Judge Brook Hedge’s Lasting Legacy?
Our jobs just got a little bit easier.
In fact, anyone in DC or beyond who wants to track the paper chase of either Superior Court criminal or civil cases, has a better tool to do so. Unveiled recently is a new and improved, lickety-split improvement to the online database of DC cases. Huzzah, Huzzah!
While the old system was serviceable, downtime and slow response hampered the search functions and results. Kiss those days goodbye and say hello to the Information Age.
The interface is much more user-friendly and the speed of the search results are vastly improved.
The first thing users will see after the search results on the civil case comes up is this:
That’s the good news. And the other news, good or bad, depending on point of view is that nothing has been added to the records since December 30, 2010. This has been one of the longest quiet periods for filings and motions that we’ve come across.
12/30/2010 Judge Caseload Transfer Judge Caseload Transfer
The judge was changed from HEDGE, BROOK to RANKIN, MICHAEL
12/30/2010 Event Scheduled Event Scheduled
Event: Pretrial Conference Date: 09/07/2011 Time: 4:00 pm
Judge: RANKIN, MICHAEL L Location: Courtroom 51712/30/2010 Event Scheduled Event Scheduled
Event: Jury Trial Date: 10/17/2011 Time: 9:00 am
Judge: RANKIN, MICHAEL L Location: Courtroom 517
The upgrade should make things much easier on our end, for the gang at HomicideWatch and other media outlets as well, not to mention any citizen who wants to stay abreast of any case’s developments.
Everyone should thank Judge Brook Hedge, past chair of the Court Technology Committee, for the work on this much needed resource.
Happy hunting, everyone.
Kudos to Judge Hedge!
Judge Hedge is my homegurl 4 lyfe
“The Japanese equivalent of ‘Hear! Hear! Hear!'”
Oh, sorry, that’s (light) opera and not necessarily “on topic.”
Editors, what do you expect to be added to the public records next? The detailed contents of Mr. Hixson’s little black book, or the real reasons why Miss Morgan never came back to Swann after that morning?
This dry spell for revelations or motions must portend a little bit of deal-making off-stage: there is no way that the defendants would want to go to trial.
Or it could mean the parties are deep into discovery and depositions and that the process is going smoothly — there would only be filings where there is a dispute, as there was over Dylan’s depo in the fall.
Hi again, friends!
We also need to keep in mind that, to a certain extent a.k.a. “the limits of liability”, the defendants hands are a bit tied (maybe a little pun is intended). If I recall correctly, it’s State Farm involved?
It would not be part of a public record, so we’d have no way to know, but perhaps there has been a settlement offer that’s been rejected. A big part of me would suspect that’s been the case since my “catch up” reading suggests extracontractual attorneys are on the defense team. The insurer would absolutely defend its exposure in the face of a rejected offer of settlement.
Much to their shock, I’m sure, the defendants are not in a position to dictate the decisions of the insurer. If a policy limits offer has been rejected, the insurer, without a satisfactory (to the plaintiff) contribution from the insured, must defend up to the limits of liability — not just for the insureds’ in question (the defendants) — but also as part of their larger obligation to all insured by them.
When insurance companies deviate from their contractual obligations, they are acting in bad faith. In most jurisdictions, an insurer who acts in bad faith must pay extra damages, although the amounts vary. Insurers tend to avoid bad faith claims practices pretty vigorously, and will therefore defend primary complaints in order to establish record of their “good faith” efforts to settle so that they don’t get slammed later.
So it’s not likely the defendants’ will avoid a trial of some sort because assuming there’s coverage and there has been a rejected offer of settlement, the carrier must and will defend the insured(s) up to the limits of liability.
The fact that the defendants also have “personal” lawyers would suggest they realize the point of no return has been reached.
When I was a kid, my Nana had 3-legged dining chairs. When we “rocked” them, my Dad would warn us against reaching the point of no return. I finally understood what “point of no return” meant when my head slammed into a window sill.
Peace,
Deb
Deb, sounds like you know your insurance defense law and the practical side. Can you comment on the sticky situation of the insurance counsel “finding” that whatever acts of the defendants were indeed intentional and not negligence – how would that play out? I realize that from a practical perspective we (the public) would not see this and that the insurance counsel assigned to the defendants would not be able to play both sides BUT is there a side review going on about the defendants’ intentional acts and has a letter or two been written to the defendants about unwillingness to pay judgments for intentional acts?
I suspect a quick primer on “reservation of rights” would be helpful to the readership. THANKS!
Intentional acts are excluded of coverage in just about every kind of liability policy you might encounter.
In my prior, I hinted at ROR, but we have no way of knowing.
Regardless, even if the insurer reserves rights to investigate, it is still obligated to defend unless it successfully disclaims or denies coverage.
I don’t see the defendants in this business having a successful disclaimer, which would be their only hope. I see nothing to warrant denial of coverage.
They could argue disclaimer, but that would not be to their benefit.
It would not be successful.
Bea;
In truth, I know not much except BAD FAITH insurance practices — and
I am pretty sure this will see trial whether the defendants like it or not.
I am not at all confident in a defendant’s decision.
I’d really like it if you, Hoya, CD, etc could one day get into “pro-bono” and repayment of costs? My understanding is it varies by Bar? What does pro bono really mean? Is it possible Mrs. Wone is looking at an enormous cost sum?
My understanding is in VA repayment of costs is required.
What happens elsewhere?
Deb
To give everyone a notion of what we’re talking about, and I assume I’m reading your question correctly, even though a firm offers its services FREE, thus “pro bono”, most if not all state bars do not allow the attorneys to “pay” for the actual costs of a client, such as deposition costs, which are quite expensive. In most cases, the monetary award would more than cover these costs, which the counsel would deduct before handing over the cash. In this case, where Kathy Wone may not be seeking money but instead truth, she will be responsible for the costs – Covington cannot pay them for her (although I suspect they are now, but running a tab). Despite the fact that Kathy Wone wants the truth and in my view is highly unlikely to SETTLE – forcing a trial – I suspect she’ll get a hefty award too, and the costs would be deducted from that.
It may be that some bars require up-front payment of costs but that’s not my area.
Deb, do you do insurance law? I do think explaining ‘reservation of rights’ might be helpful to everyone.
Hi Deb:
I did a little research on this “bad faith” issue a while ago, and I believe that Washington DC courts do not recognize the cause of action called “bad faith” against insurers.
I did this research only because I was wondering if DC, like my state of Illinois, allowed “bad faith” claims, such that Mrs. Wone’s attorneys could possibly set up the defendants’ insurance carrier in a position where that carrier could ultimatley pay more than its policy limits, if found to be in “bad faith” to its insured, for not settling the case within its stated policy limits.
In Illinois, a plaintiff’s attorney can make a settlement demand within the policy limits (for instance, if the insurance provides for the defendants here $2 million in insurance, the plaintiff’s attorney in the Wone case might demand $2 million).
If the insurer fails to settle a demand within its policy limits, and a judgment against the insured defendants is entered in excess of the policy limits, many times in Illinois the plaintiff post-judgment will enter in to an agreement with the insured defendants that the plaintiff will not execute the judgment against the insured defendants if the insured defendants will assign their rights to the plaintiff of a “bad faith” claim against the insured defendants’ insurance company.
Then, the plaintiff’s attorneys “stand in the shoes” of the insured defendants and bring an action against the insurance company for its “bad faith” in not settling the case within policy limits and causing their insureds to suffer a judgment in excess of those policy limits (called an “excess judgment,” meaning excess over the policy limits, which the defendants will be personally responsible for paying.
In Illinois, if an insurer is found to have acted in “bad faith” for not having settled the case within policy limits, thus exposing their insureds to an excess judgment above the policy limits, the courts can find that the insurance company has waived ALL policy defenses, including its policy limits. This means that an insurance company can end up paying a judgment much higher than its policy limits (like $35 million if that was the judgment in this case) for its “bad faith” actions.
Unfortunately, it looks like DC does not recognize “bad faith” claims against insurance companies like Illinois and a number of other states do. Instead, it appears that an unsured can only file a “breach of contract” action against an insurance company if the insurance company acts in a way that would be found to be in “bad faith” in those jurisdictions that recognize “bad faith” claims.
One thing I don’t know and have not researched is if it is possible to get more than policy limits from an insurance company in a “breach of contract” claim against an insurer in DC. My thought is that it is probably not possible if DC is limited to contract remedies only, in this situation.
So, 2 questions:
(1) Does anyone know if I am wrong about there being no “bad faith” claims in DC?
(2) Also, does anyone know if in DC it is possible that an insurance company can end up paying more than its policy limits under any circumstances, “bad faith” or otherwise?
I know this description above of “bad faith” claims may sound strange indeed, especially the idea that Mrs. Wone could enter in to an agreement with the defendants here for an “assignment of rights” of a “bad faith” claim, if a settlment demand within the policy limits was turned down by the insurer, and an “excess judgment” is entered. But, this is not an uncommon situation in Illinois, as wierd as it sounds. It is a real advantage to plaintiffs here, in that if done right, they can get much more than policy limits from insurance companies, and compensate their clients in the highest way.
I have had a very busy new year (some good, some bad) and have not been my old contrary self (or at all)on WKRW lately. Hi everyone!
Bruce, I really doubt that Kathy Wone is interested in any kind of a monetary settlement that doesn’t include a civil equivalent of an allocution. The money isn’t what she’s after.
As for the law on the subject, I did a quick check using “vexatious refusal” and found the recent article below:
According to a recent District of Columbia federal district court case, policyholders may sue their insurers for a breach of the implied contractual covenant of good faith and fair dealing, despite the fact that D.C. does not recognize the tort of bad faith refusal to pay insurance benefits. Depending on the circumstances, they also may be eligible to recover attorneys’ fees.
In Nugent v. Unum Life Insurance Company, 2010 WL 4780847 (D.D.C. Nov. 24, 2010), a physician sued her insurance company when, after extensive delay and mishandling of her claim, it refused to pay benefits under her disability insurance policy. The insurer moved to dismiss certain claims in the plaintiff’s suit, including her claim for breach of the implied covenant of good faith and fair dealing and her claim for attorneys’ fees. The insurer argued that because D.C. does not recognize the tort of bad faith refusal to pay insurance benefits, the plaintiff’s claim for breach of the covenant of good faith and fair dealing was an attempt to seek extra-contractual damages in a contract action, which is not permitted under D.C. law. It also argued that the plaintiff’s claim for attorneys’ fees was contrary to D.C. law, which follows the rule that each litigant must bear his or her own attorney’s fees and litigation costs (i.e., the “American Rule.”)
Rejecting these arguments, the court first held that a claim for breach of the implied contractual covenant of good faith and fair dealing is entirely separate from a bad faith claim based in tort. Under D.C. law, all contracting parties are charged with an implied duty of good faith and fair dealing, and that duty is breached when one of the parties “evades the spirit of the contract, willfully renders imperfect performance, or interferes with performance by the other party.” The court found that the plaintiff’s allegations – that the insurer acted or failed to act in a way that injured or destroyed her rights under the insurance contract – properly stated a claim for breach of the implied covenant of good faith and fair dealing.
Further, the court held that the plaintiff was not precluded from seeking attorneys’ fees, despite the general rule that litigants must bear their own costs of litigation. An exception to that rule, the court stated, is when the defendant’s conduct is oppressive or vexatious. Because the plaintiff alleged conduct by her insurance company which amounted to a vexatious refusal to pay benefits, the court found that the plaintiff had adequately pled a claim for attorneys’ fees.
Policyholders should note that the court’s holding makes policyholders’ rights under D.C. law potentially broader than they are under Maryland law. Maryland, by statute, permits policyholders with a first-party claim under a property or casualty policy to sue for a breach of the insurer’s duty of good faith, and, if that duty is breached, to recover litigation costs and reasonable attorneys’ fees. See Maryland Code, Insurance Article § 27-1001; Courts and Jurisdiction Article § 3-1701. A recent Maryland case clarified that this statute does not permit bad faith suits, litigation costs or attorneys’ fees when suing under a surety insurance policy. See Johns Hopkins Federal Credit Union v. Cumis Ins. Society, Inc. 2010 WL 1258000 (D. Md. March 26, 2010). The Nugent opinion, in contrast, does not limit the right to sue for bad faith to certain types of policies.
Wow, Bea. You are really on the spot. I think my research was before that federal opinion. Great hunting!
So, it appears that DC has a cause of action for “breach of the implied contractual covenant of good faith and fair dealing” by a policy owner against his or her insurance company.
I take it that this was a case of first impression, so the DC courts are not required to accept the ruling or reasoning of the federal court, correct?
It appears from your post that this cause of action may provide less of a bite than a “bad faith” claim as followed in Illinois and elsewhere, and it appears doubtful that the insurer would be liable for an excess judgment over the policy limits, but getting attorney’s fees is nice.
While I would agree with you that Mrs. Wone is likely not looking for money, or not just money, the complaint does ask for a LOT of money, and from her attorney’s perspective, at least, there is likely no conflict in trying to get as much money for her as they can (that is the usual hope for a plaintiff’s counsel in a civil case), as well as to try to satisfy her non-money concerns.
The complaint asks for nothing other than money, and in the civil context, that is all Mrs. Wone is entitled to get in this case. You can’t force a confession by a civil suit.
Right now, there is nothing creating a conflict for her attorneys to try to get every penny they can get for her, whether or not her real desires lay elsewhere. That is what civil case attorneys do. There is really nothing else they can do in a civil case context. There will never be a confession in this case with possible criminal charges in the air, and a finding in favor of Mrs. Wone is the jury finding that “more likely than not,” the defendants did it. It is not a finding that they did it.
I know this topic has come up before. I realize that Mrs. Wone likely wants more than money. I just hope that her attorneys have explained the facts of life of civil litigation to her, or that she knows it based upon her legal education and experiences. If Mrs. Wone will only be satisfied by an allocution, a civil suit is the wrong means to get that relief. I wish her the best.
Thanks for your quick and clear response on the new federal case decision. You have a better grasp on this issue than I do for sure.
I suspect Kathy Wone knows very well the constraints of a civil action and that there is no “allocution” – both from her counsel and from being an attorney herself. That said, I expect that while they’ll get a monetary judgment, it won’t be settled out of court – she’ll want them on the stand even if they take the 5th, if no reason but for their remaining friends to understand that they’ve clearly not done everything in their power to find Robert’s killer.
And I still hold out hope, being an optimist, that something new will shake loose during discovery and trial. Don’t forget that in the OJ murder trial, OJ claimed NOT to own the Bruno Magli shoes which left footprints at the scene. In the civil trial, the attorneys found TV coverage video when commentating in which he was wearing the shoes. Stranger things have happened.
Kathy Wone is likely hoping for new and critical evidence that will allow for murder charges. Second to that, she wants as much information as she can get. Third, she wants her husband’s murderers to feel her pain, and if that means getting money from them (and not only the insurance company). I suspect the entire strategy is built around these bullet points. I’ll be completely SHOCKED if it settles out of court UNLESS one of the three turns prosecution witness for a future criminal trial.
Hi Bea:
I hope you are right about Mrs. Wone’s expectations from a civil suit, about the chance that something might “shake loose” from this civil trial, and new evidence will be found.
While I agree with you that settlement is maybe unlikely, considering the circumstances, and since there does not appear to be a clear way of getting the insurers to pay more than their policy limits in DC on any action by policy owners (other than attorneys’ fees, which can be significant for the contract action against the carrier)…
,,,,I would not be shocked if the case settled. Indeed, over 90% of civil cases settle, but, of course, this case could very well be the exception.
Thanks again for your great analysis and research.
I’m right with you, Bea, on the hope that some new info will shake loose in the lead-up to this trial. As a result of the last trial, several people now know the way that Price spoke about them when being questioned by the police, and he did not paint an attractive picture of his friends. No doubt, his two cohorts will stick with the scenario they created, but others may be ready to part with additional information. They would be fools to continue to stand by someone who’s shown that he’s not a friend at all.
Indeed. Really, Joe had trouble NOT tossing in something awful to say. His violent druggie brother; his heavy tenant who was loathe to move around. He managed too to inform the cops that Dylan was on antidepressants and that Victor was in a bad mood. Anyone else you want to serve up, Joe? Great tactic for the deposition – have him go on record for each “friend” and then show the transcript to them!
Bea: Others can chime in, but it’s been said that Price was less than complimentary even regarding his slain friend during his MPD interview. I”m forgetting the exact references, but Robert’s failure to make partner @ Cov always stood out as one of the possible slights.
That’s just the tip of the iceberg (pardon the pun) Craig.
I was stunned (absolutely gobsmacked) by how callus, unfeeling and bitchy they all were about Robert, including Saint Victor.
Yes Bea, I have not forgotten this about Joe and I doubt that his former friends have either. I do wonder what these friends think of him now that they have heard those interviews and know for a fact that there is nothing (really nothing) to which Joe will not stoop, no insulting characterization of a friend that will go unexpressed, no petty niggling insult not given utterance when it comes to those that are near and dear to Joe. It’s almost like Tourettes.
AZ and Bea,
I don’t know; he had a lot of “chutzpah” before, and right in front of his friends and fam. Bringing LD into the marital boudoir would seem to be like a smack in the face. And VZ turned the other cheek and seems to keep turning it, etc. re J’s demeaning behavior.
He also defended his brother’s assaulter in court, etc. It seems like the insults and the acceptance of the insults are part of the dysfunctional equation. Because although he defends the brother’s assaulter, he also supports the brother. Takes on the additional lover in LD but restores the cable and is “committed” to V. So, I wonder how surprised any of these friends and family are.
Susan, I’m answering you in a bigger box at the end of thread.
Welcome back, Bruce! You, Deb, and Bea have certainly enlivened dry insurance law for us all. Although I still see a settlement on the horizon, perhaps, there will not be one, as Mrs. Wone wants the truth and the defendants still want their truthy truths to be upheld. It is a no win situation for the insurance company, but I’m not shedding many tears for it just yet for some reason. Go figure, again!
Ohio permits an attorney to forward the costs in a lawsuit and to agree that repayment is contingent upon success. That said, while a big firm may donate it’s time, I don’t know any that will front costs (as most plaintiffs’ counsel will). I haven’t looked at the VA or DC rules on this issue.
My guess is that so long as bar rules allow it, that Covington is fronting costs.
In Virginia, an attorney can pay all costs associated with prosecuting a settlement or suit, but repayment must be made from the settlement funds — if there is no settlement, usually there is a letter to the client asking them to reimburse for costs advanced on their behalf, but we never really pursue repayment.
Bea: That did, indeed, answer my question. Pro bono refers to the legal service fees being waived.
I’m not a lawyer, but I do have somewhat of a handle on insurance because that’s the boring l’il thing I’ve been doing all my life.
A “reservation of rights” is an insurance phrase that simply means the insurer will, in good faith, investigate a claim timely while reserving (maintaining) its contractual right, or ability, to later disclaim coverage for an occurrence.
Car accidents are the easiest example, and I’m thinking Fried Green Tomatoes. . . . We all remember the great grocery store parking lot incident where what’s her name says, “Face it! I’m older and have more insurance.”
The first ramming of the VW is an occurrence.
There is coverage for the occurrence because an application for coverage has been completed by the insured and underwritten by the insurer.
Premiums have been paid, so the policy is in force.
Coverage for the occurrence can’t be DENIED because coverage exists.
The insurer, in good faith, will begin an investigation of the occurrence, but will reserve its contractual right to later say that the circumstances of the occurrence nullify coverage.
In the Fried Green Tomatoes occurrence, coverage would be disclaimed (nullified) because the insured violated one of the terms of the policy contract: she committed an intentional act.
Another common situation in which an insurer will “reserve rights” to investigate but later disclaim coverage is non-cooperation of the insured.
I would assume the homeowners insurer in this case is operating under a reservation of rights, which would make them even more likely to defend at trial for the very simple reason that their staff counsel is quite likely a whole lot less “pricey” than the limit of liability at hand, my assumption being that since I have a 3 million umbrella, the defendants likely have close to the same.
Finally, the reservation of rights of an insurer requires notice by the insurer to all involved in an occurrence. The insurer must formally say that, although they agree there is a policy in force, one or more of the contractual obligations of the insured has not been met in the occurrence. An insurer can’t just arbitrarily decide an insured has broken the rules. In most places, a letter must be sent to all involved parties specifically stating the reason(s) that the insurer is reserving its right to disclaim coverage.
In this situation, I would imagine the homeowners carrier has reserved rights for intentional act and non-cooperation.
Thanks guys. You are wicked smart. It seems like we should start offering CLE credits.
Susan, I think that you are certainly right in thinking that Joe’s cheeky behavior and shitty spitefulness was probably no surprise to Dylan and Victor or even Michael and Louis; maybe not even to Scott Hixon. It might even (heaven help us) have once been a trait that attracted them to him. Let’s call this group the inner circle, or Price Tier 1. No girls allowed, so even though Sarah lives on site she’s not in the innermost Price circle ~ circle of hell that it may be.
I’m interested in the seismic rumblings of Price Tier 2 population, close friends, people who knew both Joe and Robert. Certainly Kathy Wone must have been shocked by the callous treatment that her husband (not even hours dead) was getting at the hands (mouth) of Joe and the rest of them. We know that Tara Ragone twigged pretty early to Joe’s bullshit, but what about Lisa for example? I would be very interested indeed in what kinds of blue lines of bull-shit Joe fed various members of this club, the class of persons that have the most likelihood of having taken deep offense at Joe’s behavior and the highest likelihood of knowing just a little something that might shed light on the situation and might after the conspiracy trial be minded to say something if asked.
So let’s say that there is also a pretty vast subset that could be called Price Tier 3 consisting of co-workers, neighbors, people at Equity Virginia who are probably finding less resistance socially and within themselves to the idea that Joe is an asshole on a scale that they had not heretofore realized and feeling attendant twinges of revulsion and allowing themselves to think the unthinkable. Maybe one of them know someone who knows someone who hung out a bar with Joe doing lines or something, who knows.
Then there is Price Tier 4: the untouchables ~ the people that one doesn’t “know” exactly as in one might hesitate to greet them on the street or one literally doesn’t “know” them having never actually asked them their names ~ you know craigslist tricks, alt.com contacts, drug dealers and fellow drug users, maybe someone who even had a brush with little Dylan and his knife tricks or Dylan and Joe in some particularly festive mood from which they just barely escaped with their lives, that sort of person ~ maybe, just maybe one such person has been shaken loose from the trees. Wouldn’t those closely held phone records have yielded up some of these Tier 4 denizens? Maybe they are feeling chatty.
Thanks, AnnaZ. You’re right in that perspectives of some of those in the outer circles might have changed for the worse, esp. with the revelation of many unsavory personal details that came out during the criminal trial. I’m sure some family members were a bit taken aback as well, though clearly not the “attaboy” pop of LD.