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Lance sues for bonus



 
 
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  #21  
Old September 20th 04, 03:10 PM
B. Lafferty
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"B. Lafferty" wrote in message
ink.net...

"Joseph Hurley" wrote in message
...
Again, as an attorney, I have to respond to some of these claims.

"The first step will most likely be to ask the court to dismiss
Armstrong's action and compel the parties to proceed with arbitration."

That's not how it works. The defendant files a motion to refer the
matter for arbitration. The plaintiff has an opportunity to oppose that
motion, on whatever grounds. If the court grants the motion, the case is
NOT dismissed, but is placed in hold pending the results of arbitration.
Each party then picks an arbitrator, and the two pick a third. They then
conduct hearings.


That depends on the jurisdiction. I've had two cases dismissed with orders
to proceed to arbitration pursuant to the contractual arbitration clause.



The arbitrators will file a report proposing certain findings of fact and
a resolution with the court.

The defendant will file a motion to confirm the arbitrator's decision;
the plaintiff will file an opposition to that motion and a motion to
reject the decision and place the case on the trial list. The court will
then decide if the arbitrator's decision was reasonable under the
evidence presented.


There are genrally four reasons for an arbitration award to not be confirmed
as a judgment. The Federal rule is virtually the same for most state
proceedings.

FAA § 10(a) provides four limited bases, which have been described as

"grudgingly narrow" (Eljer Mfg. Inc. v. Kowin Dev. Corp., 14 F.3d 1250, 1253

(7th Cir. 1994)) for vacating an arbitral award: (1) the award was procured
by

corruption, fraud or undue means; (2) there was evident partiality or
corruption

by the arbitrators; (3) there was arbitral misconduct, such as refusal to
hear

material evidence; or (4) the arbitrators exceeded their powers, or so
imperfectly

executed their powers that they failed to render a mutual, final and
definite

award.



Only after the court approves the decision does it become a judgment of
the court.

"Armstrong now faces an insurance company with deep pockets that is not
going to pay out $5 million without an interesting discovery process
first."

If the defendant seeks to enforce the arbitration provision of the
contract, there will be NO discovery. Discovery is ONLY conducted in the
context of a case going to a trial. Not relevant in the context of
arbitration. So I'm confused by this statement, as it is inconsistent
with the prior one.


That will depend in part on the terms of the arbitration agreement. If the
agreement referrs to the FAA, as many do, there may well be "discovery."

FAA Section 7 expressly provides arbitrators with the authority to issue
subpoenas to compel the attendance of witnesses and the production of
documents at an arbitration hearing. Section 7 does not expressly provide
that arbitrators may compel pre-hearing discovery from third-party
witnesses, but the weight of authority interprets the section to authorize
subpoenas to compel pre-hearing document production. See, for example,
American Federation of Television and Radio Artists AFL-CIO v. WJBK-TV, 164
F.3d 1004, 1009 (6th Cir. 1999).



Second, what kind of discovery process? What is the insurance company
going to ask for? Medical records, ok. Does ANYONE think that if Lance
was using banned substances he would be stupid enough to see his regular
doctor and thereby leave a paper trail lying around in his medical
records? come now. They can't ask for records that don't exist.
Further, if the discovery process devolves into a fishing expedition,
there is a remedy for that -- Armstrong's lawyers can file motions to
quash the interrogatories that are not relevant to the issues in the
case.


Medical records can show many things. The Walsh book notes that Armstrong
may have made an admission to his treating cancer physician that he used
performance enhancing drugs. That admission, if it was made, might well be
reflected in his medical record. Would the company have issued its poliy
had that been known?

As we know from the tests instituted by the French cycling authorities for
the purpose of "health profiling," certain anomalies indicative of illegal
drug use can be detected. That could well be in his medical record.

If the paper trail doesn't exist, why not provide the medical recods that he
has, with a confidentiality agreement or order? Seem like an easy way to
collect $5 million.

More important will be the testimony of Emma O'Reilly, if the insurance
company can convince her to come an testify at an arbitration hearing.
Amrnstrong's joining her in an action in France might have ****ed her off
enough to accept a Texas insurance company's offer of plane tickets hotels
and meals.



If Armstrong's lawyers are smart. they will oppose any discovery having
to do with medical records on the basis that the Tour de France
organization having determined that, under its rules, Lance won the race,
that is conclusive on the question of whether he won legitimately. (This
whole story sounds like Gore suing Bush saying he should be collecting
the annual Presidential salary and not Bush.) You can only demand
through discovery two types of things: (a) things that would be
admissible as evidence in the trial of the case or (b) information that
is likely to lead to items that would be admissible as evidence. Medical
records based on a claim that Lance's win is illegitimate does not fall
under either of those. (See my other post, wherein I explain that the
issues in this case are limited to whether he DID win under the rules in
effect at the time of the race, not whether he should have won or won
"fairly" in some generic sense.)

If the insurer presses this, they will end up losing a lot of money,
because if Lance gets his case to a jury in TEXAS, well, I wouldn't want
to be the insurers' lawyer.


Arbitration awards are not confirmed by a jury. A judge makes a
determinaton to confirm or not.



"And if there is a finding against Armstrong, look for the matter to be
turned over to a DA for possible prosecution for insurance fraud
dependent on what evidence is taken at the arbitration hearing."

More evidence that the author does not know how arbitration works. There
is no "record" as there is in a court trial. There is no transcript of
proceedings. There is no court reporter or stenographer. The only
document available at the end is the arbitrator's report.


If you bother to check the case law, you will see that arbitration
transcripts are prepared all the time and are subject to review in relation
to the four grounds for overturning an arbitration award set forth above.
See, eg.

NO. COA99-878
NORTH CAROLINA COURT OF APPEALS
Filed: 29 August 2000
SHIRLEY S. CARPENTER, DIANE CARSON, and SHAWN COLVARD,
Plaintiff-Appellees,
v.
GEORGE BROOKS, SALOMON SMITH BARNEY, INC., PINNACLE GROUP, INC., and LEGG
MASON WOOD WALKER, INC.,
Defendant-Appellants.
Appeal by defendant corporations from order entered 16 April 1999 by Judge
James U. Downs in Graham County Superior Court. Heard in the Court of
Appeals 8 May 2000;



SHIRLEY S. CARPENTER, DIANE CARSON, and SHAWN COLVARD, Plaintiff- Appellees,
v. GEORGE BROOKS, SALOMON SMITH BARNEY, INC., PINNACLE GROUP, INC., and LEGG
MASON WOOD WALKER, INC., Defendant- Appellants

No. COA99-878

(Filed 29 August 2000)


........In their motion to vacate the arbitration award, plaintiffs alleged
that the panel was hostile toward them, was partial toward defendants, and
refused to hear or consider relevant evidence. After a hearing on the
motion, and after considering "the arguments of counsel, the pleadings in
this case, the entire transcript of arbitration proceedings conducted under
the offices of the National Association of Securities Dealers Inc., as well
as the briefs of the part[ies]," the trial court made a number of
unexceptionable findings of fact tracking the history of the case, then made
the following additional findings:
9. During the hearings before the Arbitration Panel, the
panel members collectively harassed and badgered the Plaintiffs, their
witnesses and their counsel.

10. Members of the Arbitration Panel repeatedly expressed
negative opinions about the Plaintiffs' claim[s] throughout the arbitration
proceedings..........;



http://www.cmd.faa.gov/LR-Sams/M-035...4/035-4-02.htm

Most contracts specify that the cost of the hearing, including transcripts,
is divided equally between the FAA and the union. The American Federation of
Government Employees (AFGE) contract has several differences including an
optional mediation prior to arbitration, and the entire cost of the
arbitration is paid by the loser. Grievance arbitration awards are final and
binding as long as they are not contrary to law or are not deficient on some
other very limited grounds.



The only issue will be as to the confidentiality of the transcripts.
Confidentiality may not apply to the revelation of criminal acts.








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  #22  
Old September 20th 04, 04:32 PM
RonSonic
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On Mon, 20 Sep 2004 00:11:34 -0400, "Joseph Hurley"
wrote:

Hi.

Since I am an attorney, I thought I would weigh in with the legal side of
this.

I believe that Tailwind & Armstrong's suit is meritorious.

The contract at issue (if Armstrong wins, Tailwind's contract obligates them
to pay the bonus, and the contract with SCA provides that SCA indemnifies
Tailwind) is a standard contract of insurance.

A contract of insurance works simply as follows: "In consideration for the
payment of premiums, the insurer promises that if the insured incurs a loss
of type X, then the insurer will pay to the insured the amount of the loss,
less any deductible."

Now that is a simplistic example, and most insurance contracts contain
exclusions.

The contract between Tailwind and Armstrong, the performance of which the
insurance contract secures, is simply an example of the classic "promise for
an act" unilateral contract. Armstrong made no promises; Tailwind promised
to pay him if he performed some act, here winning the Tour. (The example my
contracts prof used was, "I promise to pay you $100 if you climb to the top
of the flagpole.")

The key is how the "event" triggering the bonus, and hence the insurance
claim, was worded. The insurance company doesn't get to come in and rewrite
the contract -- it had a chance to read it before agreeing to insure it, and
if it didn't like the terms (e.g.. thought it could be invoked by Armstrong
taking illegal substances), they could have refused to insure the contract.
Happens all the time. Title insurance contract doesn't like your house
purchase contract, they refuse to insure your title.

But having written the policy and collected the premiums, there are a very
limited number of questions that can now be raised about it:

1. Did Tailwind pay all premiums as and when due?
2. Under the rules in effect at the time of the contest, and as determined
by the Amaury Sports Organization, was Lance Armstrong the winner of the
2004 Tour de France?

If the answers to these questions are "yes," then Armstrong has earned the
bonus, and the insurer may not ask other questions about it.

Further, since it is a written contract, there is a doctrine called
"merger," under which ALL terms the parties discussed are presumed to have
been included in the written contract. So the insurer is not allowed to
come along now and say, "Well, there was an implied condition that he not
use drugs." Sorry. If you had wanted that in there, you could have written
it in.

Finally, since the INSURER wrote the contract of insurance (the insurer
always does), if there is ANY ambiguity in the written contract, Tailwind &
Armstrong get the benefit of that ambiguity being resolved in their favor.
Ambiguities are resolved AGAINST the drafter, particularly in the case of
form contracts, which insurance contracts always are (offered on a "take it
or leave it" basis to the insured with no opportunity to negotiate terms).

So, I think Armstrong & Tailwind should and will win any lawsuit on this.
Speculation about whether Armstrong might have used drugs, when no drug test
has so indicated and where the race organizers can be called as witnesses to
say, "Yes, under our rules, Mr. Armstrong was the winner," are not going to
be sufficient to defeat an otherwise valid contract.

This is just a case where the insurer thought when it made the deal that it
was a good deal (after all, NOBODY had ever won a 6th Tour), but subsequent
events have proven otherwise, and so now they want out. I'm sure many
property insurers in Florida would like to do that as well this year.



This denial of the claim strikes me as a dangerous game for the insurer. If this
goes to court Lance and Tailwind will argue that the insurer is acting in bad
faith. In the insurance cases I'm familiar with that equals treble damages.

Ron
not an attorney, even on TV




Regards,

Joseph J .Hurley, Esq.
Attorney
"gym gravity" wrote in message
...
Isidor Gunsberg wrote:


Insurance, what a scam! Hehe... I wonder who the actuary was for
SCA, who set the premium at only $420,000 I'm sure that Tailwind
could have procured similar "Insurance" from English bookmakers,
although I doubt that the odds against Armstrong success would have
been set so high (i.e. Tailwind would have had to pay a higher
"premium") One wonders if Tailwind is insured through the 2005 TdF.
Given the way that the payouts have escalated, it could be quite
interesting. Since Lance now has to pay alimony, and keep Cheryl Crow
in the manner to which she is accustomed, he may still be strongly
motivated by the prospect of winning millions more.


Hey, Lafferty, what's the difference between this and gambling, anyway?



  #23  
Old September 20th 04, 04:53 PM
gym gravity
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B. Lafferty wrote:


More important will be the testimony of Emma O'Reilly, if the insurance
company can convince her to come an testify at an arbitration hearing.
Amrnstrong's joining her in an action in France might have ****ed her off
enough to accept a Texas insurance company's offer of plane tickets hotels
and meals.

No way, not to Texas. Maybe to San Francisco, Hawaii, New York, or even
Baltimore. But not to anywhere in Texas.
  #24  
Old September 20th 04, 05:11 PM
Papai Digital
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"B. Lafferty" wrote...
...admission to his cancer doc about using performance enhancing drugs. Look
for the people in the room when the alleged admission was made to be
subpoenaed to testify under oath.

This is going to be great fun to watch......sort of like a slow motion train
wreck.


Why?
It irritates me of course that you feel SO CONSTANTLY NEGATIVELY about this Brian.

-Ken
  #25  
Old September 20th 04, 06:12 PM
B. Lafferty
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"gym gravity" wrote in message
...
B. Lafferty wrote:


More important will be the testimony of Emma O'Reilly, if the insurance
company can convince her to come an testify at an arbitration hearing.
Amrnstrong's joining her in an action in France might have ****ed her off
enough to accept a Texas insurance company's offer of plane tickets
hotels and meals.

No way, not to Texas. Maybe to San Francisco, Hawaii, New York, or even
Baltimore. But not to anywhere in Texas.


Not even that liberal oasis called Austin?


  #26  
Old September 20th 04, 06:15 PM
B. Lafferty
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"Papai Digital" wrote in message
om...
"B. Lafferty" wrote...
...admission to his cancer doc about using performance enhancing drugs.
Look
for the people in the room when the alleged admission was made to be
subpoenaed to testify under oath.

This is going to be great fun to watch......sort of like a slow motion
train
wreck.


Why?
It irritates me of course that you feel SO CONSTANTLY NEGATIVELY about
this Brian.

-Ken


What can I say? I enjoy train wrecks, especially when they're big, arrogant
trains unlike Thomas the Tank Engine. ;-)




  #27  
Old September 20th 04, 07:47 PM
gym gravity
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B. Lafferty wrote:

Not even that liberal oasis called Austin?


Is liqour considered a "meal"?

Then, maybe.
  #28  
Old September 20th 04, 08:13 PM
B. Lafferty
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"gym gravity" wrote in message
...
B. Lafferty wrote:

Not even that liberal oasis called Austin?


Is liqour considered a "meal"?

Then, maybe.


In New Orleans it's considered a food group.


  #29  
Old September 21st 04, 04:38 AM
RonSonic
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On Mon, 20 Sep 2004 14:10:00 GMT, "B. Lafferty" wrote:


"B. Lafferty" wrote in message
link.net...

"Joseph Hurley" wrote in message
...
Again, as an attorney, I have to respond to some of these claims.




Second, what kind of discovery process? What is the insurance company
going to ask for? Medical records, ok. Does ANYONE think that if Lance
was using banned substances he would be stupid enough to see his regular
doctor and thereby leave a paper trail lying around in his medical
records? come now. They can't ask for records that don't exist.
Further, if the discovery process devolves into a fishing expedition,
there is a remedy for that -- Armstrong's lawyers can file motions to
quash the interrogatories that are not relevant to the issues in the
case.


Medical records can show many things. The Walsh book notes that Armstrong
may have made an admission to his treating cancer physician that he used
performance enhancing drugs. That admission, if it was made, might well be
reflected in his medical record. Would the company have issued its poliy
had that been known?


IIUC, that policy has been in place for some years. I'd expect any
contestability period has expired. Besides, what you describe is pure fishing.
Perhaps he snorted coke at a party in 1990, that's a performance enhancing drug,
does that mean he didn't just win the tour?

As we know from the tests instituted by the French cycling authorities for
the purpose of "health profiling," certain anomalies indicative of illegal
drug use can be detected. That could well be in his medical record.

If the paper trail doesn't exist, why not provide the medical recods that he
has, with a confidentiality agreement or order? Seem like an easy way to
collect $5 million.


Seems like an easier way to let a bookie stall and demand that you provide him
with an excuse welsh on a bet.

More important will be the testimony of Emma O'Reilly, if the insurance
company can convince her to come an testify at an arbitration hearing.
Amrnstrong's joining her in an action in France might have ****ed her off
enough to accept a Texas insurance company's offer of plane tickets hotels
and meals.


Nah, all this is meaningless. He really is the most tested athlete on the planet
and he's got the jersey. He won the race in accordance with the rules, including
the doping rules. Unless the insurer wants to claim that this is a fraud
involving Lance, the ICU and promoters, they don't get to invoke a set of rules
other than those of the race.

Calling this an insurable risk was stupid from the outset and now they're going
to lose money on it. Tough. They should have stuck to indemnifying risk rather
than making book without having bets to offset the risk.

Ron
  #30  
Old September 21st 04, 11:17 AM
B. Lafferty
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"RonSonic" wrote in message
...
On Mon, 20 Sep 2004 14:10:00 GMT, "B. Lafferty" wrote:


"B. Lafferty" wrote in message
hlink.net...

"Joseph Hurley" wrote in message
...
Again, as an attorney, I have to respond to some of these claims.




Second, what kind of discovery process? What is the insurance company
going to ask for? Medical records, ok. Does ANYONE think that if
Lance
was using banned substances he would be stupid enough to see his
regular
doctor and thereby leave a paper trail lying around in his medical
records? come now. They can't ask for records that don't exist.
Further, if the discovery process devolves into a fishing expedition,
there is a remedy for that -- Armstrong's lawyers can file motions to
quash the interrogatories that are not relevant to the issues in the
case.


Medical records can show many things. The Walsh book notes that Armstrong
may have made an admission to his treating cancer physician that he used
performance enhancing drugs. That admission, if it was made, might well
be
reflected in his medical record. Would the company have issued its poliy
had that been known?


IIUC, that policy has been in place for some years. I'd expect any
contestability period has expired. Besides, what you describe is pure
fishing.
Perhaps he snorted coke at a party in 1990, that's a performance enhancing
drug,
does that mean he didn't just win the tour?

As we know from the tests instituted by the French cycling authorities for
the purpose of "health profiling," certain anomalies indicative of illegal
drug use can be detected. That could well be in his medical record.

If the paper trail doesn't exist, why not provide the medical recods that
he
has, with a confidentiality agreement or order? Seem like an easy way to
collect $5 million.


Seems like an easier way to let a bookie stall and demand that you provide
him
with an excuse welsh on a bet.

More important will be the testimony of Emma O'Reilly, if the insurance
company can convince her to come an testify at an arbitration hearing.
Amrnstrong's joining her in an action in France might have ****ed her off
enough to accept a Texas insurance company's offer of plane tickets hotels
and meals.


Nah, all this is meaningless. He really is the most tested athlete on the
planet
and he's got the jersey. He won the race in accordance with the rules,
including
the doping rules. Unless the insurer wants to claim that this is a fraud
involving Lance, the ICU and promoters, they don't get to invoke a set of
rules
other than those of the race.

Calling this an insurable risk was stupid from the outset and now they're
going
to lose money on it. Tough. They should have stuck to indemnifying risk
rather
than making book without having bets to offset the risk.

Ron


Well, I guess that settles it all. I'll forward your post to the insurance
company.


 




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