01/20/2023
In 2002, I had a client whose business was threatened in California litigation brought by a competitor claiming my client's catalogue infringed on the competitor's catalogue's look and feel (that's called "trade dress infringement"). My client's Commercial General Liability (CGL) insurer defended the California case for months but later filed suit in Texas to have a court declare it owed no duty to defend or indemnify (pay a settlement or judgment) under the policy, because there was an exception for "an insured whose business is publishing." My client contended its business was selling continuing education courses and credits to nurses in multiple states, not publishing catalogues - the catalogues were merely the means to an end.
The insurance company's lawyer took my client's CEO's deposition and asked questions like, "you published this catalogue, right?" "That makes you a publisher - admit it, you're a publisher, aren't you," or questions to that effect. But the lawyer never defined the word "publisher" before asking the questions. The insurer later moved for summary judgment, arguing my client had admitted it was a "publisher." We responded with an affidavit in which my client's CEO testified his business was not publishing (as the exclusion required). He explained that the word "publisher" had never been defined in his deposition. If "publisher" meant "a person who publishes something," all his answers were true and correct. But if "publisher" meant "a person whose business is publishing," then his answers weren't correct because his business was selling CE hours and courses to nurses. The insurance carrier then moved to strike the CEO's affidavit as a "sham," claiming he wasn't allowed to create a fact issue by contradicting his own deposition answers. We responded that his affidavit clarified, not contradicted, his deposition. In short, we won the Texas coverage case, and the California case quickly settled for policy limits, saving his business. But it always stuck with me that there wasn't very much clear law on what constituted a "sham affidavit."
Recently, David Hart and Daniel Hart gave me a chance to fill that gap in an appeal called Seigler v. Wal-Mart. We made some good law in 2022 that will help trial judges understand for years to come that, in order to be a "sham" and be stricken from the summary judgment evidence, an affidavit must directly impeach the affiant's deposition answer, without providing a reasonable explanation. That's the same argument I made in 2002, and now it's clear law int the Fifth Circuit - the federal court of appeals for Texas, Lousiana and Mississippi. Stay tuned - next week I'll tell you how I got to quote Bob Marley and Eric Clapton in my Reply Brief.
