Omissions - Walker v LSW

THE COURT: But we have the twist here that we are not dealing with express representations but, rather, alleged material omissions.
MR. SHAPIRO: Certainly, Your Honor. This is a case that is being brought I think with the exception of the asterisk theory or the one-fee tag line exclusively on a basis of omissions.
THE COURT: Right.
MR. SHAPIRO: My response to that sort of is two-fold. One, it's an omission that exists even if you read to read most generously as Your Honor must the plaintiffs' papers at this stage of the case. 

  • An omission only exists before the contract is delivered -- there are no omissions in the policy at all with the potential exception I suppose of this tax issue which fails for other reasons.

THE COURT: Well, the argument is you had a duty to make this disclosure to me. It was material.

  • You, insurance company, were in a superior position and didn't make these material disclosures which would have affected the decision of a reasonable consumer whether to buy this policy or not.

(DOC 815, p32-33)

(p34) - Where is the Lie?

The challenge here is that they would need to plead in any event at least that but for piece, and that's not alleged either.

  • Part of the difficulty is until they get past the first element -- where is the lie? Where is the omission?
  • -- it's a little hard to analyze it in anything other than the abstract the notion that there could be -- one could envision circumstances where something important was left out in the face of a duty and that that actually did cause the plaintiff to rely.

(DOC 815)