Wednesday, December 10, 2008

Durham's Vanishing Comma

A few weeks back, Durham attorneys filed a motion requesting summary judgment regarding elements of the civil suits dealing with state law. They cited a recent decision, Pettiford v. City of Greensboro, to contend that they had immunity. The basic argument: the city has immunity from state-based tort claims, since Durham’s insurance policies were written in such a way not to pierce the immunity the city enjoyed.

At the time, several commenters pointed out that the city’s filing seemed unusually cogent. In sharp contrast to the run-of-the-mill argument from Durham (i.e.: state law says Mike Nifong wasn’t supposed to supervise a police investigation, and therefore Durham can’t be sued for results from the city’s decision to allow him to supervise a police investigation), the Durham filing looked as if had offered an intellectually consistent and on-point claim.

But as revealed in explosive filings from Charles Davant (representing the three falsely accused players) and Bob Ekstrand (representing Ryan McFadyen, Matt Wilson, and Breck Archer), we should have known better. Incredibly, it appears as if Durham’s high-priced attorneys—the same attorneys who have received more than $1 million in fees—misrepresented the city’s insurance policies in such a way that they essentially presented a false argument.

Davant’s opening pithily summarizes the implications of the city’s multiple errors:

The City’s brief misquotes the sentence upon which its argument depends, omitting a particularly important comma. The omission reverses the sentence’s meaning, transforming policy language that is fatal to the City’s position into the inaccurate language upon which the City’s motion is based. The omission also leads the City to represent, inaccurately, that this Court interpreted “identical policy language” in Pettiford. In fact, Pettiford involved an insurance policy that was altogether different from the City’s, and that only highlights the problems with the City’s argument.

Other issues about the Durham filing raised by Davant and Ekstrand.

1.) Inaccurate Quotations.

The city’s filing was [deliberately?] misleading. It removed a comma from a key sentence in its insurance policy—and by so doing, changed the meaning of the policy’s language in such a way to align Durham’s policy with the language of the Pettiford decision. Perhaps the Durham attorneys were simply, if inexcusably, sloppy?

2.) Misleading Ellipses.

The Durham brief also . . . creatively . . . used ellipses to mask the true meaning of its insurance policies. As Ekstrand points out,

The ellipses conceal the text that reveals that the City’s retained limit is exhausted not only by the City’s obligation to pay a claimant, but also by the City’s payment of “defense costs” along the way to judgment. Specifically, the City’s ellipses replace the phrase “by means of payments for judgments, settlements, or defense costs.” Restored to its original state, the quoted sentence reads: [The insurer’s] duty to pay any sums that you become legally obligated to pay arises only after there has been a complete expenditure of your retained limit by means of payments for judgments, settlements, or defense costs.

(While Durham has had no legal judgments against it in the case, its defense costs to date exceed its limit, and therefore require insurance payment.)

Even more dramatically, Ekstrand quotes an email between then-City Manager Patrick Baker and the city’s risk manager—the email about the very issue of insurance and the city losing its immunity, but from an already settled 2007 lawsuit. The city’s risk manager was clear: defense costs—not just settlement costs—pierced the city’s immunity:

The SIR [self-insured retention] applies to damages as well as legal defense expenses (but not to expense of our staff counsel, so we can't bill for your time.) When we expect that a claim could go into the excess (exceed the SIR), then we need to report it to the underwriter promptly. … We have an obligation to protect the underwriter's interest, and that necessarily affects our settlement posture within the SIR . . . . This does affect the potential for an immunity defense because immunity is waived to the extent of the insurance. … This is the dilemma of the low SIR.

The Durham brief operated as if this email didn’t exist.

3.) Ignoring Relevant Case Law.

In his filing, Davant cites 16 separate North Carolina cases that refuted Durham’s argument even if the city hadn’t misrepresented the language of its insurance policy. In one of these 16 cases that refute Durham’s argument, Durham itself was a defendant—making it rather difficult to explain how the city could have been unaware of the precedent.

Davant also quotes from the Kephart decision, in which the Court rejected the very argument offered by Durham in its filing as “basically circular” and contrary to “our case law,” which “has consistently considered purchase of limited insurance coverage by a governmental entity to constitute partial waiver of sovereign immunity.”

“In short,” Davant concludes, “the City’s legal argument is refuted not only by its prior admissions and the case law, but by the plain language of its policies.”

4.) Concealing Relevant Information.

The issue of defense costs triggering the insurance policy wasn’t the only information conveniently neglected from the Durham filing. Durham also made the following claim: “The City does not now participate, and has not in the past participated, in any local government risk pool pursuant to Article 23 of Chapter 58 of the North Carolina General Statutes.”

But, as both the Ekstrand and Davant filings observes, Durham actually does participate in such an arrangement—Interlocal Risk Fund. Could the Durham attorneys have been aware of this arrangement?

Moreover, as the Ekstrand filing further notes,

[Durham counselor] Mr. Laws states under oath— unequivocally and incorrectly—that “the City is not a party to any agreement which requires … any other entity to pay claims for which the City incurs liability.” Mr. Laws is wrong. One such agreement was attached to Plaintiffs’ Amended Complaint: the Duke-Durham Police Jurisdiction Allocation Agreement. Section 3.5 of the Police Jurisdiction Allocation Agreement contradicts Mr. Laws’ sworn declaration. It provides: “To the maximum extent allowed by law, the University shall defend, indemnify, and save harmless the City from and against all claims, demands and lawsuits that may arise in any manner from, in connection with, the acts or omissions of the University’s officers while performing their duties under this Agreement.”

Ekstrand continues,

Plaintiffs can only assume that Mr. Laws simply did not know of either the City’s “Immunity Waiver Fund,” the City’s three Resolutions deeming the fund to be a waiver of the City’s governmental immunity, the City Council’s appropriation of over $600,000.00 to participate in the League of Municipalities’ local government risk pool, or the City’s indemnification agreement with Duke University relating to all claims arising out of the concerted activities of the Duke and Durham police departments. If that is the case, Mr. Laws simply not a reliable affiant with respect to the facts at issue in the City’s dispositive motion.

The city’s pattern of . . . incomplete . . . disclosure of information, the players’ attorneys argue, should be particularly problematic in a motion for summary judgment. Davant summarizes the information that the plaintiffs’ attorneys could encounter if and when discovery actually begins:

  • communications between City officials and/or the City’s insurers regarding coverage of Plaintiffs’ state-law claims;
  • reimbursement of the City Defendants’ legal fees incurred in connection with defending Plaintiffs’ state-law claims;
  • other statements by City officials concerning the City’s insurance coverage for Plaintiffs’ claims;
  • whether the City and/or its insurers have engaged in other actions that would support a finding of insurance coverage and, therefore, a waiver of immunity.

The Davant filing presents five (logical, if almost comical) questions that the Durham filing essentially presented as unsettled:

1. Where an insurance policy provides that coverage is triggered upon the insured’s payment of $500,000 “for judgments, settlements, or defense costs,” is coverage triggered upon the insured’s payment of $500,000 in defense costs?

2. Can a city claim governmental immunity on the ground that it has no “legal obligation to pay” its self-insured “retained limit,” where the policy at issue requires only that the retained limit be paid, not that the city have had a “legal obligation to pay” it?

3. Does a city’s insurance policy extend coverage to state-law torts if it expressly covers “wrongful acts” that specifically include “negligent acts,” “personal injury offenses,” “malicious prosecution,” “false arrest,” and other state-law torts?

4. Does an endorsement to an insurance policy that is expressly made “subject to” the policy instead override the policy?

5. Should summary judgment be granted on the affirmative defense of governmental immunity where the moving party’s prior statements, at a minimum, create a question of fact, and the non-moving parties have been unable to take discovery?

The answers to each of these questions are self-evident, at least to everyone outside the Durham elite.

Some aspects of this case—chiefly involving the unindicted players’ suit against Duke, which could have far-reaching implications on higher education—involve complicated questions of law. But the only thing complicated about Durham’s interpretation of the Pettiford decision appears to be how the city’s attorneys could have ever made the claims they did.

[Update, here are the links to the Davant and Ekstrand motions.]


Anonymous said...

I am reminded of the (alleged) words of the (in)famous Mikey 'Fong,

"We're f**ked!"

I can't help but think that a judge close to retirement with no concern for what others might say might paraphrase that in his ruling to say, "You're (Durham, et al) f**ked!!!"

They certainly seem to have painted themselves into a corner here, and their only hope would be a judge who would be willing to overlook all sensibility to go with arcane and obtruse argument to (incorrectly) allow the city to get off the hook.

Just MOO! (not a lawyer, but I know common sense when I see it)

Debrah said...

What more can we expect from these people?

From the start both Durham city officials and its residents didn't care about the truth. Duke's administration has never cared about the truth.

It's so comical to read this and how the lacrosse attorneys again make fools of those unethical and scurrilous people who run Durham.

They wanted to allow innocent young men to take the fall so that a racist and whipped-up mob would feel better about themselves.

Now they must pay for exploiting archaic issues and not caring about the truth.

This episode is really a kind of cosmic justice and Karma for those people. For so long, they have operated like a banana-republic.

"The chickens are coming home to roost."........ the form of a comma.


Debrah said...
This comment has been removed by the author.
Anonymous said...

If Johnson had listened carefully
to Durham city official Larry Holt,
who sat right next to him, instead
of babbling on and on about procedure,
at the October 2006 Duke panel,
Johnson might actually have a clue
to the city's positions in the lacrosse
rape scandal. However even at that
early stage of the game, Johnson
must have been already aiming for
a lacrosse meal ticket. He only gets
worse and worse. Not much farther
to fall though. Such a shame.

Nifong's book should set matters
straight once and for all. Will he
beat the HBO to the punch?

Ex-prosecutor said...

I expect that the draft of Durham's motion and supporting memorandum was prepared by a senior associate or junior partner, probably both, working together. I expect that they are looking at other employment opportunities.

Even if, using the accurate language, Durham might have had a valid, or at least partially so, that is no longer the case. The best way to make a judge really angry is with a blunder such as this. Surely, the misquotation was an accident, for the Durham lawyers would have known that plaintiffs' counsel would check the policy himself.

There is no way that the amounts charged by these lawyers are other than gross over-billings. Lawyers with a case like this are as greedy as hogs with a trough of slop.

By the way, if Durham decides to discharge its lawyers and look for new ones, please have them contact me. I promise my work will be equally as crummy, but I will do so for a lot less in legal fees.

Anonymous said...

Wow. If Davant's assertions about Durham's legal filings are even *remotely* accurate, then it's lights-out for Durham.


Jim in San Diego said...

An attorney is an Officer of the Court in which the attorney appears.

He or she has an ethical obligation to accurately represent both the law and the facts of a case. This obligation applies to law and facts which are inconvenient to the attorney's client.

If the Ekstrand filing is accurate, then Durham attorneys have gone beyond the pale. The Court's response to this motion has now become a litmus test for litigation of the case.

If Durham succeeds in its motion, then we will know nothing has changed in North Carolina justice. The defense legal tactics will have been vindicated. However, such tactics would backfire in a big way with most Courts.

The Court's conclusion that it could not trust the filings of counsel for one party could affect its future rulings on all matters before it. In the many grey areas of litigation which require court intervention, Durham might well lose, and the plaintiffs gain, the benefit of the doubt from this point forward.

Another lesson, by the way, of the importance of good lawyers on your side. There are relatively few of them.

Very, very interesting.

Jim Peterson

Anonymous said...

In the New Civil Suit Filings section below, Anonymous @7:58 basically asks the question whether we are to believe virtually everyone involved with this case, other than the lacrosse players, is lying. The answer to anyone who enters Wonderland with a clear mind is - amazingly and appallingly - yes.

G. Potter
T '68

Anonymous said...

I recall hearing that as city manager, Patrick Baker periodically ordered department heads to spend hundreds of thousands of dollars on Baker's pet projects, but to do so under their own name so that Baker's fingerprints wouldn't be on the decisions. This caused department heads to leave office under his tenure.
If this is true, then is it possible that Baker is now micromanaging Durham's external lawyers' work? Even to the point of providing them false information? If so, what options would an external lawyer have to stop being used, and his/her reputation flogged?

kcjohnson9 said...

To the 10.33:

"Babbling about procedure" in a talk organized by the Duke Civil Liberties Union. Who could have imagined it?

I hadn't realized that Mr. Holt either had intimate knowledge of "the city's positions in the lacrosse [false allegations of] rape scandal," or served as a spokesperson for the city. (I'm sure Mr. Holt will be surprised to learn this information as well.) If your claims are true, I suspect we'll see Mr. Holt called as a witness in the civil case.

And to all those waiting for a Nifong memoir: I suspect you'll have a long, long wait.

Ex-prosecutor said...

To add to Jim in San Diego's post:

Implicit in filing pleadings in federal court is the representation that the filing attorney has researched the applicable law and and the motion has a basis in fact and law. Pleadings not meeting this standard can result in imposition of Federal Rule of Civil Procedure 11 sanctions, meaning the party filing the meritless pleading has to pay the attorney's fees of the party which had to respond.

That's usually the way that one side can get the other's goat. My experience has been that when I've represented plaintiffs in a suit filed against a defendant represented by arrogant, big firm lawyers, they files such motions as a matter of course to put the plaintiffs on the defensive.

Here, if a Rule 11 motion is filed, the defendants will have to explain, probably in both writing and open court, how they made such a egregious mistake in reading the policy.

If the plaintiffs' lawyers file such a motion, monetary sanctions may be granted against the defense lawyers personally. At the least, this huge mistake will drive a wedge between the defendants and their lawyers.

Anonymous said...

This is too damned funny...

Maybe Durham can secure the 2009 Council of Government Ethics Laws (COGEL) conference.

30th Annual COGEL Conference - Chicago, IL 12/7-12/10

COGEL Mission Statement:
The mission of the Council on Governmental Ethics Laws is to enhance professional development of its members in the areas of government ethics, elections, campaign finance, lobbying, and freedom of information and to promote government integrity throughout the world.

COGEL Vision
The vision of COGEL is open, fair, democratic, ethical and informed governments commited to serving their citizens.

The 30th annual 2008 COGEL conference is currently being held in Chicago, which is amazingly amusing given that the Illinois Governor was in the news yesterday because he was arrested for attempting to sell Obama's soon-to-be-vacated Senate seat.

US Senate: pick was for sale

One wonders if an Illinois political seat has been for sale in the past or if this is possibly the first time...

One wonders who was leading the bid at the time of the arrest...

Hope and change are in the air.

Anonymous said...

Just saw this...

As John Edwards stated, "There are two Americas", those that are on the take and those that are not.

Too rich...

Anonymous said...

To10:33, How is the weather today in your world? Is it really possible that your life is so vacant and your mental capacity to comprehend unequivocal fact so limited that you must focus on your perception of a conversation in October 2006?
How thrillingly delusional it must be to actually believe Nifong would dare try, again, to justify his illegal, immoral and unethical behavior. Hold on, my friend. The nursing staff will distribute your medication at 4:00PM.

Anonymous said...

I have not seen this posted anywhere else, so I'll drop it in here. According to this morning's WSJ (p. C3), Robert Steel won't receive a bonus for 2008; nor will he collect any severence from the sale of Wachovia to Wells Fargo.

I'm sure that Steel will make his blood-money somewhere, but it may come in a form that is difficult to track.

Anonymous said...

Ex Pros -- Ooooooo I hope they do, I hope they do, I REALLY hope they do!!

One Spook said...

The way I see it, the defense lawyers for the City of Durham have one possible explanation to be made to the Court:

"My Dog ate the comma, the phrase, and my copy of the insurance policy ..."

One Spook

Anonymous said...

Is Mr. Laws a Communist?

Anonymous said...

Would it be possible to provide a link to the Davant and Ekstrand briefs? Clearly they are quoted but there is no link. I know I would like to read the sentence with and without the comma that was omitted.

Anonymous said...

Ahem. One scarcely knows what to say. Misrepresentations of fact or law really irritate judges. Even Gorelick's brief was off base enough to make me wonder how the judge would respond. This is much more egregious. I imagine both documents were prepared by pretty junior people, but proper supervision really should pick up these problems.

Young lawyers are particularly susceptible to error it seems. Speaking of young lawyers misrepresenting fact and law, the link below will take you to the heady days of Watergate and the role our soon to be Secretary of State played in the legal proceedings. You have to scroll down (past the Sarah Palin piece) to get the story. Perhaps you are already familiar with it.

If anyone is able to reconcile happily the outrageously bad instincts of Mrs. Clinton as a young lawyer with her selection as Secretary of State, please enlighten me on your reasoning.

I've always felt that training in poetry analysis was beneficial for lawyers--every word must be carefully evaluated, and the commas are really important.


Anonymous said...

Hey QA,

That was a really good comment and bears repeating here:


Anonymous qa said...

Re: Carolyn’s Dec 1 2008, 10.33 [LIESTOPPER'S "Duke sues insurer"] comments:

Not only did Duke have a duty to talk to Dr. Manley, it publically states in the Duke GME Trainee Manual 2006 [see 5. below], Duke “assures” that each trainee physician, such as Dr.Manly, is supervised by a privileged member of DUMC’s medical staff:

“[Therefore] the medical staff assures that each participant in a professional graduate medical education program is supervised in his/her patient care responsibilities by a member of the medical staff who has been granted clinical privileges through the medical staff process.”

1. Upon my information and belief Dr. Julie Manly was still an Emergency Medicine Trainee on March 14th, 2006 [See page 58, Duke GME Trainee Manual 2006]:

"Trainee: A physician who participates in an approved graduate medical education (GME) program. The term includes interns, residents, and fellows in GME programs approved by the Duke Institutional Committee on Graduate Medical Education".

The Emergency Medicine Training Program, in which Dr. Manley was then a participant, is such a GME program.

This is a standard requirement of he Accreditation Council for Graduate Medical Education” [ACGME], not peculiar to Duke, but conforms to longstanding National Policies and definitions re Trainees, Attending Physicians, and Supervision of Trainees.

Attending Physicians have “clinical privileges” [ the authority to independently perform specified diagnostic, or therapeutic patient procedures ]. Sexual Assault Diagnosis and Therapy would be an example of such patient procedures.

Such clinical privileges are granted only after formal application from a candidate for such privilege, supported by documented recommendations from senior supervisors. It is a drawn-out, time-consuming process.

In Health Care Organizations accredited by JCAHO [Joint Commission on Healthcare Organizations], such as DUMC, the authority to grant such clinical privileges is reserved to the organization’s Governing Body. Individuals do not have that granting authority except sometimes temporarily in a true emergency, in which case an immediate formal inquiry is required. Trainees do not have independent “clinical privileges, as defined above.

I very much doubt, under those standards, together with those of the Duke GME Manual, that Dr.Manly, then still a Trainee, had the authority necessary to independently perform such of the Sexual Assault evaluation procedure she nevertheless did perform.

2. Longstanding National Trainee policies in general, and Duke’s written policies in particular required that Dr. Manly have a designated Attending Physician supervisor. That Attending Physician supervisor was required to attest to verification and agreement with Dr. Manly’s findings, and both to review and to co-sign Dr. Manly’s History and Physical findings within 24 hours [ see page 59, Duke GME Trainee Manual ].

3. Dr. Manly knew, or ought to have known, all of this on March 14th, 2006. That may to some degree explain, and even justify her subsequent silence and reticence; public acknowledgment of her own provision of this medical service without the required supervision would have created immediate major problems for both herself, and DUMC.

4. I have not seen the Medical Records re Ms. Magnum but I believe that the Plaintiff’s Lawyers have seen them and therefore that they know what designated Attending Physician supervisors, if any, were involved. Dr. Manly is already listed as a defendant and I would expect such Attending Physicians supervisors to be listed as co-defendants. Because, apparently, no such Attending Physicians are so listed I assume that none were involved. One of the Complaints specifies failure to supervise Dr.Manly.

5. Such lack of involvement was contrary to DUMC’s own stated policy
“Therefore the medical staff assures that each participant in a professional graduate medical education program is supervised in his/her patient care responsibilities by a member of the medical staff who has been granted clinical privileges through the medical staff process.” from the context “Attending” medical staff is implied - see pages 58 & 59, Duke GME Trainee Manual 2006

6. The lack of specific reference to this in some Complaints may be covered by the general allegation of failure to supervise, and additionally may be a legal tactical decision, such as a decision not to unnecessarily complicate an already complicated series of allegations, especially given the assertion, and presumably reliance, in the Ekstrand Complaint, that “Dr. Manly had performed many rape examinations in the past”.

7. 3rd-party insurers can successfully demand-back money paid for medical services provided by unsupervised trainees. Such insurers, including Medicare, have recouped millions of dollars in cases of wide-spread intra-institutional failure to supervise trainees. That is one of the reasons why discovery would be so valuable to the public in this case, and why Discovery-Prevention could be so valuable to a defendant medical center in which the provision of medical services by unsupervised trainees is actually a wide-spread problem. Nationally, in my knowledge and experience, it has been widespread.

Discovery-prevention is so valuable to Duke not only for the latter reason, but also to minimize the continuing damage to it’s reputation. Settling the Evans, et al. Lawsuit may have satisfied the immediate needs of those plaintiffs but the accompanying stipulation not to sue Duke employees, was worth far, far more to Duke. The posted comment wryly noting that the apparent $18M payment in the Evans, et al. Lawsuit represented the most expensive Sexual Assault examination in history, overlooks the fact that for Duke it was a bargain.

9. Dr.Manly’s conduct of Crystal Mangum’s examination did produce Rape-Kit samples which, after the suppressed results of their analysis eventually became public, among other findings, lead to the N.C. Attorney General’s declaration, on April 11th, 2007, more than a year later, that the students had been fraudulently accused, and that they were innocent.

The DNA samples were ultimately key to the students’ exoneration.

However, that said, in other respects Dr.Manly’s performance, in my informed opinion, was substandard, and would never have been endorsed by a properly designated Attending Physician Supervisor:

a. Her use of the word “edema” seems inappropriate, and comments previously posted, have even characterized the phrase “diffuse edema in the vaginal walls’ as “meaningless”[5/2/07 6:23 Comment to KC’s Levicy Exam thread : “I am a gynecologist with 40 years experience ...The vaginal edema comments are meaningless....”].

The word “edema’ is not a $64 synonym for any “swelling.” “Edema” refers specifically to swelling caused by abnormal accumulation of fluid in the body tissues or in the body cavities.

There are many causes of swelling other than the accumulation of “fluid”. Dr. Manly provided no objective basis for her implied conclusion that the swelling she perceived was caused by an abnormal accumulation of “fluid” in the vaginal wall, rather than another cause. It would be very sloppy for an Attending Physician Supervisor to that let that stand in such circumstances as the allegations here, especially given Dr. Manly’s belief , later-stated, that at the time Dr.Manly examined her, CMG had been raped a few hours before.

b. The conclusory assumption that the “whitish fluid “ that Dr. Manly apparently noted mentally, but did not record in her report, was semen is incompetent. Dr. Manly had a duty to sample her patient’s “fluid” and send it to the Pathology Department for analyses , including microscopic inspection and microbiological analysis, including bacterial, fungal, and seminal. If it was a yeast, as Dr.Manly belatedly included in her differential diagnosis, or other treatable condition, this could have been established that day, almost immediately, and appropriate treatment prescribed.

It is my understanding that semen and vaginal yeast “fluid” are “whitish fluids” but look different, and should not be confused with each other.

c. Dr. Manly’s report, apparently, does not explain why, in view of CMG’s complaints of intolerable pain/tenderness, the pain/tenderness was not treated with pain-killers. Furthermore, had pain-killers been effective the procedure should have been completed successfully, instead of being abandoned and left incomplete. Of course, if Dr. Manly thought such complaints might have been false her report should so indicate.

d. There are probably a number of affirmative negative statements e.g. “No evidence of blunt force trauma “ that would have been indicated given the allegations contained in the History.

e. Dr.Manly abnegated her duty to write, herself, her own History and Physical Findings.

No competent Attending Physician Supervisor would have approved this deficient performance. Apart from the appropriately-conducted DNA sampling, this procedure was otherwise not a competently performed procedure. This belies statements that “...Manly had performed numerous rape exams”, with their implied message that they were competently performed

Finally, compounding Dr. Manly’s unsupervised deficiencies, Ms Levicy is allowed to insert herself. As a SANE, Ms.Levicy was a pathetically inexperienced amateur. Her self-assurance, unwarranted by her actual knowledge and experience, together with their own misguided zealotry, persuaded her supervisors, and others, to allow her to pose, under the mantle of DUMC, as an authority on matters for which she was unqualified.

Without DUMC’s failure of trainee-supervision the hoax/frame may have been nipped-in-the-bud. Instead, Levicy, through inexperience and malice [making oral and written statements either knowing them to be false or in reckless disregard of their truth or falsity], and Manly, probably through inexperience alone, were integral parts of a tragic fiasco.

If enough of the allegations in the pending Lawsuits survive the motions to dismiss them, as I believe they will, and when Duke can no longer fend-off the formal discovery of the facts it desperately needs to remain formally undiscovered, a classic story will unfold.


Kethra had pointed out some of the shortcomings of the exam. I had missed the fact that Dr. Manley was in need of special permission to proceed unsupervised. And I bet you are absolutely right that this is a very common problem.


One Spook said...

Anon @ 6:54 writes:

"Is Mr. Laws a Communist?"

No, he's an affiant in this case.

Mr. Darwin Laws is the Risk Manager for the City of Durham, and he appears to have a rather limited understanding of the risks the City of Durham faces. But I don't think that makes him a Communist.

One Spook

Anonymous said...

Is Mr. Laws a Conartist?


I agree that the city lawyers have risked losing all credibility with the Judge. Credibility is almost impossible to fully recover. At a very minimum, it appears the City attorneys have been reckless with information. This should be a great reason to (not believe them in the future, and) allow immediate discovery. Let the Plaintiffs' attorneys see the documents and get the answers first-hand rather than rely on the (at best) untrustworthy second-hand information.

In a first set of Interrogatories sent to the City, the Plaintiffs would have asked a ton of questions about the City's insurance policies, pooling and indemnity agreements.

In the first Requests for Production from the Plaintiffs they would have requested actual copies of the insurance policies and agreements, as well as e-mails dealing with insurance coverage.

By failing to provide this information second-hand, the City should have to provide it first-hand.



We, the lawyers for Duke University and the City of Durham, will agree to finally stop lying about your clients, if you agree to stop telling the truth about ours.

(adapted from Adlai Stevenson).


MOO! Gregory

kcjohnson9 said...

I've added links to the filings at the end of the post.

Anonymous said...

The real issue to me is whether or not political pressure will be placed upon the judge to dismiss the case. Jamie Gorelick is a "player" in Washington, and I cannot imagine that the judge is unaware of the political ramifications to him if he permits this case to proceed. This began as a political case, and continues to be one.

In the previous posting, I found it amusing to see Gorelick suddenly discovering the sanctity of private property. Here is someone who throughout her career in government has used her authority to advocate that private property rights be shunted into oblivion.

However, when Duke University breaks the law in shutting down a voter registration move by concerned students, suddenly she hides behind the veil of "private property." Very interesting, and very telling.

Anonymous said...

Anonymous@10:33 AM

Are you really Wendy Murphy? The redoubtable(sarcasm smiley) Ms. Murphy once claimed in an interview with John Gibson that Nifong had information that proved the guilt of the lacrosse players and was going to write a book which would blow the case wide open.

If Nifong had such information, the lawsuit would be the perfect opportunity to present that information. Nifong is feverishly and desperately trying to avoid having to testify in that lawsuit.

W. R. Chambers said...

A motion for sanctions is in order. Durham's lawyers should be personally liable for the cost of cleaning up the mess they made.

Anonymous said...

The Medical Profession has a number of "sayings" that undoubtedly must seem strange to outsiders but are nonetheless very appropriate for the gritty reality of working in a place like, for example, a big city ER.
One of them is "If it is not worth doing, it is not worth doing well." IOWS, situations and proceedures that are complete BS need to be skipped over as quickly as possible so that one can get to taking care of the actual sick folks. Manleys conduct in regard to the semi-SAE of Crystal bears all the stigmata of this mindset. Problem is, every other party involved needs to agree that the situation has no meaning or significance or problems can result.
Manley was not especially negligent, she just put too much trust in the wrong people.

Anonymous said...

In the federal courts where I practice (for the past 30 years), this dishonest advocacy would be viewed as a very serious breach by the attorneys. Destroyed credibility is the least of the problem. This type of stunt would be considered all the more egregious because of the highly complex and time-consuming nature of the case. Judges have to be able to rely on the candor of the attorneys because the judicial system does not give them unlimited time and resources to independently verify the submissions of all the lawyers. The ethical obligation of the attorneys is "zealous advocacy within the bounds of the law." Or idiomatically, "hard ball but not slime ball."

At this point, Durham's attorneys have a professional duty to correct or withdraw their misleading filings, with or without a Rule 11 motion (BTW, a Rule 11 motion cannot be filed until the offending attorneys are given an informal opportunity to withdraw or correct the problematic filing -- this is probably occurring behind the scenes). Voluntary self-correction may mitigate the consequences of the violation but will not make the original transgression any less serious.

In addition to monetary sanctions, the federal judges before whom I practice regularly revoke the order permitting out-of-state attorneys to appear specially in the case for violations like this.

Acc Esq

Anonymous said...


Long ago and far away in another time and place a local store keeper had a reputation both as an unlettered man of little education and the ability or lack of abiltiy in the making of change or generally making mistakes in counting money. When he was caught in one of his "mistakes" he excused himself by saying that he had only gone to the 4th grade. Yes, but the real problem for others was that all his "mistakes" were in his favor. My thinking is that statistically it would be impossible for "all" the mistakes to be in "your" favor and that would apply even for a Duke lawyer.

Jim in San Diego said...

KC: Thanks for providing the Davant and Ekstrand motions.

Ex-Prosecutor and 1:02.

I have just read the Ekstrand filing.)


The problem for the Durham lawyers is more serious than overlooking a comma.

By my reading, a far more serious misrepresentation occurs because Durham lawyers used an ellipsis, twice, to hide the meaning of the insurance policy language.

(See page 12 of the Ekstrand filing). Not once, but twice, Durham ellipsed away the policy language that triggers coverage when defense costs exhaust the deductible.

Durham then argues that policy language triggers coverage only when there is a judgment.

In my opinion, this could not have been an accident. Omitting a comma might have been. Twice ellipsing away language which contradicts your chief legal argument is not an accident.

This could get Durham lawyers in trouble, yessiree.

Jim Peterson

Jim in San Diego said...

From afar, it appears watching Durham attorneys at work is like watching Amateur Hour. Maybe not, but that is the appearance for now.

There are some larger implications to this.

Poor attorneys write poor legal briefs. They also give poor legal advice.

We are not privy, but we can speculate,that Durham's attorneys have given Durham poor legal advice concerning Durham's liability, the prospects for defending the claims, and the costs of the defense.

Advice to defend vigorously rather than settle valid claims, coincidentally, generates large fees for the attorney.

Luckily for interested observers, there is much more to come.

Jim Peterson

Anonymous said...

I just re-read the docket sheet and realized that Durham's attorneys are all NC based. So the possible revocation of pro hac vice status that I mentioned in my earlier post is not available.

Acc Esq

Anonymous said...

I first read the title of this latest posting as "Durham's Vanishing Coma", which I contorted into the expectation of happy news.

Alas, it was not to be.

Anonymous said...

Remember, the DNA evidence was hidden away in clear sight . . . that is, it was hidden in the pages and pages of information . . . this "hiding" required pages and pages in that sense. It took an agressive, competent lawyer not often available to those of lesser means to find and make the case. I am not meaning "privilege" here, but that these "tricks" are the common tricks of the arrogant. What seems to not have been noticed by Duke and Durham is they are facing good lawyers who will have none of this business as usual. I might also add that during one of the proceedings about Nifong a Father of one of the lacrosse players was being question among other things about how many lawyers were in his law firm. Someone should have been listening and even more importantly looking at his face and body language as he answered. He was a father in the old sense of the word. He was not a "sperm donner" or a live-in- boyfriend. He was a father who was going to fight for his son . . . fight right down to the ground. This spirt seems to have been infused into the lawyers for the lacrosse team. If some of the stupid, sexist, feminist and politically correct types at Duke had noticed or even had they been capable of noticing such things they would have understood that Duke and Durham were going to be in for the fight of their lives. These boys . . . men now, were not going to be thrown under the bus quietly while people called for castration and blood. The people involved have fought for their families and sons. I can only hope to be that kind of father to my son.

Gary Packwood said...

Lack of Discursiveness

We intuitively discuss the Duke response and then the Durham response yet it seems reasonable to me that Duke and Durham have a joint agreement of sorts that we don't know about yet.

And they have had an agreement for many years whereby Duke and Durham protect each other with the implicit assumption that Duke is a private entity and immune from government interference.

Powerful Duke alumni embrace the romantic notion of their private entity functioning outside of the rule of law for Durham (and probably the USA) and authorize routine contributions for the wants and needs of the good citizens of Durham County...the little people.

Now the piper needs to be paid and Duke is running the private entity flag up the flagpole expecting that Durham is going to salute and begin to cough up their share of the settlement.

And Durham's share need to be determined by a discursive process which is probably already in place and know only to a few of the actors.

When those four Duke police officers at Duke Medical Center observed Crystal's 'case' turned over to The Durham Police Department (Gottleib), Durham's meter started to per their good ole boy agreement.

And Duke has been screaming private entity ever since.

Voter registration law breaking might be a good place to start a discursive process with the FBI in the room since neither Duke or Durham will have an agreement with the FBI.

It will be interesting to learn eventually how many universities have such a relationship with their host community and how many universities - both public and private - think they are functioning outside of the rule of law.

University presidents across the county must be wringing their hands and wondering how many faculty and staff members on campus don't understand the REAL Campus Due-Process.

Anonymous said...

I have read K.C. Johnson for about 2 years now, and I have come to trust his writing. Even so, having had instruction in the law, I wrote an earlier remark as follows:

"At a very minimum, it appears the City attorneys have been reckless with information."

I now take that back. After having read the briefs in opposition, I agree with Jim Peterson. The removal of the comma is bad, but potentially explainable.

The use of ellipses twice, however, go beyond recklessness to some kind of intentional behavior. (Further evidence of which includes the Risk Manager's e-mail and the City's previous handling of Jones v. City of Durham in 2007 -- by the same attorneys).

Yet, the City's attorneys apparently attached the insurance policies to their Motion for Summary Judgment. Evil or blitheringly stupid? I don't know. But the City better hurry up and hire a lawyer who can read an insurance policy.

Also, the firm or firms responsible for omitting the commas and including ellipses in the most inappropriate places better call the court and other counsel immediately and send over their oldest silver-hairs to personally apologize to the Judge.

This is how used car dealers would practice law.


Needless to say, my faith in K.C. Johnson was, as always, well placed.


"You can't hide the truth behind stupid." -- Me


MOO! Gregory

Tim G said...

"Poor attorneys write poor legal briefs. They also give poor legal advice. "

It may be good lawyering to extend the proceedings to the point of boredom(delay,delay,delay). That seems to follow the Duke/Durham tactics.

Note that the lawyers from Washington did not write these briefs, so that they are not on the hook for their quality. They farmed them out to their North Carolina collegues, but I suspect they were involved with the content.

Anonymous said...

bill anderson @7:30 AM

Um, Bill, Gorelick = lawr. I change the spelling to, as Gregory suggests, stop telling the truth about them.

Jim in San Diego said...

To the 9:24 (I can only hope I can be that kind of father to my son)


You have articulated my own motivation to look up from my daily life and avidly follow an event that happened 3,000 miles from here, but affects us all.

The amazing KC Johnson gets full credit for making this possible for us.

Jim Peterson

Anonymous said...

Knew you would all appreciate this link from Quasimodo at LS:

It's President Brodhead reading the role of Satan in Paradise Lost at a 400th birthday party for John Milton.


One Spook said...

Jim in San Diego writes @ 11:53 AM:

"To the 9:24 (I can only hope I can be that kind of father to my son)


You have articulated my own motivation to look up from my daily life and avidly follow an event that happened 3,000 miles from here, but affects us all."

Double Amen. And, I might add that protecting your sons and daughters needs to begin at an early age.

Due to the untimely death of my wife from breast cancer at age 40, I was thrust into a role in child raising for which I had not planned. My son and daughter were 8 and 6, respectively.

When my son was in Middle School, he was ordered by an administrator to turn a T-shirt he was wearing inside out, so that the logo “26 Red” would not show. He was told to not wear any clothing with that logo again or he would be sent home. This was in the mid-90s when such “gear” such as Mossimo and Stussy were the rage among teens and pre-teens.

I was pretty upset when I heard this, given the fact that I had just spent over 80 dollars on ‘26 Red’ clothing for him. At almost the same time, his middle school newspaper ran an article that reported on the school’s “prohibited clothing policy.” According to the article, banned items included clothing with alcohol ads, drug references, and the article stated, “… and ’26 Red’ because we all know what that means.”

I knew my son was prone to “pushing the limits” so I asked him why he would insist that I buy such items knowing he’d get in trouble for wearing them. He told me that ’26 Red’ had nothing to do with alcohol or drugs, but that the rumor at his school was that it meant LSD.

I called the president of the clothing company in Southern California that marketed this brand and asked him about it. He assured me that the logo had nothing to do with any drug reference and explained to me that he had gotten a similar call from a school principal in Texas inquiring if the logo was actually a brand of condoms.

At the time, I was president of the board of directors for a local youth services agency for poor and underprivileged children. Our agency often had dealings with a teen drug prevention program run by one of our hospitals. I called their director to inquire about ’26 Red.’ He explained to me that he had a list of 144 slang terms for various drugs and it did not contain any reference to ’26 Red,’ nor had he ever even heard of it.

I then called the school administrator and very courteously explained my findings. She was taken aback and very curtly demanded to know the name and phone number of the drug prevention program agency head. I gave her the information.

To her credit, she called me back, said she had confirmed my findings, and that my son would be allowed to wear the ’26 Red” gear at school. She did not thank me or apologize. I then politely suggested that perhaps this was a good learning opportunity for children and that an article should be written for the student newspaper that discussed the dangers of believing rumors without first seeking confirmation. She did not reply, but no such retraction or article ever appeared.

Many months ago, KC pointed us to a quote from a 2003 Herald-Sun interview with Maurice Wallace, professor of African American Literature at Duke.

“I have a responsibility to all of my students—every single one of them—to disabuse them of all of the national, racial, middle-class, gender and sexual myths they've been taught to comfort or flatter themselves and, of course, the people who, perhaps unknowingly, miseducated them.”

We need to illuminate and confront these types of dangers in the academy. Speak up folks --- protect your children; support organizations like F. I. R. E. To use a common phrase from my college days in the mid to late 60s, QUESTION AUTHORITY!

One Spook

Debrah said...

Just getting caught up tonight and checking a few websites, I had to bring this one here.

If this doesn't show how insane the city of Durham is and how knee-jerk silly some of these "civil rights" organizations are, what will?

Those goofy, and no doubt, ill-educated DPD officers who were accused of making questionable remarks on a Facebook web page have been investigated endlessly and look what the results are.

Such trivia that time and money have been wasted on.

Officer disciplined in Facebook slur probe

From staff reports : The Herald-Sun

Dec 13, 2008

DURHAM -- A Durham police officer has been disciplined for conduct unbecoming an officer, stemming from an investigation into claims of racial slurs made by police officers on social Internet sites, and the probe is continuing.

An internal investigation was launched Nov. 7 against three officers who allegedly made offensive comments on their Facebook pages. One was cleared and the investigation continues into the third officer's actions.

"The officer has apologized for any perceived harm he inadvertently caused the department and the community," a police statement said of the unidentified officer who was given unspecified discipline.

"The officer has cooperated completely with our investigation and made his Facebook page available to the department throughout the investigation. He has since taken down the Web page," Police Chief Jose Lopez said.

"We take very seriously any activity by a police officer that has the potential to create a weakening of public confidence in this organization, and that is why we felt it was necessary to thoroughly investigate these allegations and take action where necessary," he said.

As a result of this case, the Police Department will provide training to its officers about the ramifications of inappropriate Internet usage as it relates to the department's code of conduct.

After the probe began, investigators from the Police Department's Internal Affairs Unit quickly cleared one unidentified officer of any wrongdoing. An investigation was initiated against a second unidentified officer and is currently ongoing. However, to date, claims against that officer are unsubstantiated.

The remaining inquiry refuted claims that the third officer made any racial slurs. The investigators did sustain the following violations of departmental rules and regulations: Conduct Unbecoming Police Department Personnel, Responsibility to Respect the Rights of Others and Use of Discriminatory Jokes and Slurs.

The officer granted permission to share pertinent facts about his case to address previously published information about the allegations.

The investigation started after another officer complained about statements on the officer's Facebook page. The statements included "[the officer] is preparing for his 2nd dan" and "[the officer] realizes that this is what we get for passing the 14th Amendment."

The investigation revealed that the officer meant to refer to the 19th Amendment, not the 14th, because he was teasing his fiancé in response to a comment she had made about voting procedures prior to the election. He subsequently corrected the error about the Amendment number on his Web page. [The 14th Amendment refers to equal protection under the law for all persons and the 19th Amendment gives women the right to vote].

Several officers told investigators they believed that the term "dan" was a racial slur, but further investigation proved that "dan" actually is a martial arts term used to describe a degree of proficiency. Investigators verified that the officer did have a first-degree dan in martial arts and was preparing to be tested for his second-degree dan, which he recently obtained.

The investigation also indicated that none of the comments in question were made on a city computer or while the officer was on duty. However, according to Lopez, the officer did identify himself as a Durham police officer on his Web page, and therefore his actions are subject to the Police Department's rules and regulations.

Debrah said...

Stuart has a riveting column in National Journal.

Seems New Haven, Connecticut suffers from the Durham disease.

Anonymous said...

12/12 One Spook:

I have followed your comments with interest over the past 2 years. But I just need to say that this one in particular elicits much admiration. Your children are fortunate to have had a father with the right priorities...
Just like the LAX Fathers, who are determined to leave no stone unturned in the clearing of their sons' reputations, and whose tenacity is so very inspiring.

Anonymous said...

Here's Durham's reply brief, a Motion for Partial Summary Judgement

"For all of Plaintiffs’ exuberance at uncovering a dropped comma in a quotation in
the City’s Brief, they have failed to raise a genuine dispute of material fact. Summary
judgment should therefore be granted for the City on all state-law tort claims."

Anonymous said...

Where is Johnson on this?

Dishonest, blithering idiot he is.

CIVIL ACTION NO. 1:07-CV-00739

For all of Plaintiffs' exuberance at uncovering a dropped comma in a quotation in the City's Brief, they have failed to raise a genuine dispute of material fact. Summary judgment should therefore be granted for the City on all state-law tort claims.

I. The Governmental Immunity Endorsement Preserves the City's Immunity.

The plain language of the ICOP policies' Governmental Immunity Endorsement bars all state tort claims alleged in Plaintiffs' Complaint. (1) In Patrick v. Wake County Department of Human Services, 655 S.E.2d 920 (N.C. Ct. App. 2008), the North Carolina Court of Appeals interpreted the exact same endorsement in the ICOP policies, found it to be plain and unambiguous, and granted summary judgment to the defendant on governmental immunity. Patrick, 655 S.E.2d at 924. (2) Plaintiffs urge this Court to ignore Patrick on the ground that the plaintiffs there did not have the temerity to make the same arguments that Plaintiffs make here. Opp. 17. But that is no reason to ignore a decision of the highest North Carolina court addressing the exact language at issue here. (3)

In any event, Plaintiffs' reading of the endorsement is utterly illogical. The relevant sentence of the endorsement reads:

Subject to this Policy and the Limits of Liability shown on the Declarations, this policy provides coverage only for occurrences or wrongful acts for which the defense of governmental immunity is clearly not applicable . . .

ICOP 2005-06 Policy, End. No. 9 (Doc. # 79-2); ICOP 2006-07 Policy, End. No. 10. (Doc. # 79-3). Plaintiffs claim that the "subject to" language somehow limits the endorsement's retention of immunity to those wrongful acts not enumerated in the policy and those claim amounts outside the limits of liability. Opp. 14-15. But Plaintiffs plainly misread the endorsement. The "subject to" language simply means that for those "occurrences or wrongful acts" for which coverage is available - i.e., acts for which governmental immunity "is clearly not applicable" - the extent of that coverage is subject to the terms of the policy and the Limits of Liability. The "subject to" phrase does not address acts for which the defense of governmental immunity is applicable. It certainly does not render the rest of the endorsement a nullity, as Plaintiffs would have it.

Moreover, Plaintiffs' argument that the endorsement is "subservient" to the other terms of the policy is exactly backwards. An endorsement to an insurance policy, by its very nature, amends the scope of coverage available under the policy. Indeed, "It is well established that if the language of an endorsement conflicts with language found in the general provisions of an insurance policy, the language found in the endorsement will prevail." White v. Illinois Founders Ins. Co., 52 S.W.3d 597, 598 (Mo. Ct. App. 2001). (4)

Plaintiffs also argue that if the endorsement were intended to preserve governmental immunity for state tort claims, there would be no reason for the policy to refer to such torts in the definition of "wrongful acts." Opp. 15. But Plaintiffs again misunderstand the nature of insurance policies and endorsements. Insurance policies are purposely written broadly to cover a wide variety of insureds. Endorsements are then added for individual insureds to customize the policy to the insured's requirements. Thus, some insureds might want insurance coverage for various state tort claims, or might not be protected by governmental immunity. These insureds would want the basic ICOP policy without the governmental immunity endorsement. A different insured-such as the City here-would want to preserve its governmental immunity for state-law claims, and so would want the governmental immunity endorsement added to the policy. When that endorsement is added, the effect is clearly to narrow the scope of coverage so that the policy does not cover state torts for which governmental immunity is available. (5)

II. None of the City's Policies Provides Coverage for State-Law Tort Claims - With or Without the "Missing" Comma.

Plaintiffs trumpet a single typographical error in the City's brief as though it were fatal to the City's argument. Specifically, Plaintiffs argue that a comma left out of a quotation from the ICOP policies "reverse(s) the meaning" of Section I.A.2 of the policies. Opp. 8. (Plaintiffs acknowledge that the City accurately quoted the Everest policy provision, which includes the comma. Opp. 8 n.4.) But Plaintiffs ignore the logical conclusion of their own argument. Plaintiffs contend that the words "legally obligated to pay" do not modify "retained limit" because of the presence of a comma after "limit"; instead, they assert, "legally obligated to pay" modifies "ultimate net loss." Opp. 8-9. Thus, according to Plaintiffs' own argument, the ICOP and Everest policies provide coverage only for the ultimate net loss that the City is legally obligated to pay. But, for the reasons stated by this Court in Pettiford, the City can never be legally obligated to pay on claims for which it has immunity. Accordingly, even under Plaintiffs' own argument, the insurance coverage for the ultimate net loss on state law claims can never be triggered under these policies. (6)

Plaintiffs also argue that the fact that defense costs erode the City's retained limit distinguishes this case from Pettiford. Opp. 9-10. In fact, though, the policy in Pettiford also provided that defense costs would erode the city's retained limit. See DeLorenze Aff., Ex.1, at Endorsement 5. Yet this did not affect this Court's analysis. Rather, the key to that decision was that insurance coverage was not triggered under the policy unless the city had a "legal obligation" to pay damages. And since the city had no obligation to pay either the amount of the retained limit or the ultimate net loss on state law claims because of the existence of governmental immunity, coverage was not triggered. Pettiford, 556 F. Supp. 2d at 529 (noting that the policies in Pettiford and Magana both "disclaim any right of indemnification until (1) the damages exceed a self-insured retention amount . . .; (2) the insured has a legal obligation to pay those damages; and (3) the insured actually pays those damages to the claimant"). {7}

Plaintiffs next cite several North Carolina cases for the proposition that immunity may be waived despite the existence of a retained limit. Opp. 10-11. But the City does not argue that immunity may never be waived if the insurance policy contains a retained limit. The question depends entirely on whether coverage is triggered under the terms of the specific policy at issue. Here, the City's coverage is not triggered because the policies condition coverage on the City's legal obligation to pay damages, and the City has no such legal obligation as a result of its governmental immunity.

It is on precisely this ground that this Court in Pettiford distinguished the main case relied on by Plaintiffs, Kephart ex rel. Tutwiler v. Pendergraph, 507 S.E.2d 915 (N.C. Ct. App. 1998). See Opp. 12. In Kephart, the policy provided coverage "'when damages together with 'claim expenses' exceed the Self Insured Retention' . . . regardless of whether the County is required to pay out SIR funds . . . ." Id. at 921 (citation omitted). In Pettiford, however, the insurance coverage was not triggered "unless and until the City has a legal obligation to pay." 556 F. Supp. 2d at 529. For this reason, this Court in Pettiford found that the city had not waived its immunity. The City's policy here is similar to the one in Pettiford. This Court thus should reach the same result. {8}

III. This Case is Ripe for Summary Judgment on the State-Law Claims.

Plaintiffs argue (Opp. 18-20) that summary judgment would be premature before discovery. But "the meaning of language used in an insurance contract is a question of law for the Court . . . ." Daniel v. City of Morganton, 479 S.E.2d 263, 267 (N.C. Ct. App. 1997) (granting summary judgment on ground that school board did not waive defense of government immunity by purchasing insurance) (citations omitted). Accordingly, no discovery is necessary for this Court to interpret the City's insurance policies and determine whether the City has waived its governmental immunity. {9}

Plaintiffs appear to suggest that the City might be hiding some other form of insurance. But the City's insurance coverage is a matter of public record, as are all documents related to the City's transaction of public business. See N.C. Gen. Stat. § 132-1(a). Moreover, the City's Risk Manager, Darwin Laws, has attested to the scope of insurance coverage potentially available to the City in this case. See Laws Aff. Plaintiffs have not pointed to any City Council Resolutions that presently waive immunity in circumstances applicable here. The "Resolution to Adopt a Policy to Waive Governmental Immunity in Limited Circumstances" and the related "Resolution to Establish a Fund Reserve to Pay Claims Where Governmental Immunity Has Been Waived" cited by Plaintiffs (Opp. 19; Evans Exs. H-I) were both repealed on June 18, 2007. See McAdoo Affidavit & Ex. 1 thereto. {10} In any event, neither resolution would have waived the City's immunity from Plaintiffs' claims because the types of damages at issue in this case were expressly not covered. See Evans Ex. H, ¶¶ 2 & 5.

Finally, delaying resolution of the immunity issue until after discovery would defeat one of the principal purposes of governmental immunity, which is to protect governmental entities not only from the cost of civil judgments, but also from the burden and distraction of discovery and trial. See Smith v. Phillips, 451 S.E.2d 309, 311 (N.C. Ct. App. 1994) ("To force a defendant to proceed with a trial from which he should be immune would vitiate the doctrine of sovereign immunity.") (citation omitted); see also Fares v. I.N.S., 29 F.Supp.2d 259 (W.D.N.C.1998) (denying plaintiffs' request for discovery on qualified immunity in order to "prevent subjecting those individuals to unnecessary and burdensome discovery or trial proceedings").

IV. Conclusion.
For all of the reasons discussed herein and in the City's Motion for Partial
Summary Judgment (Governmental Immunity), summary judgment should be granted for the City on Plaintiffs' state-law claims.

This the 12th day of December, 2008.




1 A second insurer, Everest, provided liability coverage to the City only for the last 11 days before the North Carolina Attorney General's office dismissed the charges against the Plaintiffs. The Plaintiffs do not argue in their Opposition Brief that any allegedly tortious activity relating to the City of Durham occurred during those 11 days.

2 Courts have repeatedly read similar insurance policy provisions as preserving governmental immunity. See, e.g., Magana v. Charlotte-Mecklenburg Bd. Of Educ., 645 S.E.2d 91, 93 (N.C. Ct. App. 2007) (citation omitted) (finding no waiver by school board and noting policy "specifically stated that it was 'not intended by the insured to waive its governmental immunity'"); Van Orsdall v. City of Des Moines, 711 N.W.2d 732 (Iowa Ct. App.) (mem.), available at 2006 WL 126436, at *3 ("The insurance policy . . . insures the City for any tortious action that is not subject to an immunity defense . . .. Thus, by its own terms the insurance policy did not waive the City's . . . immunities.") (citations and footnote omitted); Doucette v. City of Lewiston, 697 A.2d 1292, 1295 (Me. 1997) (citation omitted) ("by stating that coverage 'shall not be deemed a waiver of any immunities . . . available under [state statutory law], judicial precedent, or common law,' the City has preserved its immunity from suit.").

3 Massasoit v. Carter, 439 F. Supp. 2d 463, 470 (M.D.N.C. 2006) ("The rulings of intermediate appellate state courts are strongly persuasive authority that will not be disregarded.") (citation omitted).

4 Plaintiffs argue (Opp. 14) that the application of governmental immunity should be strictly construed against a municipality in "close cases," relying on Koontz v. City of Winston-Salem, 186 S.E.2d 897, 908 (N.C. 1972). But Koontz involved an entirely different issue not contested here: whether the municipality was acting in a governmental or proprietary function. Koontz does not speak to the question of how courts should interpret endorsements in relation to the rest of an insurance policy. Moreover, North Carolina courts have consistently held "'waiver of sovereign immunity may not be lightly inferred.'" Patrick, 655 S.E.2d at 923 (citation omitted) (alteration in original). Similarly, Plaintiffs' quotation (Opp. 14) from Kephart ex rel. Tutwiler v. Pendergraph, 507 S.E.2d 915, 919 (N.C. Ct. App. 1998), that "'[e]xclusions from and exceptions to undertakings by the [insurance] company are not favored'" is irrelevant. The language here is unambiguous. Moreover, Kephart went on to say that "the various clauses are to be harmoniously construed, if possible, and every provision given effect." Id. Yet Plaintiffs would give the endorsement no effect at all.

5 Plaintiffs also contend that an expression of intent not to waive immunity, taken alone, is inadequate to preserve immunity. See Opp. 15-16. But this is a red herring. The endorsement here does not merely state the City's intent not to waive immunity. It also expressly limits the scope of coverage to make clear that the policy does not cover claims for which governmental immunity is available. Such language was absent from the policies in the cases relied on by Plaintiffs, Pettiford v. City of Greensboro, 556 F. Supp. 2d 512, 527 (M.D.N.C. 2008), and Petho v. Wakeman, 583 S.E.2d 427 (N.C. Ct. App. 2003) (mem.), available at 2003 WL 21791608, at *4, review denied, 357 N.C. 579, 589 S.E.2d 128 (2003), making those decisions wholly inapposite.

6 Notably, the policy in Pettiford contained no commas in the applicable provision, which stated the city would be indemnified for "'ultimate net loss in excess of the retained limit which the Insured becomes legally obligated to pay.'" Pettiford, 556 F. Supp. 2d at 528 (citation omitted). With no comma following "ultimate net loss" or "retained limit," it is ambiguous whether "legally obligated to pay" modifies "ultimate net loss" or "retained limit." Although the better reading of that provision is that "legally obligated to pay" modifies "ultimate net loss," the issue is irrelevant. In either case, the coverage would not have been triggered since the City of Greensboro had no legal obligation to pay either the ultimate net loss or the retained limit as a result of its governmental immunity.

7 That one of the City's insurers has begun to pay defense costs is irrelevant. An insurer's duty to defend is triggered solely by the four corners of the complaint. "The [North Carolina] Supreme Court has established that if review of the pleadings in an underlying action gives rise even to 'a mere possibility' that the insured's potential liability is covered by the insurance policy, then the carrier has a duty to defend." Crandell v. Am. Home Assurance Co., 644 S.E.2d 604, 605 (N.C. Ct. App. 2007) (citation omitted) review denied 361 N.C. 691, 654 S.E.2d 250 (2007); see also St. Paul Fire & Marine Ins. Co. v. Vigilant Ins. Co., 724 F. Supp. 1173, 1176 (M.D.N.C. 1989), aff'd, 919 F.2d 235 (4th Cir. 1990). This duty is triggered even where a portion of the alleged claims would not be covered by the policy, or where the allegations supporting the covered claims turn out to be untrue. See State Auto Prop. & Cas. Ins. Co. v. Travelers Indem. Co., 343 F.3d 249, 255 (4th Cir. 2003) ("[W]here a complaint alleges multiple claims and injuries, some of which are covered and some of which are not, an insurer is obligated to defend its insured against all claims made in the lawsuit."). In contrast, an insurer's duty to indemnify is limited to claims actually covered by the policy. See, e.g., Wake Stone Corp. v. Aetna Cas. & Sur. Co., 995 F. Supp. 612, 615 (E.D.N.C. 1998); Stanback v. Westchester Fire Ins. Co., 314 S.E.2d 775, 778 (N.C. Ct. App. 1984). Defense costs, by their very nature, do not constitute amounts that an insured is "legally obligated to pay," as they are not claims, judgments or settlements.

8 Plaintiffs' argument that "the North Carolina courts have consistently held that summary judgment is 'not proper where plaintiff may receive an award in excess of a City's immunity'" (Opp. 11 (citation omitted)) is misleading. The cases Plaintiffs cite stand for the unremarkable proposition that a court should not grant complete summary judgment for a city defendant if the city's immunity does not extend to all claims or amounts of damages claimed by Plaintiffs. But the City here is seeking partial summary judgment, limited to the state law claims, on the ground that plaintiffs cannot recover anyamount on those claims because the City has not waived its immunity for such claims at all. Plaintiffs' cases are therefore irrelevant. The positions asserted by the City in Jones v. City of Durham with respect to different insurance policies are equally irrelevant. See Opp. 12. As the City explained in Jones, its immunity is waived only to the extent insurance coverage applies. The key question, therefore, is whether insurance coverage in fact applies. Here, insurance coverage is not triggered because the City cannot legally be obligated to pay damages, as explained in text.

9 Plaintiffs cited selected excerpts from briefs, deposition transcripts, e-mail correspondence and affidavits from prior unrelated disputes in an effort to color how this Court interprets the policies at issue here. See Opp. 19. But where an insurance contract is plain and unambiguous, courts do not permit a review of extrinsic evidence to interpret it. See Metric Constructors, Inc. v. Industrial Risk Insurers, 401 S.E.2d 126 (N.C. Ct. App. 1991), aff'd, 330 N.C. 439, 410 S.E.2d 392 (1991). Prior positions and statements by the City in unrelated cases involving different policies are also entirely irrelevant.

10 As Exhibit 1 to McAdoo's Affidavit makes clear, the repeal of these resolutions was effective immediately and applied "to all claims pending on that date as well as claims that arise thereafter." See McAdoo Aff., Ex. 1, ¶¶ 8-9.

Anonymous said...

Paid by the hour, right?

Anonymous said...

"Women NEVER lie about rape..."

One Spook said...

Anon on 12/14 @ 12:52 AM writes:

"Your children are fortunate to have had a father with the right priorities...
Just like the LAX Fathers, who are determined to leave no stone unturned in the clearing of their sons' reputations, and whose tenacity is so very inspiring."

I truly appreciate your comment, but I didn't mean to even imply that my efforts on behalf of my children rises anywhere near the level of what the LAX parents had to do, or what they endured.

I cannot imagine how they must have felt when their sons were facing a loss of their freedom for a crime that never happened.

What I intended with my example was to remind all of us as parents that we must be ever vigilant of abuses of authority and to take action when we see it.

Prior to the lacrosse hoax, it was a well-known fact among Duke students that there was (and may continue to be) a separate standard of law enforcement applicable to Duke students.

Prior to the lacrosse hoax, it was a known fact among Duke students that certain professors at Duke harbored prejudices against athletes in general and lacrosse players, specifically. It was also a matter of record that some of these same professors saw their task as educators as inculcating students with very warped and dangerous ideology.

Students knew who these miscreants were and in many cases, avoided taking classes from professors for whom "activism" and ideology trump any reasonable definition of a liberal education. Students and professorial colleagues have for too long played along and humored these rogue educators much as one might tolerate a known “funny uncle” at a family reunion. The acceptance of “faux scholarship” has to stop.

To me, what KC Johnson has illuminated in his outstanding and tireless coverage of this incident is that we as parents and citizens need to speak up when we see a justice system and an academy that is deeply flawed and ignores the rights of students. Sadly, these deep flaws remain, and we must engage those flaws and eradicate them before they inevitably rise to a more dangerous level, as in the lacrosse hoax.

One Spook

Anonymous said...

One Spook:

You comments of 12/15 at 6:22 are so correct. Even if one pays a price for speaking up, then one still must do so. I have always maintained that this is the great lesson that anyone born after the Holocaust should have learned - that silence when evil occurs is as bad, if not worse than the evil itself. The failure still today of those within the Duke community and Durham who have not had the decency nor the moral fiber to stand up and apologize and to admit they were wrong allows the miscarriage of justice that occurred to continue. I believe that is why there are so many of us from all over this country who have followed this affair so closely and have been so passionate on the subject of justice for RCD and their families, the Presslers, and the other lacrosse players.


Anonymous said...

"Where is Johnson on this?

Since I am a dishonest, blithering idiot, he is needed to make sense of this for me."

Fixed your typo for you, 9:51.