Wild Card

Stacking the Deck 

An insurance bet in Blackjack is one of the worst bets a player can make.   

We’ve long wondered about how the Maryland attorneys for the defendants, Price and Zaborsky specifically, are being paid for their work, and what role an insurance policy on 1509 Swann Street would have in cashing out in the event of a judgment against them. 

Dylan Ward remains a wild card.  Was he or was he not part of the policy and if not, why does the DC Courts database show the Price and Zaborsky attorneys working for him too?

At last count, four attorneys are working on Ward’s behalf, including the dynamic duo that got him and his co-defendants off the hook in the criminal trial, David Schertler and Robert Spagnoletti. 

After a lengthy criminal trial and still another year of doubling down for the civil, that’s a lot of chips.  Who pays and how, may offer glimpses into the overall defense strategy.

What can the Maryland team honestly bring to the table?  Longtime reader-attorney Bruce weighs in on the nuances and possible scenarios.  He gives us a homework assignment too.

“We know that Dylan did not mention insurance as an asset in answers to interrogatories, as Joe and Victor did.  However, I was troubled that this interrogatory question was not directed to insurance, specifically, and there were no specific insurance interrogatories.  His answer to that interrogatory lead me me to think that he had no insurance, but I still had some questions.  There is certainly the possibility that Dylan and his attorney just answered it “differently” than Price and Zaborsky, and he is being defended by insurance.”

“But I think the chance of that is probably in the 1% to 5% area.  Some thoughts:

(1) Is it possible that all three defendants agreed, as well as their attorneys and the insurance company, thus waiving any conflicts, and all the three’s attorneys agreed to allow the insurance attorney to enter an appearance for each defendant so that it could promote the “joint defense” privilege? I would want to see if the other attorneys did this.  Again, quite a long shot.  Doesn’t mean any insurance company is paying for Dylan.

(2) Is it possible that all three defendants agreed, as well as their attorneys and insurance company, thus waiving any conflicts, and, to help out on defense costs for Dylan, and keeping with a “joint defense” posture, they agreed that the insurance counsel could be listed as representing them all? Possible, but again doubtful. We do know that Dylan has that Washington State attorney. What’s up with him. Again, doesn’t mean that the insurance company is paying for Dylan. A separate bill could emanate from the insurance company attorney as to work specifically done for Dylan. Long shot!!!!!

(3) It is possible that Dylan made a “tender” to Joe & Victor’s insurance company, claiming that he should be defended under Joe and Victor’s policy.  And the insurance company agreed to defend him with a big reservation of rights letter, like with Joe & Victor, we assume.  Very doubtful to me, since I think we all think that Dylan would not be an “insured” under the policy (I have been so convinced by other posters, despite my earlier protestations in this regard).  Of course, NONE of us have read the insurance policy! We don’t know exactly what endorsements or exclusions that it had. But if this is the case, why did Dylan answer the interrogatory question differently?

(4) The insurance company could decide, despite having no obligation to do so, that the case against its insureds Joe and Victor hinges on Dylan, and to protect Joe & Victor, its insureds, and to promote a successful defense without a “wild card,” and to protect against a run-away verdict, it could make a business decision to defend Dylan and pay for the defense.  Everyone would have to waive any conflicts.  Again, very doubtful in my view, but a slight possibility.  But might explain why Dylan would answer that interrogatory different than Joe & Victor, because under this scenario, it would be perfectly clear that the insurance company would not be an “asset” to pay for any settlement or judgment against Dylan, and only providing payment of defense. 

What would be helpful is if we can get our hands on the actual “Appearance(s)” of that insurance defense attorney.  This is a filing with the court called an “Appearance”, sometimes called an “Appearance and Jury Demand.”  Each attorney representing a party has to file this usually one page document and sign it. In it, the attorney must list each person he or she represents. It controls who represents whom.”

Thanks Bruce.  We’ll see what turns up.

46 comments for “Wild Card

  1. Kate
    10/25/2010 at 3:29 PM

    Bruce, excellent analysis and thoughtful presentation of various scenarios. Dylan has always been the “wild card”, in my humble opinion, throughout this extraordinarily complex case.

    In reviewing the plaintiff’s complaints, the charge of Negligence/Failure to Provide Aid appears strongest against Ward. He didn’t make the 911 call and stay on the line till the first responders arrived (as did Victor), he didn’t apply pressure to Robert’s wounds (as Joe claims). He did, however, walk into the guest room, have a quick look-see and then sat down on the sofa. He did nothing.

    Could this have had an affect on the defense strategy and the possible “business decision” by the insurance company to defend all three equally?

    Many thanks for your thought provoking post,
    Kate

    • Kate
      10/25/2010 at 3:43 PM

      In my above post, I failed to mention that the defense did not include the Negligence/Failure to Provide Aid, in their Motion to Dismiss. Is this perhaps a further indication of their strategy – to proffer as a bargaining chip for pre-trial settlement?

      As a legal novice, I realize this may be silly, but for the insurance company it’s about the money. No doubt they would like to minimize expenses and settle the matter as soon as possible.

      • Bea
        10/25/2010 at 5:15 PM

        Kate, I think the Negligence claim doesn’t suffer from the 1 year statute of limitations issue – I believe negligence is 3 years (if memory serves). I think the decision was as simple as that.

        • Kate
          10/26/2010 at 10:06 AM

          Thanks for the clarification, Bea.

          Surprisingly, I knew that … but not surprisingly, I forgot!

          So many essential bits and bobs to keep track of in this case.

          Regards,
          Kate

  2. boofoc
    10/25/2010 at 5:15 PM

    Good job, Bruce; but consider: Depending, of course, on the scenario – JP’s, VZ’s and DW’s secret at the moment – Dylan might well have been JP’s and/or VZ’s agent at the time of the murder, and the principal(s) would be responsible for the acts/inaction of his/their agent. Thus, JP’s and VZ’s insurer would need to defend Dylan from any liability, which would vicariously impute to his principal. In answering interrogatories, Dylan’s cousel may have viewed this coverage of his client as something other than an asset, inasmuch as he was not a “named insured.” Did i miss something?

    • Bruce
      10/25/2010 at 9:55 PM

      Hi Boo:

      Your principal/agent theory, sometimes referred to as “respondeat superior,” or “vicarious liability” is interesting to consider, and is certainly creative.

      But, in my opinion only, I don’t think it applies in this Joe – Dylan situation.

      Further, this “principal/agent” theory is not set forth in the Amended Complaint, and the insurer takes its cue as to coverage from the actual allegations and Counts of the pending Complaint (here, the Amended Complaint of Mrs. Wone).

      It certainly is applied very often by the courts in the employer/employee situation (employer can be liable for negligent acts of an employee within the scope of the employment — if a driver employee hits a person with the company car or truck, or why on “business” for the employer, the employer can be held liable for the employee driver’s negligence, but the employer has a right to be indemnified [paid] by the employee for anything the employer pays)…

      …..And in business situations (real estate agent for a principal/owner does something negligently in the sale of property or goods — principal/owner can be held liable, but has a right of action in indemnity [to be paid]against the agent to be recompensated for what the principal pays).

      I have never seen it applied in any situation like Joe-Dylan in our case, and doubt it would be allowed.

      I think the “conspiracy” count in the Amended Complaint (which is a subject of the pending Motion to Dismiss) is probably the only possible relief in this fashion under our fact scenario.

      But would like to hear what others think!

  3. Bruce
    10/25/2010 at 5:34 PM

    Hi Kate:

    You raise interesting points.

    Count II of the Complaint, the Count that is not touched by the pending Motion to Dismiss, is based solely upon negligence, and for actions (actually inactions) after the physical attack on Robert Wone.

    On page 17 of the pending Motion for Summary Judgment, the defendants discuss that Count II and indicate that (while they are not admitting to it), this Count II probably has a three year statute of limitations. The Complaint was filed less than three years after the murder and alleged initial “cover-up.”

    Thus, I don’t personally think that Count II was left out of the motion for strategy sake. It just doesn’t fit the statute of limitations arguments set forth in the motion. Count II is not much of a carrot to the plaintiffs, if the motion is granted, in my opinion, as it is not likely to engender the type of monetary award that the wrongful death claims would generate.

    I’m afraid we are all wandering in the dark, so to speak, as to the exact insurance positions as to all the defendants. Doesn’t mean we can’t speculate, which is all I am doing on this topic.

    Personally, I think it is very doubtful that the insurance company for Joe & Vic is doing anything as to Ward.

    However, it is the highest goal of the insurance company to protect its assets, and if protecting Ward could ultimately protect its assets, it is not beyond the world of possibilities that it might at least pay for or pay for a portion of the defense of Ward, to protect its assets in the “long run” for a “joint defense,” and to protect against a large judgment against Joe & Vic.

    Again, we have to await the plaintiff’s response brief and the judge’s ruling on this issue, but I would think that the time immediately before this ruling on the pending motion to dismiss may be a good time for all parties (and the insurance company for Joe & Vic), to think about settlement negotiations.

    While that would not further the likely honorable ambitions of Mrs. Wone and the Wone attorneys to reach “the truth,” and find “justice,” I’m afraid that the defendants’ positions on the 5th Amendment already make it doubtful that much new will be evoked in this civil trial, at least not about the events the night of the murder.

    As to whether the parties and insurance company go to the settlement negotiations table or not is a matter of each determining the pros and cons of doing so, balancing the possible benefits and costs. Each side will have a different approach to this, and one or more may determine that they want to show no possible weakness by doing so or initiating the negotiations.

    Thus, it might be wise for the civil judge to recommend or foster such negotiations so that no party really has to initiate them.

    What the insurance company for Joe & Vic wants to do at this point is liquidate (get a final number free of ambiguity, to close its file) its potential payment (attorneys fees and possible verdict, subject to its reservations of rights). With no liquidation, there is no figure that can be put down as to the value of the claim, and it is all a very nervous guessing game for them, all dealing with money only. Individually, some of the insurance people may be biting their nails about this case. Someone had to come up with a “reserve” for this case (an ultimate value). And it if is reserved at $1.5 million, but ultimately the insurance company has to pay out $3 million or more, some careers and heads may roll.

    Insurance companies want certainty (even if it means they may pay more money than they want), so that they can close this file, put it out of their minds and stresses, and go on to the next claim by other insureds upon their assets.

    As to the defendants themselves, their goal is clearly to end this case at the earliest moment and at the least cost to them personally, and to have the insurance company pay the freight to the absolute extent possible.

    We have already touched upon the plaintiff’s likely goals. A settlement with a heavy motion to dismiss hanging over your head will likely not bring the type of money that they envisioned when they filed the suit.

    However, considering the pros and cons, including that they could essentially lose the case now or later, and that “the truth” and “justice” may not be forthcoming with the 5th Amendment as a block, a sizeable settlement could help Mrs. Wone with funding the rest of her life and also fund the memorial to her husband, and good works in that regard.

    Difficult decisions for everyone to make! Sometimes difficult decisions like this end up in inaction by everyone.

    The law can be dark, glum, and full of uncertainty and unfairness, and this causes some people to not understand how lawyers, insurers, and of course participants in civil and criminal trials can stand it day to day.

    Because with uncertainty, there is always anxiety & stress.

    No one can be certain that the judge will rule one way or the other as to this pending motion. No one can guarantee the defendants that whatever happens they will have their lives after this is over. No one can guarantee Mrs. Wone that truth and justice will prevail.

    Everyone, including all of us, can only wait and see.

    • Bea
      10/25/2010 at 6:28 PM

      Unless Kathy Wone really needs money RIGHT NOW, I suspect she’ll roll the dice – while you’re right the defendants will take the 5th, she’ll get her day having them do so in front of the jury AND get to depose/have testify the cast of characters who hold so much of the critical information – Sarah, Scott, trick(s), Lisa G, Michael, Louis, Kim & Catherine (mothers to Price/Zaborsky’s sons) or whomever else has anything relevant to add. Even if she doesn’t get ‘justice’ she’ll get more answers than she has right now – and possibly, just possibly, something will shake loose and lead to a murder trial.

      If she survives this Motion (again, I will be shocked if Covington blew that date – wouldn’t surprise me at all if Joe Price tolled the statute), then she’s got little to lose by continuing at least past the deposition stage that is SO critical to her getting solid information – most people won’t lie under oath, and there won’t be a sideshow of objections preventing them from answering. My guess is that while she’d like the insurance money, she’s wanting too to take a piece of Price’s paycheck from here to eternity. I would.

      • Bruce
        10/25/2010 at 8:05 PM

        Bea:

        Can’t disagree with you at all in your opinions.

        Hope you are right about the plaintiff’s firm having a trick up their sleeve (like something that could be considered a “tolling” agreement, expanding the statute of limitations), but I still have difficulty thinking that the defense attorneys would not include something about that if such a document was afoot. Wouldn’t it be a spectacular event if Joe did something that could reasonably be considered a “tolling agreement” with Mrs. Wone and/or her attorneys, but did not provide it to his own attorneys or the attorneys representing the other defendants, and has not mentioned it despite knowing about the motion. Let the sparks fly! It would certainly blow this motion out of the water.

        At least here in Illinois, you have to point out to the court in a motion such as this motion to dismiss, clear court precedent that goes against your argument (and you should differentiate it by its facts, etc.), and provide something as central as a tolling agreement in this instance (and argue it is ineffective, etc.), or you may find yourself facing court sanctions. This sort of gets to your being an “officer of the court” as an attorney.

        But again, my speculation is no better than your speculation, I think, on that topic. I’m not as optimistic on this as you in my speculation. But, I’m with ya.

        • Bea
          10/25/2010 at 8:46 PM

          I am comforted knowing that Zaborsky moved to have his interrogation suppressed – UNTIL the prosecutor found footage of him being asked whether he was there voluntarily. As such, it wouldn’t surprise me in the least if Joe agreed to toll the statute but is waiting to see if Kathy Wone disclosed it to counsel. I think most jurisdictions – in principle – expect one to be forthcoming about facts and law but at the same time taking the adversarial position is expected, with ‘contra’ law given little airtime or buried in a footnote. And Joe may not feel compelled to tell this set of counsel very much at all, fact-wise, even if he’s running the defense.

          But it’s all speculation – agree.

          • Susan
            10/25/2010 at 8:54 PM

            I am confused Bea and Bruce,

            Re a tolling agreement, wouldn’t that have to be in writing and acknowledged, at this point, by the court? And if a tolling agreement means JP agreed to give KW more time, I’d have to say I couldn’t really see that happening. Not with the guy who sat in a videotaped interrogation concerning the murder of his friend in his house and pretended to the officer right across from him that he was looking at his own cell phone and calendar when he was looking at VZ’s. I don’t see him cooperating with KW in that way, if I’m understanding this tolling agreement correctly.

            • Bruce
              10/25/2010 at 9:32 PM

              Hi Susan:

              I believe that a “tolling agreement” or something from Joe or the other defendants indicating that Mrs Wone or her attorneys could have more time than the statute of limitations to file a complaint WOULD have to be in writing, under what is called the “Statute of Frauds.”

              Trust me, you don’t want to know more about the Statute of Frauds than you have to.

              Let me just say it lists categories of types of agreements that need to be in writing (and oral agreements won’t suffice), and most jurisdictions follow some or all of the Statute of Frauds.

              I believe it would apply to a tolling agreement but I am certainly open to disagreement by other posters on this topic.

              It could just be a line in an e-mail.

              Such an agreement would have to be acknowledged by the court if the plaintiff’s attorneys attach it as an exhibit to their Response Brief to the Motion to Dismiss!

              There is no requirement that it have been brought to the attention of the court before this time….Now would be the correct and appropriate time to provide it to the court, because right now it would be VERY relevant, since the defense is relying solely upon the statute of limitations for its motion.

              As to whether Joe would do this? Your theory that he would not is just as valid as speculation that he might.

              But, I would caution about too much excitement about this possiblilty, better stated as speculation, for the reasons I state in my posts with Bea on this topic.

              • Susan
                10/25/2010 at 10:11 PM

                Thanks, Bruce.

                Your right re my speculation. That’s all it is. So is the speculation that the statute of limitations is up for certain of the claims. Plaintiffs’ attorneys might argue differently.

                • Bea
                  10/26/2010 at 6:15 AM

                  In fact, I was assuming that if there was a ‘tolling agreement’ that it would likely have been done by email (and from Joe, of course). Don’t forget that Kathy is a lawyer, too, and would have known the importance of it – perhaps she even asked for it and received it but Defendants are waiting for Plaintiffs to show it in the response. It would not surprise me at all that Joe pushed the envelope in hopes that she hadn’t saved or printed it.

              • Jeana
                10/25/2010 at 10:43 PM

                Sheesh, Bruce – you just had to bring up the Statute of Frauds, didn’t you? Now I’m going to have bar exam flashbacks all nite!

                • Bruce
                  10/25/2010 at 10:48 PM

                  I know, Jeana.

                  It’s like the stupid ridiculous Rule Against Perpetuities, which has never ever ever come up since law school for me.

                  Bar exam flashback deluxe.

      • Eagle
        10/26/2010 at 2:06 PM

        You know Bea, it is now not just an issue of knowledge of and compensation about Robert’s death.
        I wonder if length of seeking of justice is not an additional injustice to Kathy and the Wone’s and others.
        How could one have possibly spent four, now five plus years, personally enmeshed in this crime without it having unknown harmful effects on these people. Not to mention friendships that have been effected forever. There are probably even people- unidentified and unknown to us- who have been effected by this whole saga. (Such as friends or relatives of the characters who now have to question whether they really knew one or more of this cast. Trusts have been changed, I expect. Assumptions about friends have been questioned and tested.)

        The slow slow pace of justice has also enhanced enormous stresses.
        It will be years, decades, before individuals touched by this saga are able to sort it all out. For example, Kathy, herself, has had valuable years of her mid-life usurped by this issue. Who knows in how many ways. How much, even she will not know for years, perhaps decades. It cannot help but change her. And how about the unending saga for the Wones.

        I know all you lawyers out there will probably not like what I am going to say, but to me, justice is too slow. It inflicts stresses on the victim”s associates and those who know them. They cannot resolve their feelings. Personal resolution and coming to peace with these crimes just drags on and on and on. To turn to the courts risks being victimized again by incompetence and slow action -even personal and public demeaning at the hands of and as a consequence of the legal process.
        There are many prices- known and unknown – paid for which those connected with this case, sorry to say.

        • Bruce
          10/26/2010 at 5:16 PM

          Eagle:

          As a lawyer, I don’t dislike what you say at all. I agree with it.

          I caution clients to avoid litigation if they possibly can. Going to arbitration or mediation can be a much quicker solution to one’s problems and disputes, if all agree.

          I particularly agree with your focus on the pain and stress that the current court system of civil litigation almost certainly has for the Wones and Robert Wone’s wife.

          I have in previous posts on WMRW described how people trapped in the long process of litigation usually don’t like the experience, don’t get what they want, and can’t put closure to things. Even many times when they win, they are disappointed and hate the process. The toll of the process can overcome the benefits of winning in many cases.

          I realize I am part of the problem, being a lawyer. Doesn’t mean that I don’t appreciate the down-side to litigation. Wish I could change it in a fair way for all litigants.

          • Kate
            10/26/2010 at 7:29 PM

            Bruce – from everything you have written here, it is clear to all of us that you work diligently for your clients to reach an “outcome” – for lack of a better word – that causes the least pain, delay and financial burden. There are many others here who join you in this noble pursuit – Bea, CD, Hoya Loya and others we have had the honor to meet along the way (Chilaw and Themis come to mind) – and my apologies to those I failed to mention.

            The long and often agonizing process of litigation is the very best we as humans can do to achieve Justice. Those of a cynical bent might find the legal process akin to a reworking of Dickens’ “Bleak House”. But many of us, legal novices such as myself, have gained a keener, brighter understanding of the process of law from visiting this site and meeting the likes of you fine lawyerly folk. Therein lies hope and I am grateful for it.

            In my walk of life – I’m a public historian – I have met equally dedicated people, some of whom are long since departed. Please, by God, keep up this magnificent tradition, as long and wending as it may be.

            Keep working, legal friends, to help us all. I apologize if this post seems overblown or dramatic. I am currently working on a project from the 18th century that was, and still is, a murder mystery. But certainly not for lack of sound legal minds, hard working dedicated people, searching and searching for justice.

            Who knows what tomorrow may bring?
            Regards to all,
            Kate

        • Bea
          10/26/2010 at 8:11 PM

          Like Bruce, I really understand your point of view and agree with it. That said, I differ from Bruce as to whether there will be any benefit to Kathy Wone in getting a judgment and then ‘hounding’ the defendants wherever they move, whenever they move – while as Bruce says, some people would not benefit from such a relentless, painfully long exacting of justice, where others do. I know that for me, as for most lawyers, including Kathy, we’d be walking into this with eyes wide open, knowing that anything which smacks of ‘revenge’ will have its own negatives – including, some would say, always living in the negative, if not the past. For me, though, if I were in her shoes, I would see it more as my personal ‘chore’ to always be mindful, always be present, to ensure that the ‘new normal’ for anyone who either participated in my loved one’s murder or who at a minimum knows much more about it than they’re saying WILL NEVER be back to the normal they had before.

          I don’t ordinarily think of myself as a vengeful person, yet there is no doubt this mindset smacks of ‘vendetta’ – to which in my own mind I respond: I did not want this; I did not choose this; I must do this to feel like I’ve done what I can to make sure the wrongdoers can never forget.

          • Bruce
            10/26/2010 at 10:09 PM

            Well, Bea and I differ on this topic with our opinions.

            It would certainly be to our benefit on WMRW if Mrs. Wone made it her life’s work to ruin the defendants’ lives after the criminal and civil trials. But would it be in her best interest? Only she can answer that.

            I have an idealized vision of Mrs. Wone as a very nice caring intelligent person, who does not necessarily view the world in black and white, but in different hues, and someone who has been hit with a monstrous life-changing tragedy. Never met her, so have absolutely no basis at all to think this.

            Out of the tragedy, I would like her to mourn and rebuild, and build a good life with happiness at its core.

            I can’t but think of a cousin of mine. A number of years ago, she was married for a little over a year, and she and her husband and little baby went to Germany for her husband to study to become a Lutheran minister. He was driving in Germany with his wife and baby, and a horrible accident ensured. My cousin’s husband and baby died and my cousin ended up in the hospital for about 8 months.

            It took several years for her to heal physically and emotionally.

            Eventually, she remarried and started a new family with wonderful children (now getting married themselves like crazy) and there is a certain serenity to her of which I am always amazed. She is a happy person! She is just as loving and caring as a person can be.

            Humans have a rich capacity to overcome adversity and monstrous tragedy. I’m sure most of the readers and posters here can think of someone in a similar situation.

            Of course, a car accident is not a murder!

            But I bet Mrs. Wone has the capacity to overcome this tragedy and make a good and happy life for herself.

            In my opinion, and of course I am not qualified in any way to give one, a life-long “vendetta” (as Bea says) is probably not the road that will bring her to that good happy life. In my view, vengefulness and life-long “hounding” (as Bea says), will likely take its toll on her, one way or the other.

            Everything Mrs. Wone has done has been appropriate, regarding the investigations and trials regarding her husband’s murder.

            But for the vengence and a life-long vendetta, not sure I would want to be an accomplice on that particular journey.

            But, that’s just me.

          • Susan
            10/26/2010 at 10:22 PM

            Hi Bea and Bruce,

            I’m guessing for some people it’s not a choice to pursue “justice” until there is justice. Look at C. Levy’s parents and people who suffered in the Exxon Valdez and that case being brought to the Supreme Court years later. Who knows how this civil case will end, but I imagine that until there is justice, like with that poor boy Dominick’s Aunt Joy, then those who have been wronged or had loved ones wronged will stay ever vigilant–either in the legal sense, the court of public opinion sense or otherwise. And if they put down the gauntlet due to fatigue or any other reason, then some police detectives may take it up again years later, or even a class of students as in case posted about a month or two ago. In that case, for those who recall, a group of students took up the case of a murdered hotel worker. The end result is that a bunch of her “friends” were complicit and were brought to justice.

            • Susan
              10/26/2010 at 10:42 PM

              Pls. excuse poor sentence construction above.

  4. Rebecca
    10/25/2010 at 5:42 PM

    Bruce,

    Those are all very interesting possibilities to ponder!

    Are the Appearance(s) filed by the insurance defense attorneys public documents?

    I have a question for an insurance expert – although the insurance company is likely footing the bill for at least the two homeowners, what happens if either Joe or Victor are later convicted of Robert’s murder? Can the insurance company then pursue Joe or Victor to recover the money spent on their defense in the civil trial?

    • Bruce
      10/25/2010 at 7:44 PM

      Hi Rebecca:

      The Illinois Supreme Court in the past 5 or so years came out with an opinion saying that an insurance company, who is defending (paying defense costs and attorney fees for its insureds) under a reservations of rights, can NOT later try to recover back those attorneys fees and costs they paid from their insureds, even if a court later determines the insurance company never had a duty to defend or indemnify.

      While I agree with that Illinois S. Ct. decision personally, I do have to say that it is a fairly liberal construction in favor of the “little guy” (the insured) against the “big guy”(the insurance company), and is fairly consistent with the judicial view of insurance companies by Illinois courts generally (but certainly not always on different topics affecting insurance companies). Other jurisdictions may differ.

      Thus, I have to hand your direct question off to our fine and able DC attorneys, as to what the situation is in DC on this topic. There is also the very real possibility that DC has no law on the topic, and this case or another on the issue might “make” law by having an appellate court determine the issue.

      This would very unlikely be in this Wone case itself, but in a separate suit either by the insureds against the insurance company or by the insurance company against the insureds (generally called a declaratory judgment [DJ] action).

      This is why I have raised several times in past posts on WMRW as to whether Joe, Vic or Ward are listed as “plaintiff” or “defendant” in any indexes in other civil actions in DC. I believe posters have responded “no” to that question, but it is probably worth it to check every 2 months or so.

      Yes, the pieces of paper called “Appearances” should be available for review in the actual court file, and I would suggest that one of our fine DC attorneys or editors, when they are in the court building, look at those papers closely.

      This whole topic came up because the docket sheet for the court in this case indicates that the insurance company firm for Joe & Victor also entered an appearance for Ward. Why in the world would that insurance company firm for Joe & Vic also appear for (meaning represent) Ward also, is the question that prompted our and the editors’ current inquiries.

      But, alas, dockets are typed by court clerks who, on occasion, like any of us, may incorrectly note what was filed or misinterpret an actual court filing. It happens.

      Thus, we cannot rely on the “docket” entries only. To answer this question. There has to be a search of the file for any and all “appearances” or “appearances and jury demands” by the insurance defense firm that is defending Joe & Vic, to see what names they actually placed on this document as representing in the case.

      While we know that a Washington state attorney is involved (and has likely filed or is filing an appearance naming Ward as the person he is representing, and likely a motion to appear pro hac vice in DC — editors?), that does not preclude in any way that other attorneys may also be representing him, as we know

      An “Appearance” is a formal document required to be filed by any attorney and/or firm representing a party or parties in a case. It advises the court and all parties and the world as to who the actual attorneys are, and exactly who they represent. As far as I know, it is a required filing in every jurisdiction, state or federal.

      So, there is the challenge! This may not be too difficult. One does not probably have to search the entire court file, but use the docket to see what dates an appearance or appearances were filed by the insurance company defense firm, and then look at those carefully.

      But if it was my case, either I or one of my associates would search the whole damn court file! As I tell those that work with me, it is worth it to spend a little extra time to be absolutely accurate, which is one of the things that we are hired and paid for. If in fact the insurance company defense firm is representing Ward as well as Joe and Vic, that is a fact WELL worth knowing.

  5. Bruce
    10/26/2010 at 11:07 AM

    Thanks?

    Never thought of myself as a near-dead old octopus with prescient betting abilities, but…hey…I guess it could be worse?

    • Clio
      10/26/2010 at 11:31 PM

      Huh? This member of the Thought Police is not following your train of thought, little d, although the portrayal of Bruce as octopussy may have an appeal for readers in coastal communities.

      • denton
        10/27/2010 at 8:45 AM

        For now, Clio. The case will be resolved, hopefully one day, right? Everyone is predicting it, right? We are waiting, right?

        Although it is too late now that Paul (not McCartney) had died. He would have served the justice of WMRW, had we invited him.

        Who knew?

        little d

    • Bruce
      10/27/2010 at 10:47 AM

      Thanks, Denton, but you have much more trust in me on this topic than I do in myself.

      Too many variables involved.

      The cases I think are going to settle, many times go to trial, and those I am absolutely sure will never ever settle, settle on the courthouse steps right before trial.

      [Fun fact: I actually consider my bad record on guessing on settlement/trial in my preparing for a trial. For instance, I may say to myself: “You are absolutely sure this case will never settle, so you better be prepared to deal with all settlement issues that may come up when it settles]

      It’s hard being a near-dead old octopussy with prescient sports betting abilities.

      It’s all a guessing game, and we are all, lawyer and non-lawyer, playing on the same level field when it comes to predicting outcomes!

      • denton
        10/27/2010 at 11:02 AM

        I “dig” it, Bruce.

        My days working with lawyers are sometimes like “nothing is happening, nothing is going on” even some days the fire is burning hot on the stove like that volcanos in Indonesia.

        I guess I just have to feed more “muscles” to lawyers (the “Octopussies”) here so we will see which side (defendant or plaintiff) the “Octopus” will pick to win.

        The waiting game makes the case so very exciting, to me.

  6. Clio
    10/26/2010 at 10:57 PM

    Thanks so much, Bruce, dear, for your always sprightly reading of the tea leaves, but I must confess a bit of impatience with the dickering over insurance claims. Only the hope of an investigatory breakthrough for the third trial can make the second and civil trial bearable with its semantic nuances and technicalities, I am afraid. It all depends what the definition of “is” is, as the 42nd President of the United States, himself and his wife being lawyers by trade, once opined on air.

    • Bruce
      10/27/2010 at 12:10 AM

      Hi Clio:

      I know that these “insurance” posts can be tedious.

      But I’m not kidding that once we are over the hump of the pending motion to dismiss (where is the response!), and maybe even before, insurance may be one of the top driving forces in this case, and may guide much strategy, from both sides.

      You see, the insurance company is the only person or entity involved in this case that actually has $$$$$$. Buckets of it! You can wear the Barbara Billingsly memorial string of pearls in an olympic sized pool of it.

      This is, of course, my opinion, except about the pool business, which is, of course, my fantasy.

      • denton
        10/27/2010 at 12:59 AM

        Dear Bruce and Clio,

        By the power vested in me, I make both of you the “Octopus” of WMRW. Now I pronouce you Mr. and Mrs. Octopussies.

        I just have so much fun reading Bruce and Clio’s comments, and eveyone else too. Yet, we will wait for the legal papers to do more analysis. I hope you don’t mind that I take a break to attend my one and only “Paul,” the Octopus’s funeral.

        • Rich
          10/27/2010 at 3:08 AM

          Denton:

          Will you take Joe Price to serve as a Pall Bearer.
          I understand that he has the skills.

          • denton
            10/27/2010 at 8:38 AM

            I do.

  7. Rich
    10/26/2010 at 11:48 PM

    Denton:

    You were ahead of the curve with your Paul/Octopus story.

    Tonight, NBC Network, CNN and Jay Leno covvered the story.

    I felt so in the know.

    Thanks.

    • denton
      10/27/2010 at 1:00 AM

      That’s right, Rich. Paul has been all over the news today. Now the World Cup has no one to predict the match anymore.

  8. handypandy
    10/27/2010 at 5:07 AM

    Mr. George Soros has today contributed 1 million Dollars to Calif. marijuana legalization campaign.

    Link to news story:

    Yes, that Mr. Soros who ultimately used to be R. Wone’s last boss at Radio Free Asia.

    Anyway, it always struck me as odd that the “intruder” theory gets so little consideration these days here on WMRW. Just dismissing it with a “Judge Leibovitz says so because investigators didn’t find any evidence” doesn’t sound quite convincing to me. After all, the very same investigators screwed up quite royally that night inside Swann, why should they have done a better job collecting evidence outside in the back yard?

    • carolina
      10/27/2010 at 6:20 AM

      That question has been answered a million times, but then you knew that.

      • Clio
        10/27/2010 at 9:27 AM

        Drugs can do that to a person, Carolina: I think that Handy may had too many cocktails early this morning, Eastern Time. Earl Grey may have not been his nightcap, if he still wants to revisit the tired, ole intruder theory that not even its inventress Joe the Plumber can say with a “straight” face anymore!

    • Clio
      10/27/2010 at 9:21 AM

      Well, let’s have both Mr. Price and Mr. Soros to do an updated public service announcement together with the old saw — just say no to drugs: Nancy Reagan was right about something after all, although her dreadful Inaugural ball gown from 1981 (with the one exposed shoulder and flabby arm) is still burnt into my memory!

    • Bruce
      10/27/2010 at 9:59 AM

      Oh my Goodness, Handy.

      Aren’t you asking for it?

      And didn’t you get it….you see, you must be on “drugs” or be an early morning alcoholic to even whisper the theory that dare not mention its name on WMRW!

      Despite those attacks, please keep an open mind Handy. Our planet is a strange place where strange and mysterious things can and do happen. Even more strange and mysterious are the humans that inhabit it.

  9. boofoc
    10/31/2010 at 9:19 PM

    Do we know as a matter of fact, as Clio suggests, that Joe cannot discuss the “intruder theory” anymore with a straight face? I’d give almost anything to know just what Joe says if/when somebody asks: “just what did happen.” At some point in time some confidant of Joe’s or Victor’s or Dylan’s or Michael’s or Hixon’s or Donner’s or Blitzen’s – somebody – is going to tell somebody the truth. Or just a smidgen of truth to start the ball rolling. I’m convinced that many people know; somebody has got to slip sometime when drinking, drugging, playing.

    • CDinDC (Boycott BP)
      10/31/2010 at 9:23 PM

      agree 100% boofoc. Especially, if any illegal substances or excessive legal substances become involved. dental anesthesia. talking in one’s sleep. etc etc.

    • Susan
      10/31/2010 at 10:56 PM

      B, I would imagine the “I’d like nothing better than to tell you everything, but my attorney has advised me not to speak about it” type of line would serve JP & Co. well at this time.

  10. boofoc
    11/01/2010 at 10:59 AM

    True enough. But, Joe’s such a braggart, loquacious; do hope his big mouth does him in eventually.

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