ANALYSIS OF DECEMBER 1, 2022 SUPREME COURT OPINION

 

(Posted December 1, 2022) I got one right! At the time of the Supreme Court’s November session four weeks ago, I gingerly predicted that today would be the first likely date on which we might see rulings from that session. Today the court hands down a single opinion in an insurance-coverage case.

The issue in Geico Advantage Insurance v. Miles is whether an insured can “stack” the uninsured coverage and the underinsured coverage in a single policy. Miles was injured in a collision caused by two other drivers. One of the others stopped at the scene; the other took the coward’s approach and fled. He thus became John Doe.

The driver who stopped at the scene had statutory minimum coverage of $25,000 per claimant. Miles’s special damages greatly exceeded that, so she turned to two insurance policies that protected her: her own vehicle’s policy, and one owned by her brother, with whom she lived. Each had $50,000 in UM/UIM coverage. Geico affiliates issued both of these policies.

The at-fault driver’s insurer tendered its $25K policy limits. Miles sought payment from the two Geico policies, asking for $75K from her own policy and $100K from her brother’s. She reasoned that she was injured by both an uninsured driver and an underinsured driver, so both coverages applied. Allowing a credit for the original $25K, that made her claims on the Geico policies $175,000.

Geico responded that it only owed $50,000 on each of the policies. That led Miles to head to court, where she filed a declaratory-judgment suit against the insurers. The circuit court agreed with Miles and found that both policies’ UM and UIM coverage were available to her. The court declared that Geico owed her another $75,000.

Today’s opinion from the Supreme Court notes that there’s a split in the circuits on this issue. Today the court comes down on the side of the insurer, holding that UIM coverage is derivative of uninsured coverage. It then rules that you can’t stack both, even where, as here, the injuries are caused by one uninsured and one underinsured driver.

My sense is that this may be a very significant ruling in tort law, as inflation has steadily eroded the value of statutory minimums.

 


A QUICK PEEK AROUND THE LANDSCAPE

 

(Posted November 17, 2022) The Robes understandably have no opinions for us this morning – the oldest undecided merits appeal was argued just 16 days ago – so let’s survey the countryside for new developments.

 

Appellate holiday closings

The Fourth Circuit has announced that its clerk’s office will close next Thursday and Friday, November 24-25, for the Thanksgiving holiday. The Supreme Court and Court of Appeals of Virginia will lock the doors a little earlier, at noon on Wednesday the 23rd. All three courts will reopen the following Monday.

Here’s my usual addition and caveat about appellate deadlines: The closures automatically extend any deadlines that would otherwise expire during the period of closure (including November 23 in the state courts). That means that if you have a filing deadline of November 25, you automatically get an extra three days, and your new deadline is November 28. The caveat is that the automatic extension only applies to deadlines for actions in the appellate courts. If you have something to file in your local trial court – a notice of appeal, appeal bond, transcript, etc. – and that local court is open, then you don’t get the extra time and you must meet the original deadline.

 

A stinging per curiam

Yesterday a panel of the Fourth Circuit issued a published per curiam opinion. Most per curiams are fairly routine affairs; they don’t break any new ground and are usually of interest only to the immediate parties. But the court has some hot words for the lawyers in Capps v. Newmark Southern Region LLC. This is a dispute between a real-estate brokerage and one of its contractors.

While the lawsuit was about claimed breaches of contract, the real issue here is diversity jurisdiction. The case matured in district court. The court dismissed most of the independent contractor’s claims, but allowed a breach-of-contract claim, and the brokerage’s similar counterclaim, to proceed to a bench trial, in which the brokerage prevailed.

During oral argument in the Fourth two months ago, the panel asked the lawyers about the LLC’s citizenship. The court directed the company to file a statement describing its membership and citizenship. The lawyer for the company was happy to comply.

Unfortunately, that letter revealed the inconvenient truth that, through a complex set of LLC and partnership owners, at least one member of the LLC’s corporate parent – a limited partnership – shared a “home” state with the plaintiff. Federal practitioners know well that that destroys diversity, and the federal courts don’t have jurisdiction.

The order includes this short passage: “Overlapping citizenship between Capps and a limited partner of Newmark Holdings, L.P. is a purported revelation to the parties.” Uh-oh. The modifier purported in that sentence reveals a bit of judicial pique. The lawyers, this phrase implies, should have checked on this before the case blossomed and the district court expended its resources.

Given the citizenship revelation, the plaintiff moved, perhaps cheerfully, to vacate the judgment below and dismiss the case without prejudice. After all, if the district court didn’t have jurisdiction, then it didn’t have the right to dismiss most of his claims, and enter judgment on the merits of the contract claim. The brokerage sought to hold onto its judgment, asserting a couple of procedural contentions that the appellate court rejects.

The last two paragraphs of the order are worth quoting in their entirety, to show the court’s unwillingness to overlook this error and its irritation at the litigants’ failure to identify the problem early in the case:

Newmark contends that we should forgive the jurisdictional defect here in the interest of “finality, efficiency, and economy,” given that this matter proceeded to judgment. Resp. to Mot. to Vacate 14, ECF No. 71 (quoting Caterpillar Inc. v. Lewis, 519 U.S. 61, 63 (1996)). To be sure, vacatur and remand for dismissal now could burden the parties and squander judicial resources already expended. But the profound burdens on parties and the judiciary, if we were to recognize convoluted jurisdictional exceptions, would greatly outweigh the prejudice to Capps and Newmark. See Grupo, 541 U.S. at 580–81 (“[T]he policy goal of minimizing litigation over jurisdiction is thwarted whenever a new exception to the time-of-filing rule is announced . . . .”); see also id. (concluding that re-litigation is not nearly as burdensome as one might think).

Neither side of this dispute lacked the means to ascertain Newmark’s citizenship at any point. Whether mutual contentment with the federal forum or genuine obliviousness brought the parties to this unfortunate juncture, this Court will not condone the exercise of jurisdiction where it did not truly exist. Accordingly, we vacate the district court’s judgment and remand with instructions to dismiss this matter without prejudice.

 

Is there a market for this?

This morning I saw an interesting op-ed essay (subscription required) in the Wall Street Journal by a retired history professor named Wight Martindale, Jr. Entitled, “This Old Man, He Teaches History,” the essay describes the author’s experience in teaching the subject to an evolving student body that now doesn’t learn in the same way as did previous generations.

At one point in the essay, he mentions an alternative teaching approach that he calls the Harkness method. Instead of a dry lecture to a classroom arrayed like a choir, this dynamic has the students and the instructor sit at a round or oval table and hash out the subject among themselves. There’s no place for a student to hide, and the discussion becomes organic, taking its own direction.

That sounds familiar, I thought. Perhaps fifteen years ago, I hosted a few gatherings like this to discuss appellate law, calling them symposia in a hat tip to Socrates and Plato. We held them in underserved locations in the Commonwealth; one was in a meeting room at Big Meadows Lodge in Shenandoah National Park. But the idea didn’t take, and no one has, to my knowledge, hosted a similar appellate symposium in many years.

Maybe it’s time. Interest in appellate practice has expanded considerably since that early attempt, and we may find more people now interested in the subject. If so, I invite you to let me know if you’d be interested in attending such a gathering. If there’s enough demand, I’ll be happy to arrange it, perhaps rotating around the Commonwealth’s population centers. I’m certain that I can convince one or two of my pals in the appellate guild to come along and join the discussion.

My concept is a two-hour (or thereabouts) afternoon meeting/discussion, followed by a social hour. Because it will be a free-form discussion, you shouldn’t expect MCLE credit; in my humble opinion, the MCLE Board has ossified in its approach to novel teaching methods. Attendees should come prepared to participate, not merely to listen.

 

Two notes of appreciation

These notes aren’t appellate, but they’re important to me.

This morning, as I was walking my beloved collie, Ardie, I heard the sad news that Washington Post columnist Mike Gerson died early today, at the far-too-young age of just 58. Gerson was a speechwriter for the younger President Bush, and crafted some of Dubya’s most memorable lines.

I got to meet Gerson 3½ years ago, when he appeared at a Law Day event sponsored by the Virginia Beach Bar Association. He gave an address in the Sandler Center, and I was assigned to be his Sherpa through the evening. That meant that I met him at his hotel, walked with him to the pre-event reception, escorted him to the Sandler’s green room, then to the wings of the stage when it was time for him to speak. Afterward we enjoyed an hour of conversation over a belated dinner at a local restaurant.

My initial impression of the man was that he was shy; surprisingly so for a man who had walked the halls of power in our government. He spoke softly, even during his speech, and was self-effacing. At dinner, he was just Mike and I was Steve; we chatted about his plans for an upcoming book, a project that excited him greatly. From what I could tell, he never did get around to finishing it, though perhaps time will prove me wrong; plenty of books have been published posthumously.

Mike Gerson had a terrific mind and a terrific pen, as this essay in The Atlantic describes. Agree with him or not, you had to respect his writing. And generations of students of American speeches will hear the wonderful words that he gave to President Bush, and thus to a grieving nation, in the wake of the 2001 terrorist attacks.

I have, since this morning, noted the painful irony of the fact that I learned of Mike’s death while I was walking Ardie. Just four months ago, on the Fourth of July, the Post had published his essay entitled, “Why I Will Never Live Without a Dog Again.” In it, he noted that he had recently endured the passing of a beloved dog, Latte, who had helped him through depression and cancer. After seeing his pain from losing Latte, his wife bought him a new “Havanese fuzzball” whom he named Jack. The joy that that new puppy brought to him answered the question he had posed earlier in the essay: “Why do we take new dogs into our lives, knowing we will be decimated by their deaths?”

At some point today – or maybe another day; I’m not sure if I can bring myself to do it just yet – I’ll take the sad step that I always dread when someone I know passes away. It’s a painful form of goodbye: I’ll open my cell phone, call up my contacts, and delete a phone number that I’ll never call again.

*   *   *

I’ll also mark another life here: This week would have marked the 89th birthday of my first boss and my early-career mentor, Judge Marc Jacobson of Norfolk, who died four years ago. I attended the funeral along with a host of far more exalted mourners, including the mayor of Norfolk. In life, he was an incredible philanthropist and a true civic asset. Among a host of other accomplishments, he donated immense sums to arts programs in Tidewater and served as rector of the Board of Visitors at Old Dominion University here.

I’ll put it bluntly: I owe him exactly one career. Whatever I’ve achieved as a lawyer, I can trace to his guidance, his example, his good judgment. In the years during which I worked with him, I never heard him raise his voice in anger; I often heard him raise it in laughter. I’ve tried to model my own demeanor on that. And to this day, I believe that my esteem in the legal community, whatever level it may be, is higher merely because people knew that I was his protégé.

He rests now in Forest Lawn Cemetery, in the northern reaches of Norfolk. After posting this essay, I plan to travel there, pay him a visit, and leave a stone in honor of his memory.

 


UPDATE ON RECENT EVENTS

 

(Posted November 1, 2022) Despite last week’s surprise, I’m fairly confident that we won’t be seeing any opinions this week from the Supreme Court of Virginia. It’s time for a look around the Virginia appellate world.

 

November session

The justices convened this morning for the beginning of the final court session of 2022. The docket contains 14 appeals spread over four days. I noticed two familiar sets of names: Sasson v. Shenhar and Isle of Wight County v. International Paper return to Ninth and Franklin after previous SCV decisions involving the same parties. Sasson is an oldie: The Supreme Court announced its previous decision fourteen years ago yesterday. It involved the fugitive-disentitlement doctrine in a child-custody case. Today’s appeal may or may not be about the same child, but based on my review of the 2008 opinion, I see that he’s now 20 years old, so it may well be about something else.

International Paper, a machinery-and-tools-tax challenge, is far more recent; The Robes remanded the case two years ago for retrial on one aspect of the case. That second trial evidently didn’t go well for the county, because it’s now on the appellant’s side of the “v.”

 

First appeal-of-right opinion

Today the Court of Appeals of Virginia issues an opinion for the first time (as far as I can tell) in a civil case filed at Eighth and Franklin under the new appeal-of-right regime. Patel v. Rabinowitz is a debtor-creditor appeal that involves a subpoena from out of Virginia. This tells me that the timeline from notice of appeal to CAV decision is likely to be something on the order of ten months. I’ll let my pal John Koehler have the first crack at analyzing the opinion.

John, by the way, has found a new legal home in The Law Office of James Steele, out in Roanoke. I wish my brother success there, and I look forward to his resuming his entertaining and insightful essays on CAV decisions.

 

Appellate diversity

Multiple appellate-bar organizations to which I belong have lamented recently the fact that our congregations are overwhelmingly monochromatic. There are, sadly, few minorities among the appellate bar here in the Commonwealth. That bar is mostly (maybe 2/3) male and overwhelmingly white. This phenomenon isn’t restricted to Virginia; even nationwide organizations of appellate advocates number precious few minority members.

Yesterday the Washington Post published a front-page article that describes a similar phenomenon among the SCOTUS bar. The article is long, but I eagerly read the whole thing, hoping for insight into ways we, in my bar associations, can address the problem.

The article mentions a group in Washington calling itself The Appellate Project. A remarkable lawyer named Juvaria Khan spearheads it; its goal is to inspire more lawyers of color to consider appellate practice as a career focus. Ms. Khan spoke at the 2021 Virginia Appellate Summit and described the group’s work. She indicates that one strategy is to start early, reaching out to law students to explain the opportunity in the appellate world.

None of this will be a quick fix, but I’m hoping earnestly that she, and my bar associations, can make headway against what I see as an embarrassing problem. A big part of the challenge is convincing minority lawyers even to consider this field. To quote Yogi Berra, when asked about declining baseball attendance, “If people don’t want to come out to the ballpark, how are you gonna stop ‘em?”

 

A non-appellate note

Today is the first day in many years in which my pal Jim McCauley isn’t heading up the State Bar’s ethics lawyers. Jim called it a career yesterday after a long stretch at the post. His knowledge of legal ethics is encyclopedic; you could ask him a question on any ethics topic and within moments, he’d call up the number of the most relevant Legal Ethics Opinion. I’ll miss our conversations, in large part because, like me, he loves to laugh.