Attorney not Honoring my Request

[tony17112acst]

What is the name of your state (only U.S. law)? PA - Pennsylvania:

I was sued for negligent misrepresentation and my insurance company (homeowner's liability) will not defend me. I hired my attorney to ask the court to require the insurance company to defend me.

With such a case, a judge makes a decision based solely on the original complaint and the insurance policy to determine coverage; there is no trial or extra info besides our briefs.

The Insurance company's brief was well organized, outlined, broken up into manageable sections, and enumerated each argument clearly. My attorney's brief was just one long story which wasn't organized or divided up, and did not in any way address or reference the enumerated arguments of the insurance company's brief. It was very confusing; I had to read it 6-8 times to try to see if he covered certain things.

Well, the judge sided with the Insurance company and we now are appealing.

When I received a copy of the Insurance company's Appeal Brief it again was well organized and enumerated. When I received my attorney's Appeal Brief, it again was poorly organized and did not reference any of the opposing arguments directly.

I was so upset, I spent 20-30 hours writing my own REPLY to the Appeal Brief and asked my attorney to use it directly by slightly altering it to fit the legal form required. I also sent him an email asking him to enumerate everything and directly answer each of the Insurance company's arguments. I also asked to send me a copy of the Reply Appeal Brief so I could "check off" on it. He then emailed me that he was slightly offended that I wanted to check off on it. However, I was shocked that he again disregarded my request to organize the Reply Appeal Brief in an enumerated, logical format and wrote another several page story Brief which is hard to follow and does not address the opposing arguments.

1.) Is there some rule that in Briefs the Plaintiff (Ins. Co.) may use enumerated arguments but the Defendant may not?

2.) What can I do at this point?

3.) Am I upset about nothing? Is it common to just write one long chapter that somewhat covers the main arguments instead of addressing the opposing argument directly? If I know the flaw of each opposing argument, why not list them simply?

I believe I lost the decision because our original Brief was poorly organized and difficult to understand. I demanded that he enumerate everything and address each argument of the opposition, but he refused, now we'll probably lose the appeal too.

The Appeal Briefs were submitted two days ago and now the clock is ticking. I would love to withdraw the Appeal Brief and have it re-done, but I don't know if that is even allowed.

Any help or comments are welcomed!! -tony17112acstWhat is the name of your state (only U.S. law)?

 

[Johnny Mac]

I too have run into similar issues: attorneys who cannot write! Or write a brief that is so poorly written its hard to understand. You could have filed an appearance (additional as pro se) and filed the reply brief if you liked. You may be able to do this with the appeal (request to amend) ... search out your states practice rules (most are online) or call the clerks office.

Some attnys need to go back to remedial writing class.

 

[Tex78704]

...You could have filed an appearance (additional as pro se) and filed the reply brief if you liked...

That's a lot of horse manure to suggest that a court will allow a party who is represented by an attorney to file an appearance as a pro se and file pleadings and approach the bench on their own. Not without the attorney of record filing a concurrent motion to withdaw that is approved by the court. Filing a brief as a pro se in a state court of appeals would almost guarantee your appeal to be dead in the water.

Beyond this, the court of appeals will not hear any new evidence or arguments not already raised in the lower court. Which appears to be an intent of your appeal. If you missed saying something in the lower court that should have been but was not, you do not get a second chance with the appeals court.

You probably should have retained an appellate specialist to handle your appeal. But your case will not likely turn on how well organized your attorneys arguments are presented, or lack therof, as long as the key points were raised. The appeals court should issue an Opinion that will discuss the reasons for its ruling in your case. From there will be a last opportunity for a motion for reconsideration if you feel they erred in their review of your attorneys briefs.

 

[tony17112acst]

Actually, there's no desire to appear or for me to submit the actual Briefs. I merely asked my attorney to organize the Briefs in better way and to attack the enumerated arguments of the opposition, and he did not. I'm not sure how I gave the impression I wanted to do the filing or appear before the court.

But I do value the other info you gave. -Tony

 

[You Are Guilty]

Given the nature of the action, its actually very likely that the briefs (from both sides) were not needed, or at least, were not particularly influential. When a carrier declines coverage (I'm assuming the insurance company argued no notice and/or a listed exclusion?), there really isn't a lot to actually argue over. Either you are covered for such claims, or you are not. Either you gave proper and timely notice or you did not.

This is not some new area of law constantly in flux where a persuasive argument might tilt the scale in your favor. A copy of the insurance policy, a copy of the complaint and your proof you sent the complaint to the insurance company is all that is needed to form an accurate decision.

And to answer your question, you are likely out of options at this point. It's too late in the game to find a lawyer who doesn't suck. Sorry you had to find out about him the hard way.

Good luck.

 

[tranquility]

I agree with YAG, with two additions. Negligent misrepresentation is an odd duck. Many suits are regarding disclosure issues in home sales. There are some cases which hold there was no "occurrence" and others say the damages being sued upon was not caused by the negligence of the homeowner. We don't know any of the facts so it's not good to speculate, but this one can go anywhere and the OP may have a loser even with good representation.

Second, even though any attorney should be able to make a well structured brief that is easy to read and understand, many do not. It's a lot harder to start from scratch as well. The insurance company has done this particular brief many times in the past. They pulled out long tested briefs which have changed over time and had a paralegal weave the facts through it and Shepherdized the cases in the Points and Authorities. (Of course, following the intense instructions and supervision of an attorney. )

The OP's attorney probably had to read the policy, go to a insurance litigation book and pull out the issues and do the writing. He might not have fully understood all of the in's and out's of what he was writing. It is very hard to be clear in writing when you are not clear in understanding what you are writing about. That's why you search for people who specialize in a particular area. A good attorney can make a good brief. An good and experienced attorney can make a good brief in far less time. At some point, most any attorney has to consider how much time the client is willing to pay for--even if the results don't come as expected.

 

[tony17112acst]

Thanks a gain for the input.

It's odd that the Insurance company claims that I did not cause anything, yet if that were true, how could I be the one that's being sued? I would contend that I AM the cause in the original complaint, otherwise someone else would be getting sued.

Anyway, going back to my original problem, I'm thinking that the consensus is to just let things ride. I feel betrayed by my attorney, but if the appeal judges are on their toes, the info can be found in the brief. It is just so miserably arranged and you must read the entire thing if you ever need to reference an one of the arguments made by the insurance company.

It's so sloppy, I feel that it is why I lost the courts decision on the coverage question. In the opinion, the court gave 4 reasons for its decision and all 4 were incorrect (stated incorrect facts). I know, I know, you say it's because I'm biased, but all 4 reasons outright rely on indisputably false things. I wish I could show you my reply to the appeal brief, it covers them. But the Brief my attorney submitted is so mixed around, that linking the arguments to our counter arguments is a monumental task for every little thing one would want to reference in our brief.

So I'll lose the appeal, I'm almost sure. The only hope I have is that this time around, these are 3 judges making the decisions, whereas a law clerk is likely the source of the original decision with the judge haphazardly checking off on it.

It all translates to me going ten-thousand-dollars-plus in debt whether I win or lose (less if I lose, of course).

I am so thankful to get these posts to help me with this; I am very depressed about all this and it helps that I don't have to pay yet another attorney to get some insight on the matter. -Tony

 

[tony17112acst]

P.S. I'm not expecting anyone to take the time, but I posted my 1-page Reply to Appeal that addresses the false statement made by the court in the decision, just to show you I am not a flake. (I changed the names)

http://www.tonytonini.com/Appeal-Brief-Reply-online-version1.pdf

 

[tranquility]

It's odd that the Insurance company claims that I did not cause anything, yet if that were true, how could I be the one that's being sued? I would contend that I AM the cause in the original complaint, otherwise someone else would be getting sued.

You've not given any facts regarding the suit. The specific facts are important to determining things, however, it seems you *are* dealing with a disclosure issue--which has some unfortunate decisions against you. (I did not search your state so am not taking an opinion.)

One good explanation as to why is at:
http://www.wileyrein.com/resources/documents/pu3515.pdf

While some cases are listed, they may not be controlling in your state. Yet, it gives the reasoning.

As to your brief, do you really feel your attorney's is worse? There is nothing which is appealable in your .pdf. You are talking only about facts the court missed or didn't get. That horse is out of the barn. You now must argue the law and at least one case in the above URL says a homeowner's policy does not cover negligent misrepresentation as a matter of law.

 

[tony17112acst]

tranquility: Thank You

...so much for a link to that 8-page article. I will forward it to my attorney, although it is probably too late since the Reply to the Appeal Brief deadline has already passed. But wow, what good info to have. If I had read this article previously, I probably would have saved $3500 for this appeal or decision which is proving unfruitful.

There are many cases listed in that article that say Neg. Mis. isn't covered ...but two of them ARE cases where an "occurrence" and "property damage" are accepted by the court in a negligent misrepresentation setting. You're right, I'm in PA, and non of the cases cited are, but the reasoning is there. One case stated that the RELIANCE on a representation that causes property damage DOES qualify as an occurrence. Now property damage regularly isn't the monetary loss of value of the home, but in my case the woman claims actual property damage of her personal belongings stored in the basement (water damage) due to her relying on my representation.

One other thing: That document I posted was only 1 page of my arguments. This was the page dealing only with the false statements made in the court's decision/opinion. Also, this is the REPLY to the Appeal Brief, where the arguments have already been made on why there should be coverage. Sadly, my attorney used all of the bad arguments exposed in your linked article (above) which the courts routinely do not accept. He should know that these arguments don't fly (by researching it, if not by experience) and I'm starting to think he's just taking my money. They seem to portray that you will win every step of the way, so you are more inclined to spend money chasing after the win when in reality, it is secretly known by the attorney there's a low probability in winning.

OK, I've rambled enough ...THANKS AGAIN for that extraordinarily informative article. I feel like I know what I need to know (that I'll probably lose).

-Tony17112acst

 

[tony17112acst]

Off Topic: Something stupefying I have discovered:

Off Topic: Something stupefying I have discovered:

In a home owner's insurance policy, intentional acts are rightly not covered ...but whether an act is intentional are determined SOLELY from the Complaint!

This means that if I hit a golf ball through someone's window which damages something of value, a duty to defend by the Insurance Co. is SOLELY determined by whether the Plaintiff simply states in the Complaint that you did it on purpose? What kind of civil law is that?

 

[Tex78704]

Off Topic: Something stupefying I have discovered:

In a home owner's insurance policy, intentional acts are rightly not covered ...but whether an act is intentional are determined SOLELY from the Complaint!

This means that if I hit a golf ball through someone's window which damages something of value, a duty to defend by the Insurance Co. is SOLELY determined by whether the Plaintiff simply states in the Complaint that you did it on purpose? What kind of civil law is that?

This is incorrect.

Based upon the complaint, the judge made a determination that there is evidence to support the allegations that the misrepresentation was either intentional, or to a lesser extent, negligent. Evidence was presented, and the judge made a "reasonable inference" in favor of the insurance company's position.

And depending upon the relevant statutes in your case, the terms of the insurance contract, applicable case law, and the manner in which your case was litigated, this may have been within the judges discretion to do so. And which is what you will be able to better determine once the appeals court renders it's Opinion.

It appears the main focus of the Plaintiff's suit is fraud. They included a count of negligent misrepresentation to cover their bases. If they come up short on proving deliberate fraud, they would then try to establish you were at the very least negligent, and in turn liable for damages.

 

[tony17112acst]

Hmmm. Well, I've read over and over again that the judge (or law clerk) simply reads the original Complaint and the Insurance Policy and makes a coverage determination. I think it's even referenced above in this thread. But thank you for the info; it gives me something else to look into.

Now, if a judge has discretion to deem or guess my motives as intentional or not, then I am royally screwed, because in the coverage decision (I am appealing) the opinion states that since I lived there, that the damage occurred then and I knew about it. Well I NEVER LIVED THERE! ...and I only owned it for one year as a rental!! So the judge again is relying on false info to my disfavor.

 

[You Are Guilty]

When dealing with knowledge of something, the standard is (actually) knew or should have known. That last part prevents people from deliberately turning a blind eye to things and then later claiming ignorance. Usually referred to as "constructive knowledge". As you have surmised, it is generally inferred from the surrounding facts, based on what the mythical similarly situated, "reasonable man" in the same position would have known.

Simply because you are an out of possession landlord does not automatically equate to not having constructive knowledge. For example, if there is a written complaint from your tenant regarding the issue, it blows your entire defense out of the water.

So what argument is the carrier using to claim/prove that you had actual knowledge?

 

[tony17112acst]

I was indeed out of possession and only owned it one year. I also never received any word from the tenants that rented it from me that the basement got any water (the sump pump once broke apart during flooding rains and let some in but I revealed that to the buyer since it happened after the sale disclosure was already filled out).

The Insurance company is using the argument that they hired an expert foundation company which states that there is evidence of long-term damage.

But the court incorrectly states in the opinion that I lived there and my attorney doesn't mention this in the Appeal Brief nor in the Reply to the Appeal Brief! ...even after I requested to put it in there.

So, the court wrongfully assumed I lived there, AND the court wrongfully assumed I lived there for a long time. I'm guessing this is the root of their determination that this is an intentional act and not covered by the policy.

So how do I fix all this (assuming you agree that this is something significant) especially when the Reply Appeal Brief deadline just passed?

P.S. The foundation company says there's long-term evidence of damage, but that never shows or proves that it ever occurred during the short one-year period I owned the home. The home is over 50 years old and I owned it for 1, how can a judge conclude it had to happen during that one year I owned?