Friday, January 13, 2012

Transport Ins. Co. v. TIG Ins. Co. (Cal. Ct. App. - Jan. 13, 2012)

When you have an appellate case that's resolved on Friday the Thirteenth, it's invariably going to unlucky for one or the other of the participants.  Someone's going to lose.

But losing is one thing.  Getting mocked -- even if alongside a compliment -- is another.

That's what happens to several San Francisco lawyers today.

It's a case about reinsurance.  Thrilling, I know.  Here's Justice Richman's concise description of the case in the introduction:

"Numerous suits were brought against Aerojet, and as early as 1980 it begin submitting claims for property damage to Transport [Insurnace Company], which it denied based on a policy exclusion. . . . A December 1997 decision by the California Supreme Court held that site investigative expenses could be covered, and in late 1999 Transport finalized a settlement with Aerojet, agreeing to pay $26.6 million. Transport claimed that over $12 million of this was the responsibility of the reinsurers, and in December 1999 submitted its billing and final proof of loss to them.

Years went by without resolution, and in 2006 Transport filed separate lawsuits against each reinsurer, which lawsuits were consolidated. Following an 17-day trial, the jury quickly answered “No” to special verdict questions whether the lawsuits were timely filed, and judgment was entered against Transport.
Transport appeals, an appeal that has generated over 8,000 pages of appendices, 35 volumes of reporter's transcripts, and 425 pages of well-written briefing, including a 180-page appellant's reply brief. And, Transport tells us, the appeal presents two issues of first impression in California, issues 'that when decided by this court, will have an impact far beyond the confines of the specific dispute in this case. . . . [T]his court's opinion is likely to become the lead authority on issues involving the statute of limitations in reinsurance claims, not only in California, but possibly throughout the nation'—apparently inviting us to publish some lengthy opinion addressing the claimed issues. We decline the invitation, and resolve the appeal under well-settled principles of appellate review, most fundamentally the doctrine of invited error. And we affirm."

Ouch.  Sure, you called their briefs (as well as the other side's) well-written.  But quoting, mockingly, from one of those briefs?  And then affirming?  On the grounds the lawyers delayed and then invited the error?

Double, or even triple, ouch.

P.S. - Don't think that this pattern doesn't continue in the rest of the opinion.  It does.  Just one example:  "In its reply brief, Transport asserts that 'When this court applies the actual invited error doctrine to the actual facts of this case—where it is clear Transport in fact objected to the 'reasonable time' prong (5 AA 1194)—the court will inevitably conclude that Transport's trial counsel did not 'invite' error and has properly preserved the important issues this case presents for appeal.' We conclude otherwise."