And now for something completely different...

By Chris Amrhein, AAI

“THIS parrot is dead. Bereft of life. No longer with us. He does not exist amongst the living. He is no more. This is a dead parrot.”

While I do not vouch for the accuracy of the quote, it is close enough for the Monty Python faithful to recognize the famous “Parrot Sketch.” While Abbot and Costello’s “Who’s on First” still holds the honor of being the greatest comedy sketch ever performed, Monty Python at its best could hold its own.

What brought this particular sketch to mind is a claim question forwarded to me by alert reader David Thompson, who was kind enough to pass on the original question plus his analysis of the issue. That got me thinking. What if the Monty Python troupe had pursued property-casualty insurance and brought the claim into the courtroom? Our scenario might have gone something like this:

(The stage is set as a typical courtroom. The plaintiff attorney, representing the injured party, sits at one table. The defense attorney, representing the insurance carrier of the accused tortfeasor, sits at the other. The judge enters, hammers the proceedings into session and asks the plaintiff attorney for his opening statement.)

Plaintiff attorney: Your honor, this is a simple case of automobile injury caused by the defendant insured. My client was struck by his car and suffered injury. All we ask is that his carrier pay the amount provided by their liability limits. Thank you.

Judge: Seems clear to me. Counsel, your defense?

Defense attorney: Your honor, we submit there is no negligence on the part of our client, and therefore no payment is due. Thank you.

(Note: As British humor is notoriously dry and may not translate well in print, I must point out that the humor thus far is based upon the premise that an attorney could never give an opening statement in fewer than three sentences. Personally the very thought has me, as my Internet sons would say, ROFL! Let us return to our sketch.)

PA: Your honor, that’s ridiculous! His client struck my client. End of discussion.

DA: Your honor, it is now clear my esteemed - I use that term lightly - colleague is misinformed. This is a liability case, and as such is based upon the concept of tort and negligence, not the mere fact of the injury.

PA: Since when? It’s a well-established concept that when a victim suffers a loss, physical, emotional or financial, the responsible party should make the injured party whole.

DA: Wrong again, litigious lips. The purpose of liability is to determine if the insured was negligent in causing the injury. It is not sufficient to simply state an injury occurred. That is first-party insurance. Since liability is third-party, it must also be shown that my insured was negligent. Otherwise, while we may sympathize with the injured person, we are not liable to him or her.

PA: First-party, third-party. Your honor, my errant comrade in law is muddying the waters with numbers that add nothing to the merits of this case. Party, party - he seeks to turn this court into Wayne’s World and I, for one, abhor it! If there are any numbers mentioned in this court, they will be those making up the settlement amount our felicitous fellow across the aisle will pay to my client!

DA: Your honor, would I be out of order at this point to request a gag order on opposing counsel? If he doesn’t stop this drivel, I’m going to gag!

Judge: Order, order in the court!

Groucho: I’ll have a roast beef!

Judge: Get him outta here! Now. Will the honorable plaintiff counsel tell me how your client was injured?

PA: Gladly, your honor. My client was driving down the highway, clearly in the proper right-hand lane. (Author’s note: change to “proper left-hand lane” when performing sketch or reading article in England.) The defendant’s car crossed the median, struck my client’s vehicle at excessive speed and caused severe injury and mental trauma to my client. We ask that the defendant’s insurer cover the medical costs plus lost earnings and an amount for my client’s pain and suffering.

Judge: A clear and concise summation. Unusual for an attorney in my experience. Thank you, counsel. Now, counsel for the defendant, what is your defense to these seeming facts?

DA: My client was not negligent in any way, your honor.

Judge: You are saying your client’s car did not strike the injured person?

DA: Oh, no, your honor. It did!

Judge (looking slightly puzzled): Then are you saying your client was not behind the wheel at the time of the accident?

DA: No, your honor. He was behind the wheel at the time of impact.

Judge (now looking very puzzled): Then are you saying the plaintiff actually caused the accident, or at least contributed in some way, and you are prepared to argue comparative or contributory negligence on the part of the plaintiff?

DA: No, sir, not at all. The plaintiff is totally innocent of any fault beyond being in the proverbial wrong place at the wrong time.

Judge (now clearly angry, leaps to his feet): THEN EXACTLY WHAT ARE YOU ARGUING, COUNSELOR?

DA: He was dead, your honor.

Judge (dropping back in his chair with an incredulous look on his face): He was what?

DA: Dead, your honor. Bereft of life. Passed on. No longer amongst us. The dearly departed. Kicked the bucket. Bought the farm. Gone to meet his maker....

Judge (back on his feet): ENOUGH! I think I get the picture here, counselor. I catch your drift. I grok your meaning. I’m hip. With you all the way. On your wavelength....

DA: ENOUGH!

Judge (settling back in his chair): Sorry. You sort of got me into a rhythm there.

DA: I understand, your honor.

Judge: This also answers my question about where your client is today, counselor.

DA: Buried, sir. Under the sod. Pushing up daisies. Feeding....

Judge (hammering gavel): Don’t start that again, counselor.

DA: Sorry, your honor.

Judge: So your defense is that a dead man can’t be negligent for injuries caused to another?

PA: That’s ridiculous! My client is still injured, your honor. It’s not my client’s fault this man died before the accident occurred. An injury is an injury, your honor!

Judge: Good point, but hold your spleen, counselor. I am not finished with defense counsel yet. Now, is it confirmed that your client was dead prior to the accident, or is it possible his injuries in the accident caused his untimely demise?

DA: Yes, your honor. Definitely dead prior to the accident. The medical reports are in exhibit 5A.

Judge: Are there any mitigating circumstances that might lead one to a finding of negligence? For example, he drove knowing of his condition? He failed to take his required medicine prior to operating the auto?

DA: No, your honor. This was an unexpected occurrence for my insured, who had no previous history of medical problems.

Judge: So your client was driving along, unsuspecting, when he died, his life force fled from him, his spirit departed his mortal form, he....

PA: Your honor, you’re doing it again.

Judge: Sorry.

PA: Well, this certainly has been entertaining, but what has any of this to do with my client’s payment for injuries?

DA: Simple. Did none of your clearly unaccredited law school courses mention the prudent man rule?

PA: Of course. It escapes me at the moment, but I’m sure I read about it somewhere.

DA (dryly): No doubt. It states that the basis for a finding of negligence, outside statutory or contractual issues, is to ask, “What would a reasonable and prudent man have done under similar circumstances?”

PA: He would not have run down my client!

DA: Ah, but possibly he would. For given the facts of our case, the proper phraseology of the query must be, “What would a reasonable and prudent dead person have done under similar circumstances?” If my client in fact acted, in the court’s opinion, as a reasonable and prudent man would have in similar circumstances, then there is no negligence on the part of my client and we owe you no damages! Your honor?

Judge: Well, let’s think this through. Our man is driving a vehicle on the highway. His number comes up, his name is called, his time has....

PA and DA together: Your honor!!

Judge: Oh, yes. Well, anyway, he dies. At that point no accident has occurred, so our driver has at the time of his death committed no negligent act. He has abdicated control of the auto. The auto wends its own way. As an object with no intelligence, the vehicle clearly cannot be held responsible for failure to observe such driving rules as “stay in the proper lane” or “don’t cross the median and strike another car.” Therefore, at the moment of injury, there was no negligence on the part of the defendant, and thus no obligation on the part of his insurance carrier to respond for damages. This court finds no negligence. No third-party payment is due plaintiff in this case. This case is adjourned.

PA: But your honor!

Judge: Case dismissed! And if you continue this outburst, counsel, I shall be forced to throw the book at you, nail you to the wall, make you wish you’d never been born, hang you out to dry....

Let us leave this scene, having obtained yet another confirmation of how curious this thing called insurance can sometimes become. And to think some call this industry boring! Not a chance. No way. So until next month, I’m outta here.

November 1999 American Agent & Broker