Yesterday I had an oral argument in the U.S. Eleventh Circuit Court of Appeals. We had won summary judgment on a disability insurance case for a former dentist / real estate developer a year ago. My client was disabled due to a constellation of ailments all related to autoimmune disease and liver failure. The insurance company had not even attempted to put up any contradictory evidence, a point that obviously was not lost on the judges yesterday. The insurance company appealed and requested oral argument. Our panel included Judges Carnes, Hull and Pryor.
You always try to learn something about the personalities of judges before you appear before them. Two of these judges are from my native state of Alabama, and one was originally from my wife’s home state of South Carolina. While I don’t know any of these three judges personally, it was reassuring when my friends who have known each of them over the years told me of their kind hearts. Those personal insights are sometimes at odds with how one may have been portrayed in a political context in the news media.
Judge Hull started out with pointed questions to the insurance company’s lawyer. Toward the end of the appellant’s 15 minutes Judge Carnes asked him what is one best case was in support of his position on the meaning of “total disability” under Georgia law.
That served up one of those moments an advocate loves, when preparation meets opportunity. I had in my thin file folder a set of bullet points about what he said was the best case supporting his position. In a moment it was my turn to to talk, so I began with a critique of his “best case,” a 1942 decision that involved an “any work” rather than “own occupation” definition of disability, in which the insured was still able to do a job less demanding than running his own store before he got TB, and in which the insured won anyway. I even had in my notes a quote stating the court’s rationale in favor of awarding benefits, showing that the insurance company’s lawyer had taken his “best case” language out of context. (I’m not quite sure who it was in the courtroom who suppressed a laugh when I started by pointing out his “best case” was a 1942 decision. Maybe I only imagined it came from the bench.) Then, I referred to an unbroken string of Georgia appellate decisions since 1927 supporting Georgia’s rejection of narrow and technical definitions of total disability in insurance policies, and discussed the facts of our case in that context.
The insurance company had made a big deal of criticizing the trial judge’s decision to admit disability testimony of two treating physicians. The Court of Appeals judges demonstrated no overt interest in that issue so I touched on it just briefly. There were no questions on that issue.
You never know how an appellate court will rule until you get the order, but yesterday felt good.
The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).