Did Audra McDonald Hide The Truth?- Page 2

[Mike66]

Posted: 12/25/16 at 2:11pm

I'm with Hogans on this one. 

I think it's a major mistake to include "intent" or "intent to deceive" in any of this.  The law rarely (except in many criminal cases) really gives a darn what the parties' "intent" was -- much more often, the facts are the facts. 

For example -- if someone left a question blank because two sheets stuck together, that would change nothing.  The "failure to disclose" is a clean fact.  Either you did or you didn't.  (My first Judge-Mentor used to say:  It's a tis/taint.  Either it tis, or it t'aint.)

The undertaking party (in this case the insurer) is entitled to know "what is known (and generally, what  could have been known upon reasonable diligence)"  And it doesn't much matter if the failure to disclose was intentional, accidental, or somewhere in between.  (As long as it's material, but we've already beat that issue to death.)

Some of the postings are looking at this as a "moral" question, or a "sexist" question, or a whole other rash of other sidebar concerns -- like why we use the word "suffer" when no one is suffering.  (In auto collision cases, you get paid for your pain and suffering -- but in that context the word has a closer meaning to "inconvenience" than anything else).

One last point (for the moment) -- many have suggesting that the pregnancy and its fall out isn't any different that the Lady Day absence and its fall out.  That's certainly something that I imagine that someone is going to pound the crap out of at trial.  But it may be that there are facts and assumptions that were agreed to by the parties in light of Lady Day that became materially (!!) different by the pregnancy.  Here's one, just as a "maybe" -- the transfer was known to begin and end on dates set in stone.  The pregnancy (and its impact on her ability to return) was not. It might be (again I don't know) that the producers have reams of data that will tend to show that ticket sales would not have recovered until she was actually back on stage, and that based on her history of returning from prior pregnancies and/or medical advice to a woman of her age (don't yell), that it was more likely than not (and that's the degree of proof that they need), that she would have been out an indefinite period of time, and therefore they couldn't start advertising her being in the show the same way they could have if she'd just been going to London.  And again, I don't know any of these facts.  So we'll just have to wait and see.

[Gabby Hayes]

Posted: 12/25/16 at 9:10pm

I don't know about you, Della, but I wanna go out and have a steak dinner!

[Dancingthrulife2]

Posted: 12/25/16 at 9:16pm

How can they prove it if Audra did know before committing to the show? And why are so many people speculating without concrete or even tangent evidence, or even assuming the claim is true already? No wonder Trump won so many votes through his expansive fake news campaign.

[HogansHero]

Posted: 12/25/16 at 11:16pm

Dancingthrulife2 said: "How can they prove it if Audra did know before committing to the show? And why are so many people speculating without concrete or even tangent evidence, or even assuming the claim is true already? No wonder Trump won so many votes through his expansive fake news campaign."

There are many ways to prove it, the most obvious being evidence that she went to a doctor or even took a home pregnancy test. But as I said before, they don't have to prove it because the producer has the burden of proof. And the path to that would be to put her on the stand and see if the jury believes her (assuming she denies she knew). I don't think people here are speculating or assuming anything; we are looking at the pleadings and the scenarios that flow from them. To suggest this has anything to do with Trump is both a cheap shot, and banal.

[henrikegerman]

Posted: 12/26/16 at 8:59am

Hogans, I don't mean to belabor this, and clearly you are much better versed in the applicable law than I am, but I find these issues interesting, so if I might:

With respect, what does the holding of GE v Gilbert, that employers unlawfully discriminate when they deny disability coverage to pregnant women, have to do with the issue of whether a woman, who, for the sake of the argument, knows she was pregnant, but is not experiencing any pain or discomfort, misrepresents a material fact (thereby voiding coverage) when she answers "no" when asked if she is "suffering" from any condition?

In disability, benefits, and insurance law contexts, doesn't disability mean a condition which reasonably renders one unable to perform the tasks required for employment (for a specific period of time, etc.)?  Whereas, "suffer" would retain its plain meaning, i.e. to experience something bad or unpleasant?   Would all women who are asked directly if they are suffering in their pregnancies, be lying if they answered no?

Is there any applicable case law which defines "suffering" more broadly?  Are there any cases which qualify a pregnancy as a suffered condition irrespective of how problematic that pregnancy is?  (I did some research but found none)

Also, while the insured has the overall burden of proof, doesn't that burden shift, at least in some jurisdictions, to the insurer to prove reliance on any material misrepresentation in the determination to underwrite the plan?

Updated On: 12/26/16 at 08:59 AM

[trpguyy]

Posted: 12/26/16 at 9:29am

This is easily my favorite thread on BWW. Not to sidetrack, but how loud was the collective groan upon reading the final sentence of the Forbes article?

[HogansHero]

Posted: 12/26/16 at 1:39pm

@henrik, my passing comment about the Gilbert case and the pregnancy statute that it prompted was simply in reaction to the "pathologizing" comment, not a suggestion it was on point. I think you are over-analyzing this "suffer" stuff; the issue is not the legal definition but the ordinary definition and its meaning in the circumstances presented. Juries don't decide what the law is; they decide what is reasonably understood by reasonable people given the facts and circumstances. We can differ on that, but I feel pretty confident a jury would think that, if she knew she was pregnant, she was obliged to say so. I'm also reminded of Learned Hand's caution "not to make a fortress out of a dictionary." Regarding reliance, I don't seriously think there is an issue in anyone's mind that had the pregnancy been disclosed the cover would not have issued. 

[ScottyDoesn'tKnow2]

Posted: 12/26/16 at 1:54pm

As an attorney, I'm finding this thread really interesting. HogansHero and Mike66 are doing a great job explaining the law and how it may be applied in this case.

[henrikegerman]

Posted: 12/26/16 at 3:01pm

Gotcha, Hogans, and.clearly we disagree, but all I'm saying is given the ordinary meaning of suffering, concluding that there was any material misrepresentation of fact would be a stretch for a jury considering any credited declaration by a woman who, in the most basic sense of the word, was not in their view suffering with her pregnancy. What is the ordinary meaning of suffering if not experiencing something bad or unpleasant?

Updated On: 12/26/16 at 03:01 PM

[ScottyDoesn'tKnow2]

Posted: 12/26/16 at 3:52pm

http://legal-dictionary.thefreedictionary.com/suffer

http://thelawdictionary.org/suffer/

New York recognizes pregnancy as a short-term disability in many contexts, including when a pregnant employee is seeking temporary disability insurance for the period in which she may not be able to work. So the "suffering" would just mean that she is afflicted with the pregnancy. It's not the symptoms of the pregnancy that she needs to suffer from, but rather just having the pregnancy is considered the disability. Having a disability in itself is enough to be a change in physical condition.

In the real world, that sort of sounds ridiculous to pathologize pregnancy in that way, but in the legal and insurance world, that's how they word things. Once you get a "diagnosis" you can get covered. I remember an episode of Nurse Jackie where one hospital employee is telling a British pregnant doctor (Eve Best) and fellow hospital employee that she's in the worst place in the world to have a child. The doctor starts talking about how the hospital's insurance coverage is awful, and the other employee interrupts her and goes "No! I mean America!" And then they go off about how only in America is pregnancy considered a disability or physical condition.

Updated On: 12/26/16 at 03:52 PM

[HogansHero]

Posted: 12/26/16 at 3:58pm

henrikegerman said: "Gotcha, Hogans, and.clearly we disagree, but all I'm saying is given the ordinary meaning of suffering, concluding that there was any material misrepresentation of fact would be a stretch for a jury considering any credited declaration by a woman who, in the most basic sense of the word, was not in their view suffering with her pregnancy. What is the ordinary meaning of suffering if not experiencing something bad or unpleasant?"

as I think I mentioned at some point above, suffer can simply mean experience in the transitive verb sense, but I don't think you have to focus on that meaning to expect that a jury would say she was obliged to disclose it. To me, what you are advocating is dissembling. And yes I respect that you don't agree. Almost as much as I respect Eve Best.

[skies]

Posted: 12/26/16 at 4:19pm

I dunno, to a layman like myself it would seem disclosing a condition of pregnancy is a slam dunk for an insurance form, especially related to an expectation of performance of a contract.

However as others have mentioned, there are women especially those with irregular cycles who can go practically a whole term without realizing they are pregnant.

[ShowQueenNYC]

Posted: 12/27/16 at 10:17am

So many great pints made here!  My first reaction to all of this is the same as Brave Sir Robin2, which is she was ALREADY LEAVING.  To me, that should end the whole thing.  She actually stayed longer than planned.

Another point, is that most women really don't know their first month if they are pregnant or not.  Also, being premenopausal as Ms. McDonald said she was, it's very possible she did not know for a couple months.  What is interesting to me is, the pregnancy was NOT announced until LADY DAY had been cancelled, and plans for her continued participation were secured.  There was another actress set to go in for her, so she as well had to be notified that her services were no longer needed, or needed later.  Has anyone discussed that yet - perhaps I missed it.

 

 

 

[Jish]

Posted: 12/27/16 at 2:20pm

The Lady Day absence was baked into all the planning of the show and I am guessing the insurance policy as well. So claiming that "she was already leaving for Lady Day" means the insurance claim is invalid is a weak argument.

As people have pointed out, the absence for pregnancy was significantly different to the Lady Day absence in terms of timing and certainty. It is one thing to be out during the summer and another to be out during the holiday season.

The producers would likely have taken a different approach to casting her absence as well if they knew they had a bigger gap to fill. 

In short - the producers took out a policy to cover them in case Audra could not complete her commitment ex-the already agreed absence for Lady Day.

[neonlightsxo]

Posted: 12/27/16 at 2:21pm

"The Lady Day absence was baked into all the planning of the show and I am guessing the insurance policy as well. So claiming that "she was already leaving for Lady Day" means the insurance claim is invalid is a weak argument."

 

Have you seen the insurance policy? You know what they say about assuming...

[Jish]

Posted: 12/27/16 at 2:29pm

neonlightsxo said: ""The Lady Day absence was baked into all the planning of the show and I am guessing the insurance policy as well. So claiming that "she was already leaving for Lady Day" means the insurance claim is invalid is a weak argument."

 
Have you seen the insurance policy? You know what they say about assuming..."

Nope. But we are all just guessing in this thread. None of us have the details of the policy, what Audra had to sign, why Lloyd's is saying they have proof she knew, etc...

What I am saying is that the Lady Day absence pre-dates the drafting and signing of the policy by some time according to the dates in the article so the application of the policy should not be influenced by the fact that there was already an absence planned for Lady Day.

 

Updated On: 12/27/16 at 02:29 PM

[ggersten]

Posted: 12/27/16 at 3:07pm

sneaking in as in my other life, I actually advise and litigate insurance coverage claims.  I have seen these cancellation policies and know some of the underwriters/companies that issue them.  They frequently are manuscripted - i.e. they are specially prepared and negotiated - both on language and price.  The underwriting is more involved than a normal policy.  I can't speak to what was in this particular policy or the underwriting process for this particular policy.  Since the claim is in state court, I don't have easy access to the court file.  The policies are generally based on the concept of some event/happening that precludes a performer from continuing in a planned performance.  For example, Ray Davies was shot in a robbery and a tour was cancelled.  Michael Jackson's injuries.  This also extends to weather events - e.g. a hurricane forces the cancellation of a convention and athere is much revenue lost.

There are also apparently two different policies at issue:  One with limits of $700,000 for losses due to McDonald not appearing in a show due to an accident/illness that happened after the policy went into effect and one for $12M for the show being cancelled.  

So I can only offer up some generalities. A "misrepresentation"  need not be an intentional intent to deceive.  As to "materiality" - Courts generally find the fact that the underwriter asks a question makes the answer "material" to the risk.  "Materiality" generally goes to the effect on the underwriter - would the underwriter have written the risk, modified the language or the price given different information.  The insurer can also waive its right to rescind a policy if it doesn't act in a reasonable time period - i.e. once the insurer knew of Audra's pregnancy and didn't seek to rescind the policy based on a claimed misrepresentation, the insurer, in effect, takes the position that the pregnancy didn't matter to the policy.  But that is for "rescission" where the insurer returns the premium to the insured and the policy is void from its inception - i.e. it never existed.  Insurers don't like to return premiums. 

As for the effect of the planned Lady Day absence - that becomes a "causation" issue.  Was the closing of Shuffle Along due to Audra's pregnancy or to some other factor?  Did Audra plan on returning to the show after birth as she had planned on returning to the show after performing Lady Day in London?  

There are lots of questions in these type of claims.  There are major proof problems for the insured producers and the insurer. And these claims generally are settled after an initial round of pleadings in the Court.  

Also, the attorneys for the insurer will raise as many defenses as the attorneys feel they have a legitimate basis to raise when they respond to the initial complaint- and some others as well.  Courts may prohibit attorneys from raising new arguments later on, so attorneys err on the side of pleading more rather than less.  So, how far the attorneys actually intend to push a "misrepresentation' defense is unclear.