Transcript:
Hey guys, how you doing? This is joseph out here. I am a civil litigation attorney in ST louis Missouri and I’ve been a long time Youtube fan um and I really like these videos where there are professionals that are reacting to things that have happened. So I thought I was, I would come and try to make a similar video to post on my firm’s Youtube just reacting to some recent litigation cases and kind of how they’re impacting the environment for civil litigation in Missouri. Um So this will be the first one and and let me know how you like it and please like comment and subscribe below. Um So uh in Missouri we have a fact pleading jurisdiction. So this is a little bit different than federal courts and the majority of states where in your pleadings you can raise um in those, those courts basically issues by inference. And and so you can have facts in your petition and the facts can give rise to certain inferences. And those inferences are not foreclosed from being the subject of uh dis positive emotions. Either motions to dismiss or motions for summary judgment. Um So in Missouri, when you file a motion for summary judgment, cognizant of this fact pleading jurisdiction and rule, the motions for summary judgment must necessarily flow from the pleadings. Um and also from the the discovery. Um now in very recently there was this case called green versus footing ham. Um and this case has kind of been heralded by the defense lawyers where it’s uh too high um for too high um um and this case has kind of been heralded by the defense lawyers in um you know, certainly some of the emotions that I’ve had with judges as being very strong defense oriented opinion, because what it does is it restricts the ability of the court to consider evidence that does not uh that was not injected into motion for summary judgment by one of the numbered paragraphs. Um so basically you file your motion for summary judgment, you have to include with your statement of uncontroverted material facts. And then the responding party is the defending party, as it’s called in. The rules is given the ability to respond to those and also to add additional uncontroverted material facts. So basically, um these uh this this green case has been heralded by defense lawyers because it really seems to restrict the court from considering um these sort of inferences that occur as a result of facts that arise in discovery. And so basically this is important because it basically makes it more likely. Or so the defense lawyers have argued that the court will grant a motion for summary judgment because um the replies to the statements of uncontroverted material facts, um they if you’re adding additional facts, you have to make reference to um basically well established facts from the discovery, including the depositions and that sort of thing. So before the green case, it seems, or it’s been argued that it’s easier, or it was harder before the green case to get the summary judgment granted. And after correspondingly it’s easier. So now there was this recent case that just came out and I’m just gonna minimize my screen here a little bit so that we can see. Um So this case is um and why don’t I do it? Like, well, I think that that should be so I can just do me over here a little bit more so that you can see the opinion. Um So basically this case is Bowden versus american modern home insurance company and Barton Mutual Insurance Company. And so what happened in this case, and the reason that I’m I’m putting this up here is because basically this is a case that that recently came down and is applying Green to deny a motion for summary judgment. Um and it’s indicative of how the courts want us now as civil litigators to get these motions for summary judgment denied so that we can get our jury trial. And so we have uh in this case, there is a dispute that arose over a house that was destroyed in a fire um in January of 2000 or October of 2011. Um so this is a pretty old case and if we look at the the original pleadings, um you can see that it was actually filed back in 2012. Um and just now has made its way to the court of appeals. Um so basically the allegation in this case is that the defendant issued a policy of insurance on the property and the property was insured by the defendant. Insurance Company. Um And that the after the house was destroyed in the fire um that the insurance company has not paid um the amount owed for the value of the property. So the defense lawyers in this case have answered and in their answer, they raised the notion that um the policy does exist. Um but that the uh that the policy should is invalidated because the plaintiffs in this case assigned their right to receive the benefits uh owed under the policy to somebody else. So the insurance company is basically claiming that um you know, and this is obviously summarizing like, you know, more than eight years of litigation. So it’s kind of a synopsis, but basically that the insurance policy is not applicable because the policy holder did something to violate the terms of the contract um and that they assigned the benefits. So they said that somebody else would have the right to collect the proceeds of the policy. Um and that the insurance company number one wasn’t aware of this, Number two, that the policy expressly prohibits this. So the defense lawyers in this case, they did file their motion for summary judgment, which is the subject of this video. Um and the court reversed the trial court’s grant of summary judgment on the grounds that the plaintiffs in their reply to the defense memorandum for for summary judgment, and in particular in their statement of uncontroverted material facts opposing the defense lawyers motion for summary judgment um that they were able to negate one of the prima facie elements of the defense’s claim uh to write as a matter of law. Um And so I wanted to look in particular at how the lawyers did that. Um and so basically what we have here, we’re gonna take a look at the defense. Uh they’re uncontroverted material facts. So you can see here that the material facts are relatively short. There’s only 11 numbered paragraphs. Um and the defense lawyers are saying that as a matter of law, the they have a right to judgment to dismissal of the plaintiff’s case because these facts um prove that there’s no way the plaintiffs can recover. Um And so basically, the argument that they are raising here is what I was saying before, which is that Um these the assignment agreements that the assignment of the benefits to interpret or to to receive the benefits of it under the policy. So the 100 $60,000 that that invalidates their right to receive the benefits because they would have had to the plaintiffs in this case, according to the defense, they would have had to assign the insurance policy. Um And that there was no assignment of the insurance policy. So basically, the plaintiffs in this case, the defense lawyer claims that they would have had to execute a written assignment that would have been counter signed by the defense insurance company. Um and that would have basically um stated in writing that any benefits owed under the policy would have been um you know, assigned to this third party, the bank, so that the bank would receive this 160 grand. Um and so the defense lawyers are saying that as a matter of law um that uh they did not because they did not identify the insurance policy in this agreement that the bank entered into with the plaintiffs to receive the proceeds that therefore the defense is entitled to prevail as a matter of law. So now the Court of Appeals ultimately disagrees with this reasoning and they do so in a way that elucidates how plaintiffs can defeat motions for summary judgment under Green. Um and so in particular, what they’re talking about is here, the Court of Appeals goes through this um the new sort of standard way that the summary judgments will be evaluated. And basically, you know, as an aside, some have claimed that this is not the way that the core um that this is the way the courts have always evaluated it, but certainly the framework from Green is different in that the courts are really emphasizing this sort of mechanistic review of the facts as they are described in the statement of uncontroverted material facts. So the court in a very mechanical way as they seem apt to do under the under the Green Standard, um They’re looking first identifying who’s the claimant, who’s the defendant party. Um So the defendants here are the defending parties. Um And so that’s an important thing to note because basically it’s it’s not true that just because they claim that they’re entitled to summary judgment, that that makes them a claimant, it’s actually in the action that they are the defending party. Um And then we also have um that their what their claim is that the court is assessing is does their statement of uncontroverted material facts negate the plaintiffs breach of contract claim. So plaintiffs claim that the defendants owed to plaintiff under the insurance policy, the money that was assigned from the original underlying policy holder to the bank and the defendants are trying to claim. Um That that second element has been uh negated by the fact that this assignment was not um described to the insurance company contemporaneously. So the insurance company didn’t have any say in the assignment. They didn’t have any even notice that the assignment had occurred. Um And so basically the defense, the defense argument, um It relies upon this uh notion that the explicit language of the policy um as described here in their statement of uncontroverted material facts. Um That basically the note purchase agreement doesn’t contain any language referencing the insurance policy. So the court disagrees with this because what they say is that um this insurance pop this this assignment argument is fatally flawed. Um And the reason that the assignment argument is flawed is because the benefits were already owed under the insurance contract at the time the assignment occurred. So because the the court says, even if if the assignment had occurred in advance of the insurance policy being liable for the payment of the funds, then um the policy language prohibiting assignment without the insurance company’s consent, that would have worked to invalidate the purported assignment. But the Court of Appeal says that the the policy is already the right to be paid under the policy had already been in effect at the time the assignment occurred, so because the fire had already occurred, the insurance policy therefore was required to pay. Um and that the the plaintiffs therefore, they already had their right to to receive that money. And so the argument that the assignment and the prohibition on assignment contained within the policy that that invalidates this insurance company’s obligation to pay is um you know, as a matter of laws is not true. So the plaintiffs can show that the insurance company owes the money under the policy and the assignment is basically not rela. Um And so so this is an interesting argument in that it shows how the Court of Appeals is looking what they’re looking for uh in a case where you’re trying to get a grant of summary judgment reversed. And also it’s providing some instruction to the trial judges in terms of when they are not to grant the motion for summary judgment. Um And in particular, I want to take a look here. Um It does. So the Court of Appeals makes very explicit um in this footnote here um that even if the uh even if the assignment, the provisions of the assignment under the policy, even if that would work to invalidate the obligation to pay, so even if the assignment had been triggered prior to the fire, essentially, so even if the defense was able to say, well, they violated the terms of the contract, um that that still would not be able to uh would not obligate the court to grant summary judgment. And in fact, the court could not grant summary judgment even in that situation, because uh the interpretation of the note purchase agreement um and the rights accrued under the note note purchase agreement uh is something that’s in dispute. So the parties to this dispute disagree about the meaning of the insurance or of the note purchase agreement that affected the assignment of benefits for receipt of the proceeds for the the underlying property that was damaged in the fire. Um So they’re saying that because there’s a disagreement about this, that that’s a material fact that precludes summary judgment. So basically, you know, this is something that’s really important to point out in a situation where you have the defense lawyer trying to claim that this green case forecloses the plaintiff from injecting a dispute as to material fact, because they would say, well, it’s not contained in the the well numbered paragraphs, there’s no reference in in the discovery to this dispute, because it’s basically, you need to arrive at the existence of the dispute via inference, you are not able to prove affirmatively in um in in perfect clarity, that there is such a dispute. But the court here is saying that you should actually be be wary of this and that as a matter of law, there can be um you know, basically, if there is this underlying material fact dispute as to one of the required elements to prove um the defenses the defending parties claim, um then that also will foreclose the motion for summary judgment from being granted. Um And let’s take a look here just as a final matter at the way that the plaintiff’s lawyers responded to the motion of uncontroverted material facts. So, um basically, you see here, and this is uh you know, this was a well written motion for summary judgment and it didn’t have too much extraneous facts in it. Um but they did dispute some of these facts. So, um the plaintiffs are disputing that, so that basically the defense lawyers claiming that there’s no explicit assignment agreement, but the plaintiff is saying that there was an assignment agreement that was attached to um the notes in the deed of trust that transferring possession of the property? Um And that also they’re injecting these additional material facts. Um Which is that the bank, the bank of birch tree was intending to assign its interest under the policy to the plaintiffs, You know? So basically this is um they rely upon this deposition of Kathryn Bowden. So this is interesting. So we’re gonna see, let’s see exactly how how clear it is that she’s disputing this. So it’s they’re saying it’s at 19 to 25. Let me just go back here to make sure that’s the right citation. Uh page 28 15-25. So what we’re looking for is that there was a dispute as to whether or not a contained an assignment of benefits. Um So 1519- 25. So was this something that landmark requested the loans to be taken over by her mother and father as a condition of landmark purchasing the bank? Yes. Um So you know, just again, so we have um 28, page 28. Here it is. So here we go. Um So here’s here, this is the plaintiff’s key key quote here from the deposition. So we say as the President of the Bank of birch tree wasn’t your intention to have the insurance policy would be one of the loan documents that was being transferred as part of the sale? It was part of it was part of the loan. So yes. Okay. Would you would do you agree it would have been better if it had been included in schedule one. The description of the loan documents then would have been, would that have made the point clear? I’m sure it would have made it clear. Okay. So, so you see, it doesn’t have to be just abundantly clear from the deposition transcript that there is a dispute of material fact. It doesn’t have to be, you know, he doesn’t have to say does the insurance policy contain an assignment? Yes, you know, it has, it is a little bit more sort of long winded than that in terms of, you know, is there a dispute here about whether or not the policy provisions at issue contains an assignment of benefits. Um And you know basically um they do inject it in here though. Um Well enough. Uh you know, from the perspective of the Court of Appeals, but then, you know, honestly, again, more importantly, the Court of Appeals looking at this prima facie a argument. So basically just that because the policy benefits had already accrued because the fire had already occurred, that therefore the question of the assignment um you know, was basically that they can’t they can’t say prima facie a that the the assignment of benefits reduced their obligation to pay because um the obligation of pay had already occurred. So um yes, this was an interesting case and I’m glad to have taken a little bit of time to react to it because I think that there needs to be more sort of literature out there from the plaintiff’s side, basically talking about some of this um this material because basically most of the secondary stuff that you’re seeing on the internet and that type of thing is really um giving the mistaken impression that this green case creates a significantly more likelihood of motion for summary judgment. And I think that this bank of birch tree and the related opinion make it clear that that’s not the case. Um And so there we go, we’ve got a nice opinion from the court of Appeals to not or reversing a trial court that granted a motion for summary judgment under the standard announced in green. So thank you for watching this video. This is joseph out here again at the Outlaw firm. Um We do have a nationwide practice handling civil litigation claims, including personal injury claims, of course, um and workers compensation claims, but we also handle a variety of civil litigation things. Um You know, we have a breach of fiduciary cases. Um We have insurance disputes and a few intellectual property things. Uh so feel free to give us a call and I appreciate you watching. Thanks
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