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Vol. 4, Iss. 3
March 18, 2015

Encore: The Springsteen-Quoting Coverage Case Judge Strikes Again

 

In the last issue of Coverage Opinions I wrote about a recent opinion, from Judge Jonathan Goodman, of the Southern District of Florida, quoting lyrics from Bruce Springsteen’s song, “No Surrender,” to make the point that, while not giving up may be a virtue when pursuing one’s dreams, it is frequently a bad idea in litigation. [I noted that Judge Goodman’s reference to Bruce lyrics, in Miami Yacht Charters, LLC v. National Union Fire Ins. Co., No. 11-21136 (S.D. Fla. Feb. 9, 2015), was the second time that this had been done in a coverage case.]

In particular, Judge Goodman invoked No Surrender to describe the insurer’s counsel’s “dogged, steadfast determination” to again revisit an already-decided issue. By Plaintiff’s count, that was the fifth time that the insurer had “tried to convince a court of its position after the Eleventh Circuit Court of Appeals issued its mandate.” But, despite this, the insurer made a sixth effort, by filing a Motion for Reconsideration. They must have been countin’ on a miracle. Thirty-five more tries and they’ll be at 41 shots.

I was shocked. And not surprisingly, so was the judge. His Honor stated that he was “astonished (to use a milder-than-the-actual-reality-term) to see National Union file a motion for reconsideration.” Of course, as shocked as I was that the insurer filed a Motion for Reconsideration, that’s how not shocked I was that it was denied. It had the same chance of prevailing as me beating LeBron in one-on-one.

To his credit, Judge Goodman did not return to Springsteen to describe the situation. Doing so would have only portrayed himself as a one trick pony (or pony boy, for you big Bruce fans out there). Instead, he tapped Albert Einstein for help, quoting him in both the first and last paragraphs. Judge Goodman began with this: “Substituting only one word (i.e., swapping ‘illogicality’ for ‘insanity’) transforms Albert Einstein’s famous quote into one applicable to [National Union’s] Motion for Reconsideration … denying its motion to ‘correct’ the record: ‘Illogicality: doing the same thing over and over again and expecting different results.” And he concluded with this: “For purposes of metaphorical harmony, the Undersigned will end this Order with another Albert Einstein quote: ‘We cannot solve our problems with the same thinking we used when we created them.’”

And His Honor added the following for good measure: “If defense counsel asserts the argument again, then he will be personally responsible for attorney’s fees under 28 U.S.C. § 1927, for pursuing in bad faith a legal argument which unreasonably prolongs this already-delayed lawsuit.”

Judge Goodman has shown the lawyers who’s the Boss.

[But here’s the bad news for the Judge. His reference to Einstein, in a coverage case, also comes in second. See Behrendt v. Gulf Underwriters Ins. Co., 768 N.W. 2d 568 (Wis. 2009) (“But the problem with the concurrence, as I see it, is that it tries to make things simpler than they are and is therefore misleading. To quote Albert Einstein, ‘everything should be made as simple as possible but not simpler.’”). Judge Goodman just hasn’t been able to be the man at the top.]

 

 
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