Friday, December 7, 2018

Sitting Shiva: Mourning Has Broken

A case that began with an altercation at a shiva has been remanded by the United States Court of Appeals for the District of Columbia to resolve the obligations of an insurer to pay legal fees

Appellant Kenneth Feld (“Feld”) retained the law firm of Fulbright & Jaworski, LLP (“Fulbright”) in 2008 to defend him in an action brought by his sister, Karen Feld (“Karen”). After a jury trial, Feld prevailed in that action. This case is a follow-up to the action between Feld and his sister. It involves a claim by Feld against appellee, Fireman’s Fund Insurance Company (“FFIC”), for reimbursement of expenses, largely attorney fees, that he incurred in the action brought by his sister. According to Feld, FFIC has refused to reimburse him for the full amount of reasonable defense costs associated with the successful representation provided by Fulbright. FFIC, in turn, acknowledges that it agreed to cover Feld’s defense costs and that it paid Fulbright over $2.1 million for its representation of Feld. However, FFIC contends that the additional $2.4 million in attorney’s fees and costs sought by Feld are based on rates substantially higher than the rates agreed to by the parties...

The record in this case indicates that the parties never reduced any purported rate agreement to writing. Instead, FFIC relies on genuinely disputed communications between the parties’ representatives to support its position. And the disputed communications to which FFIC points do not unambiguously show that the parties entered a rate agreement as asserted by FFIC. Summary judgment cannot be granted on these terms. We therefore reverse this portion of the District Court’s judgment and remand the case for trial. However, we affirm the District Court’s denial of Feld’s Motion to Compel certain communications between FFIC and its attorneys.

The litigation

Feld’s aunt passed away in September 2007. At the time of her death, the aunt resided in a condo owned by Feld in Washington, D.C. Feld hosted a Shiva – a Jewish mourning ritual – for his aunt in the condo. His sister, Karen, attended the Shiva, but she was eventually removed from the condo building by security guards who had been hired by Feld. In September 2008, Karen filed suit against Feld for injuries allegedly sustained during her removal from the building, raising claims of assault, battery, false imprisonment, intentional infliction of emotional distress, and negligent infliction of emotional distress.

The Washington Post reported on the  underlying dispute

When prayerful mourners gathered that first evening to sit shiva for 92-year-old Shirley Feld, an arts patron and prominent member of Washington's Jewish community, everything went fine. But something unseemly happened during the next night of mourning at the dowager's penthouse. It's led to yet another Feld family drama -- this time a multimillion-dollar lawsuit pitting sister against brother.

In a complaint filed in U.S. District Court, former gossip columnist Karen Feld alleges that her businessman brother, Kenneth Feld -- whose family-entertainment conglomerate includes the Ringling Bros. and Barnum & Bailey Circus -- authorized her forceful removal from their aunt Shirley's shiva service. Karen Feld claims that a trio of "large, aggressive" bodyguards working for Kenneth beat her and threw her into an elevator, along with her ever-present toy poodle, Campari.

Feld v. Feld is the latest chapter in a family saga already rife with bitter feuds and whispered secrets. Karen and Kenneth, the only children of the late circus impresario Irvin Feld -- and the niece and nephew of Shirley Feld -- have been estranged for decades. Their last major court skirmish was 25 years ago over Irvin Feld's will, which cut Karen out of the family business.

Kenneth Feld declined to comment, but his attorneys filed court papers earlier this month to dismiss elements of his sister's complaint, which she brought against him last September, a year after their aunt's death. Karen Feld also would not comment, although one of her lawyers, Steven Gremminger, said, "Karen will litigate her claims as long as it takes for her to get justice."

Her suit alleges that the beating aggravated a brain tumor that later had to be removed, and caused her emotional distress, "symptoms of Tourette Syndrome" and "seizure-like episodes." For those and other alleged injuries, Karen Feld wants $110 million in damages from her younger brother.

Determining what really happened on the evening of Sept. 26, 2007, at the Colonnade building on New Mexico Avenue NW is a matter of billable hours -- and there are likely to be plenty, given the litigious parties. But clearly something went awry: Attendees recall hearing Karen Feld screaming and cursing outside of Shirley Feld's spacious penthouse not long after a rabbi commenced the service in the dining room.

"She was there one minute, everything was cool, calm and collected . . . then boom, suddenly she's on the outside," said an attendee who, like others aware of the incident, declined to be identified in the newspaper because of the case's sensitivity. "Everyone was startled. It was shocking."

The suit says that the alleged beating caused Karen Feld to "utter obscenities" while pinned down in the hallway after being ejected. She also alleges that her brother came into the hallway, tossed her purse to one of the burly men and said: "This is hers. Get rid of her. Her name is F-I-E-L-D. She is not family. She doesn't belong here."

Shirley Feld's death initially occasioned an opportunity for reconciliation between her niece and nephew, observers say. Decades ago, Karen, now 61, and Kenneth, now 60, lived in the penthouse and were raised by their aunt Shirley and uncle Israel (Irvin Feld's brother). Their mother committed suicide in 1958, when Kenneth was 9 and his sister was 10, and their entrepreneur father, who first prospered locally as a rock-and-roll promoter, traveled frequently on business.

In his eulogy at the funeral, the suit says, Kenneth joined the officiating rabbi, M. Bruce Lustig of the Washington Hebrew Congregation, in describing Karen Feld as "the apple of Shirley's eye." (Lustig declined to discuss the case. "It's not newsworthy," he said. "I don't think I serve any of my congregants well by sharing any of this.")

Irvin Feld, a man given to flamboyant suits and grand PR gestures, bought the Ringling Bros. circus in 1967, staging a contract signing ceremony at the Colosseum in Rome. Kenny, as he is known to family and friends, went to work with his father and rose to the top. Karen also did a stint in the promotions end of the business but has said that her father groomed Kenny while discouraging her. "There was nowhere to go in the organization because my father just made sure there was nowhere for me to go," she told the now-defunct local magazine Regardie's in 1990.

Irvin's death in 1984 only heightened tensions between the siblings. "The bottom line was, I got nothing. I did not inherit one penny according to my brother's interpretation of the will," Karen told The Washington Post in a 1990 profile. Kenny was executor of the will; she sued him for $10 million, about half of the estate at that time. The Post reported that she settled out of court for less than $1 million in property, which included a house in Georgetown.

The Regardie's magazine article, which included several derogatory statements by Karen, later became crucial to one of the longest-running Superior Court cases in recent memory. The piece infuriated Kenny. It exhumed some Feld family skeletons, saying that Irvin Feld was a closeted homosexual and that Adele Feld killed herself at 31 because she could not change his sexual orientation.

Kenneth Feld would later call the allegation of homosexuality "an absolute lie," adding, "My mother's condition predated her marriage to my father."

But he didn't seek a retraction or sue the magazine; instead, he authorized an extensive spying operation against the article's author, Jan Pottker of Potomac.

The operation lasted seven years and cost Feld millions, according to court filings. It prompted Pottker to bring a $60 million lawsuit against Feld and others, including Clair George, the CIA's former head of worldwide covert operations, whom the circus had brought on as a consultant. The case lasted nine years. Feld finally settled with Pottker last fall on undisclosed terms.

Kenneth Feld is chairman and chief executive of the privately held, Vienna-based Feld Entertainment, which produces ice shows for Disney ("High School Musical," among them). In a 2003 Forbes magazine article, Kenneth Feld's fortune was estimated at $775 million.

Karen Feld, who once wrote columns for Roll Call, the Washington Times and the Examiner, now freelances and maintains a Web site. She has long been a fixture on the party circuit, carrying her five-pound poodle wherever she goes. (Campari even has his own business cards.)

She also receives proceeds from a trust established by Israel Feld for the benefit of Shirley Feld and their niece and nephew. Kenneth and Karen are now its sole beneficiaries.

In a separate case, filed last month in Superior Court here after being dismissed in Virginia, Karen is suing to remove her brother from trusteeship. She also wants an accounting of the trust's worth, which her court papers estimate at $5 million, and an amount equal to the trust's value for Kenneth's alleged "breach of his fiduciary duties."

In her complaint that alleges the beating, Karen says she had not spoken with her brother "for many years" or visited with her aunt, who still lived in the Colonnade building where Karen was reared. But as Shirley neared death, Kenny phoned his sister to tell her about funeral and shiva arrangements, the suit says. The first shiva proceeded "without incident," it says, and Karen "spoke affably with the three adult children of [Kenneth's], two of whom she had not seen since 1984, when they were babies."

Karen says that on the second night, her brother and his children hugged her, but her feelings of grief brought on "signs of an impending seizure-like episode." Karen headed to a nearby bathroom with Campari, whom she describes as a "service animal" able to sense when a seizure is imminent. (When previously barred from public spaces with the dog, she has produced papers saying the pooch qualifies as a service animal.)

One of the large men grabbed her when she approached the bathroom, she says. (The suit doesn't say why.) Karen Feld, whom the suit describes as 5-foot-3 and 108 pounds, alleges that the man threw her and the dog out a service entrance and that two other guards dragged her out of the building.

In the Colonnade's driveway, Karen says she dialed 911 to report her injuries, but no police or ambulance came. So she drove herself the mile to Sibley Hospital's ER for treatment. She claims that as a result of the beating, a benign brain tumor had "shifted," aggravating her symptoms, and in January 2008 she had surgery to remove the golf-ball-size tumor.

Some who knew Shirley Feld, a longtime, generous supporter of the Washington Ballet, say the incident tarnished her memory. "What a sad thing, what a shame, to have it end up like this," says one person with knowledge of the shiva incident. "Maybe it would have brought the brother and sister together, but instead it broadened the gap between them."

It wasn't the kind of legacy Irvin Feld wanted for the family name. "I would like to be remembered for having made a contribution to the continuance of the circus," he once said. "It's practically all we have left of good, wholesome, clean entertainment that the whole family can enjoy."

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2018/12/a-case-that-began-with-a-altercation-at-a-shiva-has-been-remanded-by-the-united-states-court-of-appeals-for-the-district-of-c.html

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