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#11
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#12
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"Alex Rodriguez" wrote in message ... In article . net, says... Interesting. According to Walsh and Ballester, one of the major sticking points between Cofidis and Armstrong was that Armstrong refused to provide any of his medical records to Cofidis. I'm curious to see how Armstrong's attorney react to the demand for all medical records. Fun times ahead. They will obviously decline unless that was a condition of the policy. Anyone see the policy? ------------ Alex Producing the medical records has nothing to do with the terms of the policy. By commencing legal or arbitration action, Armstrong waives any privilege as to medical documents that are relevant to the claim or defense of the claim. If the issue is whether he used drugs, I would think his medical records would be of great interest to the insurance company's medical/doping expert. We might even discover whether or not he mad an 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. |
#13
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In article . net,
"B. Lafferty" wrote: This is going to be great fun to watch......sort of like a slow motion train wreck. These words say so much about you, Brian, at least as regards this issue. Seems kind of sad to me. -- tanx, Howard "Nationalism is an infantile disease. It is the measles of mankind." Albert Einstein remove YOUR SHOES to reply, ok? |
#14
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"Isidor Gunsberg" wrote in message om... Gary wrote in message ... From the Dallas Morning News: Lance sues to get bonus for Tour victory 12:10 AM CDT on Thursday, September 16, 2004 By TERRY MAXON / The Dallas Morning News A Dallas-based insurance company is balking at paying cyclist Lance Armstrong a $5 million bonus for winning the Tour de France, saying it wants to look into allegations that Armstrong used illegal performance-enhancing drugs. SCA Promotions Inc. said it has paid the $5 million into a custodial account until it determines whether "new allegations" made against Armstrong are true. "We're just asking the questions," SCA attorney John Bandy said Wednesday. Armstrong and Tailwind Sports Inc. filed a lawsuit in Dallas County state district court Tuesday seeking to make SCA pay up. As required in its contract with SCA, they asked to send the claim to arbitration, and Bandy said SCA supports that move. Tailwind owns the U.S. Postal Service Pro Cycling Team and has Armstrong as its leading member. In 2001, it promised Armstrong a series of bonuses based on the number of consecutive Tour victories. Before the 2001 Tour de France, Tailwind paid SCA a $420,000 insurance premium to pay the bonuses if Armstrong earned them. SCA paid a $1.5 million bonus in 2002 after Armstrong won his fourth Tour, and another $3 million after he won again in in 2003. But SCA withheld the $5 million bonus Armstrong was to receive after winning a sixth straight Tour this summer. 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. I think Sheryl is taking care of herself. I bet she has more money than he does anyway. Bandy said SCA learned of allegations in a newly published book, L.A. Confidential: The Secrets of Lance Armstrong, that quoted a former team employee saying Armstrong had used a banned blood booster and asked her to dispose of bags of syringes. "We believe the contract says we have to pay only if the event of a valid claim," Mr. Bandy said. In its suit, the plaintiffs said SCA has asked Armstrong and Tailwind to provide all of Armstrong's medical records and other records. Bandy said SCA will ask the arbitrator to order those records handed over. The plaintiffs said SCA didn't have the right to question his Tour victories, which were upheld by cycling authorities. |
#15
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Shouldn't that be "no check", your move.
"kaiser" wrote in message om... In other words: "Check" Your move Lance! "B. Lafferty" wrote in message link.net... "crit pro" wrote in message m... A Texas arbitrator. Nothing a coupla signed books can't fix. Lance will get paid. Most likely an arbitrator with the American Arbitration Association. Interesting that after Armstrong allegedly threatens Prentiss Steffen with being tied up in legal knots due to his wealth, Armstrong now faces an insurance company with deep pockets that is not going to pay out $5 million without an interesting discovery process first. The first step will most likely be to ask the court to dismiss Armstrong's action and compel the parties to proceed with arbitration. BTW, arbitration is playing in the insurance company's ballpark. That's why they put arbitration clauses in their policies. Also, there is generally no appeal from an arbitrator's ruling. Also, if the arbitrator finds that Armstrong has been using illegal substances over a period of years, look for the insurance company to seek repayment of the monies they paid out in prior years. It is also unlikely that an arbitrator will see himself bound by res judicata regarding any "decisions" by the UCI and/or WADA. 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. Interesting times ahead. |
#17
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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. 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? |
#18
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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. 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. 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. 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. 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. "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. Furthermore, any alleged fraud, presumably based on Armstrong's prior collections from this insurance company, would have taken place in prior years and been completed then (the crime of insurance fraud is complete once the money is paid), starting the running of the statute of limitations. This is one year for most nonviolent property crimes, and would therefore have expired. Furthermore, again, "fraud" is a technical term which means: The intentional misrepresentation of a fact with intent to induce reliance thereon which reliance does take place to the detriment of the one relying. What fact was misrepresented? I believe Armstrong DID win the Tour in 1999-2003, did he not? I saw him hold the trophy on the Champs Elysees. As I stated in my other post, that, and that alone, is the "fact" which triggers the insurer's liability to pay on the policy. Fraud in this context would be that Armstrong makes up phony video showing him as the winner when he in fact is not. You can't go and say in court that someone violated the rules of the sport to win where either (a) you have not attempted to contest the result by appeal to the judges of the event or (b) despite others contesting the result on the same basis, the sport's organizing bodies have decided it in the athlete's favor. Finally, even if it were proven beyond doubt that Armstrong used banned substances, anyone seeking to overturn his victory would have to PROVE that, absent the substances, he would not have won, and that X would have won instead. He didn't just win by a minute or two, but by six. So, I really think that this attempt to impeach Armstrong's victory by some other means will go nowhere, because the courts in the end will say, "Look, there's a procedure in the bicycling world to challenge Armstrong's victory -- complain to the STDF, the UCI, and finally the Court of Arbitration for Sport. Mr. Insurer, you did none of these. Having not done so, you can't come to this court and say we should overturn the results. Pay the amount agreed upon in the insurance contract -- you collected your premiums, the benefit of the contract; you are therefore bound by its burdens." Regards, Joseph Hurley, Esq. "B. Lafferty" wrote in message link.net... "crit pro" wrote in message m... A Texas arbitrator. Nothing a coupla signed books can't fix. Lance will get paid. Most likely an arbitrator with the American Arbitration Association. Interesting that after Armstrong allegedly threatens Prentiss Steffen with being tied up in legal knots due to his wealth, .. BTW, arbitration is playing in the insurance company's ballpark. That's why they put arbitration clauses in their policies. Also, there is generally no appeal from an arbitrator's ruling. Also, if the arbitrator finds that Armstrong has been using illegal substances over a period of years, look for the insurance company to seek repayment of the monies they paid out in prior years. It is also unlikely that an arbitrator will see himself bound by res judicata regarding any "decisions" by the UCI and/or WADA. 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. Interesting times ahead. |
#19
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"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. 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. 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. 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. 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. "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. Furthermore, any alleged fraud, presumably based on Armstrong's prior collections from this insurance company, would have taken place in prior years and been completed then (the crime of insurance fraud is complete once the money is paid), starting the running of the statute of limitations. This is one year for most nonviolent property crimes, and would therefore have expired. Furthermore, again, "fraud" is a technical term which means: The intentional misrepresentation of a fact with intent to induce reliance thereon which reliance does take place to the detriment of the one relying. What fact was misrepresented? I believe Armstrong DID win the Tour in 1999-2003, did he not? I saw him hold the trophy on the Champs Elysees. As I stated in my other post, that, and that alone, is the "fact" which triggers the insurer's liability to pay on the policy. Fraud in this context would be that Armstrong makes up phony video showing him as the winner when he in fact is not. You can't go and say in court that someone violated the rules of the sport to win where either (a) you have not attempted to contest the result by appeal to the judges of the event or (b) despite others contesting the result on the same basis, the sport's organizing bodies have decided it in the athlete's favor. Finally, even if it were proven beyond doubt that Armstrong used banned substances, anyone seeking to overturn his victory would have to PROVE that, absent the substances, he would not have won, and that X would have won instead. He didn't just win by a minute or two, but by six. So, I really think that this attempt to impeach Armstrong's victory by some other means will go nowhere, because the courts in the end will say, "Look, there's a procedure in the bicycling world to challenge Armstrong's victory -- complain to the STDF, the UCI, and finally the Court of Arbitration for Sport. Mr. Insurer, you did none of these. Having not done so, you can't come to this court and say we should overturn the results. Pay the amount agreed upon in the insurance contract -- you collected your premiums, the benefit of the contract; you are therefore bound by its burdens." Regards, Joseph Hurley, Esq. "B. Lafferty" wrote in message link.net... "crit pro" wrote in message m... A Texas arbitrator. Nothing a coupla signed books can't fix. Lance will get paid. Most likely an arbitrator with the American Arbitration Association. Interesting that after Armstrong allegedly threatens Prentiss Steffen with being tied up in legal knots due to his wealth, . BTW, arbitration is playing in the insurance company's ballpark. That's why they put arbitration clauses in their policies. Also, there is generally no appeal from an arbitrator's ruling. Also, if the arbitrator finds that Armstrong has been using illegal substances over a period of years, look for the insurance company to seek repayment of the monies they paid out in prior years. It is also unlikely that an arbitrator will see himself bound by res judicata regarding any "decisions" by the UCI and/or WADA. 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. Interesting times ahead. You might want to look at the "discovery rule" under Texas law as to when the statute of limitations begins to run. Also take a look at "fraudulent concealment" as an affirmative defense that effectively tolls the running of the statute of limitations under Texas law. The insurance company will argue that it has acted reasonably and that the Walsh book with its statements by those who worked with Armstrong is the first indication that they, as reasonably diligent persons, had as to possible fraud. If Armstrong won his Tours by perpetrating a fraud on ASO and that fraud has just now been discovered, it is unlikely that he will be able to rely on the initial determination of ASO as to his winning if that determination is itself the result of his fraudulent concealment of using illegal substances. |
#20
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I find it it interesting that Lance's Agent, Bill Stapleton, now owns
Tailwind. How does one negotiate in this situation? Does he stare in the mirror? CH |
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