ItsBruce
Contributor
Nicely done, Laurie. Thanks.
If you have a PACER account for federal court, you can access the actual docket on this case. PACER reflects the following additional, new information:
1. Mr. Lesser was disqualified.
2. Lexington has filed a motion to strike the class action allegations under Rule 12(f)
3. Vicencia and Buckley has filed a motion to dismiss for failure to state a claim upon which relief can be granted.
4. PADI Risk Purchasing Group has filed a motion to dismiss for failure to state a claim upon which relief can be granted.
5. Lexington has filed a motion to dismiss for failure to state a claim upon which relief can be granted.
6. York Risk Services Group has filed a motion to dismiss for failure to state a claim upon which relief can be granted.
7. PADI has filed a motion to dismiss for failure to state a claim upon which relief can be granted.
8. The hearings are all set for May 23, 2011
To summarize the motion by PADI:
PADI challenges the Second Amended Complaint for being based on conclusions rather than on allegations of ultimate fact. It also argues that certain of the claims (fraud, misrepresentation, etc.) require greater specificity than the plaintiff has provided. In conjunction with this it argues that, for example, the plaintiff alleges the contracts with PADI were partly written and partly oral, but the plaintiff does not allege what the written parts were and what the oral parts were or who actually spoke the words that constituted the oral part or what the substance of those words was.
As expected, PADI went after the fact that there are no allegations of any actual damages. There are no allegations that anyone did not get paid for a claimed loss. Also, there are no allegations that comparable coverage was available from any other source at a comparable price (i.e. that anyone paid for a policy that was not as good as what they were getting).
In addition, PADI argues that the case is not suitable for treatment as a class action as the issues are different for different potential class members. For example, PADI notes that if part of the contract was written and part was oral, there is no way to know that the supposed oral part was the same for each insured class member without actual testimony by each purchaser of insurance as to what was or was not said orally. Thus, to the extent different purchasers were told different things, the issues would be different. Also, if there is to be rescission, i.e. PADI has to “unwind” the deal and refund money, then shops that received benefits, either by way of having claims for losses paid or being indemnified for their liabilities, would have to return the payments and benefits they received … and the particular plaintiff cannot speak for all of these.
Among other arguments, PADI argued that although the plaintiff alleges PADI collected millions of dollars in premiums, there is no allegation plaintiff or any other insured actually sent premiums to PADI.
PADI attaches policies that it says shows the argument about the $300,000 deductible makes PADI an insurer is “bogus.” It says that the policies themselves show there is no SIR or deductible in any of the liability policies. It says that the policies themselves show that the PD deductible of $300,000 is an aggregate, not a “per occurrence” deductible. It further says there is no deductible at all for the 2010 - 2011 policies.
I have not read the motions by the other defendants, but I’m guessing they are similar.
I’ll try to post when I see the opposition.
