Eleventh Circuit: We’re the experts on the law, thanks

In Julmist v. Prime Insurance Co. (11th Cir. Feb. 8, 2024), the parties litigated the availability of coverage under a single professional liability policy with “diminishing” or “wasting” limits (meaning that payment of attorney’s fees for defense counsel count against the policy limits). Two separate groups of claimants litigated the scope of coverage for claims arising under the policy.

In response to an expert affidavit by an attorney offered to interpret the policy to provide a limit of $100,000, rather than $50,000, as argued by the insurer, Judge Ed Carnes, writing for the panel, had some firm words. After citing several precedents to the same effect, he wrote:

Every federal judge takes an oath of office swearing to “administer justice . . . and . . . faithfully and impartially discharge and perform all the duties” of a judge “under the Constitution and laws of the United States.” 28 U.S.C. § 453. And under the Constitution, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803). We will not cede that province or delegate our duty to say what the law is to non-judges with opinions that can be called forth for hire.

(Slip op. at 28.) You know you’re in trouble when the court is citing Marbury back at you. So don’t try that legal expert affidavit move in the 11th Circuit.

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