3d DCA Watch -- "Actions Have Consequences" Edition

Well given that there were only three civil opinions released this week and one is a glorified PCA and two are United Auto cases, I thought I would do a short 3d DCA Watch and head over to the Federal Bar luncheon early to see if Judge Jordan wanted to have a quick game of pick up football in the Bankers Club lobby.

(Judge Gold, don't worry -- you can be all-time-QB!)

But then I came across this interview of Nicole Kidman discussing her marriage:
'I've explored obsession. I've explored loss and love in terms of being in a grief-stricken place, I've explored strange sexual fetish stuff, I've explored the mundane aspect of marriage, and monogamy,' Kidman said.

'You work on it,' she went on of marriage. 'It's a very extraordinary, adventurous place to be: incredibly raw, incredibly dangerous and you're very much out at sea. You're exposed. You could drown.'

'When you commit to someone like that, you live and die together by that decision.'

Holy hail -- is this a marriage or Basic Instinct?

All I can say is Tom, you really did a number on her.

I want to focus on this United Auto opinion by Judge Shepherd because I think it encapsulates the way this Judge approaches the law.

As usual, it's a second-tier cert appeal of a circuit court appellate division PCA of a county court decision that went against United Auto.

The first thing that's notable is Judge Shepherd spends an unusual amount of time detailing the basis for the Court's jurisdiction. In fact, you don't even get to the facts section until page 3. This is consistent with the Judge's limited jurisprudential approach.

The second thing I found interesting is you don't learn the outcome of the appeal until page 7 -- most judges will summarize the outcome (affirmed, reversed etc.) up front.

Way to keep your audience guessing, Judge!

Third, this is another example of Judge Shepherd taking a very close and narrow read of a statute -- in this case section 627.736(4)(b), which apparently does not require an insurer to ever respond to an insured's request for payment under a PIP policy:
In fact, carefully parsed, it is clear there is neither a requirement nor a deadline for a personal injury protection insurer to respond to a request for payment.
So under the statute an insurer can simply ignore a request forever.

Finally, there are Judge Shepherd's usual turns of phrase:
However, actions have consequences.
And this:
Accordingly, while there is no absolute deadline for the payment of a properly presented personal injury protection claim, there is a cost—and, indeed, ever increasing risk—to a miscreant insurer who does not treat its customers properly. This is the manner in which the legislature has chosen to regulate insurers in matters of this type.
Here that, all you "miscreant insurers" out there in "miscreant insurer land"?

Don't blame us -- blame your legislature (yet another recurrent theme).

Ok, I got me some football to play!


  1. SFL asked about Iqbal.

  2. IONShumie&RothsteinNovember 4, 2009 at 2:20 PM

    Is there ANY possibility you could say Scott Rothstein took Shumie Time?

  3. Big surprise ruling for D.

  4. I always find your 3rd dca comment section amusing, and today is no different. But you missed a few things in your comment on the latest United Auto opinion written by Judge Shepherd. The judge has no "limited jurisdictional approach". If he had, the petition would have been denied. The lengthy discussion on jurisdiction is necessary because the court has no jurisdiction. But the court wants to rule in favor of the insurance company. Later on, the opinion can be quoted to deny a plaintiff's petition. You don't have to wait to page 7 to find the outcome. It appears on page 1, listing the name of the parties. Judge Shepherd plus insurance company= insurance company wins. Works like a charm every time. There are no "miscreant insurance companies" in Judge Shepherd's world.

  5. I have no idea what Nicole Kidman is talking about. But did you see that movie that picture is from? Strange...

  6. I saw "limited jurisdictional approach" as polite sarcasm.

  7. Hi Holly!

    I sure did -- a very twisted look at marital bliss. I'm a fan of any film that has Buck Henry in it.

  8. As per rumpole, shumie time for former judge phil davis. Youch.

  9. SFL, that was an interesting piece on Nicole Kidman. I was reading it and was literally mouthing "WTF" as I sat here. Yes, "Basic Instinct" among other things. Wow.

  10. SFL, Nicole is crazy batshit crazy. You'd be better off shacking up with Orly Taitz or Scott Rothstein.


Post a Comment