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Insurance information permitted to assess criminal damages



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Drunk driver subject to separate lawsuit on criminal damages

Antarctic Mechanical Services, Inc. (AMS) and Phillip Bertellotti moved the USDC for clarification and reconsideration of its order dated August 26, T [2020] racey James v Antarctic Mechanical Services, Inc., et al . No. 3: 18-CV-678, United States District Court, S.D. Mississippi, Northern Division (October 27, 2021), the parties requested reconsideration of motions concerning h evidence needed to establish appropriate damages.

Fact History

This case arose from a car accident in which James was exposed. was on the back of the accused Phillip Bertellotti. Bertellotti drove a truck belonging to his employer, AMS. At the time of the accident, Bertellotti must have been drunk. He has admitted simple negligence in causing the crash.

AMS filed a motion in limine and asked the court to exclude evidence on 29 subjects, including "References to insurance" and "References or arguments to the jury.

State Property Act

Since this case is ongoing in a variety of cases, the applicable substantive law is that of the Mississippi Forum State. State law is determined by ensuring

The company's evidence to the contrary, the federal court assumes that the Mississippi courts would adopt the prevailing rule if they were asked to do so. the court must do what it deems to be the best court in the Mississippi.

Discussion

The defendants asked the court to clarify and / or reconsider t our decisions. First, they request the Court to clarify its ruling on substance I, "references to insurance", which was granted in part and in part denied. To the extent that the court's ruling allows referrals to insurance during the tort phase of the trial, the defendants claim that the court erred. Second, the defendant requests a reconsideration of subject XII, "stepwise trial and to exclude any referrals or arguments to the jury concerning criminal damages under the plaintiff's main proceedings", which was granted in part and in part denied in the matter of alcohol consumption. [19659007] Request for a stepwise trial [19659009] The proposal for a step-by-step proceeding complies with Federal Rule of Civil Procedure 42 (b) and the provisions of the Mississippi Statute of Punishment. More specifically, the Mississippi Code § 11-1-65 provides that liability and compensatory damages shall be separated from damages. Federal Rule 42 (b) allows the same. This Court agrees that a stepwise trial is appropriate and therefore this motion was granted.

Request to exclude reference to alcohol consumption during the liability / compensation phase

In the defendant's motion in limine they asked the court to exclude any references or arguments to the jury regarding criminal damages during the plaintiff's main proceedings. Specifically, they referred to concerns about announcements that the defendants should be "punished", or that the jury is encouraged to "send a message with the verdict (s)" and "keep [] the roads safer by passing a verdict against the" defendants. The plaintiff admitted that she would not make such comments during the liability or compensation phase.

During the hearing, however, the defendants abandoned the concerns mentioned (and resolved) above, and instead called on the court to ban all references to Bertellotti. drunk at the time of the accident-again. The court refused to do so.

Since Bertellotti has already admitted a simple negligence, they claim that liability is not questioned, and the issue of intoxication is only relevant during the damages phase.

Since the offense DUI charge and consumption of alcohol before the accident, intoxication is relevant during the liability phase. James makes a claim of gross negligence against Bertellotti. Alcohol consumption can be central to whether Bertellotti was grossly negligent that day. Evidence of Bertelloti's use of alcohol is relevant to assess Bertelloti's credibility. Specifically, it goes to "whether the defendant can remember… The circumstances surrounding what just happened that day at that particular time." Therefore, the motion was rejected.

Request to Bar References to Insurance

James agreed not to refer to insurance during the liability or indemnity phase. During the damages phase, however, James declared his intention to introduce the limits of the defendant's liability coverage as a "different asset" available to pay a judgment. She admitted that she would do so without revealing that the source of that asset is liability insurance. Defendants allege that James' proposal violates Mississippi law.

The court did not agree. The Mississippi Penal Code stipulates that "the primary purpose of criminal damages is to punish the perpetrator and deter similar misconduct in the future of the defendant and others [.]" ] and net worth … and all other circumstances as evidenced by the evidence relevant to determining the correct amount of damages. " (My italics.) The Charter stipulates that the net worth is taken into account – not that it is only taken into account – in determining the amount of criminal damages and it is used to calculate the statutory ceiling for criminal damages.

It must investigate whether the sentence is "reasonable" and "rationally related to the purpose of punishing what happened that gave rise to the sentence and to discourage the defendant and others from repeating it." The district court must also ensure that the judgment complies with the statutory ceiling for criminal damages.

Contrary to the considerations of investigators, the statutory ceiling for criminal damages is based solely on net worth, and in this case net worth must be "determined in accordance with generally accepted accounting principles." This limitation of punitive damages shall not be disclosed to the examiner of the facts. In other words, the jury is blindly considering the possibility that, by law, the court may be required to reduce the award depending on the net worth determined in accordance with GAAP for the defendant.

The critical inquiry. is whether the amount of insurance cover available to the defendant should be disclosed to the discoverer of the facts as part of the defendant's "financial position", "net worth" or "any other circumstance" of relevance. The court concluded that it should.

Analysis

It is James W. Sessum's Timber Co. v. McDaniel 635 So.2d 875 (Miss. 1994] (“[094ess)”), who answers this question in the affirmative. In Sessum's the Supreme Court of Mississippi held that, despite a failure to take out liability insurance during the trial or in the appeal, "[u] according to previous statements of this court, such coverage provides a source from which a tort judgment can be paid. " The Court goes on to find that "the evidence of the net worth of the two defendants was not fully developed… The defendants' net worth combined with the insurance cover that Sessums has… Supports the jury's award." (My italics) Dissent, as well as prosecution, regrets the impact on the deterrent case of criminal damages, but that argument was rejected by the majority and did not win.

Overall, the decisions of the Mississippi Supreme Court convince the USDC "and" all other circumstances "collectively imagine that the claimant is presented with robust evidence, including liability insurance, to determine the defendant's financial ability to pay the price.

personal finances, they can still limit each allocation before the final judgment, in order to do so they only need to present evidence of his net worth, in accordance with GAAP, before the final assessment. at that time and limit any award accordingly they have stated that Bertelloti's auditor will be prepared to testify, where appropriate.

ZALMA OPINION

This discussion of the procedure is important because it ignores the fact that liability insurance cannot pay for intentional misconduct that must be proven. allow for damages to be assessed against an insured. If the plaintiff proves that Bertelloti's action was so wrong that punitive damages can be assessed, it can be a Pyrrhic victory because it can lead to the insurance company refusing to pay both damages and punitive damages. Liability insurance is an asset – but only if it provides coverage to protect its insured.


I will take a short break from publishing my blog but I will return.

© 2021 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his internship to the position of insurance consultant specializing in insurance coverage, insurance claims handling, non-life insurance and insurance fraud almost equally for insurers and policyholders.

He also acts as an arbitrator or mediator. for insurance-related disputes. He practiced law in California for more than 44 years as a lawyer for insurance coverage and claims management and more than 54 years in the insurance industry.

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He is available at http://www.zalma.com and zalma@zalma.com. Zalma is the first recipient of the first annual Claims Magazine / ACE Legend Award. For the past 53 years, Barry Zalma has devoted his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to enable insurers and their claimants to become professionals in insurance claims.

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