Stradford v. Zurich
- Claim initially for insurance, then counter-claim by insurance company which brings up Rule 9(b) issue (lack of specificity in allegation of fraud).
- Claim dismissed (but with leave to amend) due to requirements of Rule 9(b).
- Claim must state "time, place, and nature of the [alleged] misrepresentations."
- In this case, says he lied, but did not identify the what and when, etc. of the lie.
- Should have said something like:
- 1. Lied about no damage before date coverage started
- 2. Lied about date of damage
- 3. Perhaps lied about amount of damages?
- But dismissal (with leave to amend) gives insurance company a roadmap for fixing problem when it amends complaint.
- Note: Only one chance after court identifies problem.
- But under Rule 9(b) fraud has greater requirements.
- See Yeazell, p. 371 quote: "... Perhaps if Rules 8 and 9 were rewritten today..."
- Why should you have to know more when your argument is that other side has been withholding?
- After all, other kinds of allegations (not just fraud) carry stigma even if they don't pan out (abuse, sexual harassment).
- See also Yeazell, end of p. 370: "expressio unius est exclusio alterius" (expressing only one of two related ideas implies the exclusion of the other)
- Limits extra requirements to fraud and mistake and does not allow it to be extended.
