Antinome

None for me

As a follow up to the last post, I took a quick look at my homowner's policy, which is a Texas form, and unless I completely missed it, it has no coverage for liability arising out of "personal injuries."  Ah well guess I should be careful then. 

The Insurable Blog?

Eugene Volokh has an interesting post on the possibilities of coverage for defamation (and I would add invasion of privacy) suits under homeowner's policies.  While I am hesitant to post anything on coverage issues here, anyone with Westlaw access (or if you want to be old fashioned, law library access) can find more than they ever wanted to know about the business pursuits exclusion at 35 A.L.R.5th 375, Construction and Application of "Business Pursuits" Exclusion Provision in General Liability Policy by David J. Marchitelli

Dog Suit update

Well this update to this post and the post by Beldar that prompted it is only 8+ months overdue.  Turns out that the 3rd Court of Appeals issued an opinion in PETCO ANIMAL SUPPLIES, INC. v.  SCHUSTER, 144 S.W.3d 554 at the end of April, 2004 in a restricted appeal.  One thing that neither of us realized at the time was that the award was based on a default judgment.  So in a way Beldar was right to assume one lawyer was a lot better than the other :) .

The award was outright reasonable compared to the testimony that the plaintiff offered as to her damages:

Schuster sued Petco for breach of contract, gross negligence, and conversion. Petco did not answer, and Schuster took a default judgment and then offered evidence to support a range of unliquidated damages. Schuster testified that Licorice's replacement value was $500.00, that she had incurred $892.00 to send Licorice to training school and $52.40 for microchip implantation, and that she had lost $857.68 in wages while missing work to search for Licorice.  Schuster also testified that she had experienced a total of $645,000 in mental anguish while searching for Licorice and after learning of the dog's death, as well as $160 in counseling costs. Schuster also asked the district court to award $280,000 in damages for "loss of companionship of Licorice." She additionally requested $1 million in exemplary damages, plus attorneys fees.

The district court awarded Schuster the following damages:

• $500.00 as the replacement value of Licorice;
• $892.00 as reimbursement costs of putting Licorice through training school;
• $52.40 as reimbursement for microchip implantation;
• $857.68 as lost wages for Schuster when she was searching for Licorice;
• $160.00 as counseling costs;
• $10,000 as compensation to Schuster for mental anguish and emotional distress;
• $10,000 as compensation for " 'intrinsic value' " loss of companionship";
• $10,000 as exemplary damages; and
• $ 6,750 as attorney's fees (with more allowed for any appeals taken).

"The court expressed skepticism that any damages beyond replacement value for Licorice were properly recoverable. Nonetheless, it awarded $10,000 each for mental anguish, loss of companionship, and exemplary damages. (Footnote: "The court viewed these amounts as "more appropriate and more in line with anything that might hold up.")"

The court struck down the mental anguish, intrinsic value and exemplary damages claims, the first two primarily on Heiligmann v. Rose, 81 Tex. 222, 16 S.W. 931 (1891).  It looks like it left standing the $500.00 award, the training costs, the microchip , plus the award for attorneys fees.

The full opinion can be found here

The perfect paragraph

Perfect

See coverage law can be fun.

Via How Appealing

Thats One "Billion" Dollars

Wow:

In a case that has drawn the national legal spotlight, a jury here Tuesday awarded more than $1 billion to the family of a woman whom jurors determined died from taking the diet drug Pondimin.

The verdict against drug maker Wyeth is thought to be the most a Jefferson County jury has ever awarded to one person - and one of the biggest awards in state history.

see also the Houston Chronicle:

Generally I defend the trial system (even in Beaumont) but this is one of those cases that I makes me doubt. What really surprises me is not the punitive award but the amount of the actual damages: $113 million in a single death case. That is an order of magnitude larger than what I have seen in large verdict death cases in Beaumont.

The articles indicate that there are perhaps several grounds for appeal and the appellate courts are pretty conservative, but getting a bond to supercede the judgment as is or even with a remittitur is going to take a great deal of money. I guess, given that Wyeth has set billions aside for these cases, they may be able to self bond.

Refusal to Treat

Atrios has a post about a law that just passed the Michigan House alowing health care providers to "conscientiously object" to the provision of the health care services. Much of the commentary so far has focused on treatment of gays, but in reading the bill (the full text of which can be found here), I think another impetus if not the prime impetus is something else entirely, namely the "morning after pill" and also abortion in general. Specifically this law seems specifically designed to address this allow this sort of situation

The bill allows:

Sec. 5. (1) A health care provider may object as a matter of conscience to providing or participating in a health care service on ethical, moral, or religious grounds.

This bill defines Health care service as

"Health care service" means the provision or withdrawal of, or research or experimentation involving, a medical diagnosis, treatment, procedure, diagnostic test, device, medication, drug, or other substance intended to affect the physical or mental condition of an individual. Health care service does not include the provision of a contraceptive medication.

(emphasis added)

Contraceptive medication is defined as "medication approved for the prevention of pregnancy that is taken or used in advance of sexual intercourse." (emphasis added)

The definitions about contraception were not in the original bill, which would apparently cover the dispensing of birth control.

Quite frankly when I was reading the bill, because it focuses on the provision of services, it seems to allow the objection to certain procedures, not to the objection to the treatment of certain people. But then it inserts this language:

(c) A health care provider shall not assert an objection to providing or participating in a health care service based on the classification of a patient or group of patients protected under the Elliot-Larsen civil rights act, 1976 PA 453, MCL 37.2101 to 37.2804, or based on a disease or other medical condition.

So by inserting this protection it implies in some ways that you can morally object ot other people. Lets go beyond gays, how about fornicators, those living together in sin (hmm marital status is protected sometimes in the act, is that enough?), those with criminal records, democrats, republicans, communists, those that have had abortions in the past.

Also passed by the house was a similar bill for ORGANIZATIONS with moral ethical religious objections. This bill has no differentiation about birth control pre sexual intercourse versus post sexual intercourse. Therefore presumably an organization can refuse to provide any form of birth control.

Also passed by the House were House Bills 5277 and 5278 which (according to the bill report)

"would allow a health insurer, notwithstanding any other provision of law, to refuse to offer or provide a health care benefit on professional, ethical, moral, or religious grounds as reflected in its articles of incorporation or bylaws or an adopted mission statement. This would not apply to a health care benefit if the benefit was specifically covered under the certificate, contract, or policy. Further, the refusal to offer or provide a health care benefit could not be a basis for one or more of the following: civil, criminal, or administrative liability; or, with one stated exception, eligibility discrimination against the health care corporation in providing a certificate.

"

This bill does not define health care benefit at all. So no coverage potentially for birth control, abortion, RU486 and gays.

Virginia to Ban Camp Communal Showers and Cabins

When I was seven years old, my parents sent my siblings and I to camp in Virginia. This was the first time I was ever away from home or my parents. The camp was at a university and we stayed in the college dorms. The dorms had typical communal showers where all the campers in my group showered at once. On the first day I was mortified at the thought of showering naked in front of all of the other kids and the counselors. So much so that I wore a bathing suit. Then of course I was embarrased that I was one of two kids that wore a bathing suit. So from then on, I showered naked along with the other kids. I believe I was scarred for life (or perhaps a day and a half, I am not sure)

Thirty years too late the Viginai legislature is now poised to pass a law that would have saved me this mortifying experience:

HOUSE BILL NO. 158

House Amendments in [ ] - February 5, 2004

A BILL to amend and reenact § 35.1-18 of the Code of Virginia, relating to nudist camps for juveniles.

...
Be it enacted by the General Assembly of Virginia:

1. That § 35.1-18 of the Code of Virginia is amended and reenacted as follows:

§ 35.1-18. License required; name in which issued; not assignable or transferable.

No person shall own, establish, conduct, maintain, manage, or operate any hotel, restaurant, summer camp, or campground in this Commonwealth unless the hotel, restaurant, summer camp, or campground is licensed as provided in this chapter. The license shall be in the name of the owner or lessee. No license issued hereunder shall be assignable or transferable. The Board shall not issue a license to the owner or lessee of any hotel, summer camp or campground in this Commonwealth that maintains, or conducts as any part of its activities, a nudist camp for juveniles. A " nudist camp for juveniles" is defined to be a hotel, summer camp or campground that is attended by openly nude juveniles whose parent, grandparent, or legal guardian is not also registered for or otherwise accompanying the juvenile at the same camp .

(emphasis added) (strikeouts ommitted)

Okay the bill is targeted to prevent a specific camp from holding a nudist camp for juveniles one week a year. The text though does not address how long the juveniles have to be nude. I figure the "openly" covers clothing changes or showers in private but otherwise the law seems to pretty clearly ban any camp that allows nudity in front of other campers. Time to shut down those communal showers for good. Alas high school locker rooms seem to be exempt from the law.

via How Appealing and this article

Nothing he hasn't seen before?

How Appealing links to this article about a Utah man who has been charged with felony voyeurism after he allegedly secretly videotaped his girlfriend and published the nude photos on the Internet after she testified against him in a domestic violence case.

Police found a sealed dresser drawer with the knob removed in Kirt Jensen's bedroom. The video-camera filmed through the knob hole. The various pictures were of the woman undressing or engaged in sexual activity with him before they broke up.

While secretly videotaping ones significant other adn posting the pictures on the internet for revenge is a mighty scumming thing to do, it looks to me like prosecuting under the Utah voyeurism statute is a reach. The statute says in relevant part:

76-9-702.7. Voyeurism offense -- Penalties -- Exemptions.

(1) A person is guilty of voyeurism who intentionally uses a camcorder, motion picture camera, photographic camera of any type, or other equipment that is concealed to secretly or surreptitiously videotape, film, photograph, or record by electronic means an individual:
(a) for the purpose of viewing any portion of the individual's body regarding which the individual has a reasonable expectation of privacy, whether or not that portion of the body is covered with clothing;
(b) without the knowledge or consent of the individual;
(c) with the intent to invade the privacy of the individual; and
(d) under circumstances in which the individual has a reasonable expectation of privacy.
(2) A violation of Subsection (1) is a class A misdemeanor, except that a violation of Subsection (1) committed against a child under 14 years of age is a third degree felony.
(3) Distribution or sale of any images, including in print, electronic, magnetic, or digital format, obtained under Subsection (1) by transmission, display, or dissemination is a third degree felony, except that if the violation of this Subsection (3) includes images of a child under 14 years of age, the violation is a second degree felony.

Enacted by Chapter 325, 2003 General Session

The statute doesn't simply make secretly or surreptitiously videotaping someone a crime, it requires that the recording be made under circumstances where the individual has a reasonable expectation of privacy. Privacy from whom seems to be the question. She has no expectation that he will not view her while they are having sex or even necessarily if she is dressing since it is in his bedroom (though I can see an argument if she was dressing with the door closed I guess- but I find it hard to believe that she would have been surprised if he walked in while she was dressing). He is in effect inside her circle of privacy in this context. As I think about it I guess the state's argument will be the expectation of privacy will be the expectation that the individual is not in a place where they are likely to be videotaped. Privacy when applied to someone in the room like this seems very ambiguous at best. Overall it does not seem to me that this statute was meant to cover this situation or if it was it was not drafted as clearly as it should have been.

The video taping is one level of problem, but is the posting of the video on the internet definitely makes the act many times worse. The statute though requires a violation of all the prongs of the first part be fulfilled before posting the pictures can be considered a crime.

It appears to be a brand new statute (though it could just be a recodification of an older one) therefore it seems unlikely that the Courts in Utah have analyzed this issue.

Dog Suit

Beldar has a post from a few days ago about an award out of Austin Texas for the death of a person's dog. Since he makes some points I disagree with (and since I have never actually used the track back feature before and want to try it) I figured I would respond. He has cited to two news articles one in the Houston Chronicle and one in the Austin American Statesmen

With regard to liability, Beldar has his doubts as to whether there was even conduct that amounted to negligence (1) and focuses on the possibility that the leash could have slipped without any lack of reasonable care. Neither he nor I are the fact finders, neither he nor I heard any of the testimony in the case. The judge on the other hand did hear the testimony and found that there was negligence. It is quite possible the two employees were not paying proper attention to what they were doing, they may also have violated their own procedures as to where the dog was to be walked. I think the more reasonable assumption is the judge heard ample evidence to support negligence. This particularly true given that there was some finding to support a punitive damages claim. Presumably, this was under malice, which under Texas law (for the benefit of the viewers at home) includes:

(B) an act or omission:

(i) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

(ii) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

While we dont know for sure, I suspect malice was based not on how the dog got loose but what happened (or did not happen more likely) after it initially got loose.

"I saw two Petco people up on a little hill by Pier One watching her running down the highway," Schuster said in Sunday's edition of the Austin American-Statesman.

It appears that the two employees may have made no effort to catch this miniature schnauzer and instead watched it run away. In fact giving the above quote and the judges award, which if it was based on malice required the actors subjective awareness of the risk, I would take that dollars to donuts bet about the employees' remorse, at least at the time the dog got away.

The judge in the case awarded $47,000 in total to the plaintiff against Petco. We are missing some information about this because the articles say the award was for

$10,000 mental anguish
$10,000 loss of society
$10,000 punitive.

We don't know the basis for the other $17,000. Some of it would be interest, but not all. Some of it may be for the value of the dog itself, probably on an intrinsic value theory (2).

Is $10,000 "too much" to award for the mental anguish associated for the loss of a beloved pet. Some people see their pets as members of their families. Mental anguish is a subjective measure , I just can't see this amount as an "outrageous" amount. Of course to a certain extent whether ones finds such an award "too much" turns on what seems to be "alot" of money. While $10,000 might be more than I might award depending on the testimony, it is not out of the range I might expect to be awarded in the case.

Of course it is qustionable whether it is even recoverable at all in this circumstance:

"In the following Texas cases, the courts adjudicated whether in an action to recover for the killing of, or an injury to, pets and animals, the owner may be entitled to recover damages for the owner's emotional or mental distress. In City of Garland v. White, 368 S.W.2d 12 (Tex. Civ. App. Eastland 1963), writ refused n.r.e., (Oct. 2, 1963), the court implicitly held that a dog owner may recover mental-distress damages for the killing of the owner's dog. Specifically considering the validity of that portion of the judgment that awarded the dog owner $200 for mental pain and suffering, the court affirmed the judgment. In Zeid v. Pearce, 953 S.W.2d 368 (Tex. App. El Paso 1997), the court, without citing City of Garland v. White, 368 S.W.2d 12 (Tex. Civ. App. Eastland 1963), writ refused n.r.e., (Oct. 2, 1963), flatly held that one may not recover damages for pain and suffering or mental anguish for the loss of a pet. In Texas, the court said, the measure of recovery for the death of a dog is the dog's market value, if any, or some special or pecuniary value to the owner that may be ascertained by reference to the dog's usefulness or services. This longstanding Texas rule, the court concluded, is inconsistent with a claim for pain and suffering and mental anguish."

“Recovery of Damages for Emotional Distress Due to Treatment of Pets and Animals” 91 A.L.R.5th 545 (2001) These two cases are possibly distinguishable since White involved an intentional killing of a dog. If so then that definitely weighs against the award for mental anguish damages. Given the split in authority I don't really question though the judges decision to award the damages.

Now I do question the separate award for loss of society on the basis that does not seem to be any support for this under Texas law. Further since the Texas Supreme Court has held that parents can't get loss of society for their injured children, it seems very unlikely that it would extent it to pets.

The $10,000 punitive damage does not seem to be outlandish to me at all. Even if the actual damages were just a nominal amount, such a nominal amount can support significant punitive damages. The worth of the defendant, the egregiousness of the conduct and the risk of harm are relevant to the inquiry. I can guess the worth of the company and this weighs in favor of a higher of award. I really don't know what were acts or ommisions the basis for the punitive award. But given the range of potential conduct, I can see it being fair.

(1) It appears that this was a negligence case or I guess a bailment case.

(2) if so that would seem to be redundant with the loss of society recovery.