Durham attorneys have made another filing—in the process, of course, upping the “defense costs” under which the city’s insurance policy kicks in and Durham loses its qualified immunity—reiterating the city’s demand to toss out all state claims.
The filing is a peculiar one. City attorneys Reginald Gillespie and Roger Warin admit that they filed a factually incorrect brief, omitting a comma when quoting the city’s insurance policy. The omission distorted the meaning of the city’s policy but had the convenient effect of exactly aligning the city’s policy with that of a recent North Carolina (Pettiford) decision that upheld a city’s immunity claim.
Remarkably, Gillespie and Warin don’t apologize. Instead, they mock the lacrosse players’ attorneys for pointing out their error, and reiterate their original argument as if they hadn’t filed a brief containing a significant factual error. The duo: “The City’s policy here is similar to the one in Pettiford.” Well, it is, provided that the vanishing comma remains vanished, and the city’s convenient use of ellipsis dots be allowed.
The filing has two other intriguing elements. First, Gillespie and Warin again cite the assurance of Durham’s Risk Manager, Darwin Laws, regarding “the scope of insurance coverage potentially available to the City in this case.” Yet, as the Ekstrand filing pointed out, Laws provided at best an . . . incomplete . . . summary of arrangements into which Durham has entered that might pierce the city’s immunity. Perhaps Laws, now chastened, has provided a comprehensive account in his new assurances to the court. But it’s hard to imagine why his words, having been impeached once, should be taken at face value now.
Second, Gillespie and Warin claim that “well established” principles of law bolster their argument about how to interpret the language of the city’s insurance policy. That assertion sounds pretty impressive—until a look at their filing’s citation. This “well established” principle of law, it turns out, has been articulated in just one case—a 2001 decision in the Missouri Court of Appeals.
Why a federal court in North Carolina should consider an intermediate state court 1000 miles away as the barometer of “well established” principles of law Gillespie and Warin do not discuss.