Tuesday, January 20, 2009
Insurer: Duke’s “allegations … knowingly unfounded, malicious, frivolous, and in bad faith.”
Yesterday KC Johnson posted "Duke's $5M Defense?" which began:
National Union, the insurance company sued by Duke, has filed its response — and the brief makes for interesting reading.
It sure does, as you know if you’ve already read the rest of KC’s post.
If you haven’t, don’t miss it.
After reading National Union’s response (h/t to KC for providing link)I want to add a few comments to what KC says.
First, in the response in which Plaintiffs are Duke University (“Duke”) and Duke University Health System, Inc. (“DUHS”) and National Union is the Defendant, you’ll find on pg. 37:
FIFTH COUNTERCLAIM FOR RELIEF
65. The allegations contained in Paragraphs I through 64 of this Counterclaim are realleged and incorporated herein by reference.
66. Plaintiffs' allegations in the Complaint that Defendant's conduct violated N.C.G.S. § 75-1.1 et seq, and constituted violations of the provisions N.C.G.S. §§ 58-63-10 and 58-63-15, are knowingly unfounded, malicious, frivolous, and in bad faith. (emphasis added)
67. Defendant is entitled to recover its costs and its reasonable attorneys fees expended in this action pursuant to the provisions of N.e.G.S. § 75-16.1.
National Union (NU) could not have used stronger, more damning language to describe Duke and DUHS than calling their actions “knowingly unfounded, malicious, frivolous, and in bad faith.”
Charging Duke and DUHS with making “knowingly unfounded” claims is, to take one instance, the same as saying they lied to NU.
NU would not have used the language it did unless it had a great deal of data to support its charges and was confident it could convince the court Duke and DUHS acted in ways that will confirm its charges.
Second, KC notes:
[In a letter dated March 30, 2006] Duke elected to forward to [National Union] “all that is publicly known about the situation at this time.”
But the University knew that at least some of this “publicly known” information—most notably, the claim that the lacrosse players hadn’t cooperated with police, and instead had erected a “wall of silence”—was false.
It’s not clear why Duke would have chosen to pass along information that University officials knew was false, even if that information had appeared in the local and national press.
I’ll venture an opinion as to “why Duke would’ve chosen to pass along information that University officials knew was false, even if that information had appeared in the local and national press.”
Here’s what NU says in its response (bot. pg. 25, top pg. 26):
7. On March 30, 2006 Duke mailed a letter with attached articles to National Union (“the March 30, 2006 letter”). A true copy of the articles attached by Duke to the March 30, 2006 letter is attached hereto as Exhibit A. The March 30, 2006 letter references the 2006 Policy and states as follows:
Please accept this letter and attached documentation as notification of an incident only as required by the policy conditions under the referenced policy. No claim has been made against Duke at this time. Rather than repeat the alleged circumstances, I have attached a number of newspaper articles that summarize all thas is publicly known about the situation at this time.
What the March 30, 2006 Duke and DUHS letter did was use the dodge of “Rather than repeat the alleged circumstances” to avoid telling NU anything they knew about the case that hadn’t yet been reported publicly.
For example, what Duke learned and very likely agreed to on March 29, 2006, at a meeting Duke VP Aaron Graves and DUPD Director Robert Dean attended the previous day with the Durham City Manager, DPD’s Police Chief and Deputy Police Chief, a DPD Attorney, and the two principal DPD investigating officers, Sgt. Gottlieb and Inv. Himan.
I’m sure many of you can think of much else Duke knew March 30, 2006 which wasn’t then public knowledge.
No wonder NU is convinced Duke treated it in ways “knowingly unfounded, malicious, frivolous, and in bad faith.”
Liestoppers has posted on the NU response and included links to it.
Both Liestoppers Meeting here and KC’s post thread have interesting comments concerning NU and Duke. I hope you give them a look.
The Durham Herald Sun's Ray Gronberg reports on the NU response here.
I couldn't find anything about the NU response story in either the Raleigh N&O's print edition or online site; nor could I find anything about it at The Chronicle's site.
From tthe all the reports coming in,Duke doesn't have a leg to stand on.They can well end up paying the Lacrosse team out of their own pckets.