Judge Mitchell Metropulos said that despite the insurance company's claim it is not liable for the losses, the penniless victim deserves his day in court.
"The reasons we have bond in guardianship cases is because if there are acts of fraud or dishonesty or embezzlement, there is a recourse, an insurance for people who are being abused," Metropulos said.
The ruling means the civil case involving Minnesota-based Platte River Insurance Co. will move one step closer to trial. One of Schend's ex-clients, John Pike of Appleton, says he's trying to recoup close to $35,000 he accuses Schend of stealing or misusing.
Carey Reed, Pike's attorney, said two others have come forward with potential claims after reading Post-Crescent Media's story on Sunday about Pike's struggle with the insurance firm. The firm's lawyer said it had also refused a claim from the Social Security Adminstration, which could be considered a third-party beneficiary in the case.
Central to the case is whether Schend's $250,000 business service bond provided financial protection for those placed under his care after they were found incompetent. Platte River argues since Schend killed himself without being tried and convicted of a fraudulent or dishonest act, it can't be held liable.
Metropulos disagreed and said he based his decision on whether the company's contract language clashed with state law or public policy.
"Certainly the state has had individuals that are bonded and then commit acts of fraud or dishonesty who should not, in essence, have their acts validated because they are not able to proceed to adjudication in court," Metropulos said. "This is a situation that cries out for justice, and (dismissing the case) would really not enable Mr. Pike or others to have their day in court and prove the underlying fraud."
Full Article & Source:
Judge refuses to dismiss Schend ex-client's claim
See Also:
Ex-guardian's death leaves void for elderly, disabled
4 comments:
I can't believe it. A judge who stands up for the victims. I love this guy.
The bonding company should be ashamed they tried to get out of paying.
Let's hope the self-serving escape clause 'tried and convicted' fails to protect the bonding company from their responsibilities while attracting much needed attention to the authors of this contract, which in truth is a false sense of protection.
Applause on Judge Metropulos decision: ".... Metropulos disagreed and said he based his decision on whether the company's contract language clashed with state law or public policy.
"Certainly the state has had individuals that are bonded and then commit acts of fraud or dishonesty who should not, in essence, have their acts validated because they are not able to proceed to adjudication in court," Metropulos said. "This is a situation that cries out for justice, and (dismissing the case) would really not enable Mr. Pike or others to have their day in court and prove the underlying fraud."
If in the end the bonding company "wins", then bonding must become a subject of reform because it's not doing its job.
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