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Vol. 6, Iss. 8
October 11, 2017

Tom Petty: Insurance Coverage And Discovery Disputes

Meet The Hippest Federal Judge In America

Like so many I was heartbroken to learn of rock legend Tom Petty’s sudden death last week at age 66. I’ve been listening to a lot of his music since then. It’s been very enjoyable, but, at the same time, serving as a reminder of just how big of a loss it is.

I realized something else while listening to all these Tom Petty songs – three of his biggest hits were no doubt influenced by insurance. Memories of unsatisfactory experiences with insurance companies is no doubt what the music icon had in mind when he wrote these classics:

“Tom, your loss history is terrible. We are not renewing your policy.” Result -- “Don’t Come Around Here No More”

“I reviewed the new information you provided. I am maintaining my disclaimer of coverage." Result -- “I Won’t Back Down”

“We’ll defend you under a reservation of rights. But coverage for liability will depend on the facts determined at trial.” Result -- “The Waiting”

And, of course, Tom Petty knew a thing or two about coverage for construction defects: See American Family Mut. Ins. Co. v. American Girl, 673 N.W.2d 65 (Wis. 2004) (holding that damage to a warehouse constructed by an insured–general contractor, caused by a soil engineering subcontractor’s faulty site-preparation advice, qualified as an “occurrence” under a general liability policy).

We’ll never know if insurance influenced Tom Petty’s music, but Tom Petty’s music has, in fact, played a part in one Florida federal judge’s opinions. Southern District of Florida Judge Jonathan Goodman had Tom Petty in mind when writing opinions in two cases involving discovery issues:

Haaf v. Flagler Constr. Equip., LLC, 2011 U.S. Dist. LEXIS 52198 (S.D. Fla. May 16, 2011):

“Some discovery motions are brought to the Court too early. The discovery disputes at issue here fit into that category. As musically noted by well-known singer-songwriter Tom Petty, ‘the waiting is the hardest part.’ As outlined below, Plaintiff’s discovery issues were submitted prematurely and he will need to appreciate Mr. Petty’s observation before submitting the issues again.” ***

“Plaintiff's motion to compel is denied without prejudice. To come full circle by referring to the Tom Petty and the Heartbreakers lyrics, it might be hard for Plaintiff to wait for the discovery he seeks, but he needs to allow the issues to ripen before again seeking this Court's involvement in these specific discovery issues.”

Montoya v. PNC Bank, N.A., 2014 U.S. Dist. LEXIS 84279 (S.D. Fla. June 20, 2014)

“In their 1981 song ‘The Waiting,’ Tom Petty and the Heartbreakers lamented that ‘the waiting is the hardest part.’ Thirty-three years after the release of that song, Defendants want Plaintiffs to experience first-hand the meaning of those well-known lyrics by waiting for discovery until the Undersigned rules on Defendants’ not-yet-ripe motions to dismiss.”

Then Judge Goodman ended his opinion where he started: “By way of summary, and for the sake of musical consistency, the Undersigned will end this Order with lyrics from another Tom Petty song, albeit a solo effort without the Heartbreakers: As discussed above, the parties’ discovery timetable will now follow the chorus from ‘Time to Move on’: ‘It's time to move on, time to get going.’”

Given that our legal system, despite all its wonderful attributes, is frequently criticized for moving slowly, I’m surprised that “The Waiting” hasn’t been cited in more judicial opinions. You’d think the song would be cited so often it would have an official Blue Book format. But only Judge Goodman had the keen eye -- and ear -- to take this opportunity.

Judge Goodman also turned to Tom Petty to make a point in his recent opinion in Cohan v. Ocean Dawn, LLC, No. 15-10035 (S.D. Fla. Aug. 10, 2016):

“In a song released in 1989 on his first solo effort (without The Heartbreakers), Tom Petty gave the following musical status report about his philosophy on life: ‘Well, I won’t back down / No I won’t back down / You can stand me up to the gates of hell / But I won’t back down.’ As it turns out, these comments, along with other lyrics from the song, such as ‘No, I’ll stand my ground, won’t be turned around,’ accurately describe the parties’ positions in this litigation following the voluntary dismissal of Plaintiff’s Americans with Disabilities Act lawsuit.” ***

The Undersigned began this Report with a reference to lyrics from a Tom Petty song, so it makes sense to end the report with another Tom Petty lyric from another solo tune (again, without the famous Heartbreakers): ‘It’s time to move on / it’s time to get going.’”

Judge Goodman, it turns out, is no stranger to Coverage Opinions. In the February 18, 2015 issue of CO I wrote about his use of Bruce Springsteen’s “No Surrender” lyrics in an opinion involving insurance coverage.

As a fan of classic rock, and admirer of clever and readable judicial writing, I reached out to Judge Goodman – clearly the hippest federal judge in America – to get the story on his Tom Petty fandom.

His Honor was kind enough to share some thoughts by email. Judge Goodman told me that he has been a fan of both Tom Petty and his Heartbreakers since the 1970s. His love is for both the man and his music: “Although [Petty] achieved great commercial success (including a gig at the Super Bowl halftime show), he always seemed to me to be the same guy who started out in Gainesville, Florida with Mudcrutch. I listened to his ‘Buried Treasure’ show on satellite radio since its inception and I then also listened regularly to the Tom Petty channel on satellite radio when he launched that. He had a great wit and a wonderful sense of humor. He also struck me as a guy who a fan could hang out with, have a beer or two and shoot the breeze about music or any other subject. Basically, he was a good guy who happened to also be a masterful musician.”

Judge Goodman also told me that he plans to continue to quote Tom Petty lyrics in judicial opinions, as well as from songs written and performed by The Traveling Wilburys [Petty’s band with George Harrison, Jeff Lynne, Bob Dylan and Roy Orbison], which he calls “a true super group who I also love listening to on a regular basis.”

Thank you Judge Goodman for sharing these thoughts and looking forward to seeing some more Tom Petty tributes in your opinions. I’m waiting.

RIP Tom Petty. Thank you for all those sing-alongs in the car.

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