American Family v. Sharp (5/31/12)

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Justice Pelander answers this certified question in 16 pages, which for him is admirable, and much-appreciated-by-bloggers, brevity. The answer is also correct, though we’re not sure that the reasoning doesn’t raise as many questions as it answers.

Sharp was injured while a passenger on her husband’s motorcycle. They had separate AmFam policies, he on his motorcycle and she on her car. She recovered his liability limits then claimed UIM from her own policy. The policies said in effect that the spouse of a named policyholder, where the couple had multiple AmFam policies, could chose from either but not both. AmFam filed a declaratory action in federal court, which certified a long-winded question asking whether 20-259.01H applies (“If multiple policies or coverages purchased by one insured on different vehicles apply to an accident or claim, the insurer may limit the coverage so that only one policy or coverage, selected by the insured, shall be applicable to any one accident.”)

The court says that “The [statutes’] text alone does not resolve the parties’ dispute.” We don’t entirely understand that since the statute speaks of multiple policies purchased by one insured, not multiple policies purchased by multiple insureds.  According to a footnote on the last page, the parties fought about whether she was “one insured” but the court doesn’t address that issue because it has already decided the case despite it. So what does “one insured” really mean, if not “one insured?” Guess that will have to be answered down the line.

Anyway, the court looks to “legislature’s intent, considering the statute’s context, effects and consequences, and spirit and purpose.” After a brief analysis it concludes that “the phrase “multiple policies or coverages” applies when an insured obtains coverages for several vehicles and then attempts to claim multiple UIM coverages for the same accident.” In other words, the court focuses the controversy not on the “one insured” language but on the “one policy or coverage language,” holding that it applies only to UIM coverage, so that a liability claim against one policy doesn’t bar a UIM claim against the other.

(link to opinion)

Cardoso v. Soldo (CA1 5/29/12)

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This otherwise-insignificant domestic dispute raises questions about mootness and, more importantly, about the role of the courts.

Soldo obtained an order of protection against Cardoso, his ex. Cardoso moved to dismiss it but the Superior Court (which heard the matter because there was also an ongoing child-support dispute) denied her motion. She appealed.

By the time the Court of Appeals considered her case a year had elapsed so the order had expired. The court admitted that the usual exceptions to mootness – capable of repetition yet evading review and issue of great public importance – don’t apply here. But it holds that expired orders of protection can be reviewed under the “collateral consequences” exception. That’s a criminal doctrine (even if the defendant has been released you review his conviction because it could affect his right to vote, etc.) that some courts in other states have agreed – and others have disagreed – can apply to orders of protection. The court says that an order of protection is something a trial court can consider in issuing another order of protection and in connection with a custody dispute; it does not explain why a party can’t just point out to the court that an appeal was filed but never heard on its merits. The court also says that orders of protection are sent to a central repository; how reversing an order on appeal would remove it from the depository, though, is unclear. Finally, the Court of Appeals tells us that an order of protection harms one’s reputation. But how does this distinguish it from many of the cases courts call moot? Is there now a “reputation” exception to mootness?

There are, we agree, reasonable arguments to be made in the court’s favor. What particularly bothers us about this opinion is that nobody made them. Both parties were pro se. Soldo didn’t file a brief. Cardoso’s made amateurish arguments on the merits that the court deals with almost summarily (it affirms the order of protection against her; she would have been better off with a dismissal for mootness); we can’t believe that it contained a mootness analysis. So, the court has published an opinion (without the mootness holding this would be a minor memo) for the sole purpose of announcing new law on an issue that was never briefed.

We have noted before that the Court of Appeals doesn’t always pay too much attention to the adversary system. It must be easier to write opinions when you’re not resolving parties’ conflicting arguments but instead just making things up in your own head. In the normal course the court should have called for supplemental briefs (assuming that both sides’ lawyers missed the mootness issue). Did it think of doing so here? Did it not do so because the parties were unrepresented? If so, how is it a good thing to announce that the court will fill in the gaps in pro se arguments, and even use them as excuses to make law of the court’s own desire?

(link to opinion)

Metzler v. BCI Coca Cola Bottling (CA2 5/11/12)

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An interesting little case on pre-judgment interest under Rule 68.

Metzler won a jury verdict in excess of an Offer of Judgment she had made. Per Rule 68, the trial court ordered pre-judgment interest from the date of the offer to the date of the judgment. The court then, on BCI’s motion, ordered a new trial, on liability only, but this was reversed on appeal and the case remanded for the entry of judgment. On remand, the following question arose: does the pre-judgment interest run until the date of the original judgment or until the date of the judgment after remand? Until the original judgment, ruled the trial court; Metzler appealed.

The Court of Appeals reverses. The order granting a new trial vacated the original judgment. The trial court had thought it still a valid judgment because BCI had purported to appeal from it; Technically, though, the appeal from an order for new trial, the court indicates, is from that order itself, not from the judgment; that is why 12-2101 makes a new trial order appealable. The court says that this conclusion is also consistent with the Rule’s purpose of encouraging settlement.

The court vacates the judgment, remands for the entry of another new one, and points out that pre-judgment interest will run until that one is entered. This apparently means that the new interest statute will apply, so this might be a Pyrrhic victory.

(link to opinion)