August 09, 2014

Judicial estoppel based on bankruptcy filing affirmed in the District of Columbia

I had previously written about judicial estoppel and lack of standing defenses that could arise from a plaintiff's prior bankruptcy filing.  There is a recent decision in the District of Columbia in which judicial estoppel barred a plaintiff's personal injury claim, after the plaintiff had failed to disclose the claim in bankruptcy proceedings.  To prevail on such a motion, however, it is probably necessary to show a clear financial benefit accruing to the plaintiff from the failure to disclose the claim in bankruptcy.

Aug 9, 2014 11:34:26 AM | Defenses, District of Columbia

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Maryland federal court decision on broker's failure to procure insurance In a recent case, a homeowner brought suit in Maryland federal court against her insurance broker for negligence, breach of fiduciary duty, negligent misrepresentation, intentional misrepresentation, and fraud, after her house sustained fire damage when the contents of the house were not insured. The Court threw out the breach of fiduciary duty and fraud counts, but held that the defendants had not submitted enough evidence to prevail on the affirmative defense that insurance would not have been available on the property. The house had been insured by Chubb, but Chubb cancelled the policy for nonpayment after having insured it for years. Subsequently the bank holding the mortgage ordered lender-placed insurance coverage on the house. The bank notified the homeowner that the lender-placed insurance would not only cost more, but does not provide any coverage for loss or damage to personal property and provided limited coverage in other respects. A couple of months later, the homeowner, who had been traveling, and having realized that the Chubb policy had been canceled, asked her insurance broker, whom she had known for several years and had become good friends with her, to see what could be done, and send him a package of materials concerning the lender-placed insurance. Upon receipt of the package, the broker passed it to a customer service representative of his firm, and gave instructions to find a new insurance policy for the client. The customer service representative initiated steps to find a new insurance policy, but delayed on following up....
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Plaintiffs in DC cell phone litigation avoid knockout punch, for now "Can cell phones cause brain cancer?" With that question, which he did not answer, Judge Weisberg of the Superior Court for the District of Columbia began a 76-page discourse on the admissibility of the testimony of eight plaintiffs' experts in the DC cell phone litigation. The Court excluded the testimony of some of the Plaintiffs' experts and did not exclude the testimony of others. The Court, based on the extensive record before him, clearly found the scientific evidence too inconclusive for any scientist to say to a reasonable degree of scientific certainty whether cell phones can cause brain cancer. The Court's opinion included this sobering plea to other branches of government to do the research necessary to figure this out: Even though the financial and social cost of restricting such devices would be significant, those costs pale in comparison to the cost in human lives from doing nothing, only to discover thirty or forty years from now that the early signs were pointing in the right direction. As the inconclusive results of the IARC Monograph make clear, more research is necessary to answer definitively the fundamental question of carcinogenicity. If the probability of carcinogenicity is low, but the magnitude of the potential harm is high, good public policy dictates that the risk should not be ignored. See Richard Posner, Catastrophe: Risk and Response (2004). The court recognizes, however, that policy debates of this kind do not belong in the judicial branch.

DS

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