Did Audra McDonald Hide The Truth? — Page 2

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.

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.

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

@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.

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

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.

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.

"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...

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.