MAY IT PLEASE THE COURT. MY NAME IS DAVID SHELTON. I REPRESENT ALLSTATE INSURANCE COMPANY. IN THIS CASE, THERE ARE A NUMBER OF QUESTIONS AS TO WHETHER INSURANCE COVERAGE EXISTS UNDER A PERSONAL UMBRELLA POLICY THAT WAS ISSUED TO DR. GINSBERG. ACCORDING TO THE COMPLAINTS THAT WERE FILED AGAINST DR. GINSBERG, HE WAS THE PRESIDENT OF SEVERAL CORPORATION AT WHICH MRS. GARFIELD WORKED WITH PAY FOR A NUMBER OF YEARS.
AS FAR AS PROCEDURAL POSTURE, THERE WAS SOMETHING THAT REFLECTED THAT THE ACTUAL CASE BELOW OR THE CASE IN THE TRIAL COURT, THE STATE COURT'S EXISTENCE, WAS DISMISSED ON STATUTE OF LIMITATIONS GROUNDS?
I BELIEVE THAT IS CORRECT. AS IT CURRENTLY STANDS, ALL OF THE CASES AGAINST MR. BEGINS ABOUT AGAINST MR. GINSBERG NO LONGER EXIST FORc THOSE GROUNDS.
DOES THAT NOT MOOT ISSUE HERE?
NO, YOUR HONOR. THE ONLY ISSUE THAT WAS LITIGATED IN OUR CASE WAS WHETHER WE HAD A DUTY TO DEFEND.
SO THIS WOULD BE AT ISSUE AS TO WHETHER THERE WOULD BE REIMBURSEMENT OF DEFENSE COSTS?
THAT'S CORRECT. THERE IS A QUESTION AS TO WHETHER WE SHOULD BE REIMBURSED FOR THE DEFENSE COSTS THAT HAVE BEEN INCURRED.
YOU ARE SAYING THIS IS A DUTY OF DEFENSE QUESTION NOT A COVERAGE QUESTION?
THAT'S CORRECT. THE DUTY TO DEFEND WAS LIMITED. THAT IS WHY WE ARE ONLY HERE ON THE TWO ALLEGATIONS AND COUNTS MADE AGAINST DR. GINSBERG. THERE ARE NO FACTUAL FINDINGS TO BE MADE HERE. CORK -- ACCORDING TO THOSE ALLEGATIONS, DR. GINSBERG MADE SEXUAL OVERTURES TO MRS. SCARFO. THEY ARE NOT SPECIFICALLY OUTLINED IN THE COMPLAINT. IN ADDITION, HIS SEXUAL CONDUCT IS OUTLINED VERY SPECIFICALLY AND VERY GRAPHICALLY IN THE COMPLAINT. THE FEDERAL DISTRICT COURT ONLY ISSUED ONE RULING. THAT WAS THAT THERE WAS NO COVERAGE, NO DUTY TO DEFEND, BECAUSE THE PRIVACY, THE PERSONAL INJURY COVERAGE WAS NOT TRIGGERED IN THIS CASE, BECAUSE THE ALLEGATIONS OF THE SPECIFIC CONDUCT THAT WAS ALLEGED DID NOT CONSTITUTE AN INVASION OF THE RIGHT OF PRIVACY.
COULD I ASK YOU A QUESTION ON. THAT DO YOU SEE THAT WE ARE LIMITED TO THE ADDRESSING, UNDER THE COVERAGE, WHEN WE PAY, AND THE LANGUAGE THAT IS IN THE POLICY THAT WE CAN ONLY LOOK TO INVASION OF THE RIGHTS OF PRIVACY, THE HEADING, OR WHAT THIS WAS CALLED, RATHER THAN THE ACTUAL CONDUCT? WHAT IS YOUR POSITION OR VIEW ON THAT? BECAUSE WE ARE -- WE HAVE GOT AN ISSUE THAT TALKS IN TERMS OF PRIVACY, BUT IT SEEMS TO ME THAT THERE MAY BE SOME OTHER THINGS WITHIN WHAT IS COVERED THAT WE DON'T CALL THEM PRIVACY, THAT THERE MAY BE SOMETHING THERE THAT MAY BECOME OPERATIVE. SO WHAT IS YOUR VIEW ON THAT? CAN WE LOOK AT THAT?
WELL, SPECIFICALLY WITH RESPECT TO THE DEFINITION OF PERSONAL INJURY, WE ARE TRAVELING, HERE, ONLY UNDER THE INVASION OF PRIVACY, AND THAT IS BECAUSE OF VARIOUS STIPULATIONS AND LIMITATIONS THAT OCCURRED WHEN THE CASE WAS IN FRONT OF THE FEDERAL COURTS. FOR INSTANCE, THE SEPARATE POLICY ISSUE OF ALLSTATE INDEMNITY COMPANY, THE STICKLER TO THAT DIDN'T APPLY, AND WITH RESPECT TO THE DIFFERENT COUNTS AGAINST DR. GINSBERG THAT WAS LIMITED JUST TO THE INVASION OF PRIVACY.
SO YOU ARE SAYING WE COULDN'T LOOK TO THE INVASION OF RIGHTS KIND OF LANGUAGE HERE, AT ALL, TO ANSWER THE QUESTION? BECAUSE I UNDERSTAND WHAT THE CERTIFIED QUESTION IS, WITH REGARD TO THE RIGHT OF PRIVACY, BECAUSE IT IS YOUR VIEW THAT -- BUT IT IS YOUR VIEW THAT WE SHOULD NOT BE ABLE TO LOOK TO ANY OTHER LANGUAGE OF THE COVERAGE CLAUSES, TO KOO COME TO A RESOLUTION OF THIS -- TO COME TO THE RESOLUTION OF THIS ISSUE? THAT IS YOUR VIEW?
THE ARGUMENT THAT WAS MADE IN FRONT OF THE ELEVENTH CIRCUIT WAS SPECIFICALLY THAT THE QUESTION WAS LIMITED, ONLY TO THE DEFINITION OF PERSONAL INJURY AS APPLIED TO THE INVASION RIGHTS OF PRIVACY. SO WE ONLY LOOK TO THAT. CERTAINLY IT WOULD BE APPROPRIATE TO LOOK AT THE OTHER PROVISIONS, TO THE EXTENT THAT THE COURT WAS INTERPRETING THOSE PARTICULAR PROVISIONS, AND I HAVE SUGGESTED IN THE BRIEF THAT IT WOULD BE APPROPRIATE TO LOOK AT THE SBIRPT OF THAT PARAGRAPH -- TO THE ENTIRETY OF THAT PARAGRAPH, BECAUSE WE ARE DEALING WITH FOUR DIFFERENT PARAGRAPHS UNDER THE ISSUE, THE FIRST INCLUDING INVASION OF PRIVACY ISSUE, BUT IT ALSO INCLUDES OUR KINDS OF TORTS, SUCH AS LIABLE AND DEFAMATION, AND IN ACCORDANCE WITH INTERPRETATION, THEY SHOULD BE INTERPRETED WITH THE ENTIRE PARAGRAPH, AND I THINK THAT THAT ENTIRE PARAGRAPH SHOULD BE INTERPRETED IN SUCH AWAY THAT IT DOES NOT INCLUDE BODILY-INJURY EYE O-TYPE OF CLAIMS, BECAUSE -- BODILY-INJURY TYPE OF CLAIMS, BECAUSE THOSE ARE COVERED UNDER THE BODILY-INJURY PORTION OF THE POLICY.
POLICY WEISS, HOW SIGNIFICANT IS IT -- POLICY WISE, HOW SIGNIFICANT IS IT THAT WE SEEM TO BE DEALING WITH IN A DIFFERENT CONTEXT, IN GRAPPLING, CERTAINLY WITH SOMETHING SIGNIFICANT, IN TERMS OF INVASION OF PRIVACY. DO WE HAVE ANY REFERENCE IN RESPONDING TO THE QUESTION FROM THE CIRCUIT COURT?
I THINK YOU DO, AND CERTAINLY WE HAVE SUGGESTED THAT THERE ARE VARIOUS PUBLIC POLICY CONSIDERATIONS THAT THE COURT NEEDS TO TAKE ACCOUNT OF.
YOU ALL, THROUGH STIPULATION, AND THEN THROUGH THE DISMISSAL OF THE UNDERLYING LITIGATION, THIS HAS ENDED UP BEING JUST A CASE ABOUT INDEMNIFICATION OF COSTS. IS THAT RIGHT? AND ATTORNEYS FEES, I ASSUME.
AS IT CURRENTLY STANDS, MY UNDERSTANDING IS THAT THE DISMISSAL OF THE STATE CLAIMS WAS ON APPEAL, THE LAST TIME THAT I LOOKED INTO THE STATUS OF THE PROCEEDINGS BEFORE THE FOURTH DISTRICT. THAT APPEAL WAS STILL PENDING. SO IT IS POSSIBLE THAT THAT DISMISSAL OF THE STATE CLAIMS COULD BE REVERSED AND WE COULD ULTIMATELY BE DEALING IN THAT CASE.
THAT WAS STRICTLY ON A LIMITATION OF ISSUES ISSUE?
I BELIEVE IT WAS. I WASN'T DIRECTLY INVOLVED WITH THAT.
HOW ABOUT GOING HEAD ON, AND I ASSUME THAT YOU WOULD AGREE THAT WE HAVE TO TAKE THESE ALLEGATIONS TOGETHER. THAT IS THE EFFECT OF ANY OR ALL OF THESE ALLEGATIONS OF THE COMPLAINT ON THE COVERAGE ISSUE. IS THAT CORRECT?
THAT'S CORRECT.
SO WE ARE LOOKING TO MATCH UP WHETHER OR NOT THE ALLEGATIONS CONSIDERED IN TOTALING, THEN, MATCH UP AGAINST THE POLICY LANGUAGE THAT PROVIDES FOR DEFENSE AND COVERAGE AGAINST ANY INVASION OF PRIVACY.
THAT'S CORRECT. AND I WOULD SUGGEST THAT THE TOTALITY OF THE ALLEGATIONS IN THE COMPLAINT DO NOT FIT WITHIN THE WAY THIS TORT, THE INVASION OF PRIVACY TORT, HAS BEEN DEFINED BY THIS COURT.
LET ME JUST START OFF, YOU KNOW, BY POSING IT TO YOU THE ISSUE OF -- BY POSITING TO YOU THE ISSUE OF WHAT, AS A SOCIETY AND A CULTURE, HAVE ALWAYS VALUED PRIVACY, AND CERTAINLY WE HAVE VALUED PRIVACY OF OUR BODIES AND IN A SEXUAL CONTEXT. AS A MATTER OF FACT, SEXUAL ORGANS ARE OFTEN REFERRED TO AS THE PRIVATE PARTS. IS THAT NOT CORRECT? EYE BE THAT'S CORRECT.
NOW --.
I BELIEVE THAT'S CORRECT.
NOW, WOULD YOU AGREE THAT IF SOMEBODY, YOU CAUGHT A PEEPING TOM AND, THAT WAS LOOKING ON IN SOMEBODY'S WINDOW, TO CATCH THEM IN A STATE OF UNDRESS, AND SOMEBODY IN A CONTEXT WHERE OBVIOUSLY THEY FELT THAT THEY WERE IN THE PRIVACY OF THE ROOM OR WHARF -- OR WHATEVER, WOULD YOU AGREE THAT THE PEEPING TOM, AS WE HAVE CHARACTERIZED IT IN CASE LAW, WOULD BE LIABLE FOR AN INVASION OF PRIVACY?
YES. I THINK THAT IS A VERY CLASSIC CASE. I THINK THE WAY --
LET ME TAKE THAT, THEN, AND THAT IS WHY I SAY GETTING STARTED WITH SOMETHING, WHY, THEN, THAT THE PEEPING TOM, PEEPING IN ON, VISUALLY ON SOMEONE'S PRIVACY, WHY WOULDN'T THE PHYSICAL INTRUSION HAVE THE SAME EFFECT? THAT IS OF SOMEBODY ACTUALLY TOUCHING UNDER A DRESS OR SOMETHING, THE PRIVATE PARTS OF SOMEBODY. WHY WOULDN'T THAT BE EVEN A MORE EGREGIOUS CASE OF AN INVASION OF A PERSON'S PRIVACY?
I THINK IT IS A MORE EGREGIOUS TORT CASE. I THINK IT IS A MORE EGREGIOUS CLAIM AGAINST DR. GINSBERG, BUT I DON'T THINK THAT IT STAYS WITHIN THE REALM OF PRIVACY AT THAT POINT. OUR POSITION IS THAT, LOOKING AT THE CASE LAW AND LOOKING AT THE WAY THE TORT WAS DEFINED AND WAS ADOPTED, IT IS IMPORTANT TO LOOK AT IT IN TERMS OF A NEED. THERE HAD TO BE A NEED FOR IT. THERE WASN'T A FACTOR. THERE WASN'T AN ELEMENT OF THE LAW THAT PROTECTED MRS. CASON'S CLAIM OR HER RIGHTS BACK AT THAT TIME. WE ALREADY HAVE AT LAW OF BATTERY THAT WOULD PROTECT.
DOES BATTERY REALLY, YOU KNOW, BATTERY, WE ARE TALKING ABOUT IF YOU IMPROPERLY HIT ME ON THE SHOULDER OR WHATEVER, CERTAINLY THAT PROVIDES FOR SOME PROTECTION AGAINST THAT, BUT WHEN WE ARE TALKING ABOUT, AS I SAID BEFORE, OUR CUMDURE VALUES, PRIVACY, ESPECIALLY WHEN IT COMES TO SEXUAL MATTERS, THAT IS WHY I GAVE THOSE, OBVIOUSLY THOSE PREPARATORY, DOES BATTERY REALLY DO IT IN THAT SITUATION? YOU COULD ALMOST SAY THAT THE PEEPING TOM IS COMMIT AGO TRESPASS -- IS COMMITTING A TRESPASS, AND SO, BUT DOES TRESPASS REALLY DO IT, WHEN WE ARE TALKING ABOUT THE EXPOSURE HERE, IN THIS WAY OF PRIVATE MATTERS? DOES IT REALLY DO IT? I REALIZE THE WAY THE CASE LAW HAS GROWN UP, IT SEEMS TO BE OF A DIFFERENT CHARACTER, WHEREAS WE HAVEN'T THOUGHT ABOUT THE INVASION OF PRIVACY OR AT LEAST THE CASES HAVEN'T IMPRESSED, AND WE HAVE GOT A PROBLEM WITH RECONCILING THAT. HELP ME WITH JUST SORT OF WHAT I SEE, AT LEAST INITIALLY, AS SORT OF A COMMONSENSE EQUATION OF WHAT THE PEEPING TOM DID TO WHAT SOMEBODY PUTTING THEIR HAND UNDER SOMEBODY'S DRESS WOULD BE DOING? WHY ISN'T THAT A TERRIBLE INVASION OF PRIVACY?
I THINK IT IS A SITUATION WHERE YOU HAVE GONE BEYOND THE INVASION OF PRIVACY, AND YOU HAVE ACTUALLY MADE CONTACT, AND THAT IS THE DISTINCTION THAT I WOULD ASK THE COURT TO DRAW. I THINK THE INVASION OF PRIVACY IS ANY CONDUCT THAT VIOLATES THE PRIVACY INTERESTS OF THE PERSON BUT DOESN'T GET TO THE POINT OF CONDUCTOR ACTUAL TOUCHING, BECAUSE I THINK WE ALREADY HAVE, WITHIN THE LAW, VARIOUS CONSIDERATIONS THAT THAT IS IMPROPER, AND THAT IS PROTECTED, AND I DO THINK THAT THE LAWFUL BATTERY WILL PROTECT MS. STARVE-. SHE KNEW THAT SHE WOULD BE PROTECTED BY THAT, BECAUSE SHE BROUGHT THAT CLAIM.
BUT WE ARE TALKING HERE -- I WANT TO GET BACK TO SOMETHING ABOUT WHAT WE ARE HERE ON. WE ARE HERE ON A DUTY TO DEFEND. ALLSTATE HAS A POLICY, AND THEY SAY THEY ARE GOING TO COVER FOR PERSONAL INJURY, WHICH IN INCLUDES INVASION, WHATEVER THE --
INVASION OF RIGHTS OF PRIVACY PRIVACY.
IN THE FEDERAL COURTS, SINCE THE EARLY '90s, THEY HAVE, OVER AND OVER, SAID THIS WAS A COMMON LAW INVASION OF PRIVACY, FOR SEXUAL HARASSMENT TYPES OF THINGS, SO WHAT WE ARE REALLY TALKING ABOUT IS WHETHER ALLSTATE, FACED WITH A CAUSE OF ACTION THAT CAN, AT LEAST UNDERSTOOD TO EXIST IN THE COURTS FOR A NUMBER OF YEARS, HAD A DUTY TO DEFEND. I MEAN, WHETHER IT IS A NOVEL THEORY, WHETHER IT SHOULD BE DISMISSED ULTIMATELY, IS, ISN'T THAT A SEPARATE QUESTION AS TO WHETHER ALLSTATE HAD A DUTY TO DEFEND THESE ALLEGATIONS AND TRY IN THE STATE COURT, TO GET A DISMISSAL, BASED ON A FAILURE TO STATE A CAUSE OF ACTION OR A SUMMARY JUDGMENT, BUT WHY SHOULDN'T YOU HAVE TO DEFEND SOMETHING THAT AT LEAST HAS A COLORABLE CAUSE OF ACTION, EVEN IF IT IS NOVEL, AND ARGUE THAT IT SHOULDN'T EXIST AS A CAUSE OF ACTION? ISN'T THAT THE IDEA THAT, WHY YOU SHOULD DEFEND THIS, WHETHER OR NOT ULTIMATELY THE PLAINTIFF WOULD PREVAIL?
WE CERTAINLY DON'T THINK IT IS A COLORABLE CLAIM, AND CERTAINLY THERE IS A DISTINCTION AS TO WHETHER SHE CAN PREVAIL ON THE CLAIM AND WHETHER WE HAVE A DUTY TO DEFEND ON THE CHRARGES I AGREE WITH YOU THAT WE ARE NOT HERE ON WHETHER OR NOT SHE WOULD PREVAIL.
IF SOMEBODY HAD A BODILY ISSUE AND SOMEONE CAME UP WITH A CRAZY CAUSE OF ACTION, BUT IT WAS CLEARLY AN INTENTIONAL BODILY INJURY THAT WOULD BE COVERED. DOES ALLSTATE HAVE A RIGHT TO SAY WE DON'T THINK THIS CAUSE OF ACTION EXISTS IN THE STATE OF FLORIDA, SO WE ARE GOING TO GET THE INSURED HAVE TO HIRE HIS OWN ATTORNEYS OR HER OWN ATTORNEYS TO DEFEND THAT COMPLAINT? ISN'T THAT UP TO ALLSTATE, TO MAKE THE ARGUNIFORM THAT -- THE ARGUMENT THAT IT IS NOT A CAUSE OF ACTION?
WE ARE REALLY NOT ARGUING THAT IT NOT A CAUSE OF ACTION. WE ARE ARGUING THAT THE ALLEGATIONS THAT WERE MADE DON'T CONSTITUTE AN INVASION OF RIGHTS OF PRIVACY, AS DEFINED UNDER THE POLICY.
BUT THAT REQUIRES US TO INTERPRET WHAT AN INVASION OF PRIVACY MEANS, AS A MATTER OF FIRST IMPRESSION, BECAUSE THESE FACTS HAVE NOT BEEN PRESENTED TO THIS COURT, WHICH IS WHY THE ELEVENTH CIRCUIT CERTIFIED THAT QUESTION, SO I THINK THAT THERE HAVE BEEN CASES IN FLORIDA, AT LEAST IN THE FEDERAL COURT, THAT WITH THAT ANALYSIS, SAY THAT SOMETHING LIKE THAT IS AN INVASION OF PRIVACY. I MEAN, THERE IS AT LEAST TWO FEDERAL SDACKT COURT CASES FROM THE -- FEDERAL DISTRICT COURT CASES FROM THE SOUTHERN DISTRICT OF FLORIDA, THAT MANY COURTS AROUND THE COUNTRY HAVE RECOGNIZED THIS TO BE AN INVASION OF PRIVACY, SO WHETHER WE DECIDE IT IS OR ISN'T, SHOULDN'T ALLSTATE HAVE TO DEFEND IT?
NO, NOT IN YOUR HONOR DECIDES THAT IT IS NOT A RIGHT OF PRIVACY, AND CERTAINLY THERE ARE THOSE FEDERAL CASES THAT EXIST, BUT THOSE FEDERAL CASES DON'T HAVE ANY ANALYSIS. THEY DON'T GO BACK TO THE CASON CASE AND UNDERSTAND WHY WE HAVE A RIGHT OF PRIVACY IN FLORIDA. THEY DON'T GO BACK TO THE WAY THIS COURT HAS CHARACTERIZED THIS RIGHT OF PRIVACY, WHICH I THINK WAS VERY SIGNIFICANT TO THE DISTRICT COURT JUDGE HERE.
WHAT IS YOUR ANSWER, THOUGH, TO JUSTICE PARIENTE'S QUESTION, IS THAT WHAT YOU SHOULD BE DOING ON THE BEHALF OF THE INSURED, THAT IS ARGUING THAT IS NO MERIT TO THIS CLAIM OF INVASION OF PRIVACY, BECAUSE THE UNDERLYING ACTS THAT YOU HAVE ALLEGED ARE NOT RECOGNIZEED, BY FLORIDA LAW, AS AN INVASION OF PRIVACY, AND EVEN THOUGH YOU CALL IT THAT AND YOU ASSERT THAT IT IS A CLAIM LIKE THAT AND WE COVER THAT, AS FAR AS DEFENDING OUR INSURED, WHY WOULDN'T THIS BE A SITUATION WHERE, IN VIEW OF THE POSTURE THAT THE CLAIMANTS HAVE PUT IT IN, IN TERMS OF THEIR ALLEGATIONS, AND THEN THE FACT THAT YOU HAVE THIS PROVISION IN YOUR POLICY COVERING YOUR INSURED FOR THAT, THAT YOU SHOULD, NOW, TAKE YOUR INSURED AND TAKE HIS SIDE AND SAY WE ARE GOING TO DEFEND THIS, AND WE ARE GOING TO DEFEND IT ON THE BASIS, TO START OFF WITH, THAT THIS ISN'T A CLAIM, A PROPER CLAIM IN FLORIDA. WHAT WE ARE GOING TO DO THAT, ON BEHALF OF OUR INSURED, IN VIEW OF THE FACT THAT THE LAW HAS DEVELOPED RATHER BROADLY, ABOUT THE RESPONSIBILITY OF AN INSUROR TO DEFEND.
YOUR HONOR, I THINK THERE ARE TWO SEPARATE QUESTIONS, AND I THINK THERE IS A QUESTION OF WHETHER THERE IS A DUTY TO DEFEND, UNDER THE POLICY, WHICH I THINK WE ARE ENTITLED TO BRING A DECLARATORY JUDGMENT ACTION TO RESOLVE. AT THE SAME TIME, THE OTHER ISSUE IS WHETHER OR NOT THERE IS GOING TO BE LIABILITY AGAINST THE INSURED, IN THE UNDERLYING CASE.
DO YOU AGREE THAT WE HAVE CONSTRUED THAT DUTY TO DEFEND VERY BROADLY, HAVE WE NOT?
I THINK THAT IS TRUE, BUT I THINK IT MUST BE LIMITED BY THE LANGUAGE OF THE POLICY, AND STILL WE HAVE GOT -- SOMEBODY HAS TO MAKE A DETERMINATION THAT WE DO HAVE AN INVASION OF RIGHTS OF PRIVACY. IF SOMEBODY MAKES THAT DETERMINATION, THEN YOU YOU ARE RIGHT. WE -- THEN YOU ARE RI. WE DEFEND AND WE GO IN AND SAY THERE IS NOT A CAUSE OF ACTION, THERE IS NO LIABILITY, BECAUSE HE DIDN'T DO ANY OF THIS, PERHAPS.
BUT IF IT IS DRESSED UP THAT WAY, IN CONSTRUING THE LAW BROADLY, AS FAR AS THE DUTY TO DEFEND, ISN'T IT YOUR OBLIGATION, THEN, TO GO IN AND DEFEND, IF THERE IS A QUESTION ABOUT THAT?
I WOULD SAY NO, BECAUSE I THINK WE ARE ENTITLED TO HAVE BOTH QUESTIONS ANSWERED. WE NEED TO HAVE THE QUESTION ANSWERED WHETHER THIS IS AN INVASION OF RIGHTS OF PRIVACY, SO THAT OUR DEFENSE IS EVEN TRIGGERED, BECAUSE IF WE DON'T HAVE A DUTY TO DEFEND, THE CASE LAW SAYS WE HAVE A SEPARATABILITY IRREPARABLE INJURY BY -- A SEPARATE IRREPARABLE INJURY BY PROVIDING THAT DEFENSE. MR. CHIEF JUSTICE: YOU ARE INTO YOUR REBUTTAL TIME.
YES. THANK YOU VERY MUCH. MR. CHIEF JUSTICE: MS. CHAPMAN.
GOOD MORNING. I AM MARTHA CHAPMAN. I REPRESENT ELAINE SCARFO, AND MR. STEIN AND I HAVE SPLIT THE TIME IN HALF. I WILL BE RESPONDING TO ISSUES HAVING TO DO WITH THE FIRST QUESTION, AND WE CONTEND THAT YOU SHOULD ANSWER THE FIRST QUESTION IN THE AFFIRMATIVE. ALTHOUGH I REALIZE THAT, FOR THE PURPOSES THAT WERE JUST BEING DISCUSSED, THAT PROBABLY THAT WE SHOULDN'T BE HERE AT ALL, WE ARE AND THE ELEVENTH CIRCUIT HAS CERTIFIED A VERY IMPORTANT QUESTION OF LAW TO YOU THAT GOES BEYOND JUST ELAINE SCARFO'S CASE. IT WAS FORMULATED TO VIEW WHETHER THESE KINDS OF ALLEGATIONS CAN BE CONSTRUED AS AN INVASION OF PRIVACY, UNDER FLORIDA LAW, AND THE REASON THE ELEVENTH CIRCUIT DID THAT IS BECAUSE --
LET'S GoLLOW-UP ON JUSTICE ANSTEAD'S QUESTION. I MEAN, IS THE INSURANCE COMPANY SORT OF CAUGHT UP IN THIS CONUNDRUM THAT IT, BECAUSE THERE HASN'T BEEN SOMETHING THAT IS, BY THIS COURT, SPECIFICALLY DEFINED AS AN INVASION OF PRIVACY, THAT WOULD EXCLUDE THIS CONDUCT, THAT IF SOMEBODY LABELS THIS, IN A COMPLAINT, AN INVASION OF PRIVACY, THAT THERE FOR THEY HAVE TO DEFEND, REGARDLESS OF IF IT TURNS OUT THAT, AS A MATTER OF LAW, NOT AS A MATTER OF FACT BUT AS A MATTER OF LAW, THAT THAT WAS NOT AN INVASION OF PRIVACY. IS THAT WHERE WE ALREADY?
I THINK THE LABEL, ITSELF, DOESN'T MATTER. IT IS THE CONDUCT THAT IS ALLEGED, AND WHAT WE HAVE HERE IN THIS CASE IS THIS ISN'T SOMETHING THAT JUST TOTALLY NO ONE EVER, IN THE STATE OF FLORIDA, HAS EVER DECIDED THAT THESE KINDS OF CLAIMS ARE AN INVASION OF PRIVACY. WE HAVE TWO FEDERAL CASES, AS WELL AS TWO CASES FROM A LOWER DISTRICT COURT, FROM THE STATE OF FLORIDA --
SO YOU WOULD AGREE THAT ALLSTATE, TO PROPERLY GO IN AND GET A DECLARATORY JUDGMENT, AS TO WHETHER WHAT WAS ALLEGED IS OR ISN'T SOMETHING THAT COMES WITHIN THEIR POLICY THAT WOULD OBLIGATE THEM TO DEFEND.
CORRECT. THE CONDUCT ALLEGED IN THE COMPLAINT WAS NOT SUFFICIENT TO RISE TO THE LEVEL OF AN INVASION OF PRIVACY, I BELIEVE THAT THEY COULD. WHAT THEY ARE TRYING TO DO HERE IS SOMETHING FAR BEYOND THAT. THEY ARE TRYING TO SAY THAT THE CLAIM THAT HAS BEEN ALLEGED DOESN'T FIT WITHIN ANY KIND OF INVASION OF PRIVACY EVER FOUND IN THIS STATE, AND THAT IS JUST SIMPLY NOT TRUE. IT HAS BEEN FOUND TO FIT. IT JUST HAS NOT BEEN BY THIS COURT, BECAUSE THIS COURT HAS NOT HAD THE OPPORTUNITY, SINCE IT FIRST DECLARED THE INVASION OF PRIVACY EXISTED, TO FURTHER DEFINE OR TO LOOK AT THE INTRUSION FORM, WHICH IS THE FORM THAT WE HAVE BASED OUR CLAIM ON. THE ONLY INVASION OF PRIVACY THAT HAS BEEN ADDRESSED BY THIS COURT IS WHEN THERE HAS BEEN PUBLICATION OF PRIVATE FACTS OF A PRIVATE QUESTION.
WHERE DOES THE TORT OF INVASION OF PRIVACY AND THE TORT OF BATTERY, ARE THEY SEPARATE TORTS OR, IN THIS, WITHIN THIS CONTEXT, OR ARE THEY OVERLAPPING TORTS OR WHERE DOES THAT KIND OF FIT WITHIN OUR FRAMEWORK?
I THINK THEY ARE BOTH SEPARATE AND OVERLAPPING, FOR DIFFERENT PARTS OF THE ALLEGATIONS IN THIS COMPLAINT. CERAINLY THE OFFENSIVE QUESTIONS AND COMMENTS THAT WERE MADE WOULD NOT BE COVERED UNDER THE BATTERY. THE, AS FAR AS TOUCHING, IT WOULD, BUT THE OFFENSE OF TOUCHING OF THE INVASION OF PRIVACY, GOES FAR BEYOND JUST A REGULAR BATTERY, BECAUSE IT IS A FAR GREATER THING THAN TO SIMPLY HAVE TOUCHED SOMEONE ON THE SHOULDER, WHICH COULD BE A TECHNICAL BATTERY, TO DO THE TOUCHING OF PRIVATE PARTS. THE BREAKING THAT SORT OF CLOSE OF THE SELF AND BREAK THE PSYCHOLOGICAL SOLITUDE OF THE SELF, AS THE ALABAMA SUPREME COURT IN THE PHILLIPS VERSUS MOLLY MAINTENANCE CASE DESCRIBED IT. THERE IS BOTH PHYSICAL AS WELL AS PSYCHOLOGICAL SOLITUDE THAT I THINK THE INVASION OF PRIVACY GOES, TO AND I THINK THOSE ARE TWO VERY IMPORTANT DISTINCTIONS.
SO EVERY BATTERY WOULDN'T BE AN INVASION OF PRIVACY, BUT IF AN INVASION OF PRIVACY, AS FAR AS THE PHYSICAL TOUCHING IS CONCERNED, WOULDN'T EVERY INVASION OF PRIVACY, IF WE RESTRICT IT, TOO JUST TOUCHING OF THE -- TO JUST TOUCHING OF THE PRIVATE PARTS AND NOT THE COMMENTS, THE BATTERY?
YES, IT WOULD.
SO IN TERMS OF SHOULD THAT INFLUENCE HOW WE DECIDE WHETHER TO RECOGNIZE THIS TORT AS EXISTING, WHY DOESN'T BATTERY ADEQUATELY COVER THAT, THE WRONG THAT OCCURRED HERE, IF WE DON'T EXTEND IT TO THE OFFENSIVE COMMENTS? I KNOW THERE ARE SOME OTHER CASES THAT HAVE TALKED ABOUT COMMON LAW TORT AS SEXUAL HARASSMENT. THAT IS NOT ALLEGED HERE, SO THAT IS NOT IN FRONT OF US. WHY DOESN'T BATTERY COVER IT?
I THINK IT IS IN THE SAME SITUATION AS OBJECT OF THE OTHER -- AS ONE OF THE OTHER KINDS OF INVASION OF PRIVACY, WHERE SOMEONE HAS GONE INTO SOMEONE'S QUARTERS OF THEIR RESIDENCE. THAT IS, ALSO, TECHNICALLY A TRESPASS, BUT THE TWO TORTS, TRESPASS AND BATTERY, REALLY MEET DIFFERENT NEEDS AND DIFFERENT CONCEPTS IN THEVATION OF PRIVACY. INVASION OF PRIVACY IS A FAR MORE IN DEAFING -- INDELVING SORT OF CONCEPT. IT DEALS ACTUALLY MORE WITH THE SANCTIY OF THE PLACE OF SELF.
YOU ARE SAYING THAT, WITH THE JURY NOT HEARING ABOUT THE ACTUAL TORT, THE BATTERY DOESN'T CONVEY THE ACTION THAT OCCURRED, IN TERMS OF OFFENSIVE TOUCHING IN AN AREA OF THE BODY THAT IS PRIVATE AREA? SO THAT IT MORE FULLY DEFINES THE WRONG THAT MIGHT HAVE OCCURRED HERE?
CORRECT.
ARE YOU CONTENDING THAT THE COMMENTS WOULD, ALSO, FIT INTO AN INVASION OF PRIVACY, AND HOW WOULD THAT BE?
YES, THEY WOULD, AND I UNDERSTAND THAT, FOR THE PURPOSE OF THE DEC ACTION THAT THEY BROUGHT, THAT THEY ARE LIMITED OR THAT WE WERE LIMITED IN THAT ACTION, TO ONLY WHAT HAD BEEN ALLEGED IN THE COMPLAINT. HOWEVER, WHAT THE ELEVENTH CIRCUIT HAS SORT OF BEGIN -- OF GIVEN TO YOU AS THIS FIRST QUESTION IS A SORT OF BROADER QUESTION THAN THAT, SO TO GIVE YOU AN EXAMPLE OF THINGS THAT ARE IN THE REPORT OF THE COURT, IN THE CLAIMS IN CHIEF BUT NOT ACTUALLY IN THE COMPLAINT, ITSELF, IS THAT THE QUESTIONS WERE THINGS THAT WERE VERY INTRUSIVE. THE QUESTIONS ABOUT THE SEXUAL CONDUCT OF MS. STARVE-WITH HER HUSBAND, QUESTIONS ABOUT -- OF MS. SCARFO WITH HER HUSBAND, QUESTIONS OF WHAT KINDS OF THINGS THAT SHE LIKED, AND THINGS HAT OTHER COURTS FOUND IT JEREMY TRUST I HAVE, THAT VERY MUCH GO TO RIGHTS OF PRIVACY, THINGS THAT HAVE A FAR GREATER --
BUT WE ONLY HAVE THE COMPLAINT HERE. THE COMPLAINT IS ONLY CONCERNED WITH THE TOUCHING.
YOU DO. BUT IN RULING WHETHER OR NOT OFFENSIVE COMMENTS, IN THE GENERAL WORLD, COULD BE CONSTRUED TO BE AN INVASION OF PRIVACY, I WOULD SAY YOU ARE NOT LIMITED TO WHAT IS ALLEGED IN THIS PARTICULAR COMPLAINT, THAT THE ELEVENTH CIRCUIT, THE WAY THEY FRAMED THE QUESTION TO YOU, WAS NOT LIMITED TO THE FACTS OF THIS CASE. THEY ASKED IN GENERAL, WHETHER INTRUSIVE QUESTIONS OF A SEXUAL NATURE COULD BE CONSTRUED AS A FORM OF INTRUSION, AND I THINK THAT, THEN, HOWEVER YOU ANSWER THAT QUESTION WOULD, THEN, BE APPLIED TO THE COMPLAINT THAT IS BEFORE THEM BY THAT COURT. THE KENNIGAN CASE AND THE COMPU CASE BOTH HAVE HELD THAT THERE IS A INTRUSION THAT IS ACTIONABLE, WHEN THERE HAS BEEN A PHYSICAL TOUCHING. IN THE HENNIGAN CASE, THE POLICE OFFICER HAD REMOVED THE CLOTHES AND TOUCHED AND SEXUALLY ABUSED THE PLAINTIFF. THAT WAS IN 198 R5, AND IN THE 1985 COMPU-TECH CASE, THE TOUCH TOUCHING AND IN AN OFFENSIVE AND UNDESIRED MANNER, THE FEDERAL DISTRICT COURT BELOW RELIED ON ITS REJECTION OF OUR CLAIM, BASED ON A DECISION FROM THE SUPREME COURT IN 1996 THAT STATED THAT THE INTRUSION CLAIM APPEARED TO STATE THAT THE INTRUSION CLAIM WAS LIMITED TO AN INTRUSION ON THE QUARTERS.
LET ME ASK YOU THIS. IS THERE ANY -- BASED ON YOUR ARGUMENT, IT SEEMS TO ME ANY KIND OF SEXUAL CONVERSATION OR TOUCHING WOULD END UP AN INVASION OF PRIVACY, AND SO WHERE DO YOU DRAW THE LINE? THE SEXUAL HARASSMENT ANDc INVASION OF PRIVACY, ARE THEY BOTH, I MEAN, THE SAME ACTIONS HERE, OR COULD SHE HAVE BROUGHT A CLAIM FOR BOTH OF THESE?
WELL, AND SHE DID ORIGINALLY, BUT THIS CASE IS A CLASSIC EXAMPLE OF WHY THIS TORT IS ACTUALLY IMPORTANT. WE DID NOT HAVE 15 EMPLOYEES IN THAT EMPLOYER, AND THEREFORE THE FEDERAL COURT THREW OUT CIVIL RIGHTS CLAIMS, AND IN MANY SMALL EMPLOYERS, THE ONLY REMEDY THAT A PLAINTIFF HAS ARE THE TORT CLAIMS THAT ARE AVAILABLE FOR THEM.
SO ANY OF THIS KIND OF CONDUCT ENDS UP BEING AN INVASION OF PRIVACY.
NO. I DON'T THINK THAT ANY OF THIS CONDUCT DOES. I THINK THERE IS A LINE, JUST LIKE THERE IS WITH SEXUAL HARASSMENT, AS TO HOW MANY COMMENTS OR WHAT THE NATURE OF THE COMMENTS ARE BEFORE IT BECOMES SOMETHING THAT IMPOSE OVER THE LINE. -- THAT GOES OVER THE LINE. THERE IS A CASE FROM ONE OF THE FLORIDA DISTRICT COURTS THAT SAID THAT SIMPLY ASKING SOMEONE TO GO OUT ON DATES AND TRYING TO GET INVOLVED IN A SEXUAL LIAISON WASN'T SUFFICIENT TO BE HAD INVASION OF PRIVACY -- TO BE AN INVASION OF PRIVACY, AND I THINK THAT IS A CORRECT HOLDING. IT, ALSO, IS NOT SEXUAL HARASSMENT, EITHER. MR. CHIEF JUSTICE: IF YOU ARE DIVIDING YOUR TIME, YOU NEED TO BE AWARE OF IT.
THANK YOU.
MAY IT PLEASE THE COURT. MY NAME IS DOUGSTEIN. I REPRESENT MR. GINSBERG. -- IS DOUG STEIN. I REPRESENT MR. GINSBERG. JUDGE, YOU ASKED THE QUESTION IS THERE ANY DISGREETINGSCRETION IN RESPONDING TO THE -- ANY DISCRETION IN RESPOND TO GET ELEVENTH CIRCUIT? I THINK IT IS MR. GINSBERG'S POSITION THAT, YES, YOU DO. ARTICLE III SECTION 5 DICK FAITHS WHEN THIS -- DICTATES WHEN THIS COURT SHOULD BE REQUIRED UNDER THE ELEVENTH CIRCUIT. IT IS DETERMINATIVE OF THE CAUSE IN WHICH THERE IS A CONTROL AND PRECEDENT. NOW, THERE IS NO CONTROL AND PRECEDENT IN THE STATE OF FLORIDA, BUT THIS ISSUE THAT IS BEFORE YOU RIGHT NOW IS NOT DETERMINATIVE OF THIS CAUSE. AS COUNSEL STATED AND AS THE ELEVENTH CIRCUIT STATED, THRESHOLD ISSUE IN THIS CASE IS A DUTY TO DEFEND. THAT ISSUE IS CONTROLLED BY THE ALLEGATION OF THE COMPLAINT. WHETHER THE ALLEGATIONS OF THE COMPLAINT HAVE MERIT, FACTUALLY OR LEGALLY, IT HAS BEEN HELD THIS THIS STATE, THERE IS A DUTY TO DEFEND, AS LONG AS THE ALLEGATIONS FALL WITHIN THE COVERAGE. THE ALLSTATE POLICY IN THIS CASE SPECIFICALLY COVERS INVASIONINGS OF RIGHTS OF PRIVACY, AND THAT -- INVASIONS OF RIGHTS OF PRIVACY, AND THAT IS PRECISELY WHAT HAS BEEN ALLEGED IN THIS CASE. WHETHER IT HAS FACTUAL MERIT OR WHETHER IT HAS LEGAL MERIT, THERE IS A MYRIAD OF CASES WHICH STATE THAT, IF THERE IS ANY DOUBT AS TO WHETHER THERE IS FACTUAL MERIT OR LEGAL MERIT OR MERIT, AT ALL, TO THE LIABILITY CASE, THAT DOUBT IS TO BE RESOLVED IN FAVOR OF FINDING A DUTY TO DEFEND.
WELL, IF A TITLE OF A CAUSE OF ACTION WAS NEGLIGENT, AND THE ALLEGATIONS IN THERE ALLEGED INTENTIONAL TORT OF BATTERY, YOU WOULDN'T SAY BECAUSE IT SAID "NEGLIGENCE" THAT THERE WOULD AND DUTY TO DEFEND, CORRECT?
THAT IS CORRECT.
AND HERE, AGAIN, MAYBE IT IS A CHICKEN AND THE EGG ARGUMENT, IF LAST YEAR WE RULED THAT INVASION OF PRIVACY DOES NOT EXTEND TO UNWANTED TOUCHING OF PRIVATE PARTS, THEN THE FACT THAT THEY, YOU CALLED IT INVASION OF PRIVACY WOULDN'T BE DETERMINATIVE.
THAT IS CORRECT. THAT IS CERTAINLY AN EXCEPTION, WHEN SOMEBODY MAKES ALLEGATIONS IN A COMPLAINT, FOR NO OTHER REASON, REALLY, THAN TO CREATE A REASON FOR A DUTY TO DEFEND.
BUT HERE THE ISSUE IS THAT THIS COURT HAS NEVER RULED ON THIS TORT, AND SO WHY ISN'T IT THAT THE THRESHOLD MATTER THAT THE PREDICATE TO THE DUTY TO DEFEND? THAT IS THE DETERMINATION AS TO WHETHER OR NOT THE CAUSE OF ACTION EXIST THES OR DOESN'T EXIST UNDER -- EXISTS OR DOESN'T EXIST, UNDER FLORIDA LAW?
THAT IS A QUESTION THAT NEEDS TO BE DETERMINED IN THE LIABILITY CASE, NOT IN A DEC ACTION. IT IS ONLY BY A HAPPENSTANCE THAT THIS DEC ACTION HAPPENED TO HAVE BEEN FILED IN THE ELEVENTH CIRCUIT COURT AND GOT APPEALED TO THE FIFTH CIRCUIT, AND THERE IS A -- IN THE FIFTH DISTRICT, AND THERE IS A PROVISION AS TO A QUESTION OF WHETHER THIS COURT SHOULD EVEN BE ADDRESSING THIS ISSUE, AND THE PROPER QUESTION IS, AT THE APPROPRIATE TIME, AND MAYBE IT WON'T BECOME NECESSARY, BECAUSE THE LIABILITY CASE HAS BEEN DISMISSED ON OTHER GROUNDS, BUT THE DETERMINATION, IN GENERAL, WHEN THAT IS PENDING, IS THAT JUDGE WILL DETERMINE WHETHER THERE IS A CAUSE OF ACTION STATED. THE LAW CAN'T WORK ANY OTHER WAY. THE DISTRICT COURT, THE FEDERAL COURT IN THIS CASE DETERMINED THAT IT DOESN'T STATE A CAUSE OF ACTION, AND IF THE ELEVENTH CIRCUIT ULTIMATELY DETERMINES THAT IT DOESN'T STATE A CAUSE OF ACTION, WHAT OCCURS, I AM JUST THINKING HYPOTHETICALLY, IF THE STATE COURT LIABILITY JUDGE, THE JUDGE WHO IS PRESIDING OVER THE LIABILITY CASE, FINDS THAT IT DOES STATE A CAUSE OF ACTION, SO NOW WE HAVE A FEDERAL COURT, IN A CASE THAT DOESN'T HAVE ANY OF THE EVIDENCE OR ANY OF THE PARTIES IN FRONT OF IT. I GUESS THE PARTIES IN FRONT OF IT MAKING A DETERMINATION THAT THERE IS NO CAUSE OF ACTION, YET IN THE ACTUAL CASE, THE INSURED NEEDS TO DEFEND THE ACTION, AND HAS PAID FOR AN INSURANCE POLICY BUT DOESN'T HAVE THAT SORT OF COMPANY COVERAGE.
THIS STANDS ON ITS HEAD, THE WHOLE IDEA OF BRINGING A DEC ACTION IN ORDER TO MAKE A DETERMINATION AS TO WHETHER THE INSURANCE COMPANY WAS CORRECT IN PROCEEDING UNDER A RESERVATION OF RIGHTS, AND IN NOT ALLOWING THERE TO BE A DETERMINATION ON THE ISSUE OF WHETHER THERE IS A RIGHT TO -- TO DEFEND, ON THE BASIS OF WHAT ISAL END IN THE COMPLAINT, AS OPPOSED TO WHETHER IT ULTIMATELY IS DETERMINED TO BE A CAUSE OF ACTION? I MEAN -- YOUR CHICKEN AND EGG, IT SEEMS TO ME, TO PREVENT THERE BEING A DETERMINATION OF THE INSURANCE COMPANY OBLIGATION TO DEFEND, WHILE WE HAD THE POINT IN TIME WHERE THEY ARE BEING CALLED UPON TO DEFEND.
THERE ARE, OF COURSE, AS JUSTICE PARIENTE STATED, THERE ARE SITUATIONS, AND I THINK IT IS A RARE SITUATION, THAT, AN INSURANCE COMPANY WILL HAVE A GOOD REASON TO FILE A DEC ACTION TO DETERMINE A DUTY TO DEFEND AND ONLY A DUTY TO DEFEND. MOST OF THE TIME THEY ARE FILING THESE THINGS -- THESE ACTIONS TO DETERMINE WHETHER THERE IS COVERAGE. OF COURSE IF THERE IS COVERAGE THERE, IS NO DUTY TO DEFEND, AND IF THERE IS A SITUATION THAT SOMEBODY ALLEGED FACTUALLY THAT SOMEBODY HELD A GUN POINT-BLANK TO SOMEBDY ELSE AND SAID I AM ABOUT TO SHOOT IT BUT DOESN'T SHOOT IT, THAT OBVIOUSLY IS A QUESTION WHERE THERE IS NO DOUBT THERE IS NO COVERAGE AND NO DUTY TO DEFEND. THIS IS A DIFFERENT SITUATION THERE. IS DOUBT AS TO WHETHER THERE IS A DUTY TO DEFEND.
BUT WHAT IS THE UNDERLYING -- THE CAUSE OF ACTION WHICH IS STALE ALIVE -- WHICH IS STILL ALIVE ON APPEAL, IN THE FOURTH DISTRICT?
WELL, ON APPEAL IN THE FOURTH DISTRICT IS WHETHER THE ENTIRE CASE IS BARRED BY THE STATUTE OF LIMITATIONS.
SO THAT IS A STATUTE OF LIMITATIONS CASE.
THAT'S CORRECT.
HOW DID THAT IMPACT WHETHER THIS IS WHAT IS ALLEGED IN THIS COMPLAINT IS AN INVASION OF THE RIGHTS OF PRIVACY?
I DON'T THINK THAT IT DOES, YOUR HONOR.
OKAY.
THAT ISSUE HAS NOT BEEN ADDRESSED IN THE LIABILITY CASE.
I ASSUME THAT --
JUSTICE LEWIS HAD A QUESTION.
I STILL HAVE A CONCERN THAT, IF, FOR EXAMPLE, THE TORT LAW WOULD DEFINE THIS THING CALLED PRIVACY, AS TO THE PUBLICATION OF INFORMATION, FOLLOW THAT ROUTE, WOULD THIS, WOULD THE ALLEGATIONS IN THE COMPLAINT, ITSELF, WITHOUT REGARD TO THE NAME, GENERATE A DUTY TO DEFEND, AND IF SO, WHY? I THINK THAT IS WHERE THE QUESTION THAT SEEMS, TO ME -- I DON'T KNOW THAT THE QUESTION THEY HAVE CERTIFIED IS NECESSARILY DETERMINATIVE OF THEIR DUTY TO DEFEND. BECAUSE YOUc HAVE TO LOOK AT WHAT THE COMPLAINT SAYS. DOES THIS COMPLAINT STATE ANY OTHER KIND OF ACTION THAT WOULD BE WITHIN THE, QUOTE, PERSONAL INJURY OF THIS POLICY?
I HAVE TO BE HONEST WITH YOU, JUDGE. WE ARE CAUGHT BETWEEN A ROCK AND A HARD PLACE, MR. GINSBERG IS, AND THAT IS WE HAVE NOT REALLY TAKEN A POSITION AS TO WHETHER THE STATE COURT COMPLAINT STATES A CAUSE OF ACTION AT THIS POINT.
OKAY.
LET'S ASSUME THAT CALLING IT INVASION OF PRIVACY, IT DOESN'T MEET THOSE ELEMENTS FOR WHATEVER REASON S THERE ANOTHER CAUSE OF ACTION, WITHIN THE ALLEGATIONS, THE SUBSTANTIVE ALLEGATIONS OF THE COMPLAINT, THAT CONSTITUTE A PERSONAL INJURY, UNDER THIS POLICY? FOR WHICH THERE IS A DUTY TO DEFEND.
I DON'T KNOW THE ANSWER TO THAT, JUDGE.
OKAY.
TRUTHFULLY.
JUSTICE PARIENTE.
OKAY. BACK TO THE QUESTION, I THINK, MAYBE YOU ANSWERED INDIRECTLY, YOU DON'T HAVE AN INTEREST IN THE STATE COURT ACTION, IN SAYING THAT THE INVASION OF PRIVACY DIDN'T STATE A CAUSE OF ACTION, BECAUSE THAT IS YOUR ONLY BASIS RIGHT HERE, FOR GETTING ALLSTATE TO DEFEND.
WELL, I THINK WE HAVEN'T TAKEN A POSITION AS OF YET.
THERE WAS NEVER A MOTION TO DISMISS, BASED ON FAILURE TO STATE A CAUSE OF ACTION, IN THE STATE COURT ACTION.
THAT'S CORRECT.
THE BATTERY THAT IS ALLEGED, IS THAT, YOU HAVE NEVER ALLEGED THAT THAT IS WITHIN THE COVERAGE OF THE ALLSTATE POLICY?
NO. I DON'T THINK THAT WE HAVE ARGUED. THAT THAT'S CORRECT.
SO IT IS NOT UNDER 7-A IF IT IS UNDER PERSONAL INJURY, IT IS CLEARLY EXCLUDED OUT BY INTENTIONAL ACTS.
UNLESS IT IS BROUGHT BACK IN, LIKE INVASION OF PRIVACY IS.
WHAT IS THE OTHER COUNT?
THERE ARE COUNTS UNDER TITLE VII.
ISN'T THAT DISCRIMINATION? ISN'T THAT ONE OF THE ALLEGATIONS? ISN'T THAT ONE OF THE SUBSECTIONS OF THE PERSONAL INJURY DEFINITION, DISCRIMINATION?
YES, IT CERTAINLY IS, BUT I THINK THAT THE DISCRIMINATION, IF I CAN, JUDGE.
IT SAYS DISCRIMINATION AND VIOLATION OF CIVIL RIGHTS.
RIGHT.
THAT IS NOT AN ISSUE. YOU ARE NOT ALLEGING OR WE ARE NOT SUPPOSED TO LOOK AT THAT, TO SEE WHETHER --
I WOULD NOT SAY, JUDGE, THAT WE ARE NOT SUPPOSED TO LOOK AT. THAT I THINK THAT IT IS POSSIBLE THAT THERE ARE A CAUSE OF ACTION.
BUT YOU SAID THAT THERE IS COVERAGE OR A DUTY TO DEFEND, BASED ON "D".
I THINK THAT IS CORRECT, YOUR HONOR. THAT'S RIGHT. MR. CHIEF JUSTICE: YOUR TIME IS UP. THANK YOU VERY MUCH. REBUTTAL?
THANK YOU. I WOULD LIKE TO ADDRESS THREE QUICK POINTS, IF I MIGHT IN MY REBUTTAL. FIRST OF ALL, THERE WAS A SUGGESTION THAT PERHAPS IT WAS HAPPENSTANCE THAT THE DECLARATORY JUDGMENT ACTION WAS FILED IN FEDERAL COURT. JUST SO THAT THIS COURT IS AWARE OF THE PROCEDURAL POSTURE, THE ORIGINAL CASE, SCARFO VERSUS GINSBERG, WAS FILED IN FEDERAL COURT, OUR DECLARATORY JUDGMENT ACTION WAS FILED IN FEDERAL COURT ASSIGNED TO THE SAME JUDGE SO WE HAD THE SAME TRIAL JUDGE DEALING WITH THE ISSUES OF LIABILITY AND THE COVERAGE. THE QUESTION THAT YOUR HONOR RAISED, WITH RESPECT TO WHETHER THERE WAS A MOTION TO DISMISS, THOUGH -- NO, THERE WAS NOT, SO THE QUESTION OF WHETHER THERE WAS ANY MERIT TO THIS HAS NEVER BEEN RAISED, AND I WILL SUGGEST THAT IT WILL NEVER BE RAISED, YOU BELIEVE THERE IS SOME DETERMINATION HERE, BECAUSE THEY DON'T WANT TO LOSE THEIR OWN CHANCE OF GETTING COVERAGE.
SUPPOSE ALLSTATE HAD DEFENDED UNDER AN EXPRESSION OF RIGHTS, IT WOULD HAVE RAISED -- I MEAN WOULDN'T IT HAVE BEEN DUTY BOUND IN TERMS OF PROTECTING ITS INSURED TO RAISE IT, OR WOULDN'T THERE HAVE BEEN A CONFLICT OF INTEREST AS TO THE INSURED AND ALLSTATE?
UNFORTUNATELY I WOULD RECOGNIZE THAT THERE WOULD BE A RESULTING ONFLICT, BECAUSE THE RESULT OF SUCH OFFENSE WOULD AFFECT THE COVERAGE. CERTAINLY THE DEFENSE THAT MR. GINSBERG HAS RAISED DOESN'T REFLECT THAT ISSUE. CERTAINLY A LOT OF REASONS, NOT ONLY THE INVASION OF PRIVACY REASON BUT ALSO MOST PARTICULARLY THE BUSINESS EXCLUSION WAS RAISED AND LITIGATED BELOW AND IS ALSO --
WHERE WILL THIS STATE OF AFFAIRS BE, IF THERE SHOULD AND REVERSAL ON THE FOURTH DISTRICT ON STATUTE OF LIMITATIONS GROUNDS AND IT IS SENT SENT BACK TO THE TRIAL COURT -- AND IT IS SENT BACK TO THE TRIAL COURT TO PROCEED, ON THE BASIS OF WHATEVER CAUSES OF ACTION THEY HAVE?
RIGHT. THERE ARE THREE STATE LAW CAUSES OF ACTION. THERE IS THE BATTERY CLAIM. THERE IS A CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND THEN THE INVASION OF PRIVACY CLAIM. IF IT IS REVERSED ON STATUTE OF LIMITATIONS GROUNDS, I WOULD ASSUME THAT MS. SCARFO WOULD BE ABLE TO PROCEED ON THE MERITS OF HER CLAIM. AS WE HAVE HEARD ALREADY, I DON'T THINK THEY ARE GOING TO ATTACK THE MERITS OF WHETHER OR NOT THE INVASION OF PRIVACY STATES A CAUSE OF ACTION, BUT I STILL THINK WE NEED TO RESOLVE WHETHER WE HAVE A DUTY TO DEFEND REGARDLESS OF WHETHER OR NOT THE FOURTH REVERSES AND ALLOWS THAT CASE TO GO FORWARD.
BUT YOUR OPPONENT RAISES THE COMPLICATION THAT, AS LONG AS YOU HAVE THIS LIVE UNDERLYING ACTION, THAT THERE IS -- THAT FORECLOSING THE DUTY TO DEFEND, ON THE BASIS OF SOME ALLEGATION OF THE COMPLAINT, PRESENTS A SORT OF A QUAGMIRE THERE, DOESN'T IT? IN WHAT THEY ARE GOING TO ACTUALLY PROCEED UNDER?
I DON'T THINK IT DOES RAISE A QUAGMIRE. I THINK ALL OF THE PARTIES THAT HAVE AN INTEREST IN THE DETERMINATION OF THE ISSUE OF WHETHER OR NOT IT IS INVASION OF PRIVACY, ARE IN THIS CASE, AND THEY ARE IN FRONT OF THIS COURT, AND ANY KIND OF DETEMINATION OF THAT WOULD BE APPLICABLE ON ALL THE PARTIES. CERTAINLY ALLSTATE IS NOT A PARTY IN THE CASE IN FRONT OF THE FOURTH DISTRICT, SO THAT COURT, AND THE TRIAL JUDGE IN BROWARD COUNTY, COULDN'T RESOLVE THE ISSUE OF WHETHER THESE ALLEGATIONS STATE AN INVASION OF RIGHTS OF PRIVACY CLAIM, SUCH AS WOULD BE COVERED UNDER ALLSTATE'S POLICY. THEY COULDN'T DO THAT IN OUR ABSENCE. MR. CHIEF JUSTICE: THANK YOU. YOUR TIME IS UP. THANK YOU, COUNSEL. FOR YOUR ASSISTANCE IN THIS CASE.