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7th Circuit rejects ‘kitchen sink approach’ in widow’s insurance appeal

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A woman whose husband died of cancer as their purchase of several Terre Haute-based car dealerships was failing is not entitled to proceeds of his life insurance policy – a policy that had been assigned as an asset in the sale of the lots – the 7th Circuit Court of Appeals ruled Monday.

The court affirmed rulings in favor of the insurer and third parties by Judge Larry J. McKinney of the U.S. Court for the Southern District of Indiana in Terre Haute. “Finding no merit in any of the issues appealed, we affirm the district court’s judgments,” Judge Michael S. Kanne wrote for the panel in Cincinnati Life Insurance Company v. Marjorie Beyrer,
12-2365.

The Beyrers managed and later began to purchase car dealerships owned by Mark Savoree. The 7th Circuit noted that the deal began to fall apart almost immediately and resulted in a series of lawsuits. In the instant case, the panel didn’t reserve criticism.

“Appellant’s complaint strikes us as exactly the type of ‘kitchen sink approach to pleading’ that we have previously found to violate the Federal Rules,” Kanne wrote. “At times, appellant’s convoluted language even renders it unclear precisely what fact she has attempted to allege.”

The opinion refers to an example paragraph and notes, “there are 27 different possible permutations of the allegation. … This was not appellant’s most complex sentence.” Judges expressed seeming exasperation with the appeal, noting, “The paragraph numbers restart at 119 after 150, which is yet one more example of how confusingly this complaint was constructed.”

The panel agreed with McKinney’s rulings dismissing the Beyrers’ cross-claims and third-party claims for failing to meet pleading standards; denial of motions for modification and reconsideration; and summary judgment on distribution of the life insurance proceeds.

Beyrer’s claims that asserted fraud or unjust enrichment against assignees of the policy failed to meet heightened pleading standards under Fed. R. Civ. P. 9(b) that require such allegations be made with particularity. “That means describing the ‘who, what, when, where, and how’ of the fraud,” Kanne wrote. “As the district court observed, appellant failed at this task.”

“Appellant contends that she (or, more realistically, her counsel) has done ‘more than the usual,’ including ‘traveling to the remote reaches of Illinois,’” Kanne wrote. “We are sympathetic to the travel required to find far-off court reporters, and we do not wish to cast aspersions on the level of effort expended by appellant or her counsel. But Fed. R. Civ. P. 9(b) does more than simply mandate that attorneys show some increased amount of work.”


 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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