Repeated "Nonexistent Cases" in Filing From >20-Lawyer Insurance Defense Firm

Lawyers at firms of all size, don't let this happen to you.

From today's decision in Gittemeier v. Liberty Mutual Pers. Ins. Co. (E.D. Mo.):

Gittemeier posits that Liberty Mutual again miscited cases in its filing and referenced at least one non-existent citation, despite the Court's warning in the previous order to verify its sources before submitting future filings. Gittemeier points out that the Goodman case was again miscited in Liberty Mutual's filing after it had been miscited in the initial summary judgment memorandum. Moreover, Gittemeier asserts that the quoted section from 30 Mo. Prac., Insurance Law & Practice is not found in the cited section or in the nearby sections….

Liberty Mutual's erroneous citations constitute a serious oversight warranting consideration of sanctions pursuant to Rule 11. After Liberty Mutual cited two nonexistent cases in its initial motion for summary judgment, the Court urged "Liberty Mutual to verify its sources before submitting future filings with the Court" and indicated that this warning would be provided only once. Yet somehow, in its memorandum in support of its second motion for summary judgment, Liberty Mutual not only cited two nonexistent cases again (Goodman was miscited previously as well), but also misquoted or mischaracterized multiple cases, including Dhyne, Goodman, and Chaudri. {Liberty Mutual cited Goodman v. Liberty Mut. Fire Ins. Co., 2022 WL 4534416, at *6-7 (E.D. Mo. Sept. 28, 2022) and Chaudhri v State Auto Prop. & Cas. Ins. Co., 2022 WL 4596697 (E.D. Mo. Sept 30, 2022). These cases do not exist.} Furthermore, Liberty Mutual falsely suggested that 30 Mo. Prac., Insurance Law & Practice §§ 4:2, 4:8, and 4:9 contains comments regarding cooperation clauses and EUO [examination under oath] requirements.

One week after filing its second motion for summary judgment, Liberty Mutual submitted a notice of errata identifying the erroneous Goodman and Chaudri citations and demonstrating legitimate citations to those cases. {In the notice of errata, Liberty Mutual asserts that it intended to cite Goodman v. Allstate Fire & Casualty Insurance Co., 2023 WL 5667909 (W.D. Mo. July 26, 2023) and Chaudhri v. State Auto, 2019 WL 1519307 (W.D. Mo. April 8, 2019).} While the Court acknowledges Liberty Mutual's prompt notice disclosing the two most serious errors in its filing, the additional misquotations and mischaracterizations discussed above will not be disregarded.

Liberty Mutual indicates that the errors were typographical and/or caused by vision impairment, but that explanation is simply not credible. The errors in Liberty Mutual's filing are not ones in which a few letters or numbers were passed over or shuffled. Rather, the filing includes entire names, dates, court designations, and Westlaw citations that are completely off base, and various other inaccuracies cannot be explained by typographical or vision issues. Therefore, the Court will reserve its ruling on the motion for sanctions and will set a hearing requiring Liberty Mutual to show cause why it should not be sanctioned.

Comments

[Old Smokin' Egg]

If Wikipedia's to be trusted, Liberty Mutual is "the sixth-largest property and casualty insurer in the world". Presumably, an outfit that size has a large and well-paid legal staff: they're not some chump who had to pick a lawyer at random out of the Yellow Pages.

One hopes that the judge will penalize the bejeezus out of Liberty Mutual, and that they in turn will make sure that the lawyers responsible for this feel that pain. A few formerly highly-paid lawyers holding "Will Work For Food" signs will do much to deter shenanigans like this.

[JonFrum]

Agreed. This has happened enough for a long enough time that there are no excuses. And the only way it will stop is if the pain can't be ignored. Suspensions from practicing for a period might get their attention. There's an old saying: there's nothing like a good hanging to focus the attention. The loss of five thousand dollars does not have the same effect.

[y81]

According to Prof. Volokh's headline, the motions in question are being prepared by an outside firm. Insurance defense work is generally poorly-paid and not very prestigious. (So one moral is don't go to law school if you're going to end up doing insurance defense work.) It's not surprising that firms of that caliber are sloppy; what's more surprising is the handful of instances where higher-caliber firms have done the same thing.

[Longtobefree]

"If Wikipedia's to be trusted . . . "

It is not. They continually rewrite articles to reflect the latest left wing views.

[David Nieporent]

Who is the "they" in your conspiracy theory?

[Rossami]

Doesn't matter how large they are, almost no insurance company manages their claims through in-house counsel anymore. There are too many jurisdictions and sub-specialties for that to be cost-effective.

But, yes, they are large enough to have an effective outside-counsel review process and when they start losing cases because of incompetent counsel, they will make sure that pain rolls downhill.

[Kenneth Almquist]

I was involved in a traffic accident a number of years ago, and the case went to trial. The lawyer hired by Liberty Mutual to represent me was not very good, and I doubt he was paid very much. The other side had the better attorney, but the responding officer’s testimony supported my side, and my side won.

The stakes in traffic accident cases are not all that high. My guess is that Liberty Mutual figures that the money it saves on legal fees by hiring lawyers who graduated at the bottom of their class is more than enough to cover the occasional loss of a case they should have won.

[Judge Magney]

I once defended a client against a claim by a very large insurer. They had paid off on a theft claim and their insured had told the police my client had committed the theft. The feckless soul in their legal department who brought the demand hadn't bothered to read the case file, especially the police report.. When I read him the part where the victim declared my client had entered and left his residence "using his supernatural powers" . . . . Not bothering to read their own material isn't a new thing some places.

[gormadoc]

But were you successful?

[ReaderY]

Was this really all new with ChatGPT? Or did lawyers just make shit up in the hopes the judge wouldn’t notice before then?

[John Mosby]

Was it AI or EI - Emu Intelligence?

[Incunabulum]

How hard can it be to take a list of the included citations and just *look them up*? To at least see if they exist?

[Rossami]

And this may finally be how the courts get the legal profession's attention. Well, the defendants' bar at least. When insurance companies start losing cases because their lawyers are too lazy or incompetent to use AI correctly, you'll finally see an economic incentive to fix the problem.