Repeated “Nonexistent Cases” in Filing From >20-Lawyer Insurance Defense Firm

From today’s decision in Gittemeier v. Liberty Mutual Pers. Ins. Co. (E.D. Mo.):

Gittemeier posits that Liberty Mutual again miscited cases in its filing and referenced at least one non-existent citation, despite the Court’s warning in the previous order to verify its sources before submitting future filings. Gittemeier points out that the Goodman case was again miscited in Liberty Mutual’s filing after it had been miscited in the initial summary judgment memorandum. Moreover, Gittemeier asserts that the quoted section from 30 Mo. Prac., Insurance Law & Practice is not found in the cited section or in the nearby sections….

Liberty Mutual’s erroneous citations constitute a serious oversight warranting consideration of sanctions pursuant to Rule 11. After Liberty Mutual cited two nonexistent cases in its initial motion for summary judgment, the Court urged “Liberty Mutual to verify its sources before submitting future filings with the Court” and indicated that this warning would be provided only once. Yet somehow, in its memorandum in support of its second motion for summary judgment, Liberty Mutual not only cited two nonexistent cases again (Goodman was miscited previously as well), but also misquoted or mischaracterized multiple cases, including Dhyne, Goodman, and Chaudri. {Liberty Mutual cited Goodman v. Liberty Mut. Fire Ins. Co., 2022 WL 4534416, at *6-7 (E.D. Mo. Sept. 28, 2022) and Chaudhri v State Auto Prop. & Cas. Ins. Co., 2022 WL 4596697 (E.D. Mo. Sept 30, 2022). These cases do not exist.} Furthermore, Liberty Mutual falsely suggested that 30 Mo. Prac., Insurance Law & Practice §§ 4:2, 4:8, and 4:9 contains comments regarding cooperation clauses and EUO [examination under oath] requirements.

One week after filing its second motion for summary judgment, Liberty Mutual submitted a notice of errata identifying the erroneous Goodman and Chaudri citations and demonstrating legitimate citations to those cases. {In the notice of errata, Liberty Mutual asserts that it intended to cite Goodman v. Allstate Fire & Casualty Insurance Co., 2023 WL 5667909 (W.D. Mo. July 26, 2023) and Chaudhri v. State Auto, 2019 WL 1519307 (W.D. Mo. April 8, 2019).} While the Court acknowledges Liberty Mutual’s prompt notice disclosing the two most serious errors in its filing, the additional misquotations and mischaracterizations discussed above will not be disregarded.

Liberty Mutual indicates that the errors were typographical and/or caused by vision impairment, but that explanation is simply not credible. The errors in Liberty Mutual’s filing are not ones in which a few letters or numbers were passed over or shuffled. Rather, the filing includes entire names, dates, court designations, and Westlaw citations that are completely off base, and various other inaccuracies cannot be explained by typographical or vision issues. Therefore, the Court will reserve its ruling on the motion for sanctions and will set a hearing requiring Liberty Mutual to show cause why it should not be sanctioned.