Thursday, June 5, 2008

No-Fault "Bad Faith" Class Action Filed

Just posted to Dave Gottlieb's No-Fault Paradise blawg is this report of the filing of a new action in New York County Supreme Court seeking class status and declaratory relief only against State Farm, AutoOne, General Assurance, OneBeacon, NICB, the NYS Superintendent of Insurance, "John Doe Insurance Companies", and some "Enforcer Counsel" defense law firms in relation to those entities' alleged illegal and "bad faith" handling of New York no-fault claims.

June 6th, 4:00 p.m. -- I've removed the link to the complaint and recommend you check over at No-Fault Paradise, where I'm sure it will reemerge eventually.

Here's why I removed the link and am no longer hosting the complaint: the complaint makes many, many factual accusations against the named insurers and law firms that deserve no greater airing and dissemination, in my opinion, than the New York County Supreme Court justice to whom this suit eventually is assigned surely will give them. The filing of the suit itself remains newsworthy. The accusatory allegations -- and they are only allegations at this point -- are not.

June 7th, 2:30 p.m. -- I've finished reading the 225-page novelette. My first post characterized the complaint as "well written". My first revision of that post said "generally well written". I changed that to "well written in parts (other than the excessive hyperbole)", and, after reading more pages, deleted all descriptives.

Frankly, the complaint is a mess, in my opinion. For example, what possible relevance to the plaintiffs' alleged claims for relief in relation to New York no-fault claims handling does State Farm's past reported conduct -- from both anecdotal and case decision sources -- in a 2001 Utah 3rd-party "bad faith" failure to settle case (Campbell), an unidentified and undated California case, Hurricane Katrina, an unidentified and undated "national conference... of State Farm's divisional claims superintendents" (a job title State Farm has not used in this decade, to my recollection), and other reported and adjudicated non no-fault cases in Illinois and Georgia have? None. The only possible reason for including those extraneous allegations is, of course, to vilify State Farm. To me, the complaint's discursiveness undermines any credibility it otherwise might have from its allegations alone.

Here's my summary of the relief sought. Plaintiffs want the New York County Supreme Court to declare that: (1) BORIS was bad; (2) the Suffolk County DA's Office and Task Force "poached" cases from the Kings County DA Racketts Bureau and Fraudulent Accident Investigation Squad; (3) State Farm is bad; (4) the OneBeacon companies are bad; (4) McDonnell & Adels, PC is bad; (5) Melli, Guerin & Wall, PC is bad; (6) NICB is bad; (7) the NYS Insurance Department is not doing its job; and (8) that anything related to SIU investigative work of the defendant insurers, "Enforcer Counsel" and NICB is bad.

Ironically, what some commenters to Dave Gottlieb's post over at No-Fault Paradise are calling brilliant may be the complaint's own undoing. The fact that plaintiffs purportedly are seeking no money damages (for now, mind you) but only declaratory and injunctive relief will feature prominently in the CPLR 3211(a)(7) motions to dismiss in lieu of answering that most or all of the defendants are likely to make. Although the complaint does certainly allege what it itself entitles "malevolent" conduct by the defendants, it simply does not state valid claims for relief. The New York courts have repeatedly held that good faith claims handling statutes and regulations do not support private choses or rights of action. I have never seen a request that a New York civil court "declare" that an entity is guilty violating a New York Penal Law section, or violating without contractual or monetary consequence, sections of Regulations 68 or 95. How is the complaint's request for DJ relief instead not asking for impermissible "advisory opinions" that will not quell or settle the jural relations of the parties? Alleged violations of attorney disciplinary rules may give rise to administrative proceedings and possible sanctions, but they don't support a private cause of action. Judiciary Law § 487 may be an interesting theory and does, in fact, support a right of action, but how can plaintiffs legitimately claim deceit when they themselves apparently were aware of the allegedly "illegal SIUs", notified "Enforcer Counsel" of their contention, and presumably defended each and every affidavit of a special investigator with their "expert's" affidavit? By the way, Secure and Recover is an LLC, not a PLLC (¶ 481). Is that like the pot calling the kettle black? Lastly, don't existing contractual rights of action give plaintiffs an adequate remedy at law and, as such, undermine their request for injunctive relief?

Plaintiffs presumably chose to litigate, not arbitrate, their unpaid bills. Their complaint about defendants' exercise of their procedural due process rights to discovery, trials, etc. in those multiple lawsuits is a particularly unsympathetic and arguably hypocritical one.

Allegations like this one leave me dubious of plaintiffs' alleged motivation in bringing this megasuit:

Some medical doctors... would allegedly "rent out" their medical licenses to lay persons in order to create fraudulently incorporated medical P.C.s, which is technically against the law. (¶ 501, emphasis added.)

Technically against the law? Technically? Like a little pregnant? No, such practices are against the law. Period. If plaintiffs are to be the class representatives and champions of truth and justice in the New York no-fault system, they need to be more careful about waffling over what's lawful and what's not. Just a suggestion.

For more, read my More Words Mean Less -- Ava Acupuncture v. State Farm Redux post.

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