder you can't bring yourself to support gay marriage. Gay out of sight, gay out of mind. Poor out of sight, poor out of mind. I've never seen your school with the old books and leaky roof, then I am perfectly happy to keep funding schools the way we do now.
I was in Carrabelle for work a few weeks ago. Carrabelle is in the panhandle, directly south of Tallahassee. It is hard to get to and does not have any citified trappings. Though it does have some great eats and a packed marina with an attached motel. There is a stop sign and local claim to fame, "The World's Smallest Police Station."
In Carrabelle, the people look the same and generally all work the same type of job. Many of the people there are employed by the Department of Corrections. There is nothing wrong with any of that. What is wrong is the inevitable disconnect and lack of empathy they might feel for someone who needs it because the issues are too foreign for their sympathy. Rich versus poor, rural versus urban, there is no end in sight.
On the ballot in Florida, as in some other states, is another of those inartfully named "marriage protection amendments." It is Amendment 2 on the ballot. It will likely pass because prejudices are easy to exhibit when you have the privacy of a polling booth. It will also pass because small segments of the population who are disadvantaged will be victims of the barriers between them and the rest of society forever without external intervention, i.e., the courts. Gay people will never have numbers enough to win a vote on a marriage protection amendment, and as long as most people live where they don't have to interact with homosexuals they'll never have the empathy either. I've digressed again. We know it is not a one way street, city mouse lacks empathy for country mouse just as much. How many urbanites favor farm subsidies? Why can't the city understand the religious backbone and practical economics of the country. The empathy shortage flows in both directions.
The point is... we need to empathize, if we don't we are only the introspective self-admirers contributing to the divisive culture we have today. We should all strive to be as different as we can from the youth trying to kiss his reflection in Caravaggio's painting. If you live in Florida, please vote No on Amendment 2.
So assuming there are no Republicans out there who actually believe in the trickle down farce, what would explain any one's inclination to support Republican policies and the agenda that has become the red state mantra? Alexithymia, sort of, and elements of Narcissistic Personality Disorder. Shock and disbelief, how can this be, an entire voting block needs therapy? Yes, intensive psychotherapy, actually, we all do.
Alexithymia, comes from Greek words meaning "without words for emotions," it's actually a personality trait, not a disorder, in individuals who have a difficult time expressing emotions. It is also connected to their ability to sense emotions in the people around them and is directly related to an individual's ability to empathize with others. That lack of empathy is an element of Narcissism that threatens to disconnect people from each other in a very real and permanent way. Do you see where I'm going with this. We live in a disjointed society. People in Waukesha, Wisconsin have increasingly less in common with people in Manhattan, which makes absolutely zero sense in the era of mass communication. But it's not just geographic rural vs. urban lack of empathy, it's across financial, religious, and racial strata as well. I don't mean to intimate that this is a one way street, city dwellers can't empathize with farmers either, we all exhibit this nasty little personality trait because even as we learn more about each other, we become more and more divided. Those divisions then contribute to the lack of empathy we feel for each other. It is circular and it's a problem.
I'm not sure who said it first or if it's just a bastardization of Gandhi's quote about how a nation treats its animals but, shouldn't we be judged as a nation by how we treat the poorest among us. Those last two words color the issue, "among us." The poorest are largely not "among us." We all become callous when the scandal of American poverty is out of view, let alone the poverty of Africa with it's shocking qualities. The separation from those neediest people allow the richest to exhibit their base lack of empathy, maybe disguise it behind economic policy, but essentially admit out loud, "I already pay enough, I don't care." Is it any wonder that in the states where population density is the lowest, you hear the most fervent opposition to the expansion of civil rights. If your only exposure to a homosexual is the guy from What Not To Wear (one of my wife's favorites), it's no wonder you can't bring yourself to support gay marriage. Gay out of sight, gay out of mind. Poor out of sight, poor out of mind. I've never seen your school with the old books and leaky roof, then I am perfectly happy to keep funding schools the way we do now.
I was in Carrabelle for work a few weeks ago. Carrabelle is in the panhandle, directly south of Tallahassee. It is hard to get to and does not have any citified trappings. Though it does have some great eats and a packed marina with an attached motel. There is a stop sign and local claim to fame, "The World's Smallest Police Station."
In Carrabelle, the people look the same and generally all work the same type of job. Many of the people there are employed by the Department of Corrections. There is nothing wrong with any of that. What is wrong is the inevitable disconnect and lack of empathy they might feel for someone who needs it because the issues are too foreign for their sympathy. Rich versus poor, rural versus urban, there is no end in sight.
On the ballot in Florida, as in some other states, is another of those inartfully named "marriage protection amendments." It is Amendment 2 on the ballot. It will likely pass because prejudices are easy to exhibit when you have the privacy of a polling booth. It will also pass because small segments of the population who are disadvantaged will be victims of the barriers between them and the rest of society forever without external intervention, i.e., the courts. Gay people will never have numbers enough to win a vote on a marriage protection amendment, and as long as most people live where they don't have to interact with homosexuals they'll never have the empathy either. I've digressed again. We know it is not a one way street, city mouse lacks empathy for country mouse just as much. How many urbanites favor farm subsidies? Why can't the city understand the religious backbone and practical economics of the country. The empathy shortage flows in both directions.
The point is... we need to empathize, if we don't we are only the introspective self-admirers contributing to the divisive culture we have today. We should all strive to be as different as we can from the youth trying to kiss his reflection in Caravaggio's painting. If you live in Florida, please vote No on Amendment 2.
Thursday, October 9, 2008
More Racism at a Palin Rally in PA
He is not even being tricked into revealing his racism by a Borat-like foreign correspondent. Vote McCain and risk being associated with this guy.
Saturday, September 6, 2008
Monday, August 25, 2008
Thursday, July 10, 2008
Why I Would Move To Canada (if McCain is elected)
Reasons:
1. My faith in the American people would be so definitively undermined, I could not look my fellow citizens in the eye without being driven crazy by the burning question, "Which one did they vote for?"
2. Undoubtedly the rich get richer politics of the Republicans will plunge us further and further into volatile recession, making the only reasonable choice a move to a country where the currency is more stable even if less valuable.
3. I will be too upset at the prospect of diminishing rather than expanding civil rights that I will move simply to avoid being confronted with those realities on a daily basis.
4. I may be deported, considering Mc Cain newly discovered intolerance for those born elsewhere. I can't actually be deported but maybe I'd leave out of solidarity with those who are.
1. My faith in the American people would be so definitively undermined, I could not look my fellow citizens in the eye without being driven crazy by the burning question, "Which one did they vote for?"
2. Undoubtedly the rich get richer politics of the Republicans will plunge us further and further into volatile recession, making the only reasonable choice a move to a country where the currency is more stable even if less valuable.
3. I will be too upset at the prospect of diminishing rather than expanding civil rights that I will move simply to avoid being confronted with those realities on a daily basis.
4. I may be deported, considering Mc Cain newly discovered intolerance for those born elsewhere. I can't actually be deported but maybe I'd leave out of solidarity with those who are.
5. Change of scenery.
Saturday, July 5, 2008
Thoughts crossing my mind as I upload my music for my new iPod.
2. Why did I like Billy Joel so much in Junior High?
3. Yankee Hotel Foxtrot is not a country album, I don't care what iTunes says.
4. I swear I am missing a ton of CD's, who has them and which are they.
5. I'm enjoying the way some of these cd's are bringing back specific events for me, all those Monday nights at Loung Ax and Beat Kitchen, the Arad music festival in 1997, and Amy's Farm in 1991.
6. Why won't the computer read my copy of The Inevitable Squirrel Nut Zippers.
7. What do I do about the bootlegs?
9. I really had a ton of Billy Joel discs. They're not going on my iPod.
10. iTunes really has the genres screwed up.
11. Holy crap, I still have a long way to go.
Tuesday, July 1, 2008
Who gets left behind?
The picture is of a frozen baby mammoth, it died over 10,000 years ago and has nothing to do with this post. What I wanted to write about is the ever expanding chasm between those of my friends with children (the great majority) and those without (the dwindling few) (the left behind) (the ones not in bed at 8 PM on Friday night).
At some point an initial step was taken and everyone paired off. Some are now pairing off for a second time but for the most part everyone has taken that initial step. If they did not, we can chalk it up to luck, or rather a lack of it depending on your situation. Because when it comes down to it, there are a few people for everyone, (except for me, there is only one person for me and I married her, I hope she is reading this).
Isn't it incredible how well preserved that mammoth is, really amazing isn't it.
So those that have not paired off for whichever reason, generally find each other and have fun, some rejoin that group after a tragedy or realizing they should not have paired off in the first place. Those few are usually temporary members of the singles club until they pair off again.
Some couples then move on to the business of offspring, multiple offspring being the norm, and some couples do not. Some couples cannot, not everyone chooses or has the ability to spend tens of thousands on fertility treatments. The next time you ask a married couple when they are going to have a baby, keep in mind they may have been crying about the subject for months. Regardless, the inclination to be fruitful and multiply is a strong one, but... is it a considerate one? The disdain for SUV's and the drive to recycle is a growing trend, but why are those snide comments about Hummers not also directed to the Nutters, or the Duggars. What will leave a larger carbon footprint, a Hummer or 18 kids? I'm willing to bet it's the kids in a landslide, a landslide created by global warming.
So we know having a multitude of children (or any children), isn't good for the environment, do we really care. Is it even a question of ethics or morals. Traditionally and at least in my mind ethics were taught in a classroom setting as a code regarding how human beings treat each other and act with regard to their human relationships. I don't think the scope is that narrow. I think most people would agree that whether or not we treat animals cruelly is an ethical concern. Can't we then extend the idea to our environment. The mistreatment of our planet is an ethical concern by extrapolation. So...
Is it unethical to have children? Why would we expect the dwindling resources of our planet to sustain a limitless population, when we know we are already in trouble. Well we probably shouldn't. I know you want a big family but we should probably stop making so many babies at the same time we stop making so many Ford Excursions, etc. I'm clearly just echoing other people's ideas on the subject but we should all stop to think about whether it's just bad for the environment to have kids, or because it's bad for the environment, is it just plain wrong.
Monday, June 30, 2008
Saturday, June 28, 2008
Monday, June 23, 2008
Tuesday, June 17, 2008
Cake and Crisps
Play Along:
Knock, Knock
Knock, Knock
(Who's There?)
Smell Mop
Smell Mop
(--------------)
It's actually not my joke, Antonia told it on the fantastic show Top Chef which just wrapped up its 4th season on Bravo.
My wife is addicted to several reality television shows. Jon and Kate plus 8, What Not To Wear, Top Chef (which is very good), Mystery Diagnosis, that show with Gene Simmons , and the inspiration for the joke retelling above, You Are What You Eat. You Are What You Eat is one of a crop of reality shows that airs on BBC America. Other shows of note include Ramsay's Kitchen Nightmares ( episode "The Walnut Tree" seems to be on a 24 hour loop), How Clean Is Your House, Last Restaurant Standing, My Big Breasts and Me and the nation specific makeover craze Britain's Worst Teeth. When it comes to reality television, the British do it right.
Back to the knock, knock, joke. On the aforementioned You Are What You Eat, a nutritionist, Gillian McKeith, shows people the crap they eat and then turns them into healthful sprites who outlive those tortoises that live a very long time. That is unless they fall off the wagon, or should I say, ice cream truck. The show starts off effectively every week with the, "surprise, we've been secretly taping you and recording everything you ate this past week." They then astonish the viewer and shame the participant by displaying on one long table, everything that person ate during the course of the week. The volume is usually frightening but the inevitable fish and chips usually look pretty good. And then the unthinkable happens, Ms. McKeith demands that her fallen angels defecate into Tupperware which she then smells and rubs between her fingers. She is so scientific about it, "Oh Nigel, you're barely chewing your food," "My god that is the most putrid smelling poo I have ever whiffed;" you half expect her to taste it and describe its mouth feel. Worse yet she makes all the participants smell and feel it as well.
As if the long table of fried food wasn't embarrassing enough.
The show proceeds with drastic changes in diet, negative reactions to tofu and claims of feeling more healthful. It ends with the necessary hugs and the before and after underwear photos . The self help shows have a formula that works. I just thought it was important to inform everyone that there is a show on television which makes people smell and feel their own poop. If you have a DVR, use it, you will not be disappointed.
In other TV news, injustice in our universe hit an all time high as the TBS sitcom My Boys was brought back for another season. The sitcom equivalent of a dead baby joke makes me pine for Misguided (great show recently cancelled),
and, John McCain knows how to be creepy.
Also, The Amazing Race is awesome.
Insurance Bad Faith in Florida, A Simple Understanding
The creator of the Pringles can has died. Actually he died a few months ago without much fanfare. By far the best part is where they placed his ashes, insert horrible joke about new Pringles flavor here. Soylent Green is people. With that out of the way I thought I would give everyone an insurance primer regarding a carrier's duties to its customers. This is not legal advice and you should in no way rely on this or sue me if you think I am wrong.
By way of background, we have essentially two kinds of insurance coverage in this universe, first party coverages and third party coverages. First party coverages encompass situations when you are making a claim against your own carrier for damages. In the auto insurance context, this would encompass your collision coverage, uninsured/underinsured motorist coverage, and no-fault coverage. It might be simpler to think of home owner's coverage as being primarily first party, e.g., a pipe leaks and destroys your house, you make a claim against your own policy to repair the damage. The essence of the first party situation is that there is no one else involved, just you making a claim against your own insurance carrier.
Third party coverage is simply liability coverage, it is the insurance purchased to pay claims against you that could be brought by third parties for accidental harm you cause. In the automobile context, if you have 100k of bodily injury coverage, your insurance company would pay up to 100k of injuries you caused to third parties arising from your use of an auto. The great value of third party coverage is the defense usually embodied in the coverage. Even if you maintained only a $10,000.00 bodily injury auto policy (the minimum), if you were sued by a third party for negligence involving your insured auto, your insurance carrier would be responsible for the attorney's fees and expenses involved in the defense of your case. Those expenses could easily exceed the actual amount of your liability policy within a few months of litigation.
Third party coverage is simply liability coverage, it is the insurance purchased to pay claims against you that could be brought by third parties for accidental harm you cause. In the automobile context, if you have 100k of bodily injury coverage, your insurance company would pay up to 100k of injuries you caused to third parties arising from your use of an auto. The great value of third party coverage is the defense usually embodied in the coverage. Even if you maintained only a $10,000.00 bodily injury auto policy (the minimum), if you were sued by a third party for negligence involving your insured auto, your insurance carrier would be responsible for the attorney's fees and expenses involved in the defense of your case. Those expenses could easily exceed the actual amount of your liability policy within a few months of litigation.
One quirk, the dreaded "wasting" policy. Usually reserved for professional malpractice policies, the wasting policy wastes away with each defense cost. In these policies, the total amount of coverage is applied to defense costs and liability payments creating an unavoidable conflict for defense counsel hired by an insurance carrier. Imagine reducing the funds your client has available to settle a claim each time you speak or write to that client. It's a bad idea, but it persists.
So what is insurance bad faith as it applies to both first and third party situations. Generally, insurance bad faith occurs when an insurance carrier fails to treat its policy holder with the same consideration it would bestow on its own corporate executives. This is obviously a very general standard and usually whether or not bad faith has occurred is a question of fact for a jury to decide. However, there are some factual scenarios where the Florida courts and legislature have provided some guidance. I'll deal first with the third part party context.
Imagine that you cause a car accident seriously injuring another individual. Also imagine that like most individuals in the state, you only maintain 10k in bodily injury insurance coverage. What are your insurance company's responsibilities? They have an affirmative responsibility to protect you from a judgment in excess of your 10k policy limits, i.e., they have to try and settle the case on your behalf. They may not be successful but as soon as they are notified of the accident they must begin steps to protect the policy holder's interests. The injured party may demand that you contribute funds, that you provide proof that you cannot contribute to a settlement in excess of your limits, they may demand that you sit in front of a court reporter to answer questions about your assets, they may demand that you stand on one leg, hop up and down and sing O' Canada; they can demand whatever they like, what is important is that insurance carrier communicates all of the demands to you in a timely manner providing you with every opportunity to settle the claim.
So what is insurance bad faith as it applies to both first and third party situations. Generally, insurance bad faith occurs when an insurance carrier fails to treat its policy holder with the same consideration it would bestow on its own corporate executives. This is obviously a very general standard and usually whether or not bad faith has occurred is a question of fact for a jury to decide. However, there are some factual scenarios where the Florida courts and legislature have provided some guidance. I'll deal first with the third part party context.
Imagine that you cause a car accident seriously injuring another individual. Also imagine that like most individuals in the state, you only maintain 10k in bodily injury insurance coverage. What are your insurance company's responsibilities? They have an affirmative responsibility to protect you from a judgment in excess of your 10k policy limits, i.e., they have to try and settle the case on your behalf. They may not be successful but as soon as they are notified of the accident they must begin steps to protect the policy holder's interests. The injured party may demand that you contribute funds, that you provide proof that you cannot contribute to a settlement in excess of your limits, they may demand that you sit in front of a court reporter to answer questions about your assets, they may demand that you stand on one leg, hop up and down and sing O' Canada; they can demand whatever they like, what is important is that insurance carrier communicates all of the demands to you in a timely manner providing you with every opportunity to settle the claim.
Bad faith arises in the third party context when your carrier fails to actively attempt to protect you from a judgment in excess of your policy limits. The simplest example would be a situation where you accidentally kill someone with your car, your insurance carrier then receives a letter saying that the estate of the deceased is willing to settle their claim for your 10k policy limits at which point your insurance company does anything except send them a check for 10k. Thirty days go by, the estate files a lawsuit against you and the resulting judgment is 1 million dollars. Clearly, the carrier should have settled the case, clearly they acted in bad faith by not settling the claim when the opportunity arose, and clearly a potential bad faith claim exists for the 990k not covered by the 10k bodily injury policy.
If you have not figured it out, a necessary precursor to bad faith in the third party setting is the determination of value for the underlying case in excess of the policy limit, e.g., the million dollar judgment in the previous paragraph. In the first party setting a judgment in excess of limits is unnecessary but the legislature has provided insurers with a procedure by which they can avoid charges of bad faith, the civil remedy notice. When jerked around in the first party context, let's say your home owner's carrier will not pay for damage an appraisal umpire has said they owe, you have only one option if you intend to file a bad faith suit. You must file a Civil Remedy Notice with the State of Florida's Department of Financial Services, the Notice must indicate which statutory provisions you think your carrier is violating. After the notice is received by the carrier and accepted by the state, the carrier then has sixty days to resolve the dispute. They can do that by simply paying what is owed under the policy. If they make the appropriate payment within sixty days of the civil remedy notice, there cannot be a bad faith claim.
If you have not figured it out, a necessary precursor to bad faith in the third party setting is the determination of value for the underlying case in excess of the policy limit, e.g., the million dollar judgment in the previous paragraph. In the first party setting a judgment in excess of limits is unnecessary but the legislature has provided insurers with a procedure by which they can avoid charges of bad faith, the civil remedy notice. When jerked around in the first party context, let's say your home owner's carrier will not pay for damage an appraisal umpire has said they owe, you have only one option if you intend to file a bad faith suit. You must file a Civil Remedy Notice with the State of Florida's Department of Financial Services, the Notice must indicate which statutory provisions you think your carrier is violating. After the notice is received by the carrier and accepted by the state, the carrier then has sixty days to resolve the dispute. They can do that by simply paying what is owed under the policy. If they make the appropriate payment within sixty days of the civil remedy notice, there cannot be a bad faith claim.
Of course, there are wrinkles, complexities in both the third party and first party context which raise questions about what constitutes insurance bad faith. We cannot address them all but two issues in the third party scenario arise often and have received some guidance from the courts. First, what is the appropriate course of action when there are multiple claims being made, the total value of which would exceed your policy limits. Though there is no clear practice for a carrier to avoid bad faith allegations in the multiple claimant situation, there is an indication that in Florida one claim cannot be paid diminishing the total funds available for other claims, if that first payment is not in the insured's best interests. Inevitably a court would decide if a carrier's actions in the multiple claimant framework were reasonable attempts to protect their insured. (It should be noted that several other states allow insurance carriers to settle claims on a first come, first serve basis).
The second scenario to consider involves multiple insureds rather than claimants. Often there are multiple insureds liable for a loss, e.g., the owner of a car and the driver. It's conceivable that an injured party might accept a settlement for one insured but refuse to release the other. Florida courts have approved of insurance companies obtaining releases for some insureds while leaving others without funds under the policy to settle, but, the circumstances must show that there were no other viable options to settle the claim(s) against all of the insureds.
The mandate for an insurance carrier in the third party context is clear, protect as many insureds as possible from excess judgments.
Hope you enjoyed this boring introduction to first and third party insurance bad faith, stay tuned for the primer on reinsurance. I can feel you shivering with anticipation.
Wife/Cousin; Sister/Cousin or How We Are All Related
Get the joke in the picture? It's actually my family tree. My father-in-law/step third cousin once removed was actually the first to tip me off. On my first trip to my wife's home in Odessa (Florida), her father casually asked me my last name. I told him the distinctive and unusual last name of Hungarian origin and he responded in peculiar fashion, "Really, (Hungarian last name), like the (Hungarian last name)'s from Nicaragua." I was slightly surprised but not entirely taken aback because our family had achieved some notoriety in small circles (a Canadian librarian later wrote a book which featured some information about a long dead relative named Laszlo). There is no (Hungarian last name, "HLN"), from Nicaragua that I am not related to in some way. The Jewish community of the country had always been and remains, small.
I return to the initial meeting with my wife's father.
After replying that yes, I am one of the HLN's, he promptly revealed that as a teenager he had spent time on a certain "finca" owned by Julio HLN, my great uncle, and that...wait for it...we were all related. He was chuckling, my wife then girlfriend, was not. My wife's grandfather had sent my father-in-law to Nicaragua to learn Spanish and while there he stayed with family, his family and my family.
This is how it goes. My wife's paternal, paternal great grandfather, i.e., my father-in-law's paternal grandfather was a widower. At some point, he decided to remarry. He already had children but desired companionship. Like many people, he sought his companionship from familiar environs. For him, familiar environs meant the people from the same small Hungarian village of Jews that had since dispersed into diaspora from diaspora. While he was in Michigan, he knew the HLN's in Managua and sent for and married Lillian, sister of my paternal grandfather, Morris. We are one family. There is no blood between my wife and I, at least not within the last four generations, but it was always funny to think that my great aunt was my wife's grandfather's stepmother. Had my great aunt actually been my wife's great grandmother, then my wife and I would be third cousins, not exactly a genetic time bomb. In fact just being of European Jewish descent presents far more genetic concerns.
While my wife's grandfather was living I enjoyed hearing him tell stories about the nefarious deeds of my Nicaraguan family. I am slightly dubious that my paternal uncles' remember what a good swimmer my father-in-law was during his visit more than forty years ago though they swear up and down they remember his visit and always refer to him by his nickname.
My wife and I would have been married even if we were third cousins, I would have been game if we were even closer. Apparently cousin love is no big deal. For an understanding of your relationship to others in your extended family, plus an explanation of what it means when someone is "once removed," click this link. For the record, I knew my wife for seven years before we knew our families were intertwined, that "small world" thing can really blow you away sometimes.
Monday, June 16, 2008
Monday, June 9, 2008
Open Letter to My Sister/Cousin's Friends
Dear Allison and Allison's Boyfriend: Seriously, what the hell is wrong with you. I don't believe for a second that you honestly mistook the oven for a toilet, that is not a mistake drunk people make. The mistake is that you thought it was funny.
You actually thought to yourself, "this is going to be a funny prank," which unfortunately means that not only are you inconsiderate horrible guests (that should know better than to ever call again), but you are also stupid. So stupid, so moronic that when you arrived at your host's home at 4:30 AM you decided it would be funny to urinate in her oven. My sister/cousin (another story about how we are related may follow) is a nice young girl, not some dude who left you an upper decker that you have a running prankfest with, she is a sweet girl who on occasion actually used her oven. She is sweet and you are jerks.
Did you even acknowledge the violation? Only when prompted. And then your meager apologies were short shrift as you made no attempts to clean the mess and left town without even the slightest, "hey, I think my boyfriend may have pissed in your oven last night." You just left her to discover the urine when she turned the oven on and filled her apartment with the alkaline smell of ignoramus piss. We hate you. You are not friends of ours.
I hope you have equally inconsiderate friends that get drunk and drop a deuce on your carpet. If you were actually sorry, you would replace the oven recognizing that no person should have to eat from a pee oven regardless of whether it is actually harmful or unsanitary. So step up and replace the oven, or make your boyfriend buy one. Damn it, do the right thing. My two year old knows you don't pee in the oven. You suck. Plus you should replace her sheets and blow up mattress. Screw you for treating her apartment like an hourly motel.
Monday, May 26, 2008
Saturday, May 24, 2008
White Wilderness
This is the video referenced in the post below, see post below for complete explanation regarding lemmings, ants and Walt Disney.
Wednesday, May 21, 2008
Ants, The New Lemmings
Rasberry ants are the new lemmings. Not exactly, Rasberry ants are the new image of lemmings. This may take a little explaining, so let us take this one step at a time. There is an invasive species of ant destroying electronics in Texas. Despite any hope of mine that the ants will take refuge in Diebold voting machines in the especially red districts, this is a serious problem. The ants are an invasive species, which causes potentially huge threats to our own native species. Invasive species need not be animate either, we have a problem in Florida with typical dune vegetation disappearing (and with it the animal life that feeds on it) because of the invasive Australian Pine. Any trip to Jonathan Dickinson State Park in Hobe Sound, Florida is enough to make you realize how much damage a species can do when it ends up someplace it does not belong. Unlike the Australian Pine, which Floridians planted in the 1800's to stabilize irrigation, the Rasberry ant is thought to be a stowaway from a cargo ship, a little evolutionary joke with nature not accounting for modern mass transit.
Though invasive species are obviously a problem regardless of their individual propensities, there is one aspect of the Rasberry Ant which should make this invasive species part of our vernacular. They regularly follow each other to death by electrocution. Though their teeth, jaws, pincers or whatever ants have, are not strong enough to cut wire, they are strong enough to expose wire and when they encounter a live current, they die and release a pheromone that attracts other ants to the same location creating a build-up of dead ants inside your computer. That's right, they like to nest inside electrical equipment. How little sense does it make that the pheromone released when this ant dies, attracts other ants to the same location, I'd be interested in the evolutionary construct which causes this though it's probably something as simple as the necessity to defend their territory, which is why they like to live in electrical equipment in the first place (one way in, easy to defend).
What does this have to do with Lemmings? There is a common myth about lemmings which we are all familiar with, they jump off of cliffs to kill themselves like a scene from the new M. Night Shyamalan movie. They do not actually commit mass suicide, like many rodents, lemmings disperse when food becomes scarce due to population density in a frantic race for a new home. Nothing stops them, they swim, they climb, and in Norway, they jump into the sea and continue to swim until they drown. Not the brightest animals but they are just doing what evolution has programmed them to do.
In furtherance of the mass suicide myth, Disney, yes Disney, threw lemmings off of a cliff for their movie White Wilderness. The faked scenes from the movie are in the blog post above. All of this bullshit has led us to the point I would like to make. Let's stop calling mindless followers "lemmings", it's at least less appropriate then calling them Rasberry Ants, whose headlong plunge to death because of pheromones is far more akin to suicide then the lemmings search for food. Let us all vow to never describe people as lemmings again, and when someone asks what a Rasberry Ant is, take the opportunity to lecture them about invasive species.
What does this have to do with Lemmings? There is a common myth about lemmings which we are all familiar with, they jump off of cliffs to kill themselves like a scene from the new M. Night Shyamalan movie. They do not actually commit mass suicide, like many rodents, lemmings disperse when food becomes scarce due to population density in a frantic race for a new home. Nothing stops them, they swim, they climb, and in Norway, they jump into the sea and continue to swim until they drown. Not the brightest animals but they are just doing what evolution has programmed them to do.
In furtherance of the mass suicide myth, Disney, yes Disney, threw lemmings off of a cliff for their movie White Wilderness. The faked scenes from the movie are in the blog post above. All of this bullshit has led us to the point I would like to make. Let's stop calling mindless followers "lemmings", it's at least less appropriate then calling them Rasberry Ants, whose headlong plunge to death because of pheromones is far more akin to suicide then the lemmings search for food. Let us all vow to never describe people as lemmings again, and when someone asks what a Rasberry Ant is, take the opportunity to lecture them about invasive species.
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