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.
Quoted message said:Quoted message said:"B. Lafferty" <[email hidden]> wrote in message
news:<[email hidden]>...
Quoted message said:Quoted message said:"crit pro" <[email hidden]> wrote in message
news:[email hidden]...
>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
Quoted message said:Quoted message said:being tied up in legal knots due to his wealth,
.. BTW,
Quoted message said:arbitration
Quoted message said:Quoted message said:is playing in the insurance company's ballpark. That's why they put
arbitration clauses in their policies. Also, there is generally no
appeal
Quoted message said:Quoted message said:from an arbitrator's ruling. Also, if the arbitrator finds that
Armstrong
Quoted message said:Quoted message said: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
Quoted message said:Quoted message said:on what evidence is taken at the arbitration hearing.
Interesting times ahead.
