Insurance companies are happy to use delay as a tactic when they are trying to avoid paying a claim. They do this in many cases, but it can get particularly egregious in wrongful death cases, such as the case against Bold Earth Teen Adventures for the death of Tyler Madoff.
Tyler was 15 years old when he went on a trip from his home in White Plains, NY to the Big Island of Hawaii. While there, he went on a tour with Bold Earth, which allegedly stopped the tour group for a rest in an area that was not permitted by the state, and that was experiencing dangerous surf warnings. While they were resting, a wave took Tyler away. His body has not been found.
Tyler’s family brought a wrongful death claim against Bold Earth. But rather than offer a reasonable settlement, Bold Earth and their insurance company decided to fight the lawsuit. And rather than fight the suit by telling their side of the story and letting a jury decide, Bold Earth is using legal procedures to try to gain an unfair advantage and to delay the case.
First, Bold Earth attempted to change the venue, which is where a case is heard. All 43 witnesses, including first responders, tour operators, government officials who would have issued permits, and search-and-rescue personnel are in Hawaii, where the death happened. So that’s where Tyler’s lawyer, Susan Karten, filed the lawsuit, even though Karten’s law firm is in New York. But Bold Earth tried to get the lawsuit moved to Colorado, where they have their corporate office. The federal judge hearing this case denied Bold Earth’s venue motion, keeping the case in Hawaii.
Then, as if that weren’t enough, Bold Earth asked for an interlocutory appeal. That means that the case would be halted, usually for about two years, while they appealed that one decision about venue to the Ninth Circuit Court of Appeals. This is highly unusual. Normally, the case is fully heard and decided before either side attempts to appeal. When a party appeals a case, they typically have many reasons for their appeal. If a case were stopped every time one side wanted to appeal one thing, the case could go on for a hundred years. So interlocutory appeals are reserved for rare occasions.
Allowing an interlocutory appeal would have caused about two years to pass, during which time witnesses would forget things, or move out of state, or even die. The case would get more and more difficult to present clearly as memories faded. And the family’s grief would continue without having the closure of a wrongful death case. Delay is almost always bad for the plaintiff, and almost always good for the insurance company. Even bringing the motion to ask for an interlocutory appeal caused delay. But U.S. District Court Judge Susan Oki Mollway ruled that Bold Earth cannot yet appeal this decision and that her original decision to deny change of venue still stands.
Here’s hoping that this case can get heard in a timely manner, and that Bold Earth then takes all its appeals in a timely manner as well, so Tyler’s family can put this all behind them in a year or two, rather than having it drag out for five years or more.