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[Bob Pickle]

I found the case listed online:

https://w3.courtlink.lexisnexis.com/cookcounty/FindDock.asp?NCase=2011-ch-41916&SearchType=0&Database=3&PLtype=1&

It only cost $206 for yet another 3ABN lawyer to appear in court on Jan. 20, 2012, as he filed 3ABN's answer to Virginia Surety's complaint.

So what happened? Did Simpson send one of his fire-breathing letters demanding that Virginia Surety defend 3ABN and/or Tommy? Or did Danny call them up and threatened legal action if they didn't? Or did something else happen?

Wish I knew. But it is too bad that 3ABN has been sued yet again.

[Johann]

It appears to me like that insurance company would never go to court for this unless they expected 3ABN would have to pay very large amount. Or is there another reason they take this to court?

[Daryl Fawcett]

I find it very interesting how 3ABN, who had launched a lawsuit against Joy & Pickle, are now on the receiving end of more than one lawsuit.

What comes around goes around twofold.

[Gregory]

Johann:

Yes, there is another reason:

NOTE:  I do not have any specific knowledge of the situation and I am therefore only commenting in general terms.

The major question is:  Is there a policy that VS has issued that covers  3ABN, et.al. for liability for the actions of TS?
If there is such a policy, VS would be required to defend 3-ABN et. al. in any litigation.

Modern liability policies are typically written in such a manner that torts of the nature alleged against TS are excluded from liability coverage.  I would find it unusual for 3-ABN to have a current policy that covered such torts.  However, the critical issue is not the nature of the current policy, it is the coverage provided by any policies that 3-ABN had at the time the torts are alleged to have been commited.  At the time they were alleged to have been committed, many insurance policies provided coverage against such torts.  This is the most common type of policy.

However, some  current liability policies provide their coverage on the basis of when the  litigation is filed, rather than when the tort is alleged to have occured.  These policies are marketed on the basis that in the short term they are less expensive than the policies that provided coverage on the basis of when the tort was alleged to have occured.  Therefore, it is not known whether 3-ABN has a policy that covers on the basis of when the litigation is filed, or on the basis of when the tort is alleged to have occured, of whether or not 3-ABN has any coverage at all of the tort that is alleged in this lawsuit.

My guess it that if 3-ABN has a policy that is based on the date the litigation is filed, that it excluded coverage for torts that are the basis of the litigation.

O.K. Now, we reach a simple statmenet as to why the insurance company would file litigation against 3-aBN et.al:    The insurance company is attempting to obtain a judgement from the court that it is not liable for the alleged torts.  If the court so decides, the insurance company will not have to defend 3-ABN et.al.

The million dollage question here is:  Is the insurance company liable, or is the insurance company not liable.  And, will the insurance company have to defend against the alleged torts?

The insurance company is looking out for its best intersts by attempting to get a court ordr that releases it from all liabilityl.

[Alex L. Walker]

Gregory you are correct.

From reading the complaint, apparently 3ABN wanted the insurance company pay their legal fees.

It is evident that the insurance company is saying they do not cover such claims.

[Gregory]

Now for a second question that some may have:  Why did the insurance company name TS and Alex as defendents along with 3-ABN?

Very simple.  TS potentially could claim that he had a right to be defended by the insurance company under the policy issued to 3-ABN.  Alex, on the other hand, potentially has a claim for damages against the insurance company, if it is liable for a judgement against 3-ABN.  The insurance company is wisely looking after its own iterests in an attempt to close off all potential claims against it which do include TS and Alex along with 3-ABN. 

In one sense, this is a high-stakes game for the insurance company.  First it involves both a potential judgement against 3-ABN plus some susbstantial legal costs of defending 3-ABN.  But, it involves more than this.  If the court determines that 3-ABN has a liability policy that covers this claim, the court, acting on a motion form 3-ABN, will likely order the insurance company to pay the legal fees of 3-ABN.  In addition, the State of Texas (I believe Texas regulates the insurance company.), acting on a complaint filed by 3-ABN will likely impose a civil fine on the insurance company.  That fine could be $200,000 or more.

In short, this is a high-stakes game for the insurance company.  As such, it is likely to aggressively attempt to be severed from this case and is likely to devote whatever legal expenses are needed to sever themselves from teh case.  Of course, it is also very important for 3-ABN which will need to aggressively attempt to defeat the attempt of the insurance company to be severed from the case.

Contnue to stand-by folks to see how it develops.

[Johann]

Is there also a possibility the insurance company is making this a test case to prevent liability in similar cases in the future? Therefore they might fight this one vigorously?

[Gregory]

No.

[Johann]

Gregory you are correct.

From reading the complaint, apparently 3ABN wanted the insurance company pay their legal fees.

It is evident that the insurance company is saying they do not cover such claims.

Who will then pay if they loose the case?

[Gregory]

If the judge severs the insurance company from the case, 3-ABN will be totally on their own.

NOTE:  The above is based upon the assumption that 3-ABN does not have reinsurance, which is unlikely, or any other type of coverage which would apply.  IOW, 3-ABN would have to pay to defend itself and for any settlelment.

Let us say that the judge severs the insurance company from the case.  In that event, it would be wise for 3-ABN to attempt to reach some sort of settlement without going to trial.  The question now would be:  Would 3-ABN do the wise thing?

[childoftheking]

Do they have a history of acting wisely?

[Alex L. Walker]

If the judge severs the insurance company from the case, 3-ABN will be totally on their own.

NOTE:  The above is based upon the assumption that 3-ABN does not have reinsurance, which is unlikely, or any other type of coverage which would apply.  IOW, 3-ABN would have to pay to defend itself and for any settlelment.

Let us say that the judge severs the insurance company from the case.  In that event, it would be wise for 3-ABN to attempt to reach some sort of settlement without going to trial.  The question now would be:  Would 3-ABN do the wise thing?

Gregory:

And if the insurance company looses? From my understanding it is highly possible that if the insurance company flips the bill that they will also pressure a fast settement to be worked out and spare the expense of a trial.

Your thoughts?

[Gregory]

O.K. Fair question.

In my opinioin:

The insurance company will aggressively seek a settlement outside of going to trial if they think that they have a 75% chance, or less, of losing at trial.

Of course one might argue with the per-centage figure that I have given and ask why I did not say 50% or less.  The reason is simple, in the case of an adverse verdict, in a case like this, no one can predict what a jury would award.  The insurance company would rather participate in a settlement where they had some control rather than to leave it to a jury that they could not control.

The critical issue is: What is the percentage likelyhood that the insurance company would win at trial?  Frankly, the attornies for the insurance company can probably predict pretty well whether or not they would win at trail.  What they cannot predict as well is the amount of the judgement that they will recieve if they win.  Who know, maybe there are some computer experts somewhere who have the data that they can crunch that would generate a potential financial settlement for the court in which the trial was held.  Computer experts can do about anything today.   

Next question:  Who do I think would win if this case went to trial?  1) I do not have enough knowledge about this case to have an opinon as to who is going to win.  2) My opinion a month ago was that this case was not firmly in favor of either side and it could go either way.   3) However, the fact that TS Took an Alford Plea suggests to me that it is more likely to be a judgement against 3-ABN than a favorable judgement for 3-ABN.    So, I think the plaintiffs will get something.

NOTE: My comment above is not intended to express an opinon as to whether or not the Alford Plea could become part of the trial record.  And, I could be wrong on anything that I have said.   

Also, my comments above express my thinking on the potential results of a civil trial on the issue at hand and they are not intended to express an opinion on any criminal issue.  Judgements on criminal issues should be made by courts, judges and juries and not by me.  Why do I make this distinction?  As I recall, O.J. Simpson was declared "Not Guilty" in a criminal trial and then had a judgement made aginst him in a civil trial.  At least, that is how I remember it. 

[Gregory]

Another interesting question:

What if the insurance company and the plaintiffs reach an agreement on a settlement and 3-ABN says "No?"

1) If the insurance company defends 3-ABN, it will be in charge of the defense and the primary one in charge.

2) The insurance company could seek to limit their liability and to force 3-ABN to assume some portion of the liaability.

This question has a number of factors complex enough that no definative comment can be made by me.  The answer to this question will depend in part, probably, on State law where the trial would take place.  It should be noted that California has an iteresting law.  In California if a party to a lawsuit  makes an offer to settle without going to trial, and that offer is rejected, there are legal consequences of that rejection that can come into play if the award at trial is the same as or less than the offer of settlement.

Folks, litigation is not only expensive but complex.

[Bob Pickle]

3) However, the fact that TS Took an Alford Plea suggests to me that it is more likely to be a judgement against 3-ABN than a favorable judgement for 3-ABN.

I did read somewhere that Alford guilty pleas sometimes have legal consequences, such as not being able to relitigate certain issues. Imagine Tommy's not being able to relitigate whether there was enough evidence in the Virginia case to convict him beyond a reasonable doubt. Imagine being a co-defendant with a pedophile who could not relitigate that issue.

But I have no idea how the Alford plea will affect this case.

What if the insurance company and the plaintiffs reach an agreement on a settlement and 3-ABN says "No?"

This was an issue I had to grapple with when Danny and 3ABN sued me ... until I found out that my insurance wouldn't cover the suit.

In California if a party to a lawsuit  makes an offer to settle without going to trial, and that offer is rejected, there are legal consequences of that rejection that can come into play if the award at trial is the same as or less than the offer of settlement.

For the federal equivalent, see Fed.R.Civ.P. 68(d). The word "must" suggests that the court has no discretion in the matter, but must award costs to the defendant. But bare in mind that the plaintiff who in the end receives a less favorable judgment than the offer he rejected must only pay "costs," which could be defined by 28 U.S.C. § 1920. Attorney fees are not "costs" under that statute.