#depending on the original settlements and common languages found within

[hartxstarr-art]

shenanigans

[niseamstories]

10 Lessons on Realistic Worldbuilding and Mapmaking I Learned Working With a Professional Cartographer and Geodesist

Hi, fellow writers and worldbuilders,

It’s been over a year since my post on realistic swordfighting, and I figured it’s time for another one. I’m guessing the topic is a little less “sexy”, but I’d find this useful as a writer, so here goes: 10 things I learned about realistic worldbuilding and mapmaking while writing my novel.

I’ve always been a sucker for pretty maps, so when I started on my novel, I hired an artist quite early to create a map for me. It was beautiful, but a few things always bothered me, even though I couldn’t put a finger on it. A year later, I met an old friend of mine, who currently does his Ph.D. in cartography and geodesy, the science of measuring the earth. When the conversation shifted to the novel, I showed him the map and asked for his opinion, and he (respectfully) pointed out that it has an awful lot of issues from a realism perspective.

First off, I’m aware that fiction is fiction, and it’s not always about realism; there are plenty of beautiful maps out there (and my old one was one of them) that are a bit fantastical and unrealistic, and that’s all right. Still, considering the lengths I went to ensure realism for other aspects of my worldbuilding, it felt weird to me to simply ignore these discrepancies. With a heavy heart, I scrapped the old map and started over, this time working in tandem with a professional artist, my cartographer friend, and a linguist. Six months later, I’m not only very happy with the new map, but I also learned a lot of things about geography and coherent worldbuilding, which made my universe a lot more realistic.

1)  Realism Has an Effect: While there’s absolutely nothing wrong with creating an unrealistic world, realism does affect the plausibility of a world. Even if the vast majority of us probably know little about geography, our brains subconsciously notice discrepancies; we simply get this sense that something isn’t quite right, even if we don’t notice or can’t put our finger on it. In other words, if, for some miraculous reason, an evergreen forest borders on a desert in your novel, it will probably help immersion if you at least explain why this is, no matter how simple.

2)  Climate Zones: According to my friend, a cardinal sin in fantasy maps are nonsensical climate zones. A single continent contains hot deserts, forests, and glaciers, and you can get through it all in a single day. This is particularly noticeable in video games, where this is often done to offer visual variety (Enderal, the game I wrote, is very guilty of this). If you aim for realism, run your worldbuilding by someone with a basic grasp of geography and geology, or at least try to match it to real-life examples.

3)  Avoid Island Continent Worlds: Another issue that is quite common in fictional worlds is what I would call the “island continents”: a world that is made up of island-like continents surrounded by vast bodies of water. As lovely and romantic as the idea of those distant and secluded worlds may be, it’s deeply unrealistic. Unless your world was shaped by geological forces that differ substantially from Earth’s, it was probably at one point a single landmass that split up into fragmented landmasses separated by waters. Take a look at a proper map of our world: the vast majority of continents could theoretically be reached by foot and relatively manageable sea passages. If it weren’t so, countries such as Australia could have never been colonized – you can’t cross an entire ocean on a raft.

4)  Logical City Placement: My novel is set in a Polynesian-inspired tropical archipelago; in the early drafts of the book and on my first map, Uunili, the nation’s capital, stretched along the entire western coast of the main island. This is absurd. Not only because this city would have been laughably big, but also because building a settlement along an unprotected coastline is the dumbest thing you could do considering it directly exposes it to storms, floods, and, in my case, monsoons. Unless there’s a logical reason to do otherwise, always place your coastal settlements in bays or fjords.

 Naturally, this extends to city placement in general. If you want realism and coherence, don’t place a city in the middle of a godforsaken wasteland or a swamp just because it’s cool. There needs to be a reason. For example, the wasteland city could have started out as a mining town around a vast mineral deposit, and the swamp town might have a trading post along a vital trade route connecting two nations.

 5)  Realistic Settlement Sizes: As I’ve mentioned before, my capital Uunili originally extended across the entire western coast. Considering Uunili is roughly two thirds the size of Hawaii  the old visuals would have made it twice the size of Mexico City. An easy way to avoid this is to draw the map using a scale and stick to it religiously. For my map, we decided to represent cities and townships with symbols alone.

 6)  Realistic Megacities: Uunili has a population of about 450,000 people. For a city in a Middle Ages-inspired era, this is humongous. While this isn’t an issue, per se (at its height, ancient Alexandria had a population of about 300,000), a city of that size creates its own set of challenges: you’ll need a complex sewage system (to minimize disease spreading like wildfire) and strong agriculture in the surrounding areas to keep the population fed. Also, only a small part of such a megacity would be enclosed within fantasy’s ever-so-present colossal city walls; the majority of citizens would probably concentrate in an enormous urban sprawl in the surrounding areas. To give you a pointer, with a population of about 50,000, Cologne was Germany’s biggest metropolis for most of the Middle Ages. I’ll say it again: it’s fine to disregard realism for coolness in this case, but at least taking these things into consideration will not only give your world more texture but might even provide you with some interesting plot points.

 7)  World Origin: This point can be summed up in a single question: why is your world the way it is? If your novel is set in an archipelago like mine is, are the islands of volcanic origin? Did they use to be a single landmass that got flooded with the years? Do the inhabitants of your country know about this? Were there any natural disasters to speak of? Yes, not all of this may be relevant to the story, and the story should take priority over lore, but just like with my previous point, it will make your world more immersive.

 8)  Maps: Think Purpose! Every map in history had a purpose. Before you start on your map, think about what yours might have been. Was it a map people actually used for navigation? If so, clarity should be paramount. This means little to no distracting ornamentation, a legible font, and a strict focus on relevant information. For example, a map used chiefly for military purposes would naturally highlight different information than a trade map. For my novel, we ultimately decided on a “show-off map” drawn for the Blue Island Coalition, a powerful political entity in the archipelago (depending on your world’s technology level, maps were actually scarce and valuable). Also, think about which technique your in-universe cartographer used to draw your in-universe map. Has copperplate engraving already been invented in your fictional universe? If not, your map shouldn’t use that aesthetic.

9)  Maps: Less Is More. If a spot or an area on a map contains no relevant information, it can (and should) stay blank so that the reader’s attention naturally shifts to the critical information. Think of it this way: if your nav system tells you to follow a highway for 500 miles, that’s the information you’ll get, and not “in 100 meters, you’ll drive past a little petrol station on the left, and, oh, did I tell you about that accident that took place here ten years ago?” Traditional maps follow the same principle: if there’s a road leading a two day’s march through a desolate desert, a black line over a blank white ground is entirely sufficient to convey that information.

10) Settlement and Landmark Names: This point will be a bit of a tangent, but it’s still relevant. I worked with a linguist to create a fully functional language for my novel, and one of the things he criticized about my early drafts were the names of my cities. It’s embarrassing when I think about it now, but I really didn’t pay that much attention to how I named my cities; I wanted it to sound good, and that was it. Again: if realism is your goal, that’s a big mistake. Like Point 5, we went back to the drawing board and dove into the archipelago’s history and established naming conventions. In my novel, for example, the islands were inhabited by indigenes called the Makehu before the colonization four hundred years before the events of the story; as it’s usually the case, all settlements and islands had purely descriptive names back then. For example, the main island was called Uni e Li, which translates as “Mighty Hill,” a reference to the vast mountain ranges in the south and north; townships followed the same example (e.g., Tamakaha meaning “Coarse Sands”). When the colonizers arrived, they adopted the Makehu names and adapted them into their own language, changing the accented, long vowels to double vowels: Uni e Li became “Uunili,” Lehō e Āhe became “Lehowai.” Makehu townships kept their names; colonial cities got “English” monikers named after their geographical location, economic significance, or some other original story. Examples of this are Southport, a—you guessed it—port on the southernmost tip of Uunili, or Cale’s Hope, a settlement named after a businessman’s mining venture. It’s all details, and chances are that most readers won’t even pay attention, but I personally found that this added a lot of plausibility and immersion.

I could cover a lot more, but this post is already way too long, so I’ll leave it at that—if there’s enough interest, I’d be happy to make a part two. If not, well, maybe at least a couple of you got something useful out of this. If you’re looking for inspiration/references to show to your illustrator/cartographer, the David Rumsey archive is a treasure trove. Finally, for anyone who doesn’t know and might be interested, my novel is called Dreams of the Dying, and is a blends fantasy, mystery, and psychological horror set in the universe of Enderal, an indie RPG for which I wrote the story. It’s set in a Polynesian-inspired medieval world and has been described as Inception in a fantasy setting by reviewers.

Credit for the map belongs to Dominik Derow, who did the ornamentation, and my friend Fabian Müller, who created the map in QGIS and answered all my questions with divine patience. The linguist’s name is David Müller (no, they’re not related, and, yes, we Germans all have the same last names.)

[ivendarea]

The Wylaai

Strength in Unity

Banner art based on and supported by my Patrons ♥

The icy tundra and deep forests of Ivendarea’s north and northeast are the home of the Wylaai. Having a reputation of being the proudest of the Nyr, they strongly believe in fate and prophecy, in the importance of unity, and in daring to walk out of their usual path. Iovana Neron, the founder and unifier of the nation was the leader of a Wylaai tribe. Through him they have been given the reputation of being charismatic, provident, and diplomatic even in the face of great challenges.

Table of Contents:

Culture and History

Cultural Heritage

Language and Dialect

Shared Values

Common Etiquette

Historical Figures

Fashion

Art and Architecture

Ideals

Beauty Ideals

Courtship Ideals

Relationship Ideals

Continue reading below or on World Anvil

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Culture and History

Once spread far along Ivendarea’s eastern shoreline, from the northern capital Canwyl to Beldran and beyond, the Wylaai suffered heavy losses during Zerenda’s invasion. After Beldran had fallen many of them returned to the north or fled to the west and south. Until today they are persistent advocates of the nation’s unity. They look forward to a time of being at peace again, be it under Assadin rule or with their own Iovana at the head of government again.

Cultural Heritage

Once wandering nomads at home in the Ivendarean tundra and taiga, the hunter-gatherers, ice-fishers, and animal herders were always used to a life of extremes. Travelling far distances with sleighs that can be re-purposed into carriages and vice versa depending on the weather conditions, the Wylaai roamed for many years before settling down for the first time in the area that is now Canwyl. While the Wylaai aren’t nomadic anymore for the most part, their sleighs are still an important part of their culture and have become the centre of sporting events and spare time.

The same applies to their hunting and fishing days - both aren’t practised anymore by the majority of the population ever since Aman rose to godhood and their Teachings of not killing animals for food or clothing were spread. The Wylaai early on recognized the importance of the “cult” around Aman. After the Gideya were one of the first to fully integrate Aman’s teachings into their everyday lives the Wylaai quickly followed suit.

The old capital is characterized by its use of glass in many aspects of its architecture. This dates back to the founding days of the nation, when the Gideya helped the Wylaai in setting up farmland in the cold north, sharing their knowledge as well as seeds and workforce to bring in the first harvest. The Wylaai would never have to suffer hunger again, even in the harshest of winters. Most of the farmland lies within large green houses still standing until today, and the glass-elements, symbolizing warmth and life, have found their way into many residential and commercial buildings.

The inhabitants of the cold north can also pride themselves with their extensive bath-house culture, brought on by the many natural hot-springs in the region. Canwyl has many public bathhouses, and the relaxation and health benefits a day in the bathhouse promises was already enough incentive for this piece of culture to spread across Ivendarea and be greeted with open arms.

Language and Dialect

The Wylaai speak the purest version of Nyrval - no wonder, as it was through their efforts that the language was standardized to begin with when Ivendarea was in its early years. In day-to-day life most Wylaai speak exclusively in their native language, but Trade or Azash for example are also spoken by most.

Shared Values

Standing strong together as a unity is everything to the Wylaai. Perseverance is a virtue taught to children from an early age, as is looking out for each other and seeking help if needed. The Wylaai easily forgive, even missteps that might not be as easily overlooked by others. But they aim to solve all problems as a community and want to uphold their unity. A chain is only as strong as its weakest link, and making mistakes is part of the learning process. 

This does not mean that there is no punishment. In fact, though it is, important and carried out consistently, it always goes hand in hand with social rehabilitation. Remembering the past and history to prevent the same mistakes from being made over and over is necessary to build a future together.

The Wylaai are known to be the most cheerful people of Ivendarea. Despite or maybe because of the often-harsh living conditions of their original homelands, the Wylaai always have a hopeful outlook to the future. Difficulties and obstacles are a challenge they tackle with fierce ingenuity - and if a plan fails on the first attempt there’s no shame in asking for help and trying again.

Despite their remote and isolated main settlement Canwyl the Wylaai are open to new ideas, wanting to honour the memory of Neron, whose life’s work it had been to celebrate the Nyr’s differences and commonalities alike. Many would call their open-mindedness “naivete”, especially cases such as Iovana Fannyel inviting king Zerenda to the Emerald Palace - still believing that after the destruction of Beldran the invader would be willing to come to a peaceful arrangement. Surviving thousands of years in a hostile, infertile environment has made the Wylaai resilient and inventive - they believe a failure always means new chances, too. Without a positive attitude and a willingness to walk new paths, to go out of one’s comfort zone and trusting in intuition rather than logic, they might not have lasted as long and come as far as they did.

Historical Figures

Neron, called “Iovana”, the unifier; was once an influential chief of a Wylaai tribe. He was the first Nyr to go out of his way and formed alliances with other far away tribes during a series of particularly harsh winters, which eventually led to the birth of Ivendarea as a united nation.

Fannyel was the last Iovana before Zerenda conquered Ivendarea. He tried to make peace with the invader but ended up being slain in front of his throne, and his partner Ylla and daughter Brestine fled to Maan Garth.  

Common Etiquette

The Wylaai are open-minded and hospitality is particularly important to them, especially when it comes to strangers from far away paying them a visit in the cold north. A lot of time is spent with family and friends, big dinners for a whole community coming together to are common. Refusing an invitation without a very severe reason is considered rude - even if the host would never tell this to your face.

Positive thinking is a virtue and speaking ill of others (or oneself) is frowned upon. Everyone has a bad day or horrible encounters with others now and then, but chronic moaners and complainers not doing anything to make their unpleasant situation better aren’t well-liked. The same goes for spreading gossip, rumours, and panic; sensationalism and causing a fuss without a life-threatening reason are not favoured among the level-headed Wylaai.

Humour on the other hand is cherished, not taking oneself too seriously, or putting on a smile even in the darkest times can be observed often. This is another reason why outsiders would call the Wylaai naive or even accuse them of never taking anything seriously, but these critics couldn’t be further from the truth. The Wylaai believe that nothing makes your enemies more insecure than brightly smiling at them. Humour and a positive attitude show strength of will and character, not giving in to intimidation tactics.

Fashion

Similar to how red hair is associated with remembering the past and pride for one’s identity, green clothing is a sign of pride for Canwyl and Ivendarea as the Wylaai’s homeland. The Green River is Ivendarea’s lifeblood, the first green saplings of spring symbolize the cycle of rebirth, and Canwyl’s green glass roofs show the great achievements and ingenuity of the Nyr as a nation.

Green, particularly emerald tones are also associated with themes of nobility and heritage, although not exclusively worn by those of a higher social standing. Wylaai clothing is also characterized by its many functional layers that insulate against the cold. The top layer is usually thick and held in neutral tones that blend in with the bleak surroundings. Robust fabrics that are easy to clean and not too much of a loss when damaged during work are also a common choice when it comes to the coats worn on top.

The layers underneath though, the clothing worn for social gatherings, around the house, to the temple - they are richly adorned, bright, vibrant colours of all possible combinations and patterns resembling Canwyl’s famous mosaics, materials ranging from fine wool and linen to silk.

A Wylaai individual in typical work attire with tight-fitting trousers and a short coat as well as thick scarf, compared to a more casual, even festive outfit for indoor wear. On the right a flowing coat richly adorned is worn on top - these types of coats are mostly seen in casual everyday life as well as during travel.

Art and Architecture

The architecture of the Wylaai is truly one of a kind. Canwyl, which was built on their lands, is Ivendarea’s oldest city and has been its capital for millennia until comparatively recently. Considered the birthplace and heart of the modern Ivendarea, immense effort and work went into making the city the most outstanding one using the resources close by, but also not hesitating to incorporate materials from all over the nation in equal parts.

The huge Emerald Palace in the heart of Canwyl is the most unique piece of art and architecture. Built from metal, marble, and stained glass its tallest tower can be seen from miles away, higher than the surrounding forests, and in the harsh winters a lighthouse in an endless white sea guiding lost travellers to safety. Its name stems from the emerald green colour of its glass windows and roofs. In the centre of the building lies a huge garden frozen in ice all year round, beautifully kept and its pools of water adorned with mosaics retelling the events leading up to the founding of the nation.

Canwyl’s architecture isn’t only impressive and beautiful, it is also technically ingenious, looking on the inside. Not only the palace, many buildings have elaborated, often decorative heating elements and running water powered by the subterranean hot springs.

Ideals

Beauty Ideals

The Wylaai grow their hair out long, often wearing it intrinsically braided or pulled to the back for practicality. They Wylaai are a people of artisans also known for grand celebrations. Glass- and metal pearls and other ornaments are sometimes incorporated even in day-to-day life hairstyles. This is a long-standing tradition from before Ivendarea’s tribes were united and the Wylaai were still traveling nomads. The use of decorations of a specific colour or number can give clues to social status, but more often nowadays hair ornaments can also be just that: accessories without any deeper meaning.

Red hair and red eyes are considered particularly beautiful and express a certain melancholy. Iovana Fannyel had both these features, as does his daughter Brestine. Both are symbol figures of the old Ivendarea before its conquest) and dyeing one’s hair red is a sign of Nyr pride and valuing the past.

Courtship Ideals

Courtship is direct and playful, handled a little like a game where the waters are carefully tested, and honesty plays a big part. There are no strict rules, social conventions, or a lot of seriousness involved. Happy small surprises like small gifts left in unusual locations only the receiver would know about are common. It has become tradition to leave a plant sapling in its pot on one’s object-of-desire’s windowsill - symbolizing a new hopeful beginning, life, and growth.

Adventurous escapes to secret natural hot springs and the like are also an activity many couples engage in - it’s so popular actually that it happens on a regular basis to run into a different couple already at the spot one had thought was a top-secret romantic location. It’s all taken in good humour though and who knows... something interesting can sometimes blossom from random encounters like this as well.

Relationship Ideals

Comfort, home, unity - all those are especially important to the Wylaai in daily life and in relationships. Polyamorous and open relationships are common, love and partnership are celebrated, and children are regarded as particularly precious. Childhood friendships usually last a lifetime and even over big distances it is ensured to stay in regular contact. Strength lies in unity.

[tanadrin]

Notes on the Taurahe Language

by Loremaster Surazh Sher'an, of the Royal Society of Silvermoon

Published in the Journal of the Royal Society, in the 6853th Year of the Sun and 5th year of the Regency (619 K.C., 27 A.O.D.P.)

Since the Third War and the reestablishment of diplomatic and trade contacts with the peoples of the western continent of Kalimdor, several new frontiers in natural philosophy have been opened up to the scholars of our Society, in areas botanical, historical, thaumaturgic, and, not least of all, linguistic. Though the tongues of the Eastern Kingdoms have been well-covered in the scholarly literature, and even those of Draenor have had several monographs published on them since the Second War[1], the languages of Kalimdor remain woefully understudied. The most tentative work relating Thalassian to the Darnassian languages has been undertaken[2], but of the other Kalimdorean tongues, nothing substantial has been written.

In the interest of attempting to make my own modest contribution to the study of the Kalimdorean tongues, I would like to offer the following preliminary analysis of a language entirely unstudied by our loremasters at present and, I believe, spoken nowhere in Quel'Thalas, and in precious few places in the Eastern Kingdoms. I refer, of course, to Taurahe, the tongue of the Shu'halo, or, as they are known to outsiders, the Tauren. The Taurahe language is most interesting, being related neither to the tongues of Draenor nor of the Easter Kingdoms, and seeming to have no antecedent in any of the ancient mother-tongues of Azeroth, like Proto-Troll, Proto-Vrykul, or Ancient Kalimdorean. Furthermore, it is a language currently in flux, insofar as the way of life of the Shu'halo has changed enormously since the arrival of the Orcs in Kalimdor and the incorporation of the Tauren into the Horde. Although I cannot capture either the complexity or dynamism of this language in a brief article, I hope to pave the way to more extensive future analysis.

1. Taurahe in Context

The Shu'halo are a tauroid race of bipeds, native to eastern Kalimdor. First encountered in the dry coastal regions around Bladefist Bay, in what is now Durotar, an alliance was formed between Warchief Thrall and Chieftain Cairne Bloodhoof of the Bloodhoof Tauren in 6833 YS, during the Third War. At that time, all Tauren clans[3] were nomadic; after the tumultuous events of the war and the defeat of Archimonde at Mount Hyjal, the Bloodhoof Tauren and a portion of the other clans settled at Thunder Bluff in Mulgore, with several satellite towns like Bloodhoof Village being founded nearby. Many seasonal Tauren campsites have been converted into permanent settlements, like the Crossroads and Camp Taurajo, facilitating trade with Durotar and supporting a larger population of Tauren.

Despite the adoption by some of a settled lifestyle, many Tauren remain nomadic or semi-nomadic, some for political reasons[4], others simply out of tradition[5]. Because of the hunting lifestyle of the Tauren, and the number of rites and rituals which center around hunting, the creation of permanent settlements and urban centers has not been widely welcomed in Tauren society. Much of the shift in Tauren culture is down to the charismatic leadership of Cairne Bloodhoof; though his authority nominally extends only over the Bloodhoof Tauren, he is highly regarded by the other Tauren clans, and holds considerable influence in Tauren society at large. It remains to be seen whether these new developments in Tauren society, and the importance of Thunder Bluff as a political and economic center, will outlast their chief architect.

As is to be expected, Taurahe vocabulary centers primarily around the historical Taurahe way of life: terminology of the natural world, of geography, travel, hunting, and hunting- and pathfinding-related technologies is quite extensive. The Tauren have traditionally been a shamanistic people, like the Orcs, and so have an extensive vocabulary of shamanistic and natural thaumaturgy. Lacking an understanding of the arcane, or of other planes, their vocabulary for arcane thaumaturgy is limited, and most of their vocabulary around these kinds of sorcery has been borrowed from Orcish and, more recently, Thalassian. Of some influence also has been the Night Elven tongue[6], since the Tauren have a long history of intermittent contact with that people. Almost all vocabulary related to metalworking, alchemy, wheeled conveyance, shipbuilding, and large-scale warfare is directly borrowed from Orcish, with a small subset of loanwords from the language of the Darkspear Trolls.

Taurahe is not a unified language; each sub-clan has its own dialect, resembling most other dialects within their clan, as clans have historically tended to migrate together and to maintain close ties in marriage and trade. Any clear geographical distribution of the dialects has been substantially confused by many centuries of migration, and the spreading of various features and loanwords between migratory clans and sub-clans. Even so, not all forms of Taurahe are mutually intelligible; furthermore, the prestige form of the language has often varied according to the internal politics of the Tauren clans, with the emergence of a preeminent leader or tribe altering the lingusitic center of gravity of the Tauren people. Since the establishment of Thunder Bluff, the Bloodhoof dialect spoken there has been treated as the de facto standard, both among Tauren and within the rest of the Horde; therefore, it is the Thunder Bluff dialect that shall be treated here.

2. Writing System

Taurahe has not traditionally been a written language. Tauren society has historically been based extensively on oral traditions, which supply everything from legal and ritual formulae to history and mythology, which, based on the study of different versions among different clans, have remained remarkably constant over centuries or even millennia[7]. Although the Tauren have had contact with literary societies such as the Night Elves for many centuries, they have generally eschewed writing for most culturally significant applications, ascribing far greater prestige to orally transmitted traditions. Most Tauren elders have committed the equivalent of dozens of volumes of history and poetry to memory; some, such as Hamuul Runetotem, are said to be able to recite what would fill a hundred books in any Orcish library.

Nonetheless, Tauren have some knowledge and respect for runic sorcery, and have applied it to the totems they wield in battle and use for ritual purposes. These "runes" seem ultimately to be of Night Elven origin, despite no extant tradition of their use in Night Elven society. Potentially, they date from before the Sundering, given their similarity to arcane runes used in Quel'thalas and the contemporary aversion to arcane magic among the Kaldorei.

Almost all written forms of Taurahe found now in Kalimdor are, however, recorded using the Orcish writing system. Orcish uses a combination of phonetic and logographic symbols, having descended from an earlier logographic stage[8] some two centuries before the opening of the Dark Portal. Foreign languages, when recorded in Orcish, typically use only the most common logographs, relying instead on extensive use of the phonetic symbols normally reserved for inflection and particles. The syllabic nature of phonetic Orcish, however, renders it a poor fit for Taurahe, which has a completely different phonetic inventory. Therefore, in this article I have preferred to rely on the superior Thalassian alphabet to transcribe the sounds of Taurahe, which are in fact quite simple for the Elven tongue to pronounce.

3. Phonology

Taurahe forms generally CV syllables, making it at least phonetically one of the less vulgar languages of the Horde. It rarely admits consonant clusters, only occasionally permitting certain syllable-final glides and certain syllable-initial affricates. The fifteen consonants as transcribed into Thalassian are as follows:

p b t k m n s sh h ch (a velar or glottal fricative) l r w y (a palatal semivowel) ts (affricate)

Taurahe has five vowels, which may be either short or long; in most dialects, although not Bloodhoof, the long consonants are in fact diphthongs, and even when speaking Bloodhoof, Tauren tend to preserve those diphthongs if present in their native dialect. The five primary vowels are /a e i o u/; the long vowels are most usually realized as /a: ei i: o: au/. Less common are /au/ and /ai/ or /ie/ for /a:/ and /i:/. Grimtotem Tauren has a completely different system of long vowels, /ae ei ie oa ue/.

4. Noun Classification

The declension of the Taurahe noun is only for four cases--the nominative, the objective, the locative, and the relative--but is greatly dependent on the classification of the noun, based on what appears to be both an animacy and social-role hierarchy. The former is not unlike the animacy classification of some Zandali languages, while the latter bears a (passing) resemblance to the "gender" categories in human languages, but both should probably be treated on their own terms, as the Tauren system is both distinct and more regular than either. Roughly speaking, Taurahe noun classification is between inanimate or abstract, sessile or natural, dynamic-animate, fully sapient, and elemental or divine nouns on the one hand; and provider/loremaster, hunter/leader or shaman/spiritwalker on the other. The social role classification is somewhat more difficult to understand as a regular process among the less animate nouns, and is also not fixed: one noun may migrate between all three categories according to circumstance and usage, without the reclassified noun necessarily being considered a new lexeme. Inflecting a noun according to another animacy category is, however, a standard part of new noun formation.

There are at least six or seven distinct declensions of Taurahe nouns; my Tauren interlocutors have not been able to agree on the precise number, and it may be that comparison to the Thalassian system of declensions is in fact entirely inapplicable here.

5. Verb Nuclei

The Taurahe verb is formed from affixes attached to a single root, a "nucleus" which may be built up with both prefixes and suffixes and even, in some cases, infixes. Roots generally encompass a single semantic concept, which affixes may extend and alter in ways which would, in most other languages, necessitate the derivation of a new word. For example, "kuto," "fight" with the telic, transitive affixes forms the verb "karutoha," "to win [against sb.]", while with the impersonal affix forms "ukuto," "to fall into disarray." The impersonal form can be further modified by the personal, passive affix, "uma'ukuto," "to be routed in battle," which despite the presence of the impersonal affix alters the valency of the verb. All told, Taurahe has perhaps one-tenth the verbal roots of a language like Orcish or Common Human (to say nothing of the refined Thalassian tongue), but dozens, and possibly hundreds, of verbal affixes. Few of these affixes are truly exclusive of one another, and a deeper syntatic analysis is required to determine how, exactly, the valency, tense, and aspect of the final verb are determined.

6. Taurahe Words and Phrases

The following phrases are taken from interviews with my Tauren interlocutors. I traveled to Thunder Bluff and Bloodhoof Village for a period of eighteen weeks and interviewed approximately a dozen Tauren of four different clans. This is but a small sample of the corpus I used for my analysis, and with the aid of an colleague who has been transcribing Taurahe lore from Orcish to Thalassian script, I hope to soon begin work on a more complete grammar of the Taurahe tongue.

Vocabulary

-she/-sha: Affix denoting natural phenomena, celestial bodies, and the divine, cf. "An'she," the creator-sun. shu: Clan, tribe, political grouping. Cf. "Shu'halo," the Tauren people. halo: 1st person plural pronoun. We, ourselves. apaa: watch, guard ro: path, road apa'ro: the Waywatcher, Malorne -ah: augmentative affix por: lore, wisdom, custom, law por'aa: ancient wisdom, longstanding (and therefore inviolable) custom alo: within, inside ne[e]: to be (cf. "ishnee," "let be," or "ichnee," "to remain, to always be") pawne: spirit, soul owa: to dash, to bolt, to run tanekaa: blue; cf. Taunka "taunka," "winter," and the Taurahe idiom "bluest [i.e., coldest] of winters" manii: to shake laata: to shake; with the causative infix cf. "Laakotamanii," "the Earthshaker." isha: grave, serious, deep awaak: doom, ill fate, misfortune eeche: white ala: to walk mo: dream ala'mo: druid, i.e., one who walks in dreams haurakemani: the Earthmother shu'halo: a Tauren, the Tauren ahee: language; to speak

Phrases:

Pawne chi owako lehe "[May the] spirits guide you"

Ya shu'kushaa "For the Horde"

Namak'ehe shu "Victory or death"

Chi shu'ma'hewa "I've been expecting you."

Lehe shu'po'halo wota'ano kuu "May my ancestors watch over me"

Rek'ala'mo ya kusho'ake ne "Cat druid is for fight"

Notes:

[1] See especially Magister Thoradiel's "On the Orcish Tongues" and its follow-up, "The Draenei Dialects." Loremaster Harran of Dalaran's groundbreaking work, "The Eredar-Draenei Family" dissects the relationship of the demon-languages of the Twisting Nether to the Draenei tongue, but N.B. that possession of this volume is forbidden in Dalaran, Orgrimmar, Thunder Bluff, and Stormwind owing to its extensive analysis of demonic incantations; the nearest available copy is to be found in the Black Library of the Royal Apothecary Society, in the Undercity.

[2] Magister Gal'an's "Some Darnassian-Thalassian Cognates", Notes of the Royal Society, 6851 Y.S., issue no. 3.

[3] Taurahe "shu," variously translated as "clan," after Orcish usage, or "tribe." A "shu" is any extended kinship group, and the term is sometimes applied to large political groupings of any kind, e.g., "Shu'kaldo," the Night Elves, or "Shu'ekate," the people of the east, i.e., the Alliance.

[4] Most notably the Grimtotem who, while having diplomatic relations with Thunder Bluff, are not technically part of the Horde.

[5] E.g., most of the Wildmane Tauren.

[6] Now called Darnassian after its principal dialect, but functionally the same as Proto-Kalimdorean.

[7] The consistency of Tauren oral traditions is bolstered by analysis of their (admittedly scant) attestations in Night Elf histories. Several important entries are found in "The Annals of Kalimdor," vols. XLIV to LXX, currently held in the Sentinel Archives. The author acknowledges that the currently strained diplomatic relationship between Quel'Thalas and Darnassus may make consultation of these codices difficult.

[8] "Old Orcish Pictographs," Proudmoore, Jaina. Journal of the Linguistic Society of Dalaran, vol. 53, no. 2.

[aramis-dagaz-imaginarium]

Current version of a NPC generator for my current Pathfinder campaign setting, mainly just for determining nationality, home region, and species.

Nationality (1d8) 1-4: Inpalavese 5-7: Foreigner 8: Vollerian

Vollerians are beings that originated from Volleri, the dreamrealm, or are dreamers who found their way to the Firmament.  Their behavior is typically based upon dream logic and thus seem odd to most folk in the waking world.  They sometimes interact with reality in unpredictable ways and see or know things beyond the ken of conscious minds.  Whether this is a boon or a hindrance is difficult to discern at times.

Inpalavese Home Region (1d6) 1: Telseranct 2: Port Nephatesh 3: Tithe Marghûlv 4: Chalcauri (1-in-6 chance of actually being from The Sovereignties) 5: Republic Space 6: Outside Republic Space

Telseranct is the capital of the Republic and center of Inpalav’s energy trade.  Laws are strictly enforced here.

Port Nephatesh is the primary port and trading hub of the Republic.  Very cosmopolitan and where a lot of adventurers base themselves out of.

Tithe Marghûlv is nothing but a ruined, blighted urban wasteland.  The only civilization here are in small, heavily fortified towns and outposts.  Economy is based entirely on adventurers braving the ruins and bringing back salvaged treasures or unique artifacts that resulted from the devastation generations ago.  Populated mainly by the brave, foolish, desperate, or opportunistic.

Chalcauri is a large, sparsely populated mote where organic and Kaurathi ecosystems coexist.  Very rural, dependent mainly on farming and mining, though currently in economic decline.

The Sovereignties is mainly a wasteland on the Chalcauri mote where radical political dissidents go.  It’s a mix of an Australia and 17th century Massachusetts.  Many of the people living here are glad to be out from under the Republic’s thumb, even though farming there is horrendously difficult due to the ever prolific krisweed and the Republic Navy corvettes patrol the borders to make sure they don’t leave.  Of course, they could have left Republic space beforehand, but those sent to the Sovereignties were already in some kind of legal trouble and it was either this or prison.

Republic space is the Aether outside of the four largest motes where the people living there are either professed citizens of the Republic or where the Republic Navy reliably patrols.  Small towns, minor cities, farms, industrialized motes, and similar locations are found here.  If your character is from Republic space, they are of a rural or small town background as opposed to living in the big cities or on Chalcauri (which is also rural and small town, but on a large mote).

While most places outside of Republic space are similar to those within the Republic, they are settlements either on the frontier of the Republic or are completely independent from it.  Even though the Republic claims all of Inpalav as its sovereign territory, it only can control about a quarter of it and is only capable of reliably projecting the power of the Navy into a third of the region.  People from outside of the Republic can be criminals, dissidents, independently-minded settlers, or Republic citizens living or working beyond its effective borders.  The only laws out here are those you can enforce yourself.

On the species table below, your result is dependent on if your character is from Inpalav or elsewhere in the Firmament.  Roll 1d12 if you just want an even chance of any species, reroll on 12.  Vollerians use same column as Foreigner.

Species (1d20, or 1d12 for even chance) Inpalavese 1-4, Foreigner 1-3: Firarsian (if Foreigner, 25% chance of being an Epistrephan) Inpalavese 5-6, Foreigner 4: Kobold Inpalavese 7, Foreigner 5: Achnari Inpalavese 8-11, Foreigner 6: Kaurathi Inpalavese 12-14, Foreigner 7-10: Fhalsnir (roll 1d12 for your House: 1-3: Sgoreil, 4-5: Lorgaidh, 6: Braemar, 7: Gaoith, 8: Fasnakyl, 9: Balmorii, 10-12: unaligned) Inpalavese 15, Foreigner 11-12: Sahmuli (10% chance of being a Kahmulo) Inpalavese 16, Foreigner 13: Djinni Inpalavese 17, Foreigner 14: Naga (sex is always female, 3-in-4 chance of being a queen, 50% chance of being part of one of the major naga banking clans) Inpalavese 18, Foreigner 15-16: Phaneroi Inpalavese 19, Foreigner 17: Demi-human (1d8: 1: human, 2: elf, 3: dwarf, 4: orc, 5: gnome, 6: halfling, 7: other, 8: hybrid (roll twice)) Inpalavese 20, Foreigner 18-20: Other

Firarsian: Felinoids descended from dragons, which are more feline than reptilian.  Espistrephans are a subculture of adventurous, swashbuckling bards. Kobold: Diminutive cousins of Firarsians, tend to have more draconic features than their taller cousins. Achnari: Humanoids that are just as much plant as animal.  Masters of genetic engineering and husbandry. Kaurathi: Living mechanical organisms. Fhalsnir: Most common humanoid species in the Firmament, culture is based on shared bonds via pheromones.  Typically aligned with one of seven transnational Houses that specialize in a particular activity or belief, such as trade, mercenary work, law enforcement, or arcane study. Sahmuli: Short distant cousins of Fhalsnir.  Occasionally a Sahmuli becomes a Kahmulo, who grow to be over 10 feet tall. Djinni: Masters of Esgari, the language of magic.  Essentially experts in true name magic and can affect the world with poetry and calligraphy. Naga: Four-armed humanoid snakes, all of them female.  Renowned for their secure and discreet banks and financial services throughout the Firmament. Phaneroi: Manifestations of the id, created when powerful emotions or ideas are concentrated in a given area or via spells or magical mishaps.  Many are fully sapient with agendas of their own, though they tend to be heavily influenced by the circumstances of their creation. Demi-human: All traditional high fantasy races, such as humans, elves, and orcs. Other: There are many strange, unique, and wondrous species to be found in the Firmament and the realms connected to it, though not nearly as numerous as the species listed here.

[badlandsloop]

Okay! Welcome to the post where I yammer on about this setting I invented for a D&D campaign that’s dead but I’m using to do a one-shot session. This is a broad view of the world at large but for map space, I had to scooch the landmass closer than they are. There is a GOOD amount of sea between the land continents and islands.

1. During the Dragon occupation of humanity, many humans fled to the northern islands in search of safety. What they found was a bleak barely habitable ice nightmare. But it’s better than dragons. So they founded the country Bjorngard and developed a society similar to that of the Norse/viking. The success and stability and society of Bjorngard are thanks to a mighty celestial who turned the first people into Aasimar, she dubbed her creations the Valkyries. Bjorngard is not he only origin point for aasimar on this plane but it is the most common. The Celestial infused the blood of all Bjorngardians with radiance, tho a new valkyrie may not awaken their blood until later in life.

2. The Anythe Archipelago is the ‘home’ of the tortles. and the seafloor adjacent is the domain of the tritons. Home is in quotes because a tortle’s home is his shell and they are naturally prone to wander the seas. Tritons built alien cities beneath the waves and credit themselves for holding back the tide of the Elemental Plane of Water. As Anythe, the capital of triton society is built as a bulwark against the weakening fabric of the material plane there.

3. Yamanarta is a similar case to Bjorngard. Humans fled from the dragons and founded a society. These Refugees found a land of elves and gnomes enslaved by their cousins from the Underdark. The humans helped drive the drow and deep gnomes beneath the surface. Yamanarta is the home of many monk monasteries and samurai orders. Ruled by a commune of 4 shoguns, this country values the honor of war and the virtue of peace. Though it sounds contradictory to the outside it is treated as a balance among Yamanarta‘s many scholars. The Underdark continue to kidnap and enslave the people of Yamanarta which is why they are always ‘at war.’

4. Deep in the forests and Bluepeak Mountains to the north dwell the Firbolg. A mysterious jury in the trial of the material plane. Their long lives and commitment to noninterference make their society a strange one. Mostly tho they are treated like a myth, like bigfoot or some shit.

5. Long long ago a war between the elemental planes of air and earth held a violent war on the material plane. Only recently 200years did this conflict end and Chirinia was born. A floating island of stone and dirt hovers over the sea, created in the climax of the final battle as earth and air magic mixed. Aaracocra from the plane of air stayed behind as scouts and formed the society on the floating rock. As time passed, kenku from all of the the world flocked to Chirinia to try and recapture their flight. Tabaxi followed suit as their natural wanderer tendencies lead them to the most stunning sight in all of the world.

6. Faylen’Dael, where nature and arcane are nearly one and the same, is the realm of the elves is a strange continent, and Island with a giant landlocked sea. Forests stretch around the ring and elves build cities that are impossible to differentiate from the massive trees in which they live. Gnomes populate the lower levels. Despite occupying the same territory, elves and gnomes have never gotten into major conflict. They share the land with the beasts and a vertical biome, beasts on the forest floor, gnomes in the tree’s trunks and elves in the canopy. Faylen’Dael is the thinnest veiled place in the material realm, meaning the feywild and shadowfell are nearly accessible by foot. Elven society is patient to a point of contemplation over action. Some Elves spend months with their minds utterly occupied by a single thought. Gnomes similarly are lost in thought but instead of one, they brainstorm seemingly infinite ideas swirling together.

7. The northern half of the continent is the country Xath, the land of dragons. Heavily populated by Dragonborn tribes, these mountains are in constant conflict. Southern Xath is home to metallic dragonborn, keepers of ideas of good. Western Xath is home to marble dragonborn, who uphold laws and tradition above all else. Northern Xath is the territory of the Chromatic Dragonborn, selfish and evil being who work together only to better themselves. Among the mountains live another sect of dragonborn, the gemstone dragons. These dragons are chaotic to the core and their scales come in countless variations of gems.

8. Northern Xath is the site where the Elemental Plane of Earth pressed up against the material plane. After the war with the plane of air, the earthfolk rarely cross. The Chromatic dragons use this unfettered earth magic to build their caves and spawn mountains to bar their enemies.

9. Metalic dragons have become dormant as of late. After the chromatic dragons conquered humanity they withdrew to their mountains. The world at large does not differentiate the different types of dragonborn or dragons. All are seen as the villains who took over the world and almost made humankind extinct. They keep to themselves and aide the world by battling the chromatic dragons, making sure their power never reaches what it once was.

10.The port city of Xithslyvania is the closest the chaotic gemstone dragons have to a settlement. Technically a dwarven trade city the gem dragonborn love the varying cultures and endless distractions of Xithslyvania. The Dwarven rulers of the city recognized this boon as so great they renamed the city to Draconic language. If a Gem Dragonborn holds on to a possession is almost always so they can hock it in Xithslyvania.

11. Orcs are not farmers and their god fuels them with violence and destruction so the Western coast of the continent is called the Badlands. A blasted nightmare-scape, the orcs raid and pillage in the worship of Gruumsh. As humanity returned to its feet after the dragons were driven out the orcs saw their chance. They nearly brought finished the dragons’ goal of extinction.

12. When the madness of Gruumsh compelled the orcs to destroy humanity they succeeded on one of the human countries. From this devastation though a half-orc rose up as a hero. He rallied his half-orcs who denied Gruumsh and pushed the orc horde back. For their heroism the half-orc country, Riverwall was founded. Riverwall now holds the orcs at bay and shelters the Halfling society in Bonshire. Bonshire is a relatively new community compared to many others on this list. Halflings sick of the conflict on the eastern continent migrated over. The open plains and rolling hills of the location appealed to them and they bonded with the half-orcs over drinks and stories.

13. Humankind defeated the dragons who ruled them but the war took its toll on the land. Each human country was scarred by powerful magic so that it is locked in one season. NorthSpring is in perpetual advent. Things begin but do not mature, instead locked in a state of youth. NorthSpring is the home of the Bard’s Guild and ruled by a monarchy. There is little danger natural or personal in Northspring as the people are locked in revelry.

14. Summerhold is locked in heat and light. It is home to the Fighter’s Guild and is ruled by democratically elected officials. It is the seat of sport and exploration in human society. Many caravans routes crisscross the plains, providing trade and travel to the rest of the continent.

15. Wintergrace is trapped in snow and ice and death. It is the seat of the Mage’s Guild and ruled by the mightiest wizards. Laws are strict here to regulate magic and keep the safety of the people. Due to its adjacency to the lost ruins in the south many clerics live there to study what human society/religion was before the dragons. This has created a schism with the arcane wizardry of the rulers but infighting leads to dying to the cold so it’s mostly debate.

16. Marshfall Basin is a complex of varying terrains and is a mix of harvest time and dying plants. The leaves on trees grow orange and fall within days only to repeat the process. The Thieves’ Guild hides among the cities. Merchants rule the country and decree countless laws, that no one follows.

17. The Lost Vale sits beneath the human countries. It is the unreclaimable ruins of the old draconic rule and prior human society. Around the lake lives ghostwise halflings who keep to themselves. And in the ice lives the kobolds. After the dragons left, the kobolds had no masters or idols so their society kinda imploded. Vastly directionless the kobolds horde magic items from the ruins or die in the process.

18. Gorisher is Lizardfolk territory. The lizards were slaves to dragons before humanity and aided them in their liberation. For that reason, they are not considered monsterous like they are on many other DND worlds. Humans and Lizardfolk work together frequently as their ideas and goals are so different they can share the spoils of cooperation. Lizardfolk revere nature but are pragmatic enough to realize how civilization can aide them. Their behaviors are utterly alien to humans and vice versa but a common enemy made these two opposites allies. Lizardfolk come in shades of brown and green, depending on how close they live to Marshfall Basin and it’s autumn leaves. A variant of lizadfolk exists in few numbers, the Ashen Lizardfolk tribes were wiped out but several of these black scaled beings still wander the world.

19. Gorundr, home of the goliaths. The titan mountains were once home to the giants until their mysterious disappearance. Goliaths see themselves as stewards of the giants’ home and prepare for their return. As such they train for combat and breed like rabbits. Physical enjoyment is very important to goliaths as their lands are rough and awful. They view themselves as superior to the other races but enjoy their company greatly. Especially Humans and halflings. Interestingly enough the Goliath views on humans are identical to those that humans have to halflings. They see them as directionless, small, harmless, shortlived, and most of all fun.

20. The Dwarves control the mines so they have tradeport cities all over the world. Steelport is one such colony, named in common for its vast human population. Trade and immigration are very very important in human countries as their season locked curse fucks them up.

21.Baezenad is a new country in the desert. Founded by Tieflings sick of the racial prejudice in other countries, this place is on the verge of the plane of elemental fire. The being of that plane have no desire to interact with the material plane but it is adjacent to the 9 Hells. Fiends used to travel through the fire plane to reach the world but Baezenad built a city there to harvest the fiendish power without letting them enter the plane. Baezenad is a country ruled by desire and ambition but is very accepting of all peoples.

22. Four-Lake Hills is the home of all Halflings. Without ambition but filled with desire, halflings are up for anything. Surrounded by the mighty Dwarven lands they are safe and sound from threats. Because of that their culture has flourished.

23. Adamant is the home of the Dwarves. Dwarves are strong of body and will. They run most of the mines in the world and rule the trade with little corruption or greed. Dwarves have a complex caste system. The upper castes rarely migrate and rule the trade colonies from afar but lower castes frequently migrate away, leaving an issue with the working class among dwarf society.

[ivendarea]

The Veerali

Rooted in Nature

Banner art based on and supported by my Patrons ♥

Hidden away in the thick and humid jungles and swamps of southern Ivendarea, the Veerali are the smallest ethnic sub-group of the Nyr. The majority of them still lives in the lands of their ancestors, in small villages hidden away from plain sight, but a small portion of them have become nomads roaming the lands east and west of the Skyreach Mountains. They travel from village to village, city to city, telling stories and offering their services as talented artists, engineers, mages, or fighters.

Table of Contents:

Culture and History

Cultural Heritage

Language and Dialect

Shared Values

Common Etiquette

Fashion

Art and Architecture

Ideals

Beauty Ideals

Courtship Ideals

Relationship Ideals

Continue reading below or on World Anvil

[Support the Ivendarea Project on Patreon]

Culture and History

Once the majority of their population had settled in Beldran and Maan Ganyr, mixing with the Wylaai and Gideya. But with both these cities destroyed more or less recently, they have become thinly spread and distrustful to outsiders.

Cultural Heritage

Originating from one of the most dangerous but also fertile and profitable regions of Ivendarea, the Veerali call the southern marshes their home. Vegetation and wildlife are rich, sustaining even larger communities with ease. But the swamps are treacherous to those not careful about where - or what - they step on. Flora and fauna are as deadly as they are beautiful.

The Veerali are a reluctant but curious people, very strongly inclined to magic. They have a rich culture of music, art, and poetry, are talented alchemists, and their organic architecture manipulating the growth of certain trees blends in perfectly with the environment. The Veerali are also the inventors of the Riverblade, a type of flat boat with a sail used to quickly transport wares, people, or news along the many small rivers of the swamps. It has become one of the most popular means of transportation across Ivendarea and many sub-types exist for different environments and purposes.

Despite some initial reluctance when the Aman’a Valeethi first surfaced a few millennia ago with their new religion centred on Aman, the Veerali are today devout followers of Aman’s Teachings. The virtues and values taught by Aman, their view on life, death, and rebirth and being in tune with the world and one’s magic strongly resonate with the Veerali.

On the southernmost shores of Ivendarea the Veerali also have a handful of settlements that used to be focused on fishing, but nowadays are dedicated artists’ communities. The Veerali create beautiful sculptures from driftwood and stone, and they dive for pearls and collect other treasures washed up on the shore. They turn them into enchanted jewellery, or incorporate them into their clothing symbolizing their social status in many ways.

Language and Dialect

The Veerali’s dialect is melodic and smooth, rather pleasant to listen to, and also comparatively close to pure Nyrval. There are some terms and phrases going back much further in time than the standardization of Nyrval though, so specific that they usually need to be explained to outsiders. Next to Nyrval, most Veerali also speak Trade and despite their isolation are eager learners and somewhat fluent in at least one or two additional languages as well.

Shared Values

The Veerali honour nature and despise its destruction for the purpose of constructing settlements or machines of war. Outsiders are to be treated with wariness and suspicion, particularly after the events of the Invasion War. But those who have earned the Veerali’s trust are welcomed wholeheartedly to the homes of this reclusive group.

The Veerali’s shyness is not to be confused with a lack of fierceness, and among the natives of Ivendarea they are the best-trained warriors. Due to their strong magical inclination and strength of will they are also very sought-after by recruiters of the Avon Julanor. Despite usually not launching attacks on outsiders, they don’t hesitate to fight those who invade their communities. Widely scattered across many insular communities, they are still well-connected among each other. News travel fast and far, and distances are quickly crossed in times of need. The Veerali stick together and hold on strongly to their heritage, deeply rooted in their values, environment, and community. They are very spiritual people, valuing the upkeep of religious tradition and rituals, tying them into their daily lives. They greatly enjoy their independence, living completely self-sufficient, although some express a desire to see more of the world, become more connected to the outside, maybe even establish a proper harbour on Ivendarea’s southern coast.

Common Etiquette

Outsiders - be it Assadin or just Nyr from outside a community - are not to be brought into the heart of a village before gaining approval from its respective council. The Veerali don’t like surprise visits. As a sign of good will when coming to a new community, the guest is usually required to bring a little gift - it doesn’t have to be valuable, but it has to have significance and meaning. Even better than a gift though is offering a service to the community.

The elders as well as those who were reborn many times, are to be treated with the utmost respect, as they carry vast knowledge and are the pillars of the community - Veerali and Nyr as a whole.

Fashion

Veerali clothing is made from light natural fibres that breathe easily and dry quickly in the humid south. While guards and workers in the outskirts of the villages tend to wear more muted colours to blend in with the environment, more vibrant colours are worn in everyday life and particularly for festive celebrations. The Veerali incorporate driftwood, amber, and pearls in their clothing and jewellery. Strands of fabric are braided to achieve not only interesting textures in everyday clothing but are also used to create a thick but flexible padding worn under armour for additional protection. The Veerali’s armour is made predominantly from small, lacquered wooden plates sewn onto woven fabrics, resembling fish, snake, or dragon scales. Sometimes similar elements can be found on everyday-clothing and jewellery.

A Veerali fighter wearing a very typical chest plate, pauldron, and glove made from wood, decorated with moss, fabric-straps, golden shimmering resin, an animal claw, and more. Notable are also the shoes with soles made from gum donning little spikes that make climbing easier. In comparison to the heavy armour the clothing more suitable for all-day wear is light and breathable, but created with the same eye for detail and organic shapes.

The Veerali are also known to wear a specific necklace that indicates the amount of times an individual has been reborn, depending on how many precious stones are attached to it. They receive it during their Vath’eran. Being very spiritual and connected to their past, the Veerali have a lot of respect for those reborn many times, deeming them wise and visionary.

Art & Architecture

Veerali art and architecture is organic and flowing, religious symbolism often sneakily incorporated so that it isn’t visible at first glance. Being at peace and one with nature is in focus, so their buildings are usually flooded with light. The base structures for most Veerali houses are trees manipulated during their growth to take on certain shapes that form living spaces similar to houses. The term “house” is definitely a bit of a stretch, as usually a house is not always a connected structure. Much more common are large communal areas at the base of trees where everyone comes together to cook and eat, while higher up in the trees spherical structures contain sleeping quarters and other personal rooms, offering shelter to individuals or small families. Yet again separate spaces for work and personal hygiene are spread across the whole communal area’s outskirts.

The Veerali wash and cook with collected rain water, and they purify their used water before releasing it again into nearby rivers or the ocean. Water pipes are made from specific types of hollow bamboo. They run entirely above ground, often aesthetically incorporated into existing buildings and structures such as bridges and pathways connecting living and working spheres.

Ideals

Beauty Ideals

The Veerali braid their hair in a variety of fashions, tying it up, weaving it together, and decorating it to show and appreciate craftsmanship and creativity. Jewellery is worn by most individuals, fashioned from natural materials ranging from wood and metal to seashells and even types of grass. Fierceness and a determined attitude are well-liked and respected, independence and freedom are celebrated.

Courtship Ideals

Persistence is key when courting Veerali, as relationships are serious business and many are very picky when it comes to choosing their partner(s). It needs convincing and passion to woo the other party, fighting for them with all you have is only just enough. Material gifts are not as popular as elsewhere, they have to be truly unique and carry a lot of special meaning to matter. Much more valued than gifts are deeds.

A common saying originating from Veerali culture goes as follows: “How many miles would they chase the storm for you?” Devoting themselves to and sacrificing a lot to their partner, family, and community is a grand virtue, against all odds and probabilities.

Relationship Ideals

Relationships that go beyond pure physical aspects are treated as serious business and meant to last, all parties committing to a shared life together. The partners support each other through all hardships but also enjoy a lot of freedom and privileges within their hometowns. The community will help together to build a new private living space for the couple. Their children are raised in a communal effort, teaching them about history, art, life skills, and their heritage. Bonded partners don’t have to take on guard duties or other risky jobs, unless they truly want to, to fully devote their lives to each other, their craft, children, and their home.

[Read on World Anvil]

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[j3nnyjams]

Wrote up a D&D race profile for Cucas, a species from Finders Capers!

Cucas are a race of intelligent insectoids that have been present in the world since primordial times. Although the true origin of their race is lost to time, they're believed to have originally come from small insects that became gifted with a human-like stature and intelligence through some unknown means. They've variously been compared to cockroaches, grasshoppers and ants. Cucas are a resilient and tenacious race, which is believed by many to be due to a powerful innate magic inside them, which may have also been responsible for their great evolutionary potential.

PHYSICAL DESCRIPTION

Cucas, as highly evolved insects, sport a chitinous exoskeleton - usually black in color, although dark reds and browns are not unheard of. They are diminutive, ranging from two to three feet (roughly 60 to 90 cm) tall from head to toe, and scarcely weigh more than 15 pounds (6.8 kg). They have six limbs and their bodies are divided into three main segments - the head, the thorax and the abdomen.

Cucas bear large heads making up more than a third of their stature, with round, dish-like eyes of a yellow to green color which bear tiny pupils. This gives them a striking, 'cartoonish' appearance which to some can be quite unsettling. Within their heads they have brains of comparable size to humans. They bear tiny mandibles which with they eat, although due to the robes they wear and the dark color of their chitin, these are often obscured or difficult to notice. They have long, thin antennae jutting out of their foreheads which they use to hear, smell, detect danger, and for various other purposes, often considered their 'sixth sense' organ.

The central part of their body, the thorax, bears two pairs of arms each with an upper arm, a forearm, and a hand consisting of three rudimentary digits (two fingers and a thumb). Although their hands are not as dextrous as humanoids', they make up for it with surprising coordination and reaction time. Their extra limbs make it easier for them to grasp large objects and prevent smaller ones from falling. Their thorax also bears short legs with tiny, two-digited feet with which to walk.

On the back of their thorax is a pair of membranous wings protected by chitinous wing shields. Cucas have greatly diminished flight capabilities as opposed to the insects they may have evolved from, so these wings are essentially vestigial, although they can still 'buzz' them without being able to take off into the air (which they do sometimes as a gesture of shock).

Their abdomen juts out a short ways behind their thorax and allows them extra balance, as well as performing excretory and reproductive functions. Two small cerci (spikes) are positioned at the rear terminus of their bodies.

Cucas are a largely nocturnal race, and bright lights could be considered their Achille's heel, as it disorients them greatly. Cucas who are used to adventuring have managed to adapt so that sunlight is merely a mild irritation that they can work through. However, a Cuca never completely gets used to sunlight.

As insectoids, Cucas have no concept of modesty and their tough exoskeletons prevent them from needing heavy armor, but nonetheless they often wear robes and other clothing items. Cucas are adept at distinguishing each other, but besides their name and chosen trade, there are few ways available to Cucas to truly express themselves, so wearing distinctive and colorful robes is often an option. They may wear hats, patches, or other accessories for the same reason, or to signify their trade. Other reasons a Cuca might wear clothes are for ceremonial/spiritual purposes, or simply to shield themselves from the light when traveling in daylight.

Cucas are not particularly physically powerful, but they have great constitutions. When large monsters attempt to crush them, they'll be surprised to find that the chitinous Cuca exoskeleton affords them a great deal of protection. Due to their small size and flightiness, Cucas are excellent at escaping deadly situations and due to their reproductive habits and societal organization are unlikely to disappear from the face of the Earth.

REPRODUCTION AND LIFE CYCLE

With no sexual binary, all Cucas have similar reproductive organs, although it is only a specific type of Cuca who will be able to bear children; a so-called Cuca Mother, recognizable among Cucas by their much larger abdomen.

A Cuca Mother may take various sexual partners and may deliver multiple large broods of children throughout their life, consisting of between 10 and 20 eggs each. There is usually one future Cuca Mother in each brood, which is the largest and strongest of the hatchlings. The future Cuca Mother is generally the one who consumed the most nutrients in its egg and soon develops a maternal instinct even in its youth, generally helping its parents look after its siblings.

Although Cuca Mothers are generally well taken care of by their partners, some have raised concerns over the resignation of Cuca Mothers to playing the role of broodmare throughout their lives. A minority of Mothers reject the broodmare life in order to follow their own careers and pursue their dreams.

Cucas hatch as tiny, completely dependent nymphs only a few inches long, and they rapidly grow through successive moltings every few weeks. At one year of age, they can walk and speak at a similar level to a five-year-old human child, and the frequency of moltings slows down gradually over the next five years as Cucas approach their adult size. Among their other gifts, Cucas have been granted a lifespan approaching that of humans'; they mature at age 6 and the vast majority live to be roughly 50 to 60 years of age. Cuca Mothers live to be about 80, and some exceptional individuals cling on to life for over a century, becoming known as 'ancients' or 'elder' Cucas, although these are statistical outliers.

HISTORY

As is previously stated, the origin of Cucas is lost to all time. Some believe them to have arisen out of a species of insect such as a grasshopper, cricket or ant, and to have gained humanoid intelligence and stature through sheer tenacity and some sort of special capacity for evolution that may originate from some kind of inherent magic.

That said, Cucas have become much more well-documented over the past few thousands of years. They began keeping records of their lives through books, and there have been written many long, branching, tangled genealogies that stretch through successive generations of broods. Cuca communities also keep their own histories. You'll sometimes find stories of roving hordes of orcs or goblins, or even imperialistic human armies, attempting to drive Cucas from their homes to expand their spheres of influence. However, the Cucas always bounce back in the end. These books tell the story of a simple race of hardy bugfolk whose paths often intersect with that of the other humanoid races in the unlikeliest of ways. It works the other way around too - every now and then in the story of other races comes a story of an exceptional Cuca that made their small mark on the world one way or another.

SOCIETY

Cucas, although not always the most visible species, can often be found among larger populations of humanoids, if you know where to look. They congregate in dark places like caves and in underground dwellings among human cities. Their homes are small, modestly furnished, and usually underground.

Although there are some Cuca communities and they are a social species, they are just as likely to strike out on their own and live among humanoids rather than with their own kind, sharing the halfling propensity for wanderlust. Cucas can be found among humanoid crowds wearing their robes and shuffling along with books or other items under their arms, and are more frequently seen outdoors at night than during the day.

Cucas are a kind, pleasant and agreeable species. They can be shy and often stammer over their words in the presence of larger creatures or even small humanoids like halflings. Some of them are pushovers and often seen as an easy target for muggings in the steets, but many of them maintain a humble bravery and stand their ground in the face of danger. They are often very intelligent, and conduct themselves diligently. A Cuca will take to a trade and make it their life's work to benefit future generations.

Cucas have no real concept of gender or sex, although as their race evolved they took on a somewhat anthropomorphic sense of identity. When speaking languages that involve gendered pronouns (such as Common) they will select pronouns to refer to themselves as and refer to others by their desired pronouns, with "he", "she" and "they" all being common. Combined with the various affectations and presentations of individuals, this can lead less knowledgable humanoids to believe that there is a gender binary and a sexual dichotomy among Cucas, a concept they find confusing. A Cuca Mother, just like other Cucas, has no gender and is not explicitly 'feminine' simply by virtue of being a mother.

Cucas spend their childhoods with their brood - among ten to twenty of their own siblings as well as their parents - until they are about six years of age. They are often taught by their own parents in makeshift classrooms and learn a variety of things to prepare them for life. Cucas are quick learners and eager to start careers and see the world, in spite of their shyness and hatred of sunlight. They leave their childhood homes by six, but many return to see their mother once in a while, and many keep in touch with siblings and childhood friends they bonded with. Many of them migrate to other cities or Cuca settlements, while others stay in their home settlements or even return after a period of wandering.

A Cuca Mother waits until their first brood has grown up and moved out to make another brood, meaning that the most productive Cuca Mothers make new broods every six years and have hundreds of children. A brood can refer to each individual batch of Cucas, but in a legal sense it can often refer to the total of offspring that a single Cuca Mother makes over their lifespan. The total aggregate of children is called "___brood", where ___ is the given name of the Cuca Mother.

Most Cucas speak Cucaclik, a series of clicking and chirping noises that's often considered to sound 'all the same' to outsiders. Their writing is a series of chicken scratches that also looks indistinguishable; each scratch correspounds to a Cucaclik sound. If compared to a real-world language, it would be something like Chinese and its Hanzi character system. However, not only can Cuca distinguish Cucaclik sounds or characters perfectly from each other, but across broods and Cuca communities there are many different dialects by which Cucas can often place each other's origins. Cucas also learn Common in order to interact with other races.

CUCA NAMES

Cucas identify themselves by given names and broodnames, in the format of "X of Ybrood", hence identifying themself and their mother. Some Cucas end up meeting new siblings this way by chance encounters while both are traveling, with a younger sibling being from a latter batch than the former.

Cuca often transliterate their names into English, which end up sounding ridiculous to outsiders when they meet 'Cheepy of Zippybrood'. That said, a lot of the sounds are more dignified-sounding than you'd think.

Examples of given names: Areeta, Atatat, Bipidi, Bop, Cheepy, Clakidi, Dottie, Dureen, Dwee, Eeper, Fizzy, Fozzy, Fwish, Goppo, Greegie, Izzy, Jakajak, Javeen, Jupjute, Kavix, Keener, Kiko, Leeloo, Likipik, Marni, Meeko, Muzzy, Naveen, Nikkel, Norno, Oovoo, Pava, Pokey, Pider, Quolo, Reet, Rokoko, Sizzy, Sohko, Taptap, Tweep, Twizzle, Upidi, Uutu, Veevee, Vroom, Waika, Zippy

CUCA TRAITS

Ability Score Modifiers. +2 to CON, +1 to INT, -2 to STR

Age. Cucas reach maturity at age 6 after successive moltings. They live to be about 60 with rare exceptions; Cuca Mothers live to be about 80, although those do not tend to become adventurers.

Alignment. Pleasant and diligent, Cucas tend towards Good and/or Lawful, but are not necessarily both, or either. However, they have little reason to go renegade or hurt others unless their life has somehow gone very wrong.

Antennae. You have proficiency in the Perception skill.

Darkvision. You can see in dim light within 60 feet of you as if it were bright light, and in darkness as if it were dim light. You can't discern color in darkness, only shades of gray.

Exoskeleton. Thanks to your chitinous shell, your AC is increased by 1.

Languages. You can speak, read and write Common and Cucaclik.

Size. Cucas stand between 2 and 3 feet tall. Your size is small.

Speed. Your base walking speed is 25 feet.

Sunlight Sensitivity. You have disadvantage on all attack rolls and Wisdom checks that rely on sight if either you, or the target, is in direct sunlight.

Random Height and Weight

Base Height: 2'0"

Modifier: 2d6

Base Weight: 10 lbs.

Weight Modifier: 1d6 lbs.

[phantasmkiss]

Agartha

History Build Challenge #6

Year: 1779

I had never heard of Agartha, but there was the word, scrawled in the back of a book I hadn't known existed. "Burn it when I go," my father had said, "or give it back to the Lodge." But curiosity had driven me, and when he died, I opened it and learned its secrets.

A world at the center of the earth, it said, a civilization independent of our own, existed. The Freemasons had kept this secret for centuries! The book I held had come from Scotland a century ago and my father, a Grand Mason in the Grand Lodge of London and Westminster, had been entrusted with it. I, a mere woman, was forbidden the knowledge that I held. I had no sons to pass my father's belongings to, and so the Freemasonry would end in our line.

I bristled. My husband had died years ago, shortly after our only child, a daughter named Alexandria, was born. With my father dead as well, I was left destitute. Was I to live with my only sister and her husband? A poor relation with nothing to offer? I refused. My daughter was not yet old enough to marry, and so I took her with me on a journey to Mount Epomeo, Italy.

With the forbidden book as a guide, we sought a tunnel through the earth, carrying what we could in packs and foraging for nourishment. The caves were dark, the path unsure, but at last we saw natural light once more. At last fresh water ran ahead of us, and we followed it to a city unlike any I could have dreamed of.

There was no one style that I recognized. There were hints of the classical in enormous corbels, dashes of the Orient in the slope of roofs, the Mediterranean in arches and windows, held together with sharp angles and touches of vibrant color. I had come prepared for a prehistoric society of cave peoples, but what I beheld was an exotic and quite complex city, the architecture of which defied all logic. Why, the central temple alone must have been four stories, and the bridge connecting it to a tower had no visible supports!

I and Alexandria walked a bit of the perimeter, but the city seemed surrounded by water. What seemed to be the actual entrance was thick walls surrounding a pool of the clearest water we had ever seen. Perhaps this deep within the earth, there was no stagnancy, no decay. Whatever the situation, we had one option only.

Stripping ourselves of the functional clothes procured for the adventure, we were left in undergarments to swim a lengthy tunnel. I feared for our safety, should the walls collapse, or should we be attacked from above, but we were left to be. The water was as warm as the earth and as smooth as silk.

The pool ended in a type of starburst pattern, one we would see echoed over and over throughout our stay. Those within the city must have known we were coming, as we were greeted by a willowy woman and a large, robed man. We blushed to meet them in soaked undergarments, but neither seemed disturbed by our attire.

Their appearance, however, was rather shocking. Both appeared human, but for their eyes. The sun in this land was constant, for where could a sun hanging in the center of the world set? Although I speak a smattering of languages, communication was no barrier. Others had journeyed to Agartha before, and though they were few and none had been seen for a hundred years or more, the Agarthans spoke English as well as you or I.

To return to their appearance, their eyes had no visible pupils, for the sun shone constantly. Pale skin was rare as well. [See appendices for more on the Agarthans' physical appearance. For the sake of this narrative, we shall focus on culture and architecture.]

Empress Song and Sapphire, as they called their spiritual leader, welcomed us wholly. They had never met females from above, as Agartha was a secret of the Freemasonry alone. I showed them the Masonic bible my father had left behind, but they needed no explanations. In their society, the line between genders was quite blurred at times.

We bid adieu to the Empress and followed Sapphire to a small building with a roof, it was explained, in the shape of an eight-pointed star. The star was sacred, as it was thought to be the source of all life. All that grew in the earth sought the sun or depended upon it.

Within the temple was the Sacred Fountain. Built so long ago that Sapphire could not make us understand, it was where the first Agarthans had drunk before beginning a settlement that would last millennia. Agarthans did not age as we did, and they attributed it to the refreshing waters that were the lifeblood of the city.

We cleaned our hands in the lower basin of the fountain, then drank the sacred water from above and a great peace descended upon us. I and Alexandria continued in awed silence to the next room. There we found an altar in remembrance of the dead and I lit a candle for my father. Alexandria lit one for her own father, and we bowed our heads in prayer.

By this time, a feast had been prepared to welcome us. We were led into rooms belowground, rooms lit with candles beyond reckoning, for though the Agarthans revered the rarity of darkness, they feared it as well. I have constructed a diagram of the public subterranean rooms, below.

Fig. 1 Public Rooms, Basement Level 1

Left: Dining hall, with seating for eight. Right: Kitchen, with ice box, wood stove, and dual sinks. Top: Candle altar, bathrooms. Below, unseen: public crafting room.

Empress Song presented her court, a gathering of men and women with names I can no longer recall. We sat at the dining table, the Empress at the head, Sapphire to her right, and myself in a place of honor to her left. We closed our eyes against the dim light as the table was heaped with food.

We enjoyed a meal of wrapped asparagus, pancake-like breads, and some delicate, lobster-like crustacean, as well as numerous other indescribable morsels. There was little supper conversation, but the few words said were well-placed. It didn't feel silent so much as contemplative, and I quite enjoyed the atmosphere of it.

We slept, and at this I found that the Agarthans had little sense of physical privacy. Though there were several separate beds, walls did not always meet, and so one room spilled into another, each surrounded by candles and in view of a magnificent star made of tiled walls.

Fig. 2 Private Rooms, Basement Level 2

Left and right: A total of four single beds. Top: Candle altar, bathrooms. Center: Arrangement of partial walls into a decorative eight-pointed star. Below, unseen: Empress Song's private chamber.

There was a large public space devoted to craft and production. The Freemasons were, of course, masons at their start. My father and grandfather were both artisans of sorts, and I enjoyed watching these craftspeople ply their trade. Each had his or her own workstation, his or her own set of candles to tend and to see by. I received a small wooden statue of a horse as a gift, which I will display proudly once home.

One of the workers, a handsome woman by the name of Iman, brought me and Alexandria to see the grounds. We observed painters outdoors, as well as one of two small orchards seated beside the waters.

We also bathed in the waters, a common social activity in Agartha.

We were welcomed into the court in a ceremony which I will never forget.

It began in a columned hall which stretched to a star-shaped fountain.

Dressed in Agarthan attire, Sapphire blessed us, and though I cannot tell all which happened, as it seems fantastic even now, it was a glittering time of music, dancing, and camaraderie.

Alas, we could not remain in Agartha forever, though they would have welcomed us gladly. Our journey complete, we parted company, taking one last drink of sweet, clear water. Perhaps some day we shall return, as my father's book lies hidden in this house.

Signed,

Kiss Fontaine

Agartha in the Sims 4 Gallery

(Origin ID: PhantasmKiss)

[mayarosa47]

Declaratory Actions And Insurance

A declaratory judgment action is essentially a request — typically by the insurer but often by the insured — that a court examine the relevant insurance policy provisions and declare the rights and obligations of the parties under the insurance contract. The declaration can address whether the insurer is obligated to furnish the insured with a defense in a pending lawsuit arising out of a third-party claim under a liability policy, or it can address the substantive issue of coverage under the policy for any first-party or third-party claim.

For a number of reasons, insurers often prefer that the parties’ rights and obligations under the policy be decided by a federal judge rather than by a state judge. Questions of insurance coverage are, however, typically questions of state law. Because federal courts exist primarily to decide issues of federal law, the jurisdiction of the federal courts to hear cases that present issues of state law is limited.

To establish federal jurisdiction in a declaratory judgment action, two conditions must be satisfied. First, is the constitutional inquiry – the case must be a ‘case or controversy’ pursuant to Article III of the US Constitution. Second is the prudential inquiry – declaratory relief must be appropriate. Relief pursuant to the Declaratory Judgment Act also requires the establishment of standing under the statute.

In determining whether there is a case or controversy, the test is whether the alleged facts demonstrate there is a substantial controversy between parties, with adverse legal interests, of such immediacy and existence so to warrant a declaratory judgment.

In Johnson v. Shree Radhe Corporation, et al 2018 WL 1409973 (March 21, 2018), the United States District Court focused on statutory standing. There, Plaintiff filed an action in state court alleging injury arising from Defendants’ negligence. In addition, he included a claim under the Uniform Declaratory Judgments Act against Defendants, including Auto-Owners Insurance Company, which issued a policy to the remaining Defendants. Auto-Owners removed the case thereby triggering analysis under the Federal Declaratory Judgment Act. Plaintiff moved to remand.

In Johnson, the court reiterated that under federal law, a plaintiff is not precluded from standing to sue an insurer simply because he is not a party to the insurance contract. An actual controversy can exist between an insurance company and a third party in certain circumstances. First, in the event the insurance company joins the third party in a case; a common scenario to those familiar with coverage issues. Insurers can generally establish their stake in the outcome of the underlying controversy based upon the injury they could suffer by having to pay a claim for which there is no valid coverage. Next, the court has also found a plaintiff, not a party to the insurance contract, has standing to sue the insurer in the event the plaintiff has secured a judgment against the carrier’s insured. In Johnson, however, Plaintiff was without a judgment, sought to enforce rights under a policy to which he was not a party, and under which he had no claims pursuant to the policy provisions. As a result of Plaintiff’s inability to establish a concrete injury, in the context of the declaratory judgment action, coupled with his inability to demonstrate a substantial controversy that effected the legal rights of the adverse parties, the court determined Plaintiff lacked standing and remanded the action.

A Declaratory Judgment Example

In the case of insurance contracts, declaratory judgments help determine a policy’s coverage. It helps to define if coverage exists for a particular peril, whether the insurer is required to defend the policyholder from a third party’s claim, and whether the insurer is responsible for a loss when other insurance contracts also cover against the same peril.

For example, a policyholder believes that his denied claim is unjust. As a result, he informs the insurer that he is considering a lawsuit to recover losses. The insurer seeks a declaratory judgment to clarify its rights and obligations with hopes of preventing the lawsuit. If a declaratory judgment indicates that the insurer is not obligated to cover the loss, the insurer will likely avoid litigation. If the judgment indicates that the insurer is responsible, then the policyholder is likely to sue the insurer to recover losses.

Declaratory judgments originated in the early 20th century when states adopted a universal set of standards after the enactment of the Uniform Declaratory Judgments Act of 1922. In 1934, Congress enacted the Declaratory Judgments Act, which granted federal courts the authority to provide declaratory judgments.

In federal court, the Declaratory Judgment Act is designed to afford parties threatened with a liability, but otherwise without a satisfactory remedy, a means of early adjudication of the controversy. The existence of a controversy is crucial, because the “case or controversy” requirement of Article III of the Constitution applies to declaratory judgments. To show an “actual controversy” as required by 28 USC §2201, the plaintiff in a declaratory action must show he has sustained, or is in immediate danger of sustaining, a direct injury as the result of the defendant’s conduct. Stated differently, there must be a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. But, where an insurer has already made a decision and seeks a court to “approve” its decision, that may not be an appropriate controversy for resolution. The primary purpose of a declaratory judgment is to permit a plaintiff to obtain a declaration of its rights and liabilities before proceeding with a course of conduct for which it might be held liable, not to declare nonliability for past conduct. Declaratory judgment is not available where the judgment cannot guide and protect the petitioner regarding future acts. Declaratory judgment cannot be used solely to adjudicate past conduct and not to affect future behavior. Following this line of cases, by waiting to file a declaratory judgment action until after it has denied the claim, the insurer is not seeking guidance on future acts, but asking the court to render an advisory opinion on its past conduct, which is not the purpose of a declaratory judgment action and may result in dismissal. Thus, an insured and its counsel should think twice about allowing a declaratory judgment action to proceed where the insurer has already denied the claim.

The Declaratory Judgment Act, 28 U.S.C. § 2201(a) provides a federal declaratory remedy. The exercise of jurisdiction under the Act is not compulsory. There is a four part test for entertaining an insurance coverage action during the pendency of the tort trial in federal court; i.e.:

(i) the strength of the state’s interest in having the issues raised in the federal declaratory action decided in the state courts;

(ii) whether the issues raised in the federal action can more efficiently be resolved in the state court in which the action is pending;

(iii) whether permitting the federal action to go forward would result in unnecessary “entanglement” between the federal and state court systems, because of the presence of “overlapping issues of fact or law”;

(iv) whether the declaratory judgment action is being used merely as a device for “procedural fencing” – that is, to control the choice of forum in a race for res judicata or to obtain a federal hearing in a case otherwise not removed.

Discovery

Discovery in coverage litigation is much different from discovery in tort litigation. The scope of discovery depends upon the issue. In duty to defend cases, generally, no significant discovery is needed by the insurer, since the duty to defend is based upon the allegations of the Complaint. Brohawn v. Transamerica Ins. Co., 276 Md. 396, 347 A.2d 842 (1975). However, since insureds may rely upon extrinsic evidence to bring an action within coverage, discovery may prove helpful to the insured. In duty to indemnify cases, the evidence is generally limited to that produced at the underlying tort trial. In “bad faith” duty to settle within policy limits cases, more extensive discovery is permitted. Whether information as to other claims and lawsuits is discoverable is an issue for the trial court. Most courts find it marginally relevant at best and either not discoverable or subject to limited discovery. North River Ins. Co. v. Mayor and City Council of Baltimore, 343 Md. 34, 67, 680 A.2d 480, 497 (1996)(“[t]he numerical majority of the cases deny any discovery of the records of other insureds, either on the ground that it will not lead to the discovery of relevant evidence, or on the ground that the relevance is so clearly outweighed by the burden of production that production is denied”).

Depositions

As with discovery in general, the purpose and goals of the deposition vary depending upon whether the suit concerns the duty to defend, the duty to indemnify or 5 “bad faith.” In a duty to defend case, policy language and the allegations of the complaint drive the court’s determination of coverage. Hence, it is rarely useful to depose the adjuster in a duty to defend case. The handling of the file and the insurer’s reasons for denying coverage or reserving rights are not relevant to the determination of coverage by the court. The same goes for a duty to indemnify case, where the jury verdict sheet or the evidence adduced at trial – not the reasons the insurer accepted or denied coverage – determines coverage.

Insureds, however, tend to notice the deposition of the claims adjuster as a knee jerk reaction. Of course, in a bad faith case, the issues concerning handling of the file and settlement negotiations make the deposition of the adjuster central. The deposition of the insured is useful in a duty to defend case to flesh out any extrinsic evidence the insured relies upon and the related factual basis of the underlying plaintiffs’ allegations, such as whether the insured intended or expected the plaintiff’s injury or whether the putative insured had permission to drive the insured motor vehicle. Further, it is an opportunity to pin down the insured’s claim that extrinsic evidence brings the case within coverage. Experts generally should not be permitted to testify since the policy is interpreted based upon its plain language as understood by laypersons.

Burden of Proof

you have assembled your evidence, you have to prove your case. The insured has the burden of proving every fact essential to his or her right to recover. The insurer has the burden of proving any exclusion under the policy. The insurer has the burden of proving prejudice from the insured’s violation of a notice provision. The insurer has the burden of proving that the insured made a misrepresentation in the application for the policy. Lost policies require the proponent to establish the fact of loss and terms and conditions of the policy by clear and positive evidence. a. Allocating a verdict between insurer and insured Who has the burden of apportioning the loss between covered and uncovered damages when there is a general verdict? Allocation is simple where the verdict is distinguished between covered and uncovered claims. If there is no specific allocation, the court must determine what portion is allocated to covered claims. Generally, the insured has the burden of proving a loss is within coverage. Where the verdict is mixed, it remains the insured’s obligation. A few courts have shifted the burden to the insurer in some situations, such as where the insurer controlled the defense and failed to request special jury interrogatories to allocate the verdict.

Some Federal Courts have permitted insurers to intervene pursuant to FRCP Rule 24 to request special jury interrogatories or a verdict form. In the great majority of cases, the duty to defend should be decided by summary judgment. There is no fact issue because the duty to defend is determined by the eight corners test. In other words, the facts are set out in the underlying petition, so there is no need for a jury to make a factual determination. Rather, the court should decide as a matter of law whether the facts fall within the scope of coverage or fit within an exclusion to coverage. Consequently, determining coverage can usually be accomplished much faster than the resolution of the underlying case.

When Do You File a Declaratory Judgment Action

In addition, even if you decide to bring the duty to indemnify as part of the declaratory action, once you have obtained a partial summary judgment on the duty to defend, the carrier will normally feel comfortable in withdrawing from the defense of the underlying case. Certainly, no one can say that the carrier is acting unreasonably if the court has already agreed as a matter of law that there is no duty to defend.

A second consideration is whether it makes business sense to undertake the costs that go along with a declaratory judgment action. Even in a relatively simple case, it may take $10,000 to $20,000 to obtain a summary judgment on the duty to defend. If the claim could be settled for that amount, or if the defense costs in connection with the underlying case are not likely to be substantially more than that, it may make not make sense to file a declaratory judgment action. In other words, are the costs justified by the potential benefit of a ruling on coverage?

On the other hand, where there is a denial of coverage, the analysis is more straightforward. One of the first considerations is whether the insured will agree that there is no coverage and, therefore, will not likely bring a breach of contract or bad faith action. If the correspondence and actions of the insured make it clear that the insured does not dispute the carrier’s position, then a declaratory judgment action may be unnecessary.

However, keep in mind that if the stakes are high enough you’ll need attorneys like those at Ascent Law to help you.

Free Initial Consultation with a Utah Attorney

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

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from https://www.ascentlawfirm.com/declaratory-actions-and-insurance/

from Criminal Defense Lawyer West Jordan Utah - Blog http://criminaldefenselawyerwestjordanutah.weebly.com/blog/declaratory-actions-and-insurance

[melissawalker01]

Declaratory Actions And Insurance

A declaratory judgment action is essentially a request — typically by the insurer but often by the insured — that a court examine the relevant insurance policy provisions and declare the rights and obligations of the parties under the insurance contract. The declaration can address whether the insurer is obligated to furnish the insured with a defense in a pending lawsuit arising out of a third-party claim under a liability policy, or it can address the substantive issue of coverage under the policy for any first-party or third-party claim.

For a number of reasons, insurers often prefer that the parties’ rights and obligations under the policy be decided by a federal judge rather than by a state judge. Questions of insurance coverage are, however, typically questions of state law. Because federal courts exist primarily to decide issues of federal law, the jurisdiction of the federal courts to hear cases that present issues of state law is limited.

To establish federal jurisdiction in a declaratory judgment action, two conditions must be satisfied. First, is the constitutional inquiry – the case must be a ‘case or controversy’ pursuant to Article III of the US Constitution. Second is the prudential inquiry – declaratory relief must be appropriate. Relief pursuant to the Declaratory Judgment Act also requires the establishment of standing under the statute.

In determining whether there is a case or controversy, the test is whether the alleged facts demonstrate there is a substantial controversy between parties, with adverse legal interests, of such immediacy and existence so to warrant a declaratory judgment.

In Johnson v. Shree Radhe Corporation, et al 2018 WL 1409973 (March 21, 2018), the United States District Court focused on statutory standing. There, Plaintiff filed an action in state court alleging injury arising from Defendants’ negligence. In addition, he included a claim under the Uniform Declaratory Judgments Act against Defendants, including Auto-Owners Insurance Company, which issued a policy to the remaining Defendants. Auto-Owners removed the case thereby triggering analysis under the Federal Declaratory Judgment Act. Plaintiff moved to remand.

In Johnson, the court reiterated that under federal law, a plaintiff is not precluded from standing to sue an insurer simply because he is not a party to the insurance contract. An actual controversy can exist between an insurance company and a third party in certain circumstances. First, in the event the insurance company joins the third party in a case; a common scenario to those familiar with coverage issues. Insurers can generally establish their stake in the outcome of the underlying controversy based upon the injury they could suffer by having to pay a claim for which there is no valid coverage. Next, the court has also found a plaintiff, not a party to the insurance contract, has standing to sue the insurer in the event the plaintiff has secured a judgment against the carrier’s insured. In Johnson, however, Plaintiff was without a judgment, sought to enforce rights under a policy to which he was not a party, and under which he had no claims pursuant to the policy provisions. As a result of Plaintiff’s inability to establish a concrete injury, in the context of the declaratory judgment action, coupled with his inability to demonstrate a substantial controversy that effected the legal rights of the adverse parties, the court determined Plaintiff lacked standing and remanded the action.

A Declaratory Judgment Example

In the case of insurance contracts, declaratory judgments help determine a policy’s coverage. It helps to define if coverage exists for a particular peril, whether the insurer is required to defend the policyholder from a third party’s claim, and whether the insurer is responsible for a loss when other insurance contracts also cover against the same peril.

For example, a policyholder believes that his denied claim is unjust. As a result, he informs the insurer that he is considering a lawsuit to recover losses. The insurer seeks a declaratory judgment to clarify its rights and obligations with hopes of preventing the lawsuit. If a declaratory judgment indicates that the insurer is not obligated to cover the loss, the insurer will likely avoid litigation. If the judgment indicates that the insurer is responsible, then the policyholder is likely to sue the insurer to recover losses.

Declaratory judgments originated in the early 20th century when states adopted a universal set of standards after the enactment of the Uniform Declaratory Judgments Act of 1922. In 1934, Congress enacted the Declaratory Judgments Act, which granted federal courts the authority to provide declaratory judgments.

In federal court, the Declaratory Judgment Act is designed to afford parties threatened with a liability, but otherwise without a satisfactory remedy, a means of early adjudication of the controversy. The existence of a controversy is crucial, because the “case or controversy” requirement of Article III of the Constitution applies to declaratory judgments. To show an “actual controversy” as required by 28 USC §2201, the plaintiff in a declaratory action must show he has sustained, or is in immediate danger of sustaining, a direct injury as the result of the defendant’s conduct. Stated differently, there must be a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. But, where an insurer has already made a decision and seeks a court to “approve” its decision, that may not be an appropriate controversy for resolution. The primary purpose of a declaratory judgment is to permit a plaintiff to obtain a declaration of its rights and liabilities before proceeding with a course of conduct for which it might be held liable, not to declare nonliability for past conduct. Declaratory judgment is not available where the judgment cannot guide and protect the petitioner regarding future acts. Declaratory judgment cannot be used solely to adjudicate past conduct and not to affect future behavior. Following this line of cases, by waiting to file a declaratory judgment action until after it has denied the claim, the insurer is not seeking guidance on future acts, but asking the court to render an advisory opinion on its past conduct, which is not the purpose of a declaratory judgment action and may result in dismissal. Thus, an insured and its counsel should think twice about allowing a declaratory judgment action to proceed where the insurer has already denied the claim.

The Declaratory Judgment Act, 28 U.S.C. § 2201(a) provides a federal declaratory remedy. The exercise of jurisdiction under the Act is not compulsory. There is a four part test for entertaining an insurance coverage action during the pendency of the tort trial in federal court; i.e.:

(i) the strength of the state’s interest in having the issues raised in the federal declaratory action decided in the state courts;

(ii) whether the issues raised in the federal action can more efficiently be resolved in the state court in which the action is pending;

(iii) whether permitting the federal action to go forward would result in unnecessary “entanglement” between the federal and state court systems, because of the presence of “overlapping issues of fact or law”;

(iv) whether the declaratory judgment action is being used merely as a device for “procedural fencing” – that is, to control the choice of forum in a race for res judicata or to obtain a federal hearing in a case otherwise not removed.

Discovery

Discovery in coverage litigation is much different from discovery in tort litigation. The scope of discovery depends upon the issue. In duty to defend cases, generally, no significant discovery is needed by the insurer, since the duty to defend is based upon the allegations of the Complaint. Brohawn v. Transamerica Ins. Co., 276 Md. 396, 347 A.2d 842 (1975). However, since insureds may rely upon extrinsic evidence to bring an action within coverage, discovery may prove helpful to the insured. In duty to indemnify cases, the evidence is generally limited to that produced at the underlying tort trial. In “bad faith” duty to settle within policy limits cases, more extensive discovery is permitted. Whether information as to other claims and lawsuits is discoverable is an issue for the trial court. Most courts find it marginally relevant at best and either not discoverable or subject to limited discovery. North River Ins. Co. v. Mayor and City Council of Baltimore, 343 Md. 34, 67, 680 A.2d 480, 497 (1996)(“[t]he numerical majority of the cases deny any discovery of the records of other insureds, either on the ground that it will not lead to the discovery of relevant evidence, or on the ground that the relevance is so clearly outweighed by the burden of production that production is denied”).

Depositions

As with discovery in general, the purpose and goals of the deposition vary depending upon whether the suit concerns the duty to defend, the duty to indemnify or 5 “bad faith.” In a duty to defend case, policy language and the allegations of the complaint drive the court’s determination of coverage. Hence, it is rarely useful to depose the adjuster in a duty to defend case. The handling of the file and the insurer’s reasons for denying coverage or reserving rights are not relevant to the determination of coverage by the court. The same goes for a duty to indemnify case, where the jury verdict sheet or the evidence adduced at trial – not the reasons the insurer accepted or denied coverage – determines coverage.

Insureds, however, tend to notice the deposition of the claims adjuster as a knee jerk reaction. Of course, in a bad faith case, the issues concerning handling of the file and settlement negotiations make the deposition of the adjuster central. The deposition of the insured is useful in a duty to defend case to flesh out any extrinsic evidence the insured relies upon and the related factual basis of the underlying plaintiffs’ allegations, such as whether the insured intended or expected the plaintiff’s injury or whether the putative insured had permission to drive the insured motor vehicle. Further, it is an opportunity to pin down the insured’s claim that extrinsic evidence brings the case within coverage. Experts generally should not be permitted to testify since the policy is interpreted based upon its plain language as understood by laypersons.

Burden of Proof

you have assembled your evidence, you have to prove your case. The insured has the burden of proving every fact essential to his or her right to recover. The insurer has the burden of proving any exclusion under the policy. The insurer has the burden of proving prejudice from the insured’s violation of a notice provision. The insurer has the burden of proving that the insured made a misrepresentation in the application for the policy. Lost policies require the proponent to establish the fact of loss and terms and conditions of the policy by clear and positive evidence. a. Allocating a verdict between insurer and insured Who has the burden of apportioning the loss between covered and uncovered damages when there is a general verdict? Allocation is simple where the verdict is distinguished between covered and uncovered claims. If there is no specific allocation, the court must determine what portion is allocated to covered claims. Generally, the insured has the burden of proving a loss is within coverage. Where the verdict is mixed, it remains the insured’s obligation. A few courts have shifted the burden to the insurer in some situations, such as where the insurer controlled the defense and failed to request special jury interrogatories to allocate the verdict.

Some Federal Courts have permitted insurers to intervene pursuant to FRCP Rule 24 to request special jury interrogatories or a verdict form. In the great majority of cases, the duty to defend should be decided by summary judgment. There is no fact issue because the duty to defend is determined by the eight corners test. In other words, the facts are set out in the underlying petition, so there is no need for a jury to make a factual determination. Rather, the court should decide as a matter of law whether the facts fall within the scope of coverage or fit within an exclusion to coverage. Consequently, determining coverage can usually be accomplished much faster than the resolution of the underlying case.

When Do You File a Declaratory Judgment Action

In addition, even if you decide to bring the duty to indemnify as part of the declaratory action, once you have obtained a partial summary judgment on the duty to defend, the carrier will normally feel comfortable in withdrawing from the defense of the underlying case. Certainly, no one can say that the carrier is acting unreasonably if the court has already agreed as a matter of law that there is no duty to defend.

A second consideration is whether it makes business sense to undertake the costs that go along with a declaratory judgment action. Even in a relatively simple case, it may take $10,000 to $20,000 to obtain a summary judgment on the duty to defend. If the claim could be settled for that amount, or if the defense costs in connection with the underlying case are not likely to be substantially more than that, it may make not make sense to file a declaratory judgment action. In other words, are the costs justified by the potential benefit of a ruling on coverage?

On the other hand, where there is a denial of coverage, the analysis is more straightforward. One of the first considerations is whether the insured will agree that there is no coverage and, therefore, will not likely bring a breach of contract or bad faith action. If the correspondence and actions of the insured make it clear that the insured does not dispute the carrier’s position, then a declaratory judgment action may be unnecessary.

However, keep in mind that if the stakes are high enough you’ll need attorneys like those at Ascent Law to help you.

Free Initial Consultation with a Utah Attorney

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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from Michael Anderson https://www.ascentlawfirm.com/declaratory-actions-and-insurance/ from Divorce Lawyer Nelson Farms Utah https://divorcelawyernelsonfarmsutah.tumblr.com/post/188690157925

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Declaratory Actions And Insurance

A declaratory judgment action is essentially a request — typically by the insurer but often by the insured — that a court examine the relevant insurance policy provisions and declare the rights and obligations of the parties under the insurance contract. The declaration can address whether the insurer is obligated to furnish the insured with a defense in a pending lawsuit arising out of a third-party claim under a liability policy, or it can address the substantive issue of coverage under the policy for any first-party or third-party claim.

For a number of reasons, insurers often prefer that the parties’ rights and obligations under the policy be decided by a federal judge rather than by a state judge. Questions of insurance coverage are, however, typically questions of state law. Because federal courts exist primarily to decide issues of federal law, the jurisdiction of the federal courts to hear cases that present issues of state law is limited.

To establish federal jurisdiction in a declaratory judgment action, two conditions must be satisfied. First, is the constitutional inquiry – the case must be a ‘case or controversy’ pursuant to Article III of the US Constitution. Second is the prudential inquiry – declaratory relief must be appropriate. Relief pursuant to the Declaratory Judgment Act also requires the establishment of standing under the statute.

In determining whether there is a case or controversy, the test is whether the alleged facts demonstrate there is a substantial controversy between parties, with adverse legal interests, of such immediacy and existence so to warrant a declaratory judgment.

In Johnson v. Shree Radhe Corporation, et al 2018 WL 1409973 (March 21, 2018), the United States District Court focused on statutory standing. There, Plaintiff filed an action in state court alleging injury arising from Defendants’ negligence. In addition, he included a claim under the Uniform Declaratory Judgments Act against Defendants, including Auto-Owners Insurance Company, which issued a policy to the remaining Defendants. Auto-Owners removed the case thereby triggering analysis under the Federal Declaratory Judgment Act. Plaintiff moved to remand.

In Johnson, the court reiterated that under federal law, a plaintiff is not precluded from standing to sue an insurer simply because he is not a party to the insurance contract. An actual controversy can exist between an insurance company and a third party in certain circumstances. First, in the event the insurance company joins the third party in a case; a common scenario to those familiar with coverage issues. Insurers can generally establish their stake in the outcome of the underlying controversy based upon the injury they could suffer by having to pay a claim for which there is no valid coverage. Next, the court has also found a plaintiff, not a party to the insurance contract, has standing to sue the insurer in the event the plaintiff has secured a judgment against the carrier’s insured. In Johnson, however, Plaintiff was without a judgment, sought to enforce rights under a policy to which he was not a party, and under which he had no claims pursuant to the policy provisions. As a result of Plaintiff’s inability to establish a concrete injury, in the context of the declaratory judgment action, coupled with his inability to demonstrate a substantial controversy that effected the legal rights of the adverse parties, the court determined Plaintiff lacked standing and remanded the action.

A Declaratory Judgment Example

In the case of insurance contracts, declaratory judgments help determine a policy’s coverage. It helps to define if coverage exists for a particular peril, whether the insurer is required to defend the policyholder from a third party’s claim, and whether the insurer is responsible for a loss when other insurance contracts also cover against the same peril.

For example, a policyholder believes that his denied claim is unjust. As a result, he informs the insurer that he is considering a lawsuit to recover losses. The insurer seeks a declaratory judgment to clarify its rights and obligations with hopes of preventing the lawsuit. If a declaratory judgment indicates that the insurer is not obligated to cover the loss, the insurer will likely avoid litigation. If the judgment indicates that the insurer is responsible, then the policyholder is likely to sue the insurer to recover losses.

Declaratory judgments originated in the early 20th century when states adopted a universal set of standards after the enactment of the Uniform Declaratory Judgments Act of 1922. In 1934, Congress enacted the Declaratory Judgments Act, which granted federal courts the authority to provide declaratory judgments.

In federal court, the Declaratory Judgment Act is designed to afford parties threatened with a liability, but otherwise without a satisfactory remedy, a means of early adjudication of the controversy. The existence of a controversy is crucial, because the “case or controversy” requirement of Article III of the Constitution applies to declaratory judgments. To show an “actual controversy” as required by 28 USC §2201, the plaintiff in a declaratory action must show he has sustained, or is in immediate danger of sustaining, a direct injury as the result of the defendant’s conduct. Stated differently, there must be a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. But, where an insurer has already made a decision and seeks a court to “approve” its decision, that may not be an appropriate controversy for resolution. The primary purpose of a declaratory judgment is to permit a plaintiff to obtain a declaration of its rights and liabilities before proceeding with a course of conduct for which it might be held liable, not to declare nonliability for past conduct. Declaratory judgment is not available where the judgment cannot guide and protect the petitioner regarding future acts. Declaratory judgment cannot be used solely to adjudicate past conduct and not to affect future behavior. Following this line of cases, by waiting to file a declaratory judgment action until after it has denied the claim, the insurer is not seeking guidance on future acts, but asking the court to render an advisory opinion on its past conduct, which is not the purpose of a declaratory judgment action and may result in dismissal. Thus, an insured and its counsel should think twice about allowing a declaratory judgment action to proceed where the insurer has already denied the claim.

The Declaratory Judgment Act, 28 U.S.C. § 2201(a) provides a federal declaratory remedy. The exercise of jurisdiction under the Act is not compulsory. There is a four part test for entertaining an insurance coverage action during the pendency of the tort trial in federal court; i.e.:

(i) the strength of the state’s interest in having the issues raised in the federal declaratory action decided in the state courts;

(ii) whether the issues raised in the federal action can more efficiently be resolved in the state court in which the action is pending;

(iii) whether permitting the federal action to go forward would result in unnecessary “entanglement” between the federal and state court systems, because of the presence of “overlapping issues of fact or law”;

(iv) whether the declaratory judgment action is being used merely as a device for “procedural fencing” – that is, to control the choice of forum in a race for res judicata or to obtain a federal hearing in a case otherwise not removed.

Discovery

Discovery in coverage litigation is much different from discovery in tort litigation. The scope of discovery depends upon the issue. In duty to defend cases, generally, no significant discovery is needed by the insurer, since the duty to defend is based upon the allegations of the Complaint. Brohawn v. Transamerica Ins. Co., 276 Md. 396, 347 A.2d 842 (1975). However, since insureds may rely upon extrinsic evidence to bring an action within coverage, discovery may prove helpful to the insured. In duty to indemnify cases, the evidence is generally limited to that produced at the underlying tort trial. In “bad faith” duty to settle within policy limits cases, more extensive discovery is permitted. Whether information as to other claims and lawsuits is discoverable is an issue for the trial court. Most courts find it marginally relevant at best and either not discoverable or subject to limited discovery. North River Ins. Co. v. Mayor and City Council of Baltimore, 343 Md. 34, 67, 680 A.2d 480, 497 (1996)(“[t]he numerical majority of the cases deny any discovery of the records of other insureds, either on the ground that it will not lead to the discovery of relevant evidence, or on the ground that the relevance is so clearly outweighed by the burden of production that production is denied”).

Depositions

As with discovery in general, the purpose and goals of the deposition vary depending upon whether the suit concerns the duty to defend, the duty to indemnify or 5 “bad faith.” In a duty to defend case, policy language and the allegations of the complaint drive the court’s determination of coverage. Hence, it is rarely useful to depose the adjuster in a duty to defend case. The handling of the file and the insurer’s reasons for denying coverage or reserving rights are not relevant to the determination of coverage by the court. The same goes for a duty to indemnify case, where the jury verdict sheet or the evidence adduced at trial – not the reasons the insurer accepted or denied coverage – determines coverage.

Insureds, however, tend to notice the deposition of the claims adjuster as a knee jerk reaction. Of course, in a bad faith case, the issues concerning handling of the file and settlement negotiations make the deposition of the adjuster central. The deposition of the insured is useful in a duty to defend case to flesh out any extrinsic evidence the insured relies upon and the related factual basis of the underlying plaintiffs’ allegations, such as whether the insured intended or expected the plaintiff’s injury or whether the putative insured had permission to drive the insured motor vehicle. Further, it is an opportunity to pin down the insured’s claim that extrinsic evidence brings the case within coverage. Experts generally should not be permitted to testify since the policy is interpreted based upon its plain language as understood by laypersons.

Burden of Proof

you have assembled your evidence, you have to prove your case. The insured has the burden of proving every fact essential to his or her right to recover. The insurer has the burden of proving any exclusion under the policy. The insurer has the burden of proving prejudice from the insured’s violation of a notice provision. The insurer has the burden of proving that the insured made a misrepresentation in the application for the policy. Lost policies require the proponent to establish the fact of loss and terms and conditions of the policy by clear and positive evidence. a. Allocating a verdict between insurer and insured Who has the burden of apportioning the loss between covered and uncovered damages when there is a general verdict? Allocation is simple where the verdict is distinguished between covered and uncovered claims. If there is no specific allocation, the court must determine what portion is allocated to covered claims. Generally, the insured has the burden of proving a loss is within coverage. Where the verdict is mixed, it remains the insured’s obligation. A few courts have shifted the burden to the insurer in some situations, such as where the insurer controlled the defense and failed to request special jury interrogatories to allocate the verdict.

Some Federal Courts have permitted insurers to intervene pursuant to FRCP Rule 24 to request special jury interrogatories or a verdict form. In the great majority of cases, the duty to defend should be decided by summary judgment. There is no fact issue because the duty to defend is determined by the eight corners test. In other words, the facts are set out in the underlying petition, so there is no need for a jury to make a factual determination. Rather, the court should decide as a matter of law whether the facts fall within the scope of coverage or fit within an exclusion to coverage. Consequently, determining coverage can usually be accomplished much faster than the resolution of the underlying case.

When Do You File a Declaratory Judgment Action

In addition, even if you decide to bring the duty to indemnify as part of the declaratory action, once you have obtained a partial summary judgment on the duty to defend, the carrier will normally feel comfortable in withdrawing from the defense of the underlying case. Certainly, no one can say that the carrier is acting unreasonably if the court has already agreed as a matter of law that there is no duty to defend.

A second consideration is whether it makes business sense to undertake the costs that go along with a declaratory judgment action. Even in a relatively simple case, it may take $10,000 to $20,000 to obtain a summary judgment on the duty to defend. If the claim could be settled for that amount, or if the defense costs in connection with the underlying case are not likely to be substantially more than that, it may make not make sense to file a declaratory judgment action. In other words, are the costs justified by the potential benefit of a ruling on coverage?

On the other hand, where there is a denial of coverage, the analysis is more straightforward. One of the first considerations is whether the insured will agree that there is no coverage and, therefore, will not likely bring a breach of contract or bad faith action. If the correspondence and actions of the insured make it clear that the insured does not dispute the carrier’s position, then a declaratory judgment action may be unnecessary.

However, keep in mind that if the stakes are high enough you’ll need attorneys like those at Ascent Law to help you.

Free Initial Consultation with a Utah Attorney

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

Recent Posts

Family Lawyer Farmington Utah

Finding Assets After Divorce

What Is Consideration For A Contract?

Enforce Out Of State Divorces In Utah

Can A DUI Case Be Dismissed At Arraignment?

Bankruptcy Lawyer American Fork Utah

from Michael Anderson https://www.ascentlawfirm.com/declaratory-actions-and-insurance/

from Criminal Defense Lawyer West Jordan Utah https://criminaldefenselawyerwestjordanutah.wordpress.com/2019/10/30/declaratory-actions-and-insurance/

[gonnagoandrunwiththehorses]

Declaratory Actions And Insurance

A declaratory judgment action is essentially a request — typically by the insurer but often by the insured — that a court examine the relevant insurance policy provisions and declare the rights and obligations of the parties under the insurance contract. The declaration can address whether the insurer is obligated to furnish the insured with a defense in a pending lawsuit arising out of a third-party claim under a liability policy, or it can address the substantive issue of coverage under the policy for any first-party or third-party claim.

For a number of reasons, insurers often prefer that the parties’ rights and obligations under the policy be decided by a federal judge rather than by a state judge. Questions of insurance coverage are, however, typically questions of state law. Because federal courts exist primarily to decide issues of federal law, the jurisdiction of the federal courts to hear cases that present issues of state law is limited.

To establish federal jurisdiction in a declaratory judgment action, two conditions must be satisfied. First, is the constitutional inquiry – the case must be a ‘case or controversy’ pursuant to Article III of the US Constitution. Second is the prudential inquiry – declaratory relief must be appropriate. Relief pursuant to the Declaratory Judgment Act also requires the establishment of standing under the statute.

In determining whether there is a case or controversy, the test is whether the alleged facts demonstrate there is a substantial controversy between parties, with adverse legal interests, of such immediacy and existence so to warrant a declaratory judgment.

In Johnson v. Shree Radhe Corporation, et al 2018 WL 1409973 (March 21, 2018), the United States District Court focused on statutory standing. There, Plaintiff filed an action in state court alleging injury arising from Defendants’ negligence. In addition, he included a claim under the Uniform Declaratory Judgments Act against Defendants, including Auto-Owners Insurance Company, which issued a policy to the remaining Defendants. Auto-Owners removed the case thereby triggering analysis under the Federal Declaratory Judgment Act. Plaintiff moved to remand.

In Johnson, the court reiterated that under federal law, a plaintiff is not precluded from standing to sue an insurer simply because he is not a party to the insurance contract. An actual controversy can exist between an insurance company and a third party in certain circumstances. First, in the event the insurance company joins the third party in a case; a common scenario to those familiar with coverage issues. Insurers can generally establish their stake in the outcome of the underlying controversy based upon the injury they could suffer by having to pay a claim for which there is no valid coverage. Next, the court has also found a plaintiff, not a party to the insurance contract, has standing to sue the insurer in the event the plaintiff has secured a judgment against the carrier’s insured. In Johnson, however, Plaintiff was without a judgment, sought to enforce rights under a policy to which he was not a party, and under which he had no claims pursuant to the policy provisions. As a result of Plaintiff’s inability to establish a concrete injury, in the context of the declaratory judgment action, coupled with his inability to demonstrate a substantial controversy that effected the legal rights of the adverse parties, the court determined Plaintiff lacked standing and remanded the action.

A Declaratory Judgment Example

In the case of insurance contracts, declaratory judgments help determine a policy’s coverage. It helps to define if coverage exists for a particular peril, whether the insurer is required to defend the policyholder from a third party’s claim, and whether the insurer is responsible for a loss when other insurance contracts also cover against the same peril.

For example, a policyholder believes that his denied claim is unjust. As a result, he informs the insurer that he is considering a lawsuit to recover losses. The insurer seeks a declaratory judgment to clarify its rights and obligations with hopes of preventing the lawsuit. If a declaratory judgment indicates that the insurer is not obligated to cover the loss, the insurer will likely avoid litigation. If the judgment indicates that the insurer is responsible, then the policyholder is likely to sue the insurer to recover losses.

Declaratory judgments originated in the early 20th century when states adopted a universal set of standards after the enactment of the Uniform Declaratory Judgments Act of 1922. In 1934, Congress enacted the Declaratory Judgments Act, which granted federal courts the authority to provide declaratory judgments.

In federal court, the Declaratory Judgment Act is designed to afford parties threatened with a liability, but otherwise without a satisfactory remedy, a means of early adjudication of the controversy. The existence of a controversy is crucial, because the “case or controversy” requirement of Article III of the Constitution applies to declaratory judgments. To show an “actual controversy” as required by 28 USC §2201, the plaintiff in a declaratory action must show he has sustained, or is in immediate danger of sustaining, a direct injury as the result of the defendant’s conduct. Stated differently, there must be a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. But, where an insurer has already made a decision and seeks a court to “approve” its decision, that may not be an appropriate controversy for resolution. The primary purpose of a declaratory judgment is to permit a plaintiff to obtain a declaration of its rights and liabilities before proceeding with a course of conduct for which it might be held liable, not to declare nonliability for past conduct. Declaratory judgment is not available where the judgment cannot guide and protect the petitioner regarding future acts. Declaratory judgment cannot be used solely to adjudicate past conduct and not to affect future behavior. Following this line of cases, by waiting to file a declaratory judgment action until after it has denied the claim, the insurer is not seeking guidance on future acts, but asking the court to render an advisory opinion on its past conduct, which is not the purpose of a declaratory judgment action and may result in dismissal. Thus, an insured and its counsel should think twice about allowing a declaratory judgment action to proceed where the insurer has already denied the claim.

The Declaratory Judgment Act, 28 U.S.C. § 2201(a) provides a federal declaratory remedy. The exercise of jurisdiction under the Act is not compulsory. There is a four part test for entertaining an insurance coverage action during the pendency of the tort trial in federal court; i.e.:

(i) the strength of the state’s interest in having the issues raised in the federal declaratory action decided in the state courts;

(ii) whether the issues raised in the federal action can more efficiently be resolved in the state court in which the action is pending;

(iii) whether permitting the federal action to go forward would result in unnecessary “entanglement” between the federal and state court systems, because of the presence of “overlapping issues of fact or law”;

(iv) whether the declaratory judgment action is being used merely as a device for “procedural fencing” – that is, to control the choice of forum in a race for res judicata or to obtain a federal hearing in a case otherwise not removed.

Discovery

Discovery in coverage litigation is much different from discovery in tort litigation. The scope of discovery depends upon the issue. In duty to defend cases, generally, no significant discovery is needed by the insurer, since the duty to defend is based upon the allegations of the Complaint. Brohawn v. Transamerica Ins. Co., 276 Md. 396, 347 A.2d 842 (1975). However, since insureds may rely upon extrinsic evidence to bring an action within coverage, discovery may prove helpful to the insured. In duty to indemnify cases, the evidence is generally limited to that produced at the underlying tort trial. In “bad faith” duty to settle within policy limits cases, more extensive discovery is permitted. Whether information as to other claims and lawsuits is discoverable is an issue for the trial court. Most courts find it marginally relevant at best and either not discoverable or subject to limited discovery. North River Ins. Co. v. Mayor and City Council of Baltimore, 343 Md. 34, 67, 680 A.2d 480, 497 (1996)(“[t]he numerical majority of the cases deny any discovery of the records of other insureds, either on the ground that it will not lead to the discovery of relevant evidence, or on the ground that the relevance is so clearly outweighed by the burden of production that production is denied”).

Depositions

As with discovery in general, the purpose and goals of the deposition vary depending upon whether the suit concerns the duty to defend, the duty to indemnify or 5 “bad faith.” In a duty to defend case, policy language and the allegations of the complaint drive the court’s determination of coverage. Hence, it is rarely useful to depose the adjuster in a duty to defend case. The handling of the file and the insurer’s reasons for denying coverage or reserving rights are not relevant to the determination of coverage by the court. The same goes for a duty to indemnify case, where the jury verdict sheet or the evidence adduced at trial – not the reasons the insurer accepted or denied coverage – determines coverage.

Insureds, however, tend to notice the deposition of the claims adjuster as a knee jerk reaction. Of course, in a bad faith case, the issues concerning handling of the file and settlement negotiations make the deposition of the adjuster central. The deposition of the insured is useful in a duty to defend case to flesh out any extrinsic evidence the insured relies upon and the related factual basis of the underlying plaintiffs’ allegations, such as whether the insured intended or expected the plaintiff’s injury or whether the putative insured had permission to drive the insured motor vehicle. Further, it is an opportunity to pin down the insured’s claim that extrinsic evidence brings the case within coverage. Experts generally should not be permitted to testify since the policy is interpreted based upon its plain language as understood by laypersons.

Burden of Proof

you have assembled your evidence, you have to prove your case. The insured has the burden of proving every fact essential to his or her right to recover. The insurer has the burden of proving any exclusion under the policy. The insurer has the burden of proving prejudice from the insured’s violation of a notice provision. The insurer has the burden of proving that the insured made a misrepresentation in the application for the policy. Lost policies require the proponent to establish the fact of loss and terms and conditions of the policy by clear and positive evidence. a. Allocating a verdict between insurer and insured Who has the burden of apportioning the loss between covered and uncovered damages when there is a general verdict? Allocation is simple where the verdict is distinguished between covered and uncovered claims. If there is no specific allocation, the court must determine what portion is allocated to covered claims. Generally, the insured has the burden of proving a loss is within coverage. Where the verdict is mixed, it remains the insured’s obligation. A few courts have shifted the burden to the insurer in some situations, such as where the insurer controlled the defense and failed to request special jury interrogatories to allocate the verdict.

Some Federal Courts have permitted insurers to intervene pursuant to FRCP Rule 24 to request special jury interrogatories or a verdict form. In the great majority of cases, the duty to defend should be decided by summary judgment. There is no fact issue because the duty to defend is determined by the eight corners test. In other words, the facts are set out in the underlying petition, so there is no need for a jury to make a factual determination. Rather, the court should decide as a matter of law whether the facts fall within the scope of coverage or fit within an exclusion to coverage. Consequently, determining coverage can usually be accomplished much faster than the resolution of the underlying case.

When Do You File a Declaratory Judgment Action

In addition, even if you decide to bring the duty to indemnify as part of the declaratory action, once you have obtained a partial summary judgment on the duty to defend, the carrier will normally feel comfortable in withdrawing from the defense of the underlying case. Certainly, no one can say that the carrier is acting unreasonably if the court has already agreed as a matter of law that there is no duty to defend.

A second consideration is whether it makes business sense to undertake the costs that go along with a declaratory judgment action. Even in a relatively simple case, it may take $10,000 to $20,000 to obtain a summary judgment on the duty to defend. If the claim could be settled for that amount, or if the defense costs in connection with the underlying case are not likely to be substantially more than that, it may make not make sense to file a declaratory judgment action. In other words, are the costs justified by the potential benefit of a ruling on coverage?

On the other hand, where there is a denial of coverage, the analysis is more straightforward. One of the first considerations is whether the insured will agree that there is no coverage and, therefore, will not likely bring a breach of contract or bad faith action. If the correspondence and actions of the insured make it clear that the insured does not dispute the carrier’s position, then a declaratory judgment action may be unnecessary.

However, keep in mind that if the stakes are high enough you’ll need attorneys like those at Ascent Law to help you.

Free Initial Consultation with a Utah Attorney

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

Recent Posts

Family Lawyer Farmington Utah

Finding Assets After Divorce

What Is Consideration For A Contract?

Enforce Out Of State Divorces In Utah

Can A DUI Case Be Dismissed At Arraignment?

Bankruptcy Lawyer American Fork Utah

Source: https://www.ascentlawfirm.com/declaratory-actions-and-insurance/

[divorcelawyergunnisonutah]

Declaratory Actions And Insurance

A declaratory judgment action is essentially a request — typically by the insurer but often by the insured — that a court examine the relevant insurance policy provisions and declare the rights and obligations of the parties under the insurance contract. The declaration can address whether the insurer is obligated to furnish the insured with a defense in a pending lawsuit arising out of a third-party claim under a liability policy, or it can address the substantive issue of coverage under the policy for any first-party or third-party claim.

For a number of reasons, insurers often prefer that the parties’ rights and obligations under the policy be decided by a federal judge rather than by a state judge. Questions of insurance coverage are, however, typically questions of state law. Because federal courts exist primarily to decide issues of federal law, the jurisdiction of the federal courts to hear cases that present issues of state law is limited.

To establish federal jurisdiction in a declaratory judgment action, two conditions must be satisfied. First, is the constitutional inquiry – the case must be a ‘case or controversy’ pursuant to Article III of the US Constitution. Second is the prudential inquiry – declaratory relief must be appropriate. Relief pursuant to the Declaratory Judgment Act also requires the establishment of standing under the statute.

In determining whether there is a case or controversy, the test is whether the alleged facts demonstrate there is a substantial controversy between parties, with adverse legal interests, of such immediacy and existence so to warrant a declaratory judgment.

In Johnson v. Shree Radhe Corporation, et al 2018 WL 1409973 (March 21, 2018), the United States District Court focused on statutory standing. There, Plaintiff filed an action in state court alleging injury arising from Defendants’ negligence. In addition, he included a claim under the Uniform Declaratory Judgments Act against Defendants, including Auto-Owners Insurance Company, which issued a policy to the remaining Defendants. Auto-Owners removed the case thereby triggering analysis under the Federal Declaratory Judgment Act. Plaintiff moved to remand.

In Johnson, the court reiterated that under federal law, a plaintiff is not precluded from standing to sue an insurer simply because he is not a party to the insurance contract. An actual controversy can exist between an insurance company and a third party in certain circumstances. First, in the event the insurance company joins the third party in a case; a common scenario to those familiar with coverage issues. Insurers can generally establish their stake in the outcome of the underlying controversy based upon the injury they could suffer by having to pay a claim for which there is no valid coverage. Next, the court has also found a plaintiff, not a party to the insurance contract, has standing to sue the insurer in the event the plaintiff has secured a judgment against the carrier’s insured. In Johnson, however, Plaintiff was without a judgment, sought to enforce rights under a policy to which he was not a party, and under which he had no claims pursuant to the policy provisions. As a result of Plaintiff’s inability to establish a concrete injury, in the context of the declaratory judgment action, coupled with his inability to demonstrate a substantial controversy that effected the legal rights of the adverse parties, the court determined Plaintiff lacked standing and remanded the action.

A Declaratory Judgment Example

In the case of insurance contracts, declaratory judgments help determine a policy’s coverage. It helps to define if coverage exists for a particular peril, whether the insurer is required to defend the policyholder from a third party’s claim, and whether the insurer is responsible for a loss when other insurance contracts also cover against the same peril.

For example, a policyholder believes that his denied claim is unjust. As a result, he informs the insurer that he is considering a lawsuit to recover losses. The insurer seeks a declaratory judgment to clarify its rights and obligations with hopes of preventing the lawsuit. If a declaratory judgment indicates that the insurer is not obligated to cover the loss, the insurer will likely avoid litigation. If the judgment indicates that the insurer is responsible, then the policyholder is likely to sue the insurer to recover losses.

Declaratory judgments originated in the early 20th century when states adopted a universal set of standards after the enactment of the Uniform Declaratory Judgments Act of 1922. In 1934, Congress enacted the Declaratory Judgments Act, which granted federal courts the authority to provide declaratory judgments.

In federal court, the Declaratory Judgment Act is designed to afford parties threatened with a liability, but otherwise without a satisfactory remedy, a means of early adjudication of the controversy. The existence of a controversy is crucial, because the “case or controversy” requirement of Article III of the Constitution applies to declaratory judgments. To show an “actual controversy” as required by 28 USC §2201, the plaintiff in a declaratory action must show he has sustained, or is in immediate danger of sustaining, a direct injury as the result of the defendant’s conduct. Stated differently, there must be a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. But, where an insurer has already made a decision and seeks a court to “approve” its decision, that may not be an appropriate controversy for resolution. The primary purpose of a declaratory judgment is to permit a plaintiff to obtain a declaration of its rights and liabilities before proceeding with a course of conduct for which it might be held liable, not to declare nonliability for past conduct. Declaratory judgment is not available where the judgment cannot guide and protect the petitioner regarding future acts. Declaratory judgment cannot be used solely to adjudicate past conduct and not to affect future behavior. Following this line of cases, by waiting to file a declaratory judgment action until after it has denied the claim, the insurer is not seeking guidance on future acts, but asking the court to render an advisory opinion on its past conduct, which is not the purpose of a declaratory judgment action and may result in dismissal. Thus, an insured and its counsel should think twice about allowing a declaratory judgment action to proceed where the insurer has already denied the claim.

The Declaratory Judgment Act, 28 U.S.C. § 2201(a) provides a federal declaratory remedy. The exercise of jurisdiction under the Act is not compulsory. There is a four part test for entertaining an insurance coverage action during the pendency of the tort trial in federal court; i.e.:

(i) the strength of the state’s interest in having the issues raised in the federal declaratory action decided in the state courts;

(ii) whether the issues raised in the federal action can more efficiently be resolved in the state court in which the action is pending;

(iii) whether permitting the federal action to go forward would result in unnecessary “entanglement” between the federal and state court systems, because of the presence of “overlapping issues of fact or law”;

(iv) whether the declaratory judgment action is being used merely as a device for “procedural fencing” – that is, to control the choice of forum in a race for res judicata or to obtain a federal hearing in a case otherwise not removed.

Discovery

Discovery in coverage litigation is much different from discovery in tort litigation. The scope of discovery depends upon the issue. In duty to defend cases, generally, no significant discovery is needed by the insurer, since the duty to defend is based upon the allegations of the Complaint. Brohawn v. Transamerica Ins. Co., 276 Md. 396, 347 A.2d 842 (1975). However, since insureds may rely upon extrinsic evidence to bring an action within coverage, discovery may prove helpful to the insured. In duty to indemnify cases, the evidence is generally limited to that produced at the underlying tort trial. In “bad faith” duty to settle within policy limits cases, more extensive discovery is permitted. Whether information as to other claims and lawsuits is discoverable is an issue for the trial court. Most courts find it marginally relevant at best and either not discoverable or subject to limited discovery. North River Ins. Co. v. Mayor and City Council of Baltimore, 343 Md. 34, 67, 680 A.2d 480, 497 (1996)(“[t]he numerical majority of the cases deny any discovery of the records of other insureds, either on the ground that it will not lead to the discovery of relevant evidence, or on the ground that the relevance is so clearly outweighed by the burden of production that production is denied”).

Depositions

As with discovery in general, the purpose and goals of the deposition vary depending upon whether the suit concerns the duty to defend, the duty to indemnify or 5 “bad faith.” In a duty to defend case, policy language and the allegations of the complaint drive the court’s determination of coverage. Hence, it is rarely useful to depose the adjuster in a duty to defend case. The handling of the file and the insurer’s reasons for denying coverage or reserving rights are not relevant to the determination of coverage by the court. The same goes for a duty to indemnify case, where the jury verdict sheet or the evidence adduced at trial – not the reasons the insurer accepted or denied coverage – determines coverage.

Insureds, however, tend to notice the deposition of the claims adjuster as a knee jerk reaction. Of course, in a bad faith case, the issues concerning handling of the file and settlement negotiations make the deposition of the adjuster central. The deposition of the insured is useful in a duty to defend case to flesh out any extrinsic evidence the insured relies upon and the related factual basis of the underlying plaintiffs’ allegations, such as whether the insured intended or expected the plaintiff’s injury or whether the putative insured had permission to drive the insured motor vehicle. Further, it is an opportunity to pin down the insured’s claim that extrinsic evidence brings the case within coverage. Experts generally should not be permitted to testify since the policy is interpreted based upon its plain language as understood by laypersons.

Burden of Proof

you have assembled your evidence, you have to prove your case. The insured has the burden of proving every fact essential to his or her right to recover. The insurer has the burden of proving any exclusion under the policy. The insurer has the burden of proving prejudice from the insured’s violation of a notice provision. The insurer has the burden of proving that the insured made a misrepresentation in the application for the policy. Lost policies require the proponent to establish the fact of loss and terms and conditions of the policy by clear and positive evidence. a. Allocating a verdict between insurer and insured Who has the burden of apportioning the loss between covered and uncovered damages when there is a general verdict? Allocation is simple where the verdict is distinguished between covered and uncovered claims. If there is no specific allocation, the court must determine what portion is allocated to covered claims. Generally, the insured has the burden of proving a loss is within coverage. Where the verdict is mixed, it remains the insured’s obligation. A few courts have shifted the burden to the insurer in some situations, such as where the insurer controlled the defense and failed to request special jury interrogatories to allocate the verdict.

Some Federal Courts have permitted insurers to intervene pursuant to FRCP Rule 24 to request special jury interrogatories or a verdict form. In the great majority of cases, the duty to defend should be decided by summary judgment. There is no fact issue because the duty to defend is determined by the eight corners test. In other words, the facts are set out in the underlying petition, so there is no need for a jury to make a factual determination. Rather, the court should decide as a matter of law whether the facts fall within the scope of coverage or fit within an exclusion to coverage. Consequently, determining coverage can usually be accomplished much faster than the resolution of the underlying case.

When Do You File a Declaratory Judgment Action

In addition, even if you decide to bring the duty to indemnify as part of the declaratory action, once you have obtained a partial summary judgment on the duty to defend, the carrier will normally feel comfortable in withdrawing from the defense of the underlying case. Certainly, no one can say that the carrier is acting unreasonably if the court has already agreed as a matter of law that there is no duty to defend.

A second consideration is whether it makes business sense to undertake the costs that go along with a declaratory judgment action. Even in a relatively simple case, it may take $10,000 to $20,000 to obtain a summary judgment on the duty to defend. If the claim could be settled for that amount, or if the defense costs in connection with the underlying case are not likely to be substantially more than that, it may make not make sense to file a declaratory judgment action. In other words, are the costs justified by the potential benefit of a ruling on coverage?

On the other hand, where there is a denial of coverage, the analysis is more straightforward. One of the first considerations is whether the insured will agree that there is no coverage and, therefore, will not likely bring a breach of contract or bad faith action. If the correspondence and actions of the insured make it clear that the insured does not dispute the carrier’s position, then a declaratory judgment action may be unnecessary.

However, keep in mind that if the stakes are high enough you’ll need attorneys like those at Ascent Law to help you.

Free Initial Consultation with a Utah Attorney

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

Recent Posts

Family Lawyer Farmington Utah

Finding Assets After Divorce

What Is Consideration For A Contract?

Enforce Out Of State Divorces In Utah

Can A DUI Case Be Dismissed At Arraignment?

Bankruptcy Lawyer American Fork Utah

from Michael Anderson https://www.ascentlawfirm.com/declaratory-actions-and-insurance/

[coming-from-hell]

Declaratory Actions And Insurance

A declaratory judgment action is essentially a request — typically by the insurer but often by the insured — that a court examine the relevant insurance policy provisions and declare the rights and obligations of the parties under the insurance contract. The declaration can address whether the insurer is obligated to furnish the insured with a defense in a pending lawsuit arising out of a third-party claim under a liability policy, or it can address the substantive issue of coverage under the policy for any first-party or third-party claim.

For a number of reasons, insurers often prefer that the parties’ rights and obligations under the policy be decided by a federal judge rather than by a state judge. Questions of insurance coverage are, however, typically questions of state law. Because federal courts exist primarily to decide issues of federal law, the jurisdiction of the federal courts to hear cases that present issues of state law is limited.

To establish federal jurisdiction in a declaratory judgment action, two conditions must be satisfied. First, is the constitutional inquiry – the case must be a ‘case or controversy’ pursuant to Article III of the US Constitution. Second is the prudential inquiry – declaratory relief must be appropriate. Relief pursuant to the Declaratory Judgment Act also requires the establishment of standing under the statute.

In determining whether there is a case or controversy, the test is whether the alleged facts demonstrate there is a substantial controversy between parties, with adverse legal interests, of such immediacy and existence so to warrant a declaratory judgment.

In Johnson v. Shree Radhe Corporation, et al 2018 WL 1409973 (March 21, 2018), the United States District Court focused on statutory standing. There, Plaintiff filed an action in state court alleging injury arising from Defendants’ negligence. In addition, he included a claim under the Uniform Declaratory Judgments Act against Defendants, including Auto-Owners Insurance Company, which issued a policy to the remaining Defendants. Auto-Owners removed the case thereby triggering analysis under the Federal Declaratory Judgment Act. Plaintiff moved to remand.

In Johnson, the court reiterated that under federal law, a plaintiff is not precluded from standing to sue an insurer simply because he is not a party to the insurance contract. An actual controversy can exist between an insurance company and a third party in certain circumstances. First, in the event the insurance company joins the third party in a case; a common scenario to those familiar with coverage issues. Insurers can generally establish their stake in the outcome of the underlying controversy based upon the injury they could suffer by having to pay a claim for which there is no valid coverage. Next, the court has also found a plaintiff, not a party to the insurance contract, has standing to sue the insurer in the event the plaintiff has secured a judgment against the carrier’s insured. In Johnson, however, Plaintiff was without a judgment, sought to enforce rights under a policy to which he was not a party, and under which he had no claims pursuant to the policy provisions. As a result of Plaintiff’s inability to establish a concrete injury, in the context of the declaratory judgment action, coupled with his inability to demonstrate a substantial controversy that effected the legal rights of the adverse parties, the court determined Plaintiff lacked standing and remanded the action.

A Declaratory Judgment Example

In the case of insurance contracts, declaratory judgments help determine a policy’s coverage. It helps to define if coverage exists for a particular peril, whether the insurer is required to defend the policyholder from a third party’s claim, and whether the insurer is responsible for a loss when other insurance contracts also cover against the same peril.

For example, a policyholder believes that his denied claim is unjust. As a result, he informs the insurer that he is considering a lawsuit to recover losses. The insurer seeks a declaratory judgment to clarify its rights and obligations with hopes of preventing the lawsuit. If a declaratory judgment indicates that the insurer is not obligated to cover the loss, the insurer will likely avoid litigation. If the judgment indicates that the insurer is responsible, then the policyholder is likely to sue the insurer to recover losses.

Declaratory judgments originated in the early 20th century when states adopted a universal set of standards after the enactment of the Uniform Declaratory Judgments Act of 1922. In 1934, Congress enacted the Declaratory Judgments Act, which granted federal courts the authority to provide declaratory judgments.

In federal court, the Declaratory Judgment Act is designed to afford parties threatened with a liability, but otherwise without a satisfactory remedy, a means of early adjudication of the controversy. The existence of a controversy is crucial, because the “case or controversy” requirement of Article III of the Constitution applies to declaratory judgments. To show an “actual controversy” as required by 28 USC §2201, the plaintiff in a declaratory action must show he has sustained, or is in immediate danger of sustaining, a direct injury as the result of the defendant’s conduct. Stated differently, there must be a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. But, where an insurer has already made a decision and seeks a court to “approve” its decision, that may not be an appropriate controversy for resolution. The primary purpose of a declaratory judgment is to permit a plaintiff to obtain a declaration of its rights and liabilities before proceeding with a course of conduct for which it might be held liable, not to declare nonliability for past conduct. Declaratory judgment is not available where the judgment cannot guide and protect the petitioner regarding future acts. Declaratory judgment cannot be used solely to adjudicate past conduct and not to affect future behavior. Following this line of cases, by waiting to file a declaratory judgment action until after it has denied the claim, the insurer is not seeking guidance on future acts, but asking the court to render an advisory opinion on its past conduct, which is not the purpose of a declaratory judgment action and may result in dismissal. Thus, an insured and its counsel should think twice about allowing a declaratory judgment action to proceed where the insurer has already denied the claim.

The Declaratory Judgment Act, 28 U.S.C. § 2201(a) provides a federal declaratory remedy. The exercise of jurisdiction under the Act is not compulsory. There is a four part test for entertaining an insurance coverage action during the pendency of the tort trial in federal court; i.e.:

(i) the strength of the state’s interest in having the issues raised in the federal declaratory action decided in the state courts;

(ii) whether the issues raised in the federal action can more efficiently be resolved in the state court in which the action is pending;

(iii) whether permitting the federal action to go forward would result in unnecessary “entanglement” between the federal and state court systems, because of the presence of “overlapping issues of fact or law”;

(iv) whether the declaratory judgment action is being used merely as a device for “procedural fencing” – that is, to control the choice of forum in a race for res judicata or to obtain a federal hearing in a case otherwise not removed.

Discovery

Discovery in coverage litigation is much different from discovery in tort litigation. The scope of discovery depends upon the issue. In duty to defend cases, generally, no significant discovery is needed by the insurer, since the duty to defend is based upon the allegations of the Complaint. Brohawn v. Transamerica Ins. Co., 276 Md. 396, 347 A.2d 842 (1975). However, since insureds may rely upon extrinsic evidence to bring an action within coverage, discovery may prove helpful to the insured. In duty to indemnify cases, the evidence is generally limited to that produced at the underlying tort trial. In “bad faith” duty to settle within policy limits cases, more extensive discovery is permitted. Whether information as to other claims and lawsuits is discoverable is an issue for the trial court. Most courts find it marginally relevant at best and either not discoverable or subject to limited discovery. North River Ins. Co. v. Mayor and City Council of Baltimore, 343 Md. 34, 67, 680 A.2d 480, 497 (1996)(“[t]he numerical majority of the cases deny any discovery of the records of other insureds, either on the ground that it will not lead to the discovery of relevant evidence, or on the ground that the relevance is so clearly outweighed by the burden of production that production is denied”).

Depositions

As with discovery in general, the purpose and goals of the deposition vary depending upon whether the suit concerns the duty to defend, the duty to indemnify or 5 “bad faith.” In a duty to defend case, policy language and the allegations of the complaint drive the court’s determination of coverage. Hence, it is rarely useful to depose the adjuster in a duty to defend case. The handling of the file and the insurer’s reasons for denying coverage or reserving rights are not relevant to the determination of coverage by the court. The same goes for a duty to indemnify case, where the jury verdict sheet or the evidence adduced at trial – not the reasons the insurer accepted or denied coverage – determines coverage.

Insureds, however, tend to notice the deposition of the claims adjuster as a knee jerk reaction. Of course, in a bad faith case, the issues concerning handling of the file and settlement negotiations make the deposition of the adjuster central. The deposition of the insured is useful in a duty to defend case to flesh out any extrinsic evidence the insured relies upon and the related factual basis of the underlying plaintiffs’ allegations, such as whether the insured intended or expected the plaintiff’s injury or whether the putative insured had permission to drive the insured motor vehicle. Further, it is an opportunity to pin down the insured’s claim that extrinsic evidence brings the case within coverage. Experts generally should not be permitted to testify since the policy is interpreted based upon its plain language as understood by laypersons.

Burden of Proof

you have assembled your evidence, you have to prove your case. The insured has the burden of proving every fact essential to his or her right to recover. The insurer has the burden of proving any exclusion under the policy. The insurer has the burden of proving prejudice from the insured’s violation of a notice provision. The insurer has the burden of proving that the insured made a misrepresentation in the application for the policy. Lost policies require the proponent to establish the fact of loss and terms and conditions of the policy by clear and positive evidence. a. Allocating a verdict between insurer and insured Who has the burden of apportioning the loss between covered and uncovered damages when there is a general verdict? Allocation is simple where the verdict is distinguished between covered and uncovered claims. If there is no specific allocation, the court must determine what portion is allocated to covered claims. Generally, the insured has the burden of proving a loss is within coverage. Where the verdict is mixed, it remains the insured’s obligation. A few courts have shifted the burden to the insurer in some situations, such as where the insurer controlled the defense and failed to request special jury interrogatories to allocate the verdict.

Some Federal Courts have permitted insurers to intervene pursuant to FRCP Rule 24 to request special jury interrogatories or a verdict form. In the great majority of cases, the duty to defend should be decided by summary judgment. There is no fact issue because the duty to defend is determined by the eight corners test. In other words, the facts are set out in the underlying petition, so there is no need for a jury to make a factual determination. Rather, the court should decide as a matter of law whether the facts fall within the scope of coverage or fit within an exclusion to coverage. Consequently, determining coverage can usually be accomplished much faster than the resolution of the underlying case.

When Do You File a Declaratory Judgment Action

In addition, even if you decide to bring the duty to indemnify as part of the declaratory action, once you have obtained a partial summary judgment on the duty to defend, the carrier will normally feel comfortable in withdrawing from the defense of the underlying case. Certainly, no one can say that the carrier is acting unreasonably if the court has already agreed as a matter of law that there is no duty to defend.

A second consideration is whether it makes business sense to undertake the costs that go along with a declaratory judgment action. Even in a relatively simple case, it may take $10,000 to $20,000 to obtain a summary judgment on the duty to defend. If the claim could be settled for that amount, or if the defense costs in connection with the underlying case are not likely to be substantially more than that, it may make not make sense to file a declaratory judgment action. In other words, are the costs justified by the potential benefit of a ruling on coverage?

On the other hand, where there is a denial of coverage, the analysis is more straightforward. One of the first considerations is whether the insured will agree that there is no coverage and, therefore, will not likely bring a breach of contract or bad faith action. If the correspondence and actions of the insured make it clear that the insured does not dispute the carrier’s position, then a declaratory judgment action may be unnecessary.

However, keep in mind that if the stakes are high enough you’ll need attorneys like those at Ascent Law to help you.

Free Initial Consultation with a Utah Attorney

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

Recent Posts

Family Lawyer Farmington Utah

Finding Assets After Divorce

What Is Consideration For A Contract?

Enforce Out Of State Divorces In Utah

Can A DUI Case Be Dismissed At Arraignment?

Bankruptcy Lawyer American Fork Utah

Source: https://www.ascentlawfirm.com/declaratory-actions-and-insurance/

[rightsinexile]

Study shows why African refugees stay put despite end to conflict at home

The following piece was written by Sikanyiso Masuku, a Postdoctoral Researcher whose work focuses on Congolese refugees in South Africa, protection gaps and the causes of coerced migration. The article originally appeared in The Conversation on 17 March 2019 and is reprinted here under a Creative Commons license. The number of refugees in Africa has more than doubled between 2009 and 2016, from 2.1 million to 4.9 million, according to the World Bank. Old conflicts have continued and new ones have arisen, forcing large numbers of people to rely on aid and often live in poor and dangerous conditions as refugees. Our 2018 study looked into the reasons why forced migrants (whether in camps or as free settlers) remain in a permanent state of refuge even though they are sometimes exposed to xenophobia, violence, poverty, hunger, intimidation, coercion and disease in the host countries. The concept of the refugee cycle suggests that there are three phases in a refugees’ experience – pre-flight, flight, temporary settlement and resettlement (repatriation). Going by this concept, the resettlement stage is the final stage. Our study therefore examined the challenges in completing the refugee cycle. The options open to a refugee, depending on the policies of host countries, are usually free settlement, shelter in a refugee camp, and returning home (where ideally they can help to create a new peace). Policies in countries such as Angola, South Africa, Democratic Republic of Congo (DRC), Lesotho and Eswatini, which work through a free settlement system, often expose refugees to xenophobic violence and many other risks. This makes it difficult for refugees to become self-sufficient members of the host society. The voluntary return of refugees to their homelands (after peace has been re-established), is therefore an important step towards implementing durable peace-building frameworks (reconciliation and transitional peace) within their own countries. That being said, the paper identified lengthy conflicts, the loss of migration networks and cultural bereavement as some of the most important factors hindering the voluntary return of refugees to their home countries. Long-standing conflicts

The lengthy nature of some of Africa’s wars is one of the main hindrances to ending the “refugee cycle.” Where conflicts drag on over a long time, the future of refugees becomes highly uncertain. They may be forced to stay in a host country for as long as a generation. Under these conditions, refugees often lose the means to become independent. The Somalia war for instance, is over 27 years and the DRC – particularly the regions of South Kivu, Kasai and Tanganyika – has been in conflict since the 1990s. The UN Refugee Agency reported that there are over 870.000 Somali refugees in neighbouring states and over two million are internally displaced. Refugee camps such as Dadaab and Kakuma in Kenya are often without any income generating and livelihood opportunities. This means refugees are unable to take care of themselves and move ahead as migrants. Loss of migration networks

Another factor that makes it difficult for refugees to leave host countries or settle independently is the loss of their migration networks. These are the social networks which help inform migrants on how to get to safety and cope once there – and also how to return home once conflict has ended. When conflict continues for a long time, these networks and communities are often lost. This mostly occurs when people move or die, communication infrastructure is destroyed, conditions change and information loses its relevance, among other factors. Studies among Burundian refugee groups in Tanzania found that most of the displaced people were likely to find it difficult to reclaim their family land if repatriated. Many refugees therefore chose to remain in Tanzania. Cultural bereavement

The third factor working against the end of the refugee cycle is cultural bereavement. This means the loss of connection with the cultural, linguistic and traditional institutions of the home country. In such situations, over a long period of time refugees change their language and religious beliefs to such an extent that they become strangers to their own nationalities and cultural belief systems. A good example of this, is how Rwandan refugees in the DRC who fled the 1959-1962 Rwandan revolution and the 1994 genocide became part of their new Congolese community. As a result, they have not been able to return to Rwanda even after an end to the conflict in their country. Residing in refugee-like circumstances in South Kivu, these Rwandan refugees have remained in DRC. In Uganda, despite the 2003 agreement to repatriate 25.000 Rwandan refugees, only 850 accepted to return with the majority of them returning back to Uganda almost immediately after repatriation. Voluntary repatriation

Ideally, the voluntary return of refugees to their homelands not only marks an end to their suffering in foreign lands, but also relieves the host country of many burdens. Voluntary repatriation is also critical for the return of sustainable peace because it is difficult to plan for long-term peace without including the needs of the displaced and securing their involvement.

After an end to the civil war in Sierra Leone in 2004, for example, the UN refugee agency successfully completed a three-year repatriation operation of over 178.000 Sierra Leone refugees. Much of the post conflict reconstruction that has since occurred in Sierra Leone, Uganda and Rwanda would not have been possible without the repatriation of millions of war displaced. It is therefore crucial for humanitarian agencies to address the issues that make it difficult for displaced persons to voluntarily return home.