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Wachovia Insurance Services v. Richard L. Toomey

SC06-1110

LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>>> OKAY.
THE NEXT CASE ON THE
CALENDAR THIS MORNING IS
WACHOVIA VERSUS TOOMEY.
>>> GOOD MORNING.
MAY IT PLEASE THE COURT MY
NAME IS JOHN PELZER ON THIS
QUESTION THAT HAS BEEN
CERTIFIED BY THE 11th
CIRCUIT OF THIS COURT AND
THAT FIRST QUESTION IS
WHETHER A PLAINTIFF MAY
MAINTAIN A DERIVATIVE ACTION
OR DERIVATIVE CLAIM THAT AN
ORIGINAL PLAINTIFF HAD
AGAINST THE THIRD PARTY BUT
ASOONED TO THE PLAINTIFF AS
PART OF A SETTLEMENT
AGREEMENT IF THAT SETTLEMENT
AGREEMENT ALSO RELEASED THE
AREA IN LYING POINT.
>> THERE ARE TWO QUESTIONS.
FIRST OF ALL, THE AGREEMENT
ITSELF SAID IT SHOULD BE
CONSTRUED ACCORDING TO LAWS
OF MARRY LAP.
HAS SOMEWHERE ALONG THE WAY
WAS IT STIPULATED THAT IT
WOULD BE FLORIDA LAW THIS
WOULD CONTROL?
>> NO, YOUR HONOR, IN FACT,
IN THE BRIEFING IN THE 11th
CIRCUIT, IT BECAME CLEAR
THAT MARYLAND LAW SIMILAR TO
FLORIDA LAW IN THE ISSUE OF
DISTINCTION BETWEEN RELEASE.
>> IT IS A LITTLE ODD FOR
THIS COURT TO BE GETTING
CERTIFIED QUESTION WHETHER
THIS SETTLEMENT AGREEMENT
SAYS THE SIDE IS BASED ON
MARYLAND LAW.
>> THAT WOULD BE AS TO
SETTLEMENT AGREEMENT.
THAT SETTLEMENT AGREEMENT IS
BETWEEN HOLMAN AND TOOMEY ON
THE ONE HAND AND IMC ON THE
OTHER THAT DOES NOT EFFECT
WACHOVIA'S RIGHT, WITH A
COVE VE WHY'S RIGHTS ARE
COMMON LAW RIGHTS IN THIS
INSTANCE WHICH ARISE IN THE
STATE OF FLORIDA.
>> WELL EXCEPT THAT THE
FIRST CERTIFIED QUESTION
ASKS US TO DECIDE WHETHER
UNDER FLORIDA LAW AN
AGREEMENT THAT IS SUPPOSED
TO RELEASE AN ASSIGNMENT IS
CAN CREATE A CAUSE OF ACTION
OR WHETHER BECAUSE THE
RELEASE ON THE ASSIGNMENT
WAS SIMULTANEOUS THAT THE
RELEASED EXTINGUISHED ANY IN
INTERESTS, ISN'T THAT THE
ISSUE?
THE AGREEMENT, THE
INTERPRETATION OF THE
AGREEMENT?
>> WELL, IT IS NOT
INTERPRETATION OF THE ANY
AMBIGUITY IN THE AGREEMENT
BETWEEN IMC AND TOOMEY AND
HOLMAN, WHETHER IT IS A
QUESTION OF FLORIDA COMMON
LAW, DOES THIS AGREEMENT
UNDER FLORIDA COMMON LAW
EXTINGUISH THE UNDERLYING
FIDUCIARY DUTIES.
>> YOUR OPPONENTS SAY IT WAS
NOT A COMPLETE RELEASE.
THEY SAID IT SHOULD BE READ
NOT TO SUE IMC AND
ASSIGNMENT OF IMC.
I AM READING FROM PAGE 16 OF
THE BRIEF.
I ASSUME YOU DISAGREE.
>> COMPLETELY, YOUR HONOR.
IF YOU READ PARAGRAPH 2 OF
THAT AGREEMENT, IT SAYS
RELEASEORS DUE HEAR BYE
RELEASE EQUIPMENT DISCHARGE,
ET CETERA, GUESS ON,
EVENTUALLY FOR THE KIND OF
LANGUAGE YOU WOULD FIND IN A
CODE OF GENERAL RELEASE.
SEN IT SAYS PROVIDED
HOWEVER.
>> RIGHT.
>> THAT NOTHING CONTAINS TO
RELEASE CLAIMS MIGHT HAVE OR
HEARIN ACQUIRE AGAINST THE
INSURANCE COMPANIES SES
SESFIED IN 3 D AN E BELOW
WACHOVIA OR ANY OTHER
PARTNER, ET CETERA, SO IT
SEEMS TO SAY THAT WE ARE
RELEASING OUR CLAIMS;
HOWEVER, LET'S CLARIFY, WE
ARE NOT RELEASING ANY CLAIMS
THAT YOU ARE GIVING US HERE
IN THIS AGREEMENT.
>> AND THEY DID NOT RELEASE
THOSE CLAIMS BY RELEASING
THE UNDERLYING CLAIM, THEY
HAVE MADE THOSE CLAIMS
NON-VIABLE.
WE NEVER ASSERTED IN THE
CASE THAT WACHOVIA IS
BENEFICIARY OF RELEASE TO
WACHOVIA, WHETHER THERE WAS
RELEASE TO IMC WHICH HAD THE
EFFECT OF UNDERMINING
REMOVING THE VIABILITY OF
ANY DERIVE TOUGHER CLAIM
THAT IMC WOULD THEN HAVE
OVER AGAINST WACHOVIA.
>> THE JUDGE, THERE WAS
ALREADY A JUDGMENT AGAINST
IMC.
>> THAT IS CORRECT.
>> A JUDGMENT WAS NOT
SATISFIED.
>> THAT IS CORRECT.
>> SO ISN'T IMC UNDER OUR
CASE LAW STILL SUBJECT TO
HARM WHICH IS THAT THEY ARE
HAVING UNSATISFIED JUDGMENT
ON THE BOOKS.
>> IT IS NOT SATISFIED OF
RECORD, BUT IT IS RELEASED.
THIS RELEASE RELEASES IT.
SO THERE IS THAT UNSATISFIED
JUDGMENT ON THE BOOKS AND
WHAT HOLMAN AND TOMB ZY BEEN
SEEKING TO RECOVER HERE HAVE
NEVER BEEN ANY SORT OF
COLLATERAL INJURY THAT I IMC
SUFFERED AS A RESULT OF
HAVING THIS UNSATISFIED BUT
RELEASED JUDGMENT ON THE
BOOKS ON THE STATE OF
MARYLAND WHICH MIGHT BE
DAMAGE TO IMC'S CREDIT
RATING OR IMPAIRING HOME
PROPERTY.
>> WHY COULDN'T WE TREAT
THIS REALLY ALMOST AS JUST
THE REAL PARTY AND INTERESTS
ISSUE AS FAR AS BOTH THE
AGREEMENT AND THE ISSUE WITH
REFERENCE TO WHETHER OR NOT
IT CAN BE ASSIGNMENT HERE?
IN OTHER RECORDS THE PARTY
THAT IS DEALING WITH
INSURANCE COMPANY OR BROKER
HAS HAD A JUDGMENT ENTERED
AGAINST THEM, IT REALLY IS
THEIR CLAIM THAT THEY HAVE A
CLAIM AGAINST THE INSURANCE
COMPANY AND IN ORDER TO BE
RESPONSIBLE FOR THIS, BUT
THEY ARE NOT THE ONES THAT
ULTIMATELY WILL RECOVER HERE
AND SO IT IS IN THEIR
INTERESTS REALLY TO STEP OUT
IF THEY CAN AND JUST LET THE
PEOPLE THAT REALLY CLAIM
THEY HAVE BEEN DAMAGED AND
HAVE THE JUDGMENT AGAINST
THEM PURSUE THIS CLAIM AND
SO WHY ISN'T IT JUST SORT OF
A, A REAL PARTY AND
INTERESTS THING, AS OPPOSED
TO FORCING, YOU KNOW, THE
INSURER TO GO THROUGH THIS
SORT OF FOR THE USE AN
BENEFIT OR WHATEVER, WHY
SHOULDN'T WE TREAT IT THAT
WAY?
>> I THINK WE CAN AND SHOULD
TREAT THINK IT WAY, YOUR
HONOR, REACH THE RESULT,
THERE ISS NO VIABLE CLAIM
AGAINST WACHOVIA, I WOULD
CITE TO THIS COURT, THAT IS
EXACTLY THE SITUATION THAT
OCCURRED.
THAT WAS A THIRD PARTY
INSURANCE CASE.
AND THE LOGIC OF COMMON LAW
THIRD PARTY INSURANCE IS TO
LOOK TO THE REAL PARTY AN
INTERESTS, HE INJURED PARTY
LEAVE THE INSURED OUT OF IT
AND HAVE THE INJURED PARTY
GO DIRECTLY AGAINST THE
INSURANCE COMPANY.
>> WOULDN'T AGREE THEN THAT
THERE WAS NO ASSIGNMENT.
>> THAT IS CORRECT, YOUR
HONOR.
>> THERE WAS NO ASSIGNMENT
OF ANYTHING THAT RELEASED
MAY HAVE HAD AGAINST THE
THIRD PARTY.
SO HOW DO YOU SAY THAT COKE
REALLY IS THIS SITUATION?
>> IF WE ARE GOING TO TREAT
IT AS LOOKING AT THE REAL
PARTY AN INTERESTS.
THE REASON THERE IS NO
ASSIGN BECAUSE WE WERE DOING
THAT, LOOKING TO THE REAL
PARTY OF INTEREST, THE
INJURED PARTY GOING DIRECTLY
AGAINST THE INSURED, LEAVING
THE UNSURED OUT OF IT, THERE
THE RELEASE OF THE INSURED
ARE WHEN THE FIRST INSURANCE
COMPANY SETTLED, AND GOT A
RELEASE OF THE SECOND
INSURANCE COMPANY OPERATED
TO ELIMINATE ANY THIRD PARTY
CLAIM.
>> ANY ISSUE OF SUPPLICATION
OR ANYTHING LIKE THAT HERE.
>> SO SET UP THIS JUST AN
AGREEMENT BY THE PEOPLE THAT
HAVE THE JUDGMENT WITH THE
PEOPLE THAT HAVE THE
JUDGMENT AGAINST THEM TO
INTERN POTENTIALLY HAVE A
CLAIM AGAINST THEIR
INSURANCE COMPANY TO SAY IN
EXCHANGE FOR LETTING YOU
PURSUE THE CLIMB AGAINST THE
INSURANCE COMPANY, I WILL
STEP OUT AN ASSIGN MY RIGHTS
TO YOU AND IN EXCHANGE FOR
YOU HAVING THOSE RIGHTS, YOU
AGREE THAT YOU WILL NO
LONGER PURSUE ANYTHING OR
TRY COLLECT THE JUDGMENT
AGAINST ME.
>> THAT WOULD BE WHAT THEY
COULD DO.
THAT IS THE ROSSEN CASE,.
YOU DON'T THINK THAT IS WHAT
THEY DID DO?
>> NO, YOUR HONOR.
THEY RELEASED.
THAT IS WHAT THE PARAGRAPH
DOES.
THEY COULD HAVE DONE THAT.
DHOOE HAVE, BUT THEY DID NOT
ACCOMPLISH IT HERE.
>> WOULD YOU AGREE OR
DISAGREE THAT WAS THEIR
CLEAR INTENT?
I WOULD SAY THAT IT IS CLEAR
FROM THE LANGUAGE OF THIS
SETTLE AMMENT AGREEMENT
BETWEEN IMC AN HOLMAN AND
TOOMEY, THEY DID INTEND TO
PURSUE WACHOVIA AND VARIOUS
OTHER INSURANCE COMPANIES AS
WELL.
BUT THAT INTENT DOES NOT
UNDERLINE THIS RELEASE.
THE CASES FROM THIS COURT ON
THAT POINT WHERE THIS COURT
NOTED THAT WHEN THE SECOND
INSURANCE COMPANIES INSUREER
WAS RELEASED BY THE INJURED
PARTY THEY DID NOT INTEND TO
INITIATE THE CLIMB AGAINST
THE SECOND INSURER'S
INSURANCE COMPANY.
>> IN THE TYPICAL CONTRACT
ALL RELATIONSHIP.
YOU WOULD ALLOW IF THE
CONTRACT DOESN'T FULLY STATE
YOUR INTENT TO REFORM THE
AGREEMENT, WHAT PROHIBITS
JUST REF FORMATION, SO IT IS
CLEAR IF YOU ADMIT THIS WAS
THE INTENT THAT THIS
OCCURRED, WHY WOULD WE NOT
ALLOW IT OR WHY WOULD THERE
NOT BE A REF FORMATION BY
THE PARTY.
>> FOR ONE REASON, IMC IS
NOT BEFORE THE COURT.
I MCI C IS THE PARTY THAT
THE AGREEMENT WOULD HAVE TO
BE BROUGHT IN TO REFORM THE
AGREEMENT.
THAT IS, AGAIN, THAT IS WHAT
HAPPENED.
FORD EXPRESSLY SAID THERE
WAS NO INTENT TO UNDERMINE
THAT CLAIM AGAINST THE
SECOND INSURANCE COMPANY
WHEN THE FIRST INSURANCE
COMPANY SETTLED AND
SIMILARLY, THE CASE THAT WAS
UPHELD BY THIS COURT WAS THE
KELLY CASE FROM THE 5th
DISTRICT, THERE THEY HAD
SOMETHING SIMILAR TO WHAT WE
HAD IN THE CASE, A VERY
ELABORATE STIPULATION IN THE
PARTIES THAT REVIDED FOR THE
INJURED PARTY GOING ON
ENSUING THE INSURANCE
COMPANY FOR THE EXCESS
AMOUNT THAT THE INSURED IS
NOT GOING TO BE RESPONSE
FOR.
>> IS IT SIG CAT, THOUGH,
THAT COKE INVOLVED THE
RELEASE AND THE SATISFACTION
OF JUDGMENT?
I MEAN, WE UNDERSTAND WHAT
IS GOING ON IN THESE CASES,
MANY OF US HERE NEGOTIATED
THESE IN MAKING SURE WE WERE
NOT GOING TO CROSS THE LINES
AN IT SEEMS, I MEAN, AGAIN
IN A FORM OF A SITUATION
BECAUSE IN THE END THE
INTENT OF THE AGREEMENTS IS
TO MAKE SURE THE PARTY TO
THAT AGREEMENT HA HAS NO
MORE EXPOSURE AND THE REAL
PART CAN PURSUE THE CLAIM I
THINK THE FACT THERE WAS NO
JUDGMENT THAT REMAINED
OUTSTABBEDING MEANT THERE
WAS SOMETHING TO ASSIGN
WHICH WAS THE RIGHT AND THE
JUDGMENT WHEREAS THERE WAS
NOTHING LEFT TO ASSIGN
BECAUSE THERE WAS RELEASE
AND A SATISFACTION OF
JUDGMENT.
WOULD I SAY THE RELEASE
ALONE IS SUFFICIENT THAT THE
PAPER JUDGMENT REMAINED ON
THE BOOKS AN THE ISSUE OF
WHETHER THERE IS SOME
ADDITIONAL DAMAGE ONER THAT
IN THIS LIABILITY FOR THE
JUDGMENT IFL OF STL THAT
WOULD BE ASSIGNABLE FROM IMC
TO HOLMAN AND TOOMEY IS NOT
BEFORE THE COURT.
>> BECAUSE THEY WERE
ASSIGNING THEIR RIGHTS IN
THE JUDGMENT.
THERE WAS, THERE WAS STILL A
JUDGMENT THAT WAS
OUTSTANDING.
THAT IS NOT WHAT THE
CERTIFIED QUESTION DOESN'T
DEAL WITH THAT SDINTION, IT
IS ASKING IF THERE IS A
COMPLETE RELEASE AN
ASSIGNMENT IN ONE DOCUMENT.
THAT IS WHAT IT IS ASKING?
>> OF COURSE, THERE IS
REALLY NOT AN ASSIGNMENT.
IT IS AGREEMENT TO ASSIGN.
THE ASSIGNMENT DOESN'T TAKE
PLACE UNTIL THREE MONTHS
LATER.
>> ACTUALLY, THE ASSIGNMENT
IN THIS CASE IT WAS PART
BETWEEN IMC, HOL MACHINE AN
TOOMEY, BUT THE -- YOU AGREE
ON AGAIN ON THE DAY BEFORE
THE ASSIGNMENT HAD TAKEN
PLACE THEN THE NEXT DAY THIS
AGREEMENT HAD TAKEN PLACE,
THEY WOULD BE FINED?
ASSIGNMENT, NEXT DAY,
RELEASE.
>> I WOULD SAY, NO, YOUR
HONOR, UNDER THE AVILA CASE,
I THINK, THE TIMING OF THE
ASSIGNMENT VERSUS THE
RELEASE COMES INTO PLAY, IF
FOR EXAMPLE, THERE IS
ASSIGNMENT TO A FOURTH PARTY
TO A CODEFENDANT OR
SOMETHING LIKE THAT, I DON'T
THAT I WHAT IS THE TIMING
LINE OR COPE WAS THE
ANTICIPATING ROSSEN THAT
RELEASE WOULDN'T COME UNTIL
AFTER THE FULL LITCATION OF
THE DERIVATIVE ACTION, SO I
THAT I WHAT IS THE LANGUAGE
THERE IS.
UNDER THE AVILA CASE, THIS
IS THE 4th DISTRICT OPINION,
THE LACK OF DAMAGE, SO TO
SPEAK, TO THE DOCTOR CAME
ABOUT WHEN HIS DEBT WAS
FORGIVEN, SO THAT WAS ENOUGH
TO OPERATE EVENTUALLY AS
RELEASE EVEN THOUGH IT CAME
AFTER THE ASSIGNMENT TO HIS
CODEFENDANT AND THEN BACK
AGAIN.
>> SO LET ME MAKE SURE WE
UNDERSTAND.
YOUR VIEW OF FLORIDA LAW IS
THAT IT IS THE DISTINCTION
BETWEEN THE RELEASE AND THE
AGREEMENT NOT TO ENFORCE
THAT REALLY MAKE THESE
DIFFERENCE.
YOU REALLY HAVE TO READ
THESE CASES AN IF YOU GET
THEM CONFUSED AND MIXED UP
ALL ON THE RELEASE, YOU MAY
HAVE DONE SOMETHING, BUT YOU
HAVE GOT A DIFFERENT RESULT.
>> THAT IS RIGHT.
>> IT IS THAT UNDER THE
CIRCUMSTANCES, THIS OR THE
THIRD PARTY, ANY OF THOSE
CASE IS THAT YOU MUST HAVE
AN AGREEMENT NOT TO ENFORCE
AND THE RELEASE COMING AFTER
YOU FINISH WITH WHATEVER IS
GOING ON IS THE OM WAY NOW
AT SOME OF THESE OTHERS TO
PRESERVE THAT CLAIM.
>> ABSOLUTELY CORRECT, YOUR
HONOR.
>> OKAY.
>> AND IF YOU LOOK AT THE
LINE, THIS COURT SAID IN
ROSSEN, THAT IS THE
DISPOSITIVE QUESTION AND THE
CASE IS FALLING ON EITHER
SIDE OF THAT DISTINCTION.
>> IN THAT CASE, YOU HAVE
BOTH, RIGHT?
THERE IS ANOTHER PARAGRAPH 3
C WHERE THEY NOT ENFORCE.
>> THAT IS RIGHT.
IT MAKES REF RENS TO THAT IN
THE CONTEXT OF ALLOCATING
THE SETTLEMENT BETWEEN THE
SECURITIES CLAIMS WHICH THEY
ALLOCATED THEM TO AND
EMPLOYMENT CLAIMS WHICH THEY
AL LE INDICATED THEM AWAY
FROM AND SO THAT DOESN'T
INITIATE THE LANGUAGE OF THE
RELEASE AT ALL.
>> WHY WOULD YOU NEED THAT
NOT TO ENFORCE -- IT SAYS
THAT TO ENFORCE AGAINST
DEFENDANT IMC THE $1.8
MILLION JUDGMENT ENTERED BY
THE COURT IN LITIGATION, WHY
WOULD YOU NEED THAT LANGUAGE
IF THE RELEASE ACCOMPLISHED
EVEN MORE?
>> WELL I WOULD SAY, YOUR
HONOR, THE REASON WHY THAT
LANGUAGE IS IN PARAGRAPH 3 C
IS BECAUSE THAT IS WHERE
THEY WERE DOING THE
ALLEGATION, THEY WERE SAYING
THIS 1.2, I BELIEVE IT WAS
1. 2, I COULD BE INCORRECT,
REGARDING THE SECURITY
CLAIM, WHAT IS BEING PAID IN
SECURITY CLAIMSEN ALONE THE
1.8 REMAINS.
DON'T WORRY ABOUT IT.
WE'LL NOT ENFORCE THAT.
THAT IS WHAT THAT PARAGRAPH
IS TALKING ABOUT.
THEN, YOU HAVE TO LOOK BACK
TO PARAGRAPH 2 TO SEE THE
OPERATIVE PORTION WHICH US
THE RELEASE.
NO INCONSUS SY THERE IS WHAT
I AM SAYING.
>> YOU ARE ASKING US NOW TO
INTERPRET SOMETHING THAT IS
NOT ON THE LANGUAGE OF THE
AGLIMENT WHICH YOU SAY WE
SHOULDN'T DO EARLIER IN THE
AGREEMENT, IT SEEMS IF WE
WERE STICKING BY THE PLAIN
LANGUAGE OF THE AGREEMENT,
WE CAN'T SAY THIS WAS
INTENDED TO DO THIS OR THE
OTHER, IT SAYS WHAT IT SAYS,
WE'LL NOT ENFORCE THE $1.8
MILLION JUDGMENT.
>> IF IT DOES BOTH, YOUR
HONOR, THEY THEN RELEASE IS
STILL SUFFICIENT TO DEFEAT
THE UNDERLYING CLAIM AND THE
UNDERLYING DERIVATIVE CLAIM.
>> US WHAT THE POLICY REASON
CUE ARGUE FOR US TO HAVE
THAT RULE OF LAW?
>> WELL, ESSENTIALLY, IT IS
RULE RF LOGIC, YOU CAN'T
HAVE DERIVE IS THERE IS NO
UNDERLYING CLAIM REMAINING.
AS IF AS MAKING DISSTRIPTION
BETWEEN THE TWO, IT IS
RELATIVELY RECENT DIVISION
FROM THE COURT IN 2001 IN
ROSSEN IS JUST MAKING THE
POINT THAT IF THAT
UNDERLYING CLAIMS GONE,
THERE HAS BEEN A RELEASE,
THERE IS NO LONGER ANY
LIABILITY OR RESPONSIBILITY
TO PAY THAT JUDGMENT THEN
THERE IS NOTHING UPON WHICH
YOU CAN PREDICATE ANY
DERIVATIVE CLAIM IN WAY THAT
WOULD BE THE DAMAGE.
>> WHAT DO WE DO WITH THE
LANGUAGE IN RONS WHICH TALKS
ABOUT THE FACT THAT THE
PARTIES IS THE CONTROLLING
INTERPRETATION OF THESE
RELEASESS?
AND IT SEEMS TO ME THAT IT
IS PRETTY CLEAR HERE THAT
THE PARTIES INTENDED TO
ACTUALLY FOREGO EXECUTION OF
THE JUDGMENT AGAINST IMC AN
ALLOW THE PLAINTIFFS TO IN
FACT GO AGAINST WACHOVIA
THAT THAT SEEMS TO BE THE
INTENT OF THE PARTIES HERE.
I THINK YOU HAVE TO READ
THAT LANGUAGE IN ROSSEN
AGAINST THE FACTS IN ROSSEN,
THE ARGUE AM THAT WAS BEING
MADE.
THE ARGUMENT THAT WAS BEING
MADE THAT IS THE AGREEMENT
CAN GIVE RELEASE LATER THAT
CAN BE CONSTRUED TO BE A
RELEASE NOW AND SO THEREFORE
ELIMINATING THE UNDERLYING
CLAIM AND THUS ELIMINATING
THE DERIVATIVE CLAIM, THE
COURT SAID, NO YOU HAVE TO
LOOK AT THE INTENT OF THE
PARTY.
THE INTENT WAS TO CONTINUE
TO PURSUE THE CLAIM, THAT IS
WHY THE RELEASE IS NOT GIVEN
UNTIL LATER.
THERE WAS NO RELEASE GIVEN
FROM THE PLAINTIFF TO THE OR
RIDGE ORIGINAL DEFENDANT IN
THE ROSSEN CLASS, THAT IS
WHY, THAT IS WHAT
DISTINGUISHES THAT CASE FROM
THIS ONE, WE HAVE TO LOOK AT
THAT LANGUAGE IN THEIR
AGREEMENT TO DETERMINE WHAT
THEY MET.
NOW AGAIN, THIS GOES
DIRECTLY, I AM INTO REBUTAL.
>> I I ASSUME IT IS YOUR
POSITION THAT TO RULE
AGAINST WHAT YOUR ARGUMENT
IS TO WE HAVE TO RECEDE.
>> ABSOLUTELY, YOUR HONOR.
>> THAT IS RYE.
>> FOR THAT MATTER, THE
CUNNINGHAM CASE AS WELL.
VARIED ONE SECOND ON THE
ASSIGNMENT OF THE FIDUCIARY
CLAIMS.
AS TO WHETHER OR NOT IT IS A
PERSON OR CONFIDENTIAL DUTY
THAT GIVE IS RISE TO THE
CLAIM.
IN THIS INSTANCE, ONE-ON-ONE
SITUATION CLEARLY IS A
PERSONAL DUTY, THAT IS THE
ESSENCE OF THE BREACH, OF A
IF I DISH UR ADUTY.
>> SINCE YOU ARE ON THIS
ISSUE, HOW IS IT ANY
DIFFERENT IN GIONI.
IT WAS A NEGLIGENT DUTY NOT
A FIDUCIARY DUTY.
>> WITH INSURANCE AGENT?
>> YES, IT WAS.
>> BUT THAT IS AN
IDENTIFICATION OF THE PARTY.
>> IT SEEMS TO ME THAT WHEN
WE ARE DEALING WITH THIS,
THERE IS POLICY INVOLVED.
WOULD YOU DISTINGUISH
BETWEEN SOMEBODY WHO IS $LY
THIRD PARTY BENEFICIARY OF
THIS ARRANGEMENT THE
INDIVIDUALS WHO RECEIVED THE
JUDGMENT VERSUS IF THEY WENT
ON THE OPEN MARKET AND
SIGNED A DUTY CLAIM.
DO YOU THINK THE LAW SHOULD
MAKE ANY DISTINCTION BETWEEN
WHO THE ASSIGNMENT IS TO?
IN TERMS OF SAYING WHETHER
IT IS PROHIBITED OR NOT?
>> I DON'T THINK SO, YOUR
HONOR, THE UNDERLYING POLICY
REASONS ARE THE SAME.
YOU WOULD STILL HAVE
FIDUCIARY LITIGATING OVER
PERSONAL CLAIMS AN DUTIES
WITH THE STRANGER TO THAT
DUTY.
>> WELL, THEY ARE ALREADY,
THE JUDGMENT WAS ALREADY
OBTAINED, SO THEY FOUND A
BREACH OF FIDUCIARY DUTY,
DIDN'T THEY?
>> NO, YOUR HONOR, THAT IS
WHAT IS ON APPEAL IN THE
CIRCUIT NOW IS THE BREACH OF
THE FIDUCIARY CLAIM, THAT IS
NOT OVER YET.
THE $1.8 MILLION WAS
ENTIRELY SEPARATE.
THAT WAS FOR BREACH OF
VARIOUS EMPLOYMENT CONTRACTS
THAT TOOMEY AND HOLMAN HAD
WITH IMC.
>> GO INTO THE CONCEPT THAT
WAS DISCUSSED BY THE
MAJORITY WITH REGARD TO
PERMITTING OR REFUSING TO
PERMIT AN ASSIGNMENT OF
THESE KINDS OF CLAIMS IN
CONNECTION WITH A PERSONAL
RELATIONSHIP.
>> WE CERTAINLY DON'T HAVE
IN A CASE LIKE THIS WITH
INSURANCE BROKER THE PROBLEM
OF DIMINISHING THE INTEGRITY
OF THE LAWYERS OR LEGAL
SYSTEM.
THAT MUCH IS DIFFERENT
BETWEEN THOSE TWO CASE BUT
WE HAVE THE PROBLEM.
>> WE ALLOWED IT.
>> THEN THE REASON WAS
BECAUSE IN THAT CASE,
ALTHOUGH IT WITH AS LAWYER,
THE DUT DUTY WAS NOTqHHA
PERSONAL ONE.
AND IT WAS NOT FIDUCIARY
CONFIDENCE ONE.
THROWS THE VARIOUS WORDS
USED THROUGHOUT THE OPINION
TO DESCRIBE THAT
RELATIONSHIP.
THAT SORT OF BECOMES THE
LINCHPIN.
>> JUST IS?
>> DIDN'T WE ACTUALLY IN
COHEN EXAMINE THE ACTUAL
KIND OF SERVICE THAT WAS
RENDERED THERE SO AND THE
FACT THAT SERVICE WAS NOT SO
PERSONAL THAT WE COULD SAY
ITS WITH ASSIGNABLE, WHAT
WAS PERSONABLE ABOUT THIS
RELATIONSHIP BETWEEN IMC AND
WACHOVIA WHEN IN ESSENCE
THEY WERE INSURANCE
BROKERING, I MEAN, THERES
NOTHING OUT OF THE ORDINARY
THAT CAN I SEE ABOUT THEIR
RELATIONSHIP?
>>
>> YOUR HONOR, THAT WOULD BE
THE BASIS OF DISMISSING THE
CLAIM IN THE FIRST INSTANCE,
THERE IS NO FIDUCIARY DUTY
AT ALL.
>> A FIDUCIARY CUTIE,
REALLY, I MEAN, THE
DEFINITION AFFY DOUCHEARY IS
GENERAL ISN'T IT?
> IT IS ACCEPTED.
IT IS OPPOSED BY BEN FINISH
BENEFICIARY AND ACCEPTED BY
THE FIDUCIARY.
IT IS INTERPRETED BROADLY
BAIT IS A HIGHER DUTY THAT
FIDUCIARY OWES TO
BENEFICIARY IN THIS INSTANCE
THE U.S. DISTRICT COURT
ALLOWED THAT FIDUCIARY DUTY
CLAIM TO STAND FIT WAS
NEGLIGENCE CLAIM THEN I
WOULD SAY UNDER THE COW HEN
CASE CLEARLY ASSIGNMENT.
>> YOU HAVE USED YOUR TIME.
>> MY APOLOGIES.
>> THANKS.
>>>
>>> MAY IT PLEASE THE COURT.
MY NAME IS LISA HSIAO AS THE
COURT HAS OBSERVED AS CLEAR
BY THE QUESTIONS THE
SETTLEMENT AGREEMENT IS
INTENDED TO DEAL WITH TWO
TYPES OF CLAIMS ON THE
LITIGATION BETWEEN HOLMAN
AND TOOMEY.
>> CAN YOU CLARIFY YOUR VIEW
ON THE FIDUCIARY
RELATIONSHIP AND THE
ASSIGNMENTABILITY HELP ME
UNDERAND WHAT THE STATUS
WHICH IS THE 11th CIRCUIT?
>> IS A UNDERSTAND IT, THE
11th CIRCUIT CERTIFYS
WHETHER THE BRECH AGAINST AN
INSURANCE BROKER IS
ASSIGNABLE.
AND I DON'T KNOW WHY THEY
DECLINED TO INTERPRET THE
APPLICABLE WHILE WE BELIEVE
THE CONTROL ON THE
CIRCUMSTANCES.
>> THEY LIKE TO DO THIS IN
THESE KIND OF CASES.
IF INSURANCE CASE THEY SEND
IT TO US.
>> WELL, LET ME TRY CLARIFY.
YOU DID FILE ULTIMATE CLAIMS
FOR BREACH OF CONTRACT,
NEGLIGENCE, AND THEN,
FIDUCIARY DUTY?
>> CORRECT.
IT WASN'T EXACTLY ALL
CLAIMS.
WE FILED OUR OWN CLAIMS
AGAINST WACHOVIA AS TOOMEY
AND HOLMAN INSURANCE
BROKERS, THEY ARE ALSO THE
BROKER FOR US.
WE WERE EMPLOYEES AN
OFFICERS OF IMC, WE ALSO
FILED NEGLIGENCE CLAIMS AND
CONTRACT CLAIMS AGAINST
WACHOVIA.
WE ALSO FILED ASSIGNED
CLAIMS AGAINST WACHOVIA AS
IMC TO ENFORCE THE ENFORCE
$1.8 MILLION JUDGMENT OR TO
CO LOOK THE AMOUNT THAT WE
WERE OWED UNDER THAT AS WELL
AS DEFENSE CONTRACT.
>> JUSTICE ASKING ABOUT IF I
DURBARY DUTY.
I GUESS MY QUESTION IN THE
ASSIGNMENT AREA THAT WE'RE
DEALING WITH TODAY.
YOU FOUND BASED ON THAT
ASSIGNMENT, MORE THAN A
BREACH OF FIDUCIARY DUTY.
>> YES.
WE FILED BOTH AS WELL AS THE
BREACH OF FIDUCIARY DUTY
CLAIM.
>> THE ISSUE IS NOT WHETHER
YOU HAVE A REMEDY OR NOT BUT
THE QUESTION OF WHETHER YOU
HAVE BOTH, WHETHER YOU HAVE
IF I DURBARY, WHERE THE
FIDUCIARY RELATIONSHIP COULD
BE SIGNED?
>> THAT IS CORRECT.
>> I THOUGHT THE ONLY THING
THAT WENT TO TRIAL WAS THE
BREACH OF FIDUCIARY DUTY.
>> THAT IS CORRECT.
> THE JUDGMENT BASED ON THE
BREACH OF FIDUCIARY DUTY NOT
ON THE NEGLIGENCE CLAIM.
>> CORRECT.
THE DISTRICT COURT CITED TO
DISMISS THE NEGLIGENCE
BECAUSE UNDER FLORIDA LAW,
YOU CAN'T BRING THE
NEGLIGENCE AND IF I GURB A
FIDUCIARY DUT TIE.
>> THAT IS NOT AN ISSUE YOU
CROSS APPEALED?
>> WE DID CROSS APPEAL TO
THE 11th COURT BUT NOT
BEFORE YOU.
>> THE QUESTION THAT I HAVE
IS THAT THE FIRST CERTIFIED
QUESTION SAYS WHAT IS THE
EEFFECT OF SETTLEMENT
AGREEMENT?
IT CONTAINS AN ASSIGNMENT
AND IMMEDIATE RELEASE.
YOU HAVE IN YOUR BRIEF
ADVOCATED FOR THE PIECING
THAT THE SETTLEMENT
AGREEMENT IS NOT AN
IMMEDIATE RELEASE ON THE
SAME COURSE OF ACTION:
>> THAT IS CORRECT.
>> YOU ARGUED THAT NO IT
DIDN'T RELEASE ALL CLAIMS.
THE SCOPE OF OUR AUTHORITY
HERE IN TERMS OF THE
CERTIFIED QUESTION IS TO
ANSWER IT AS IT IS POSED.
YOU ARE ASKING US TO
REINTERPRET THE AGREEMENT
DIFFERENTLY THAN THE 11th
CIRCUIT HAS, AREN'T YOU?
>> WITH ALL DO RESPECT TO
THE 11th CIRCUIT.
FIRST OF ALL, ITS ORDER OF
CERTIFICATION EXPRESSLY
STATED THAT THIS COURT IS
NOT LIMITED TO THE PHRASING.
>> TRUE.
>> BUT IF THEY DIDN'T THINK
IT WAS TOTAL RELEASE OUR
OTHER CASES ARE SO CLEAR
THAT ABOUT OF COURSE THE
ASSIGNMENT IS ALLOWED AS THE
RELEASE IS DEFERRED UNTIL
AFTER THE JUDGMENT IS
COLLECTED, THEY DIDN'T NEED
US TO ANSWER THAT.
THEY CLEARLY INTERPRETED THE
SETTLEMENT AGREEMENT AS
BEING COMPLETE RELEASE OF
ALL OF THE CLAIMS AGAINST
IMC AS WELL AS ASSIGNMENT.
>> WELL, WE SUBMIT THAT THAT
IS NOT A READING THAT WE
STRESS THE ACTUAL LANGUAGE
AS READ IN CONTEXT AND AS A
WHOLE.
>> WELL, INDULGE ME FOR A
MINUTE LET'S ASSUME THE
AGREEMENT OPERATES AS
RELEASE.
I DON'T SEE ANY OF OUR CASES
THAT WOULD ALLOW A CAUSE OF
ACTION TO BE ASSIGNED IF THE
RELEASE HAS ALREADY OCCURRED
AND CULL COMPANY IS VERY
CLEAR THAT ABSENCE PRIOR
ASSIGNMENT, IN THIS CASE,
THE ASSIGNMENT OCCURRED, THE
ACTUAL ASSIGNMENT OCCURRED
THREE MONTHS LATER, IT SEEMS
WHOEVER DRAFTED THIS
AGREEMENT JUST AS THEY WERE
INTENDED FOR FLORIDA WOULD
APPLY JUST CLEARLY HAVEN'T
READ FLORIDA AS TO WHAT
STEPS NEED TO BE TAKEN TO
PRESERVE THESE CLAIMS.
>> WELL, FIRST OF ALL, THE
-- WITH RESPECT TO THE
TIMING OF THE ASSIGN,
ALTHOUGH, IT IS THE ACTUAL
ASSIGNMENT DOCUMENT WAS NOT
SIGNED UNTIL AUGUST, IF YOU
LOOK AT PARAGRAPH 9 OF THE
SETTLEMENT AGREEMENT WHICH
IS ON PAGE, ON PAGE 14, IT
SAY ITS THE AGREEMENT MAY BE
EXECUTED ALL OF WHICH WILL
BE DEEMED TO BE A PART OF
THIS AGREEMENT SO IT IN WERE
OPERATES THAT.
>> THAT GOES BACK AND REALLY
SPEAKS AGAIN TO CLEAR
FYVATION.
THIS IS NOT SOMETHING THAT
IS NEW IN FLORIDA LAW.
IT IS SOMETHING THAT HAS
BEEN APPLIED FOR YEARS AT
LEAST SINCE COKE AND THAT
APPARENTLY TO THOSE DOING
THIS KIND OF DOCUMENT BECAME
VERY CLEAR THAT ONCE YOU DO
THE RELEASE, YOU CAN'T
ASSIGN AFTER THAT, THAT IS
WHAT I AM TRYING TO
UNDERSTAND, THE REAL THRUST
OF THIS, IN THAT DOCUMENT,
THERE IS A GENERAL RELEASE.
AND COKE WOULD NOT HAVE TO
RECEIVE CONTROL BECAUSE
THESE ARE DONE GENERALLY AS
AGREEMENTS NOT TO ENFORCE.
NOT RELEASE THEM.
>> WELL, YOU KNOW, OUR
POSITION IS THAT THERE WAS
NOT A GENERAL RELEASE, THE
PROVIDED LANGUAGE AS WELL AS
THE OTHER LANGUAGE WITH THE
EXPLICIT COVENANT TOT TO
ENFORCE THE JUDGMENT
INTENDED TO PRESERVICE THE
JUDGMENT AND IN FACT THE
PARTIES DID PRESERVE IT
REMAINS OUTSTANDING ON THE
BOOKS TODAY.
TO ANSWER JUSTICE PARIENTE'S
QUESTION IF IN FACT THERE
WAS A COMPLETE RELEASE, WE
WOULD ARGUE THAT IT DIDN'T,
IT WOULDN'T MATTER ANYWAY
BECAUSE THE CLAIMS AGAINST
THE INSURANCE BROKER BY IMC
HERE ARE AGAINST WACHOVIA AS
AN INDEPENDENT TORT BECAUSE
OF THE WRONG THAT IT
INFLICTED UPON ITS CLIENT
FOR FAILING TO PROVIDE IT
WITH INFORMATION REGARDING
THE ELIMINATION OF COVERAGE,
FAILING TO PROVIDE DEFENSE
COST, SO IMC WOULD HAVE A
PLAN AGAINST THE BROKER
REGARDLESS, YOU KNOW, AGAIN,
THAT IS NOT OUR POSITION,
THAT IS ASSUMING THE
QUESTION THAT YOU GAVE ME.
THE HYPOTHETICAL.
>> AGAIN, IT GOES BACK TO
THAT ASK A NONSENSE CALL
QUESTION THEN, IT DOESN'T
RELEASE THE CLAIMS YOU ARE
ASSERTING?
>> WE ASSERT THAT THIS DOES
NOT -- THIS AGREEMENT DOES
NOT RELEASE THE JUDGMENT.
THERE WAS A COVENANT NOT TO
ENFORCE THE EMPLOYMENT
JUDGMENT AND THE INTENT OF
THE PARTY.
>> LET ME HAVE A CRACK AT
THAT IN THAT WE ARE HERE TO
ANSWER THEIR QUESTIONS ABOUT
FLORIDA LAW AND REALLY IT
STRAYS FROM THE PURPOSE OF
OUR CERTAIN CASE PROCESS
HERE FOR US TO GET INTO
DECIDING THEIR CASE SO HOW,
WHAT IS THE POSITION ON THE
ANSWER TO THEIR QUESTIONS?
>> THE ANSWER TO THEIR
QUESTION SHOULD BE THAT
WHERE THE SETTLEMENT
AGREEMENT ALSO CONTAINS A OF
NENT NOT TO ENFORCE THE
SETTLEMENT AGREEMENT DOES
NOT EXTINGUISH THE
UNDERLYING CLAIM AS IN
ROSSEN AND THE CASE THEY ARE
IN.
THAT WOULD BE HOW WE WOULD
SUBMIT YOU SHOULD ANSWER THE
QUESTION.
>> ON THE ISSUE OF THE
INTERPRETATION OF THE
SETTLEMENT AGREEMENT, THE
DISTRICT COURT ENTERED A
JUDGMENT AGAINST WACHOVIA AS
A MATTER OF LAW, WAS THERE
CROSS MOTIONS FOR SUMMARY
JUDGMENT ON -- I MEAN, AFTER
THE -- ON THE ISSUE OF THE
ASSIGNMENTABILITY, WAS THAT
RAISED BY MOTION TO DISMISS
THAT YOU CAN'T ASSIGN, THIS
CAN'T BE A VALID ASSIGNMENT
BECAUSE IT WAS RELEASED WAS
THE ISSUE OF THE INTENT OF
THE PARTIES AND THE
AMBIGUITY IN THE AGREEMENT
RAISED, ARGUED BY ANYBODY
BEFORE THE FEDERAL DISTRICT
COURT JUDGE.
>> AT THE BEGINNING OF THE
LITIGATION, THE FILING OF
THE ORIGINAL COMPLAINT.
WACHOVIA MOVED TO DISMISS
AND THE GROUNDS WAS THE
BREACH OF THE DUTY IS NOT
ASSIGNABLE.
>> NOT ON THAT ISSUE.
>> THERE WERE MOTIONS FOR
SUMMARY JUDGMENT BEFORE
TRIAL, THE COURT DENIED BOTH
PARTIES MOTIONS FOR SUMMARY
JUDGMENT, THEN, UPON --
>> AND THE MOTIONS WERE
BASED ON THE LANGUAGE OF THE
SETTLEMENT AGREEMENT.
>> YES.
>> ALL RIGHT.
THEN THE JUDGMENT IS
OBTAINED BASED ON THE BREACH
OF IF I GURBARY DUTY.
>> CORRECT.
>> WHAT HAPPENED?
>> IT WENT UPON APPEAL.
BOTH SIDES CROSSED THE
FIELD.
>> SO AT ANY POINT, DID BOTH
PARTIES BY SAYING A SUMMARY
JUDGMENT CONCEDED THAT THE
AGREEMENT DID NOT NEED IN
TERP OPERATION.
THIS IS WHAT, WE GET THIS
PIECE OF THIS CASE AND A
PIECE OF IT AND THEN SOMEONE
THROW AS CURVE AND SAYS BUT
GOT TO LACK AT THIS
AGREEMENT, I AM LOOKING AT
IT, I THINK, YOU KNOW, I
THINK IT MEANS IT IS
COMPLETE RELEASE, BUT I AM
WILLING TO ENTERTAIN
ARGUMENT THAT NOT ON A
CERTIFIED QUESTION TO THIS
COURT WHETHER THE CIRCUIT IS
CLEAR THAT THEY HAVE
INTERPRETED THE AGREEMENT TO
PROVIDE FOR A COMPLETE
RELEASE, I AM TRYING TO SEE
FIT WAS EVER, IF THAT ISSUE
WAS LIT GATED OR THIS
OCCURRED CURVE BEING THROWN
IN NOW THIS COURT.
>> IT WAS LIT GATED ON
SUMMARY JUDGMENT BY
WACHOVIA, THE DISTRICT COURT
ISSUED AN ORDER ON THE
JUDGMENT DENYING BOTH SIDES
MOTIONS.
>> WHICH WOULD SEEM TO MEAN
THERE WOULD BE NEED TO BE
EVIDENTIARY HEARING ON WHAT
THE AGREEMENT MEANT.
YOU SAID THAT DID NOT
HAPPEN.
>> THAT DID NOT HAPPEN.
THEN THERE WAS PRETRIAL
ORDER FROM RAISING THE
ARGUMENT THAT THEY WERE
RELEASED, THE UNDERLYING
CLAIM WAS RELEASED.
THE CASE WENT TO TRIAL ON
THE CLAIMS.
>> HAS EITHER PARTY ARGUED
THE STATE OF FLORIDA WANTS
TO YOU COMPLY INTERPRETING
THE AGREEMENT.
I BELIEVE IT WAS RAIDS BUT
BOTH PARTIES HAVE CONCEDED
THAT SUBSTANTIALLY SIMILAR
TO FLORIDA LAW IN ITS
INTERPRETATION.
>> WHY NOT TRANSFER THIS?
>> WELL IT SEEMS THE 11th
SIR KIT DIDN'T KNOW WHAT THE
FLORIDA LAW WAS.
HOW DID THEY KNOW?
>> I DON'T BELIEVE THAT -- I
KNOW IT WAS RAISED IN ORAL
ARGUMENT AT THE 11th SY ARE
CIRCUIT BUT NOT REACHED BY
THE PARTIES THAT MARYLAND
LAW APPLIES HERE OR AS A
RESULT WOULD BE ANY
DIFFERENT.
>> HOW ABOUT COMING BACK TO
CHIEF JUSTICE LEWIS'S
QUESTION WITH A FEW MINUTES
TO GO.
LET ME ASK IT IN A DIFFERENT
WAY.
WE THROUGH A SERIES OF CASES
HAVE REALLY SET OUT THAT IF
THE PARTY IS IN A SITUATION
LIKE THIS WANT TO EN NEAR
AGREEMENT, AN AGREEMENT THAT
REALLY DOES ALLOW THE
JUDGMENT HOLDER FOR THE
PARTIES OR WHATEVER YOU WANT
TO CALL IT, YOUR CLIENT,
OKAY, TO GO GAINS THE
INSURANCE AGENT OR THE
INSURANCE COMPANY HERE, THAT
THERE IS A WAY TO DO IT, IT
CAN BE DONE.
IN ORDER TO DO IT, YOU HAVE
GOT TO CROSS ALL YOUR Ts AN
DOT ALL OF YOUR Is IN THE
FOLLOWING MANNER.
OF COURSE, PART OF THIS IS
THAT YOU HAD TO BE CAREFUL
NOT TO HAVE A RELEASE.
SO IF YOU ARE THE LAWYER
ADVISING THE CLIENTS ABOUT
HOW TO CONSTRUCT THIS
AGREEMENT IN ORDER TO COMPLY
WITH OUR CASE LAW, ISN'T
THERE A PROBLEM WITH THIS
PARTICULAR AGREEMENT IN
TERMS OF COMPLYING WITH OUR
CASE LAW THAT PROVIDES A
ROAD MAP OF THOUSAND DO IT?
DO UNDERSTAND MY QUESTION?
>> I DO.
>> SO DOESN'T THIS AGREEMENT
DOESN'T FOLLOW THE ROAD MAP
THAT WE HAVE SET OUT IN OUR
CASE LAW.
IT HAS TWIST TO IT BECAUSE
IT APPEARS TO GRANT AN
ABSOLUTE RELEASE, SO HELP US
WITH THAT PROPOSITION THAT
WE HAVE SET OUT A ROAD MAP
IN THOUSAND DO IT AN WE MORE
OR LESS SAID YOU GOT TO BE
CAREFUL NOT TO INCLUDE A
RELEASE IN THERE.
THIS AGREEMENT DOES IN CLUD
A RELEASE SO HELP US WITH
WHETHER THIS COMPLIES WITH
OUR CASE LAW.
>> WELL, IS A STATED AT THE
OUTSET, THE SETTLEMENT
AGREEMENT DEALS WITH THE
DIFFERENT TYPES OF CLAIMS IN
THESE LITIGATIONS BETWEEN
IMC AND TOOMEY-HOLMAN IN
DIFFERENT WAYS, THERE WAS A
RELEASE WITH RESPECT TOP THE
SECURITY CLAIMS AND OTHER
POSSIBLE FEATURED CLAIMS
SPRX HOWEVER, WITH RESPECT
TO THE UNDERLYING JUDGMENT,
THE $1.8 MILLION JUDGMENT,
THERE WAS A OF NENT NOT TO
ENFORCES THAT JUDGMENT AN
EXCHANGE THE CONSIDERATION
FOR THAT PART.
>> SO YOU KEEP ON COMING
BACK TO REINTERPRETING THE
AGREEMENT IN THE WAY THE
11th CIRCUIT CLEARLY DIDN'T
INTERPRET IT.
BECAUSE IF IT WAS A RELEASE
OF THAT CLIMB
SIMULTANEOUSLY, THEY
WOULDN'T HAVE CERTIFIED THE
QUESTION.
I JUST REREAD THE ENTIRE
VERY SHORT OPINION AND IT IS
CLEAR THAT THEY ARE BASING
IT ON ASSUMING THAT THIS
AGREEMENT, SO IN GULLG YOU,
THE OM THING THAT WE HAVE TO
ANSWER IS WHETHER, YOU KNOW,
MAYBE WE GO BACK, YOU GOT IT
WRONG BECAUSE YOU NEED TO
REINTERPRET THAT AGREEMENT,
BUT LET'S ASSUME WE ANSWER
THAT QUESTION, IF THERE IS
UNCONDITIONAL RELEASE IN THE
SAMENT DOCUMENT.
NOW YOU CAN ANSWER THAT
QUESTION WITHOUT CHANGING
THE CERTIFIED QUESTION?
EYE MEAN, PUSH DIME SHOVE, I
HAD TO DO IT, I WOULD SAY
THAT -- WELL, WE HAVE TO DO
IT.
YOU ARE GOING TO HAVE TO DO
IT.
>> THE ANSWER WOULD BE THAT
THE RELEASE CANNOT BE
INTERPRETED THAT WAY,
THEREFORE, THE ASSIGNMENT
SHOULD NOT EXTINGUISH THE
UNDERLYING CLAIM.
YOU KNOW?
IF THAT PUSH CAME TO SHOVE.
>> HOW DOES THAT COMPORT
WITH COKE?
>> WOULD YOU HAVE TO
RETREAT.
>> ALL RIGHT.
THAT TOOK A LOT TO GET
THERE.
>> JUST A FEW MINUTES ON THE
BREACH FIDUCIARY DUTY.
AS I STATED EARLIER, I
BELIEVE THAT THE BREACH OF
FIDUCIARY DUTY CLAIM IS
ASOONABLE, THIS COURT HELD,
THAT NEGLIGENCE CLAIM
AGAINST INSURANCE BROKERS
ARE ASSIGNABLE AND THAT
OPINION -- THE ANSWER TO THE
QUESTION THAT I POSED TO
MR. PEL ZER, HIS ANSWER WAS,
WELL, IT WAS A NEGLIGENCE
CLAIM, IT DIDN'T CONCERN
FIDUCIARY DUTY CLAIM, HERE
WE HAVE A FIDUCIARY DUTY
CLAIM.
>> WELL, WACHOVIA OFFERED
NOTHING.
I DON'T BELIEVE THERE IS ANY
SPORT FOR SOME SUBSTANTIAL
DIFFERENCE BETWEEN A
NEGLIGENT CLAIM AND IF I
DIRBARY DUTY CLAIM.
>> WELL, IF YOU LOOK AT
CAPLAN AND THOSE CASES, IT
SEEMS TO ME THAT WHAT WE
SAID IS PURELY PERSONAL TORT
IS NOT ASSIGNMENTABLE.
YOU CAN CERTAINLY, UNONE
WHICH WITH A TO INTERPRET
TOWARD ARRIVING AT FIDUCIARY
DUTY, YOU REACHED YOUR
PERSONAL DUTY, TO ME, YOU
ARE MY ADVISER.
>> YES, BUT FIRST OF ALL,
THE COURT HELD THAT
INSURANCE BROKER'S
RELATIONSHIP WITH ITS
INSURED WAS NOT PERSONAL AND
CONFIDENTIAL AS TO PRECLUDE
ASSIGNMENT AND FRANKLY
DISTINGUISH QUITE STRONGLY
THE DIFFERENCE BETWEEN THE
INSURANCE BROKER INSURED
RELATIONSHIP AND AN
ATTORNEY'S RELATIONSHIP.
>> HOW WOULD YOU, UM, HOW
WOULD YOU SUGGEST WE
INTERPRET THAT PHRASE
PERSONALLY PERSONAL TORT?
WHAT WOULD BE THE PURELY
PERSONAL TORT THAT WOULD NOT
BE ASSIGNABLE?
WELL, IN THE CASE, WE DON'T
BELIEVE THERE ARE.
>> I UNDERSTAND THAT.
WE HAVE TO MAKE THE LAW THAT
APPLIES IN OTHER CASE, HOW
DO WE IN DERP OPERATE THAT?
>> WELL, I HEARD FROM THE
ATTORNEY-CLIENT, YOU KNOW,
IT IS YOUR PROVISION OF
PERSONAL INFORMATION TO YOUR
LAWYER AS THE PERSONAL COURT
AND THAT LAWYER'S BREACH OF
THAT TRUST.
>> THERE IS ANY OTHER
CONTEXT?
>> I MEAN, THIS ISN'T
ATTORNEY-CLIENT CONTER, BUT,
YOU KNOW, THE COURT OBSERVED
IN THE '6Os THERE ARE MANY
DIFFERENT TYPES OF FIDUCIARY
RELATIONSHIPS THAT INVOLVE
TRUST AND THE IF I DOUCHE
ARY, SO I SUPPOSE THERE ARE
PROBABLY MANY OTHER
FIDUCIARY RELATIONSHIPS BUT
NOT ALL OF THEM ARE SO
PERSONAL AS TO PRECLUDE
ASSIGNMENT.
>> DO YOU THINK IT MATTERS
WHO WAS ASSIGNED TO?
DOES THAT FACTOR?
I MEAN, FOR ME, IT MAKE AS
DIFFERENCE THINK OF THIS AS
SO CLOSE TO A BAD FAITH
CAUSE OF ACTION WHERE YOU
ARE LOOKING AT WHO THE THIRD
PARTY BENEFICIARY IS, IT IS
CLEARLY YOUR CLIENT, I DON'T
SEE, DO YOU SEE ANY ROOM IN
THE LAW FOR DISTINGUISHING
WHO THE SIGNMENT IS MADE TO
SINCE PART OF THE POLICIES
YOU DON'T WANT MARABILITY
LIKE CLAIMS AGAINST LAWYERS,
DO YOU SEE THAT AS BEG A
FACTOR TO CONSIDER OR DOES
IT NOT COME INTO OUR
ANALYSIS?
>> WELL, TO THE EXTENT YOU
WANT TO CONSIDER IT AND THE
FACT THAT THIS CASE, YOU
KNOW, OUR CLIENTS HAD THEIR
OWN FIDUCIARY RELATIONSHIP
WITH WACHOVIA AND THAT WAS
RELATED TO IMC'S
RELATIONSHIP, SO THE EXTENT
THAT YOU ARE GOING TO SAY
CERTAIN PARTIES THAT DO HAVE
SOME SORT OF PERSONAL
RELATIONSHIP WITH THE
FIDUCIARY SHOULD BE THE
BENEFICIARY.
>> HAS THAN ABOUT ALLUDED TO
OR DISCUSSED ANY CASES?
>> NO, I DON'T BELIEVE, YOUR
HONOR, I DON'T BELIEVE IT
WAS BRIEFED.
WE WOULD SUBMIT THAT IN FACT
THE PLANS ARE CLEARLY
ASSIGNABLE, THIS COURT
REFERRED TO IN ROSSEN
ACTUALLY INVOLVED AN
ASSIGNMENT OF BREACH OF
FIDUCIARY DUTY CLAIM AGAINST
INSURANCE BROKER IN THAT
CASE.
THE COURT REVIEWED THAT CASE
AND STATE CITED IT WAS
APPROVAL IN THE ROSSEN
OPINION.
>> SO YOU ARE BASICALLY
ASSERTING THAT THE
CONNECTION OR THE NES XUS
BETWEEN THE INDIVIDUALS AN
IMC IS SO CLOSE THAT THIS IS
EVEN A DIFFERENT SITUATION
THAN IF I HAD TOTAL VANGERS
AN IS MORE REASON TO APLOY
OI LOY THE ASSIGNMENT?
>> IF YOU WERE TO DECIDE OR
TO DEFINE THAT THERE WAS
SOME REASON TO LIMIT WHO AN
ASSIGNMENT MIGHT BE.
YES.
I WOULD SUBMIT THAT THESE
SITUATION HERE.
IN CLOSING, I WOULD LIKE TO
RESTATE THAT AGAIN, WE
BELIEVE THAT THE COURT IS
NOT LIMITED TO THE
PARTICULAR QUESTION HA WAS
PHRASED BY THE 11th CIRCUIT
AND THAT THAT QUESTION
SIGNIFICANTLY OMITED THAT
THIS WAS A COV VENT NOT TO
ENFORCE HERE THAT ROSSEN AND
THE CASES CREATED THEREIN
CONTROL AND THE UNDERLYING
CLAIM WAS NOT EXTINGUISHED
AND SHOULD BE ALLOWED IN
THAT THE BREACH OF FIDUCIARY
DUTY CLAIMS WERE ASSIGNMENTABLE.
>> DO WE READ; HOWEVER,
THEIR QUESTION AS INDING
INDICATING THEIR IN TERP
TATION OF THE FACTS AT ALL?
CAN WE USE UP WHAT THEY SAID
IN THEIR CERTIFIED QUESTION
AS ON INDICATION OF HOW THEY
VIEW THE FACTS OF THIS CASE?
THAT IS THIS WAS AN
AGREEMENT THAT CONTAINED
BOTH AN ASSIGNMENT AND
IMMEDIATE RELEASE?
THE FACTS THAT THEY ARE
OPERATING ON.
>> CERTAINLY YOU COULD.
I BELIEVE THAT THEY IN FACT
DID REFER TO THE LANGUAGE OF
THE OF NENT NOT TO ENFORCE.
IN THE OPINION.
YOU OBVIOUSLY HAVE THE
RECORD BEFORE YOU AS WELL.
>> AREN'T WE DECIDING THEIR
CASE?
>> WELL, YOU ARE DECIDING
THEIR CASE IN TERMS OF
WHETHER THE UNDERLYING CLAIM
IS EXTINGUISHED BUT THERE
YOU ARE STILL OUTSTANDING
ISSUES BEFORE THE 11th
CIRCUIT ON THE CROSS APPEAL.
>> LIKE THE SECOND QUESTION,
CAN THE CLAIM AGAINST
WACHOVIA BE ASSIGNED BY
JUSTICE PARIENTE, WE ANSWER
THAT PA SPECIFIC QUESTION,
WE'RE BASICALLY DECIDE
THAURK SHOE IN THE CASE.
>> THAT IS CORRECT.
>> THEY DECLINED TO DECIDE
IT.
>> THANK YOU.
>> THANK YOU.
>> WITH OUR HEN, YOU HAVE
EXHAUSTED YOUR TIME.
COUNSEL, YOU UX HAUSED YOUR
TIME AS WELL.
WE THANK YOU FOR YOUR
PRESENTATIONS, EXCELLENT
PRESENTATIONS ON BOTH SIDES.
THANK YOU VERY MUCH.
WE'LL TAKE THE CASE UNDER
ADVISEMENT, THANK YOU.