South Carolina Supreme Court Provides Guidance On Reserving Rights

Today, we here at Abnormal Use take a brief hiatus from the realm of product liability todiscuss a recent decision from the South Carolina Supreme Court which will significantly impact insurers doing business in the state. The case, Harleysville Group Ins. v. Heritage Communities, Inc., et al., No. 2013-001281 (S.C. Jan. 11, 2017), is  a lengthy decision addressesing, for the first time in South Carolina, the content of reservation of rights letters. While the opinion also discusses the time on risk allocation for damages awarded under a general verdict and coverage for punitive damages, it is the discourse on reservation of rights letters that needs closer scrutiny.

As with most significant South Carolina insurance coverage matters in recent times, Harleysville arises out of two construction defect lawsuits. A little background is necessary. The underlying lawsuits involved the construction of two condominium developments constructed between 1997 and 2000. After construction was complete and the units were sold, the purchasers became aware of certain construction deficiencies and filed suit against Heritage Communities (and several subsidiary companies), the entities who developed and constructed the developments.

During the period of construction, the Heritage entities were insured under CGL and excess liability policies issued by Harleysville. Heritage was uninsured after its last policy lapsed in 2001. After receiving notice of the lawsuits, Harleysville agreed to defend the Heritage entities under a reservation of rights. According to the Court, Harleysville’s reservation of rights consisted of “generic states of potential non-coverage” coupled with a cut-and-paste of most of the Harleysville policy language. Nonetheless, Harleysville continued to provide a defense to the Heritage entities through trial. In each case, the jury returned a general verdict in favor of the plaintiffs, awarding both actual and punitive damages. Thereafter, Harleysville filed a declaratory judgment action seeking a declaration that it had no duty to indemnify Heritage for the verdicts. In the alternative, Harleysville sought an allocation of which portion of the juries’ verdicts constituted covered damages and whether those portions were subject to a time on risk allocation.

The declaratory judgment action was referred to a Special Referee. After staying the matter pending the South Carolina Supreme Court’s decision in Crossmann, 717 S.E.2d 589 (2011), the Special Referee determined that Harleysville failed to properly reserve its rights to contest coverage. As such, he found that coverage was triggered under the Harleysville policies because the general verdicts included some covered damages. While the Special Referee presumed that the verdict included certain non-covered damages (e.g. the repair/replacement of faulty workmanship), he determined it would be improper and speculative to allocate the general verdicts. As such, he ordered that the entirety of the actual damages was covered under the Harleysville policies, subject to Harleysville’s time-on-risk. In addition, the Special Referee held that the punitive damages were also covered under the policies. The parties subsequently filed cross-appeals.

The Court began its analysis with a review of Harleysville’s reservation of rights letters. The letters, sent in 2003 and 2004, explained that Harleysville would provide a defense, identified the insured entities and the lawsuit, summarized the allegations, and identified the policy periods for the policies. In addition, the letters contained 9-10 pages of policy provisions, including the insuring agreement, exclusions, and definitions. However, the letters contained no discussion of the various provisions or explanation of why Harleysville was relying on them. Except for the claim for punitive damages, the letters did not specify the particular grounds upon which Harleysville disputed coverage. Finally, the letters advised the insureds of potential uninsured exposure and recommended that the insureds consider retaining personal counsel. Also of note to the Court, the letters did not advise the insureds of the need for an allocation of damages between covered and non-covered losses, nor did they reference any potential conflicts of interest or notify the insureds of Harleysville’s intent to pursue a declaratory judgment action.

The Court affirmed the Special Referee’s finding that Harleysville properly reserved its rights as to punitive damages but failed to properly reserve rights to contest coverage for the general verdict. In doing so, the Court noted that a reservation of rights must provide the insured with sufficient information to understand the reasons the insurer believes the policy may not provide coverage. A generic denial of coverage with a verbatim recitation of all or most of the policy provisions is not sufficient. Instead, the insurer must alert the insured to the potential that coverage may be inapplicable; that conflicts may exist between the insurer and the insured; and that the insured should take steps necessary to protect its potentially uninsured interests.

Having found that Harleysville’s reservation was not sufficient, the Court, relying primarily on case law from other jurisdictions, engaged in a lengthy discourse of the requirements of a proper reservation. Significantly, the Court stated that:

  • A reservation must be unambiguous. (citing World Harvest Church, Inc. v. GuideOne Mut. Ins. Co., 695 S.E.2d 6 (Ga. 2010)).
  • Prior to undertaking the defense, the insurer must specify in detail any and all bases upon which it might contest coverage. (citing Desert Ridge Resort LLC v. Occidental Fire & Cas. Co. of N.C., 141 F.Supp.3d 962 (D.Ariz. 2015)).
  • A reservation of rights letter must give fair notice to the insured that the insurer intends to assert defenses to coverage or to pursue a declaratory judgment at a later date. (citing United Nat’l Ins. Co. v. Waterfront N.Y. Realty Corp., 948 F.Supp. 263 (S.D.N.Y. 1996)).
  • Because an insurer has the right to control the litigation, an insurer has a duty to inform the insured of the need for an allocated verdict as to covered and non-covered damages. (citing Remodeling Dimensions, Inc. v. Integrity Mut. Ins. Co., 819 N.W.2d 602 (Minn. 2012); Magnum Foods, Inc. v. Cont’l Cas. Co., 36 F.3d 1491 (10th 1994)).

The Court placed significant emphasis on the fact that an insurer has the right to control the defense and, thus, must keep the insured informed of all potential coverage issues to avoid prejudice. In the Court’s view, one of the primary deficits in the Harleysville reservation of rights letters was the lack of notice to the insured of the need for an allocated verdict as between covered and uncovered claims. Unfortunately, the Court does not expressly state who has the burden of actually seeking the allocation. Some of the language in the opinion seems to place the burden on the insured: “…in no way did the letters inform . . . [the insureds] that they should protect their interests by requesting an appropriate verdict.”  Other language, however, seems to place the burden on the insurer: “. . . an insurer typically has the right to control the litigation and is in the best position to see to it that the damages are allocated . . .” If the burden does, in fact, rest with the insurer, this decision should provide strong ammunition in support of an insurer’s  motion to intervene — which, in the past, South Carolina courts have generally disfavored. 

 Based on Harleysville, insurers must exercise special care when issuing reservation of rights letters.  At a minimum, reservation of rights letters should provide unambiguous notice to the insured of the following:

  • the specific issues raised in the underlying litigation or claim giving rise to the coverage dispute, including the particular grounds upon which coverage;
  • any potential conflicts of interest between the insurer and insured;
  • the intent to pursue a declaratory judgment, if applicable, in the event of an adverse jury verdict; and
  • the need to obtain a written explanation of the jury award that identifies the claims or theories of recovery actually proved and the portions of the award attributable to

Failing to provide a sufficiently specific reservation of rights may result in the insurer being precluded from disputing coverage.  With regard to covered and non-covered claims, because the Court has not expressly stated who has the burden of seeking an allocation/clarification from the jury, it is probably more prudent for insurers to take affirmative steps to protect their coverage position absent further guidance from the Court.

(Hat Tip: Jennifer Johnsen).

New Suit Alleges Popeyes Served Up Flesh Eating Screwworms

According to a report from the NY Daily News, Texas woman Karen Goode has filed suit against Popeyes Louisiana Kitchen, alleging that the fast food chain served her a helping of flesh-eating worms. Specifically, Goode alleges that some rice and beans she ordered from a San Antonio location were invaded by Cochcliomyia hominivorax, otherwise known as “New World screwworms.” Of course, Goode unknowingly ingested the worms, and then:

The flesh eating screwworms entered the Plaintiff’s digestive track, laid eggs which embedded in the interior lining of Plaintiff’s small intestines, and when hatched, infested Plaintiff’s body and began to eat Plaintiff alive from inside-out.

In addition to being consumed by flesh-eating worms, Goode also alleges that she injured her neck, shoulders, and arms. She seeks damages in excess of $1 million.

We here at Abnormal Use often write of fast food-related lawsuits. This is the first involving flesh eating screwworms. Nonetheless, the questions are the same. First, assuming the allegations have merit, how did New World screwworms get into the rice? The United States was thought to be free from New World screwworms by the early 1980’s. However, recently, there have been reports of a screwworm outbreak affecting deer in South Florida. However, to our knowledge, human exposure has been rare in recent years.

Second, how did Goode not realize her rice was infested with screwworms? New World screwworms are approximately 8-10 mm in length. While admittedly a bowl of rice can be deceptive when it comes to spotting larvae, the thought of mistaking a grain of Popeyes rice for a screwwworm is troubling. Probably not something Popeyes wants to put in its next advertisement.

But the biggest question facing any food contamination case of this type is how does Goode know that she encountered the screwworm at Popeyes and not something else she ate/came in contact with? Goode’s complaint does not state exactly when she discovered the screwworms, so it is unknown at this point whether Goode actually observed the worms in the rice at any point. If not, Goode may face an uphill battle. Presumably, if Popeyes had an issue, the screwworms would not have been confined to Goode’s meal and this would not be an isolated event. For the love of San Antonio, let’s hope that is the case.

McDonald’s Hit With Value Meal Pricing Suit

We here at Abnormal Use have discussed many McDonald’s lawsuits over the years. Most of those suits involved hot coffee spills and often led to heated discussions over a producer’s liability for serving products in the manner nature intended. While those discussions were certainly interesting for us legal nerds, none were necessarily as critical to the fabric of our society as the most recent suit filed against the fast food giant. As reported by the Chicago Tribune, a new suit, which seeks class action status, has been filed against McDonald’s alleging that the company has committed fraud and deceptive trade practices through the pricing of its Extra Value Meals. Specifically, Plaintiff Kelly Killeen alleges that she purchased a Sausage Burrito Extra Value Meal at a downtown Chicago McDonald’s. Killeen paid $5.08 for her meal. However, a review of the menu revealed that had Kielleen purchased the meal (comprised of two burritos, hash browns and a medium coffee) a la carte, the meal would have cost $4.97. And, Killeen is none too pleased with being deprived of 11 cents, apparently.

Killeen’s suit follows a similar lawsuit filed in December alleging that 10 Illinois McDonald’s overprice the Two Cheeseburger Extra Value Meal by about 50 cents. That suit also seeks class action status.

While it may not have been discussed on the campaign trail, value meal pricing is a real issue for those of us that actually pay attention. From fast food restaurants to concessions at movie theaters and sporting events, the “value” of a pre-grouped meal is often minimal, if not non-existent. Whether it is fraud or just good sales psychology, we will leave that question for the jury. Regardless, it remains an issue we should all be conscious of as consumers. With that said, don’t count on us to join the class. Even though we loathe value meal pricing, we routinely order value meals. The reason – it is easy and convenient regardless of whether it makes economic sense. Ever try to order from a drive-thru for a bunch of kids in the backseat? The goal is just to make it through. In that situation, ordering by number will always outweigh the economic benefit of a la carte. So, McDonald’s, yes, you can keep our 11 cents.

As Predicted, Distracted Driving Lawsuits Come Full Circle

Last year, we discussed a lawsuit filed in Georgia against Snapchat for allegedly causing a motor vehicle accident in which the at-fault motorist was distracted while using the social media application. In discussing the liability of product manufacturers in suits like this one, we offered the following concerns:

[W]e must disclose that our initial reaction to hearing of the suit was to cry foul and lament the future slippery slope of holding manufacturers liable for the poor decisions of users while operating a motor vehicle. After all, if Snapchat can be liable for allegedly distracting a driver who uses the app while driving, can cell phone manufacturers or service providers be sued for a driver’s decision to text and drive? What a perilous world we would live in right?

As we expected, those words would deem prophetic.

Recently, a lawsuit was filed in California against Apple because a Texas man was using FaceTime on his iPhone 6 Plus while driving when he rear-ended a vehicle in December 2014 and killed a 5-year old girl. The driver admitted using FaceTime and later found himself indicted by a grand jury on a manslaughter charge.  As for Apple’s responsibility, the family alleges that the company “failed to install and implement the safer, alternative design . . . to ‘lock out’ the ability of drivers to utilize the ‘FaceTime’ application on the Apple iPhone while driving a motor vehicle.” Moreover, Apple allegedly “failed to warn its users that its product was likely to be dangerous when used or misused in a reasonably foreseeable manner.”

In full disclosure, the company apparently applied for a patent for the “lock-out” technology in 2008 and had the patent issued in December 2014 (Ed. Note – It is uncertain whether the patent was issued before or after the December 2014 accident date, whether Apple actually developed the technology, and, if so, whether it could have been implemented prior to the accident). Nonetheless, our question is should it matter?  As we questioned last year in regard to the Snapchat lawsuit:

Even if the accident is foreseeable, isn’t a lawsuit such as this one akin to the much ballyhooed suits against gun manufacturers? The app and filter are legal and non-defective. We are not aware of any evidence that it is marketed as a “break the speed limit” filter. The choice to travel in excess of 100 mph ultimately falls on McGee, an able-bodied adult who knew or should have known of the dangers.

Now, we can replace “speed filter” with “FaceTime,” and the question still remains – who is really responsible for a distracted driving accident?

Holiday Lawn Decorations: Family Fun or Lawsuit Fodder?

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Every December, we  decorate our house in traditional garb – a wreath on the front door and some garland around the mailbox. Simple, not over-the top. With small children, however, conservative decorations equates to no decorations at all. The children would much prefer a Griswold-esque display, including thousands of lights and giant inflatables.

In the past, I have been hesitant to give in to their demands. This year, however, I decided to compromise. I purchased a projector that uses lasers to cover the house in thousands of colored, chasing lights. The kids love it and the installation required almost no effort on my part and doesn’t litter my house with strings of light cables. Call it a win-win. But not unexpectedly, the addition of the projector opened the door to new demands – giant inflatables, music, laser light shows. After all, once you have broken the seal of tacky Christmas decorations, why not just go all the way?

As much as I really want to generate enough electricity through my lawn decorations to power a small village, the risk aversion developed through the practice of law is holding me back. It is not just the risk of fire from the overloaded power circuits that gives me pause. It is the neighbors, the HOA’s, or the city itself – the people who actually have to experience all the “joy” my lawn display has to offer. For example, consider Plantation, Florida residents Mark and Kathy Hyatt, who have been putting over 200,000 lights in their yard and on their house every year since 1990. They were sued by the City of Plantation back in 2014 for allegedly creating a public nuisance and safety hazard. (The Hyatts ultimately prevailed in the suit). Or, West Palm Beach resident Miriam Galan who was recently sued by some neighbors not too pleased with her light display complete with a dancing and singing Santa. As much as I want 10′ inflatable Santa, I just don’t know if I am willing to fight for it in a court of law.

Risk aversion aside, this time of year is meant to be fun and festive. Assuming decorations don’t violate any covenants and restrictions, why not just let the month of December be a time to let loose? Throw those lights up. Run up that power bill. Let’s have some fun. Admittedly, I, too, would’t be my happiest self when flashing lights and a singing Santa start interfering with my sleep. But, I can certainly cope for a month. And, I certainly wouldn’t make a holiday lawsuit out of it.

Virgin Australia Hit With New Coffee Lawsuit: No, This Isn’t Like Stella Liebeck

According to a report from Travel & Leisure, Virgin Australia has found itself on the wrong side of the newest hot coffee lawsuit. The suit, filed in Victoria, Australia, apparently arises out of an incident involving 16-year old Rhett Butler (not of Gone With the Wind fame) while on a Virgin flight from Los Angeles to Sydney in May 2015. Shortly after take-off on the 15-hour flight, Butler’s cup of coffee allegedly fell from his tray table onto his lap, causing burns to his thighs, groin, genitals, and midriff. The flight crew allegedly did not have enough bandages to treat the wounds, so the Butler family was “forced” to use their own. Moreover, the suit alleges that the flight crew only had two ice packs and stopped supplying Butler with water bottles to ensure they had enough for the first class passengers. According to the report, Virgin Australia has confirmed that the incident occurred but offered no further comment.

As is often the case, we assume that many media reports on this incident may jump to inapt comparisons to the infamous Stella Liebeck case. From what little we know about this case, it appears that the two are apples and oranges. What made the Liebeck case so very intriguing from a legal perspective was that Liebeck sought to and was successful in holding McDonald’s liable for serving an “unreasonably dangerous product.” In other words, the jury found McDonald’s liable for serving coffee that it deemed too hot (something about which we’ve written a time or two).  Here, at least according to the information contained in the reports, Butler seeks to hold Virgin Australia liable, not due to the temperature of the coffee, but due to the conditions that caused the spill.  Specifically, Butler alleges that the airplane’s tray table lacked a recess to hold a cup and was defective and pointing down towards the passenger.

We here at Abnormal Use are interested to see how this one plays out. Regardless of the future outcome, we hereby grant the suit a reprieve from our typical criticism of prior hot coffee litigation. And, that’s a good thing. Even for us, there are only so many times we can say, “coffee is meant to be served hot.”

The Case of the Cancelled Wedding Engagement Ring: Where Property Law and Soap Operas Collide

According to a recent report from the New York Post, New Yorker Bradley Moss has filed suit in the Manhattan Supreme Court seeking the recovery of a $125,000 engagement ring he gave to his ex-fiancee, Amy Bzura. The plan was for Moss and Bzura to wed back on October 29th, but the wedding was apparently called off at the last minute. No word as to the reason for ending the nuptials. Regardless, Moss is now seeking the return of the ring or its cash value plus interest as well as punitive damages. Lawsuits arising out of the predicament of the cancelled wedding engagement ring are nothing new. For reasons unknown, we here at Abnormal Use find them fascinating. Perhaps it is because they way these cases are often decided is the perfect blend of property law, soap opera, and reality television. In other words, the engagement ring cases are most-suitable for an episode of “Judge Judy.”

At common law, an engagement ring was considered a conditional gift given on the promise to marry. If the marriage did not occur, then the condition was not fulfilled and, thus, the ring shall be returned to the donor. This remains the law in many jurisdictions, including New York (but with a couple of exceptions). Other jurisdictions, however, have added a new twist to the conditional gift paradigm – fault. In other words, while an engagement ring is considered a conditional gift, a donor cannot recover the ring if he/she was at-fault for ending the engagement. Bring on the soap operas and reality TV.

We can understand the equity behind the introduction of fault to the analysis. However, the fault determination creates a couple significant issues. What is “fault” for ending a relationship, anyway? It isn’t always that clear from a legal sense. For example, what if two people are engaged to be married and one of the people gets a little too intoxicated at a bar one night and has a moment of infidelity. The cheater still wants to get married, but the other finds out about the affair and calls off the wedding. Is the cheater at fault or is it the other who said, “I don’t want to marry you?” If you think the answer is clear, remove the cheating aspect of the hypothetical and replace it with any other complaint. See how this might be a problem?

The question we have to ask ourselves is should juries really be deciding who is to blame for ending a relationship? More importantly, is this really something a jury wants to decide? Sure, it may be more entertaining than your average contract dispute, but, in our opinion, deciding who is to blame for ending a relationship is often an impossible task. After all, if one’s own peers can’t decide, what makes us think a jury of them wants to anyways?

A Reality TV Competition For Lawyers: Yes, It Has Happened Before

Recently, we here at Abnormal Use have become big fans of the reality show “Ink Master.” The show pits tattoo artists from across the country against each other to compete for a cash prize, and, in the current season, a guest spot at tattoo shops owned by the show’s judges, Chris Nunez and Oliver Peck. The show is currently in its 8th season, and it has been a huge success story from Spike’s channel lineup.

The success of a show about tattoo artists got us thinking. Why can’t we have a reality show with lawyers? Maybe one where they compete for a job at a big law firm in some big city. Well, guess what? There was, in fact, a reality show for lawyers competing for a “big time” legal job. But, unfortunately, a show about lawyers was not as entertaining to the masses as artists comparing their cover-ups of lower back tattoos.

The lawyer reality show, “The Partner,” aired on Fox way, way back in 2004. The show apparently lasted only one season, and there are few remnants of its existence on the Google search engine. (We here at Abnormal Use, as avid reality television fans, can recall watching the show, and as such, we can vouch for its existence). Reality TV World described the show as follows:

[T]he hour-long show, based on an idea by FOX reality programming executive Mike Darnell, will be eight to ten episodes in length and, similar to NBC’s The Apprentice, feature two competing teams. Unlike Apprentice however, rather than be divided by gender, the composition of the teams will be determined by the prestige of the contestants’ law schools — with Ivy Leaguers forming one team and graduates of “less prestigious” schools forming the other.

In each episode, the contestants conducted a mock trial of sorts in front of a jury. The jury determined the winning team, and the losing team had to face a judge who, in turn, would eliminate one of the attorneys from the competition. This process repeated each week until one contestant was left standing. According to the Reality TV World report, the winner was rewarded with a “position as a ‘partner’ in a major law firm.”

We must admit, the concept of the show sounds entertaining at the very least. (The show pre-dated this writer’s law life, and due to that small fact, it didn’t quite present the same intrigue at the time). While becoming a partner may be a bit much, in many ways, the competition isn’t too bad of an idea for hiring purposes. Certainly, observing lawyers in a courtroom (albeit a fake one) could be a more practical evaluator of an applicant’s potential to practice law than a law school transcript and a resume.  And, if the show is anything like every other reality show, you can probably discover who the jerks are as well so there is no fear of getting fooled during an interview.

On the other hand, “The Partner” is no more “real” than any other reality show. Even for trial lawyers, practicing law is so much more than stepping into a courtroom. We imagine the lawyer contestants of “The Partner” didn’t have any discovery or brief writing competitions. We doubt they were given the opportunity to earn immunity for the next elimination challenge if they could  be the first to find a case on Westlaw from the 1920s’ setting forth the elements of “assumpsit.” After all, who other than us legal nerds would have watched that, anyways?

The $20 Million Bucket of Chicken

According to reports, a New York woman, Anna Wurtzburger, has filed suit against Kentucky Fried Chicken in which she seeks $20 million from the fast food chicken giant. If you are like us, you must be thinking that if Wurtzburger is seeking enough money to buy a French chateau, she must have been severely injured by some atrocious KFC conduct. Well, not exactly. In fact, Wutzburger hasn’t been “injured” at all. KFC’s atrocious conduct? Allegedly skimping on a bucket of chicken.

Wutzburger purchased a $20 “Fill-Up” bucket of chicken from a KFC in Hopewell Junction, New York. When she got home, she opened up the bucket and discovered it was only filled about half way. A half-filled bucket stunned Wutzburger because she was expecting “an overflowing bucket of chicken” as shown in KFC advertisements (depicted below).

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Wutzburger then contacted KFC to discuss the dispute wherein KFC explained that the chicken was depicted as overflowing the bucket in the advertisement so that viewers could see the product. Wutzburger wasn’t buying it. She alleges that KFC was “intentionally misleading and deceiving the public when it advertised an overflowing bucket of chicken on television but knew that they would only sell 8 pieces of chicken to the public.” KFC has denied the allegations. In a statement to Fortune, a KFC spokesperson stated:

The guest received exactly what she requested. She purchased an eight-piece bucket of chicken and she indeed received eight pieces of chicken.  Our menus and advertising clearly show our $20 Fill Up meal includes eight pieces of chicken.

To be fair, Wutzburger claims the pieces were small.

We here at Abnormal Use certainly understand Wutzburger’s frustration. Commercials and print media always seem to depict food in its best possible light when, in reality, it always comes out looking somewhat less than ideal. Nonetheless, even assuming this is a matter of false and misleading advertising, what are the real damages? Wutzburger paid for 8 pieces of chicken and received 8 pieces of chicken. She voiced her frustration to KFC, and they offered her a coupon as a means of reimbursing her for the chicken. But, that was apparently not enough.

Truth be told, Wutzburger has probably lost her case before it even began. She violated the Pig Chicken Rule. By demanding $20 million in her complaint, she has damaged her credibility and tarnished the views of people who otherwise may have had some empathy for her claim (including us).

Turning Lawyer Life Into Home Life

As attorneys, it is often difficult to explain to young children what we do for a living. I have two children, ages 7 and 4, who have no conception of what I do on a daily basis. They know that I go to work, that I have an office, and that my job title is that of a “lawyer.”  But, that is about it. There is just no way to explain lawyer life to a small child that doesn’t leave him/her looking completely bored. Being a lawyer can just never be as exciting to a child as a firefighter, a teacher, a dump truck driver, or an Avenger. Or can it?

Recently, my 4-year old son came into my bedroom with my 7-year old daughter trailing not far behind. My son told me that his sister hit him on the back, and, of course, my daughter denied the allegations, stating that it was an accident. In turn, my son denied that the conduct was anything but intentional. In trying to siphon through the dispute, it dawned on me that I had the perfect opportunity to show my kids what a lawyer does. We decided to have a trial.

Before doing so, we conducted a “pretrial conference” with myself presiding as judge. I explained to my son that he had the burden of proof as he was accusing my daughter of battery, an intentional tort. As such, he would need to prove that his sister intended to commit the act, that there was contact, and that the contact caused him harm. We then discussed evidence and the different means my son could use to prove his case. In turn, I explained to my daughter that she would have the opportunity to cross-examine the plaintiff’s witnesses and to put up her own case if she chose to do so. It appearing that they understood the procedure, I set the case for trial 10 minutes after our pretrial conference (we have a rocket docket in our house).

When the trial began, the parties decided to waive opening statements as we were proceeding non-jury and the judge had already been thoroughly briefed on the case. My son, appearing pro se, called himself as his first witness. He was very direct in his testimony, stating emphatically that his sister hit him. Unfortunately, that was his only testimony. As such, the judge (me), exercising the powers of the bench, decided to question my son directly. Regardless of the question, my son gave the same response, “Because [my daughter] hit me.” Well, consistency does have its merit in the courtroom.

Thereafter, my daughter took her turn at cross-examination. She asked one simple question, “I didn’t hit you, did I?” Her technique lacked the sort of set-up and back the witness into a corner method I usually prefer, but, despite my son’s denial, she made her point. I guess.

My son, perhaps feeling strongly about the weight of his own testimony, decided not to call any more witnesses. I was a little disappointed because it was rumored that Optimus Prime, a potential witness to this accident if you can believe it, was slated to be the plaintiff’s star witness. Perhaps, in choosing to keep him off of the witness stand, my son knew that Optimus was susceptible to “more than meets the eye” questioning on cross-examination. But, this is only speculation.

For my daughter’s case, she, too, called herself as her sole witness. She testified that she was walking through the living room and accidentally stepped on Optimus Prime, who had been left by my son in the middle of the floor. In doing so, my daughter stumbled, fell into my son, and accidentally elbowed him in the back. After making contact with his back, my daughter apologized, but my son immediately began making his false accusations.

The testimony was very telling and really left the judge wishing he would have had the opportunity to hear Optimus’ testimony. Certainly, my son would have a plan on cross-examination. Boy, did he ever. Just as my daughter had done with him previously, my son grilled her with one question statement, “You hit me.” Her response was well thought out:  “No.  I fell into you after stepping on your toy.  You didn’t witness anything because you were facing away towards the TV watching ‘Paw Patrol.'” No more questions.

Thereafter, I gave my son the opportunity to call any rebuttal witness (still hoping to hear from Optimus), but he declined. Each party then had the opportunity for closing arguments which consisted of a mere recitation of their own testimony. When the arguments were completed, perhaps because he was over-confident or because he simply no longer cared about the outcome, my son took the unprecedented approach of leaving the courtroom. In any event, the decision was clear. In considering all of the evidence before me, I found that the plaintiff did not carry his burden of proof and, thus, I found in favor of my daughter.

The result is still pending post-trial motions.

While I am not certain the trial necessarily had the desired outcome of showing my kids what I do for a living, it certainly gave our house a new means of deciding disputes and cut down on the occurrence of tattle telling.  After all, Optimus’ eyes are always open and ready to crack the next big case.