• January 14, 2010

The U.S. Court of Appeals for the Eighth Circuit heard oral argument on 1/12/10 on a case of first impression, to be decided under Missouri law as to whether an insured’s invocation of his Fifth Amendment rights violates the “cooperation clause” in his insurance policy and thereby voids coverage under the policy.

The facts of the case, The Medical Protective Company v. Johnston, as set out at oral argument by Defendant/Appellant at the outset (U.S. Court of Appeals, 8th Cir., Court File No. 09-2324), are extraordinary — a dental procedure “gone bad” resulting in patient death not once, but twice under quite similar circumstances. A compelling aspect of the factual background is that the victim of the apparent tort (or, more specifically, his family suing on his behalf) would likely be without recovery due to the tortfeasor’s refusal to testify.

The appeal was heard by Judges Murphy, Bye, and Strom (Sr. Dist. Judge, D. Neb., sitting by designation).

The underlying facts and district court decision are well described here.

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