Terra Extraneus

One of the many consequences of the tort reform movement has been the practical elimination of the civil rights of the average consumer. The clock has literally been turned back to the era of frontier justice.

While it may seem a small consequence, one of these has been in the area of the extended automobile warranty or repair insurance contract. Unfortunately, Oklahoma is a state which permits this business to operate in a largely unregulated manner.

The average automobile owner and driver has no competence or ability to evaluate much less articulate the causation of a breakdown. Nevertheless, extended automobile warranties, or repair insurance contracts, increasingly have long lists of technical exclusions. In Oklahoma, these contracts can be underwritten by non-insurance companies, typically subsidiaries of insurance companies, and are often described by the sellers as non-insurance products to avoid insurance laws and regulators. Additionally, these contracts are becoming increasingly complex, such that non-lawyers will have difficulty evaluating them. Usually, these contracts are offered as “service agreements” and are offered with differing levels of “service,” but increasingly higher premiums are accompanied by promises of broader “service” coverage.

When these contracts were first introduced, they were offered by a limited number of companies and were an excellent way to protect against engine and transmission failures, economically crushing repair costs. Also, when these contracts were first introduced, the civil tort system was still intact, and these contracts could be enforced by the average consumer. I purchased several of these contracts and heartily recommended them to motorists who wracked up a lot of miles but could not tell a rotor from a distributor cap. However, beginning with tort reform statutes that limited or eliminated punitive damages and capped off by Campbell v. State Farm Insurance Co. (previously analyzed on this site), the fear of litigation once instilled in such companies is gone.

There are several reasons an insurance company would go to the trouble to set up a corporate subsidiary or other duck blind to issue automobile repair contracts and to label the contracts as anything other than warranties or insurance products. The reasons are interesting. If the issuer is not an insurance company, then the insurance commissioner of a state probably has no jurisdiction. If the contract is not an insurance product, same result. Also, if the contract is not an insurance product, then the consumer protection impact of the law of “bad faith,” the law of “reasonable expectations,” and attorney fee statutes may or may not apply. The short of it is the consumer is “toast.”

The car dealers have likewise protected themselves by adopting mandatory arbitration provisions, especially through the American Arbitration Association. While a biographical profile of each proposed arbitrator is presently available from the AAA, a decisional history is not. Thus, arbitrators who have never awarded money to anyone cannot be identified and eliminated any better than arbitrators who seem to have a fair and balanced decisional history can be selected or proposed. Arbitrators that have never awarded attorney fees or interest, or who rule in favor of businesses rather than individuals, cannot be stricken without that sort of information. As a result, AAA arbitration typically will make a consumer case uneconomic. The AAA will, of course, tell you that consumers win about half the time and lose about half the time. That statistic is meaningless if, in fact, the winners are not made whole because they had to absorb their own forum fees, attorney fees, interest or were awarded less than the loss.

The proof is in the reality of current events. In a case now pending in the state trial courts of Oklahoma, the used car purchaser thought she would buy her used car from Steve Bailey Honda and then purchase a Vehicle Service Contract offered by Steve Bailey Honda but issued by Westchester Specialty Insurance Services, Inc., a Nevada corporation. Westchester is owned by ACE USA, Inc., a Delaware corporation, which also owns Westchester Fire Insurance Co., a New York corporation.

The purchaser suffered a catastrophic engine failure that Westchester alleged was triggered by the failure of a bolt. The Westchester Vehicle Service Contract contained an exclusion that stated “this Contract does not provide Coverage: (b) For any of the following parts: nuts, bolts, and fasteners…” The phrase “nuts, bolts, and fasteners” is proceeded by “upholstery and carpet, zipper” and followed by “cup holders, ash trays.” Thus, when I first read this, it seemed to me the “bolts” in question were in the trim and not in the engine. But, as this proud used car purchaser found out, after being hit with $1,700 in repairs (after already paying “premiums” of $1,600 for the contract), Westchester claimed that it meant all “bolts,” even those in the engine and transmission, and denied the claim because a “bolt” came loose and tore up the engine.

Steve Bailey Honda, the name of the selling dealership, which may be no more than its marketing nom deplume, was sued for selling the Westchester Vehicle Service Contract, too. But, Steve Bailey Honda was ready and invoked its arbitration clause, effectively deflecting any responsibility it has for the contract it sold.

The state regulators are ineffective or unable to regulate these contracts. If I can figure out how to do it, I’ll link this story to the state legislative representative for Canadian County, Oklahoma, Ray Young. But, there will be no meaningful contract or tort relief in the courts, even if the consumer wins the case, because the recovery will not make the case economic. Even a class action approach would be difficult to press to a conclusion meaningful to the consumer under present law.

Sadly, the car dealers make money on these types of products and will have no incentive to self-regulate them because there is no economically viable litigation threat (and only a few even make a pretense at caring about reputation, and fewer still actually do care). Companies like Westchester that can evade responsibility for claims by the use of exclusions that defeat the reasonable expectations of purchasers need only make certain their claims defense costs are less than their collected premiums in order to be motivated to continue to sell worthless embossed paper documents to consumers.

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Today marks two months since the debut of Terra Extraneus on Dec. 23, 2005. Rod Heggy and I are still just getting started as bloggers, but I know Rod would agree that these first two months have been a pretty wild ride.

The statistics far surpass what we could have imagined. During our first two months of online publishing, we have had 1,543 readers. We had 311 visitors during our first month, which means we’ve had more than 1,200 this second month. That’s pretty rapid growth. During the last seven days we have averaged 44 readers a day.

Readers have visited Terra Extraneus from every continent of the globe (well, nobody’s checked in from Antarctica yet). Thirty-seven countries (see the list of countries here). I must admit, I’ve never even heard of a couple of the countries on that list. Now they’ve heard of us.

From here in the U.S., we’ve had readers from 40 of the 50 states. We’re still waiting on Alaska, Delaware, Maine, Montana, Nevada, North Dakota, Rhode Island, South Carolina, Vermont, and Wyoming to show up. Would someone please ask Stephen King (Maine), Ted Turner (Montana), Wayne Newton (Nevada), Ben &/or Jerry (Vermont), and Dick Cheney (Wyoming) to pay us a visit? That would scratch a few more states off the list. I don’t think they have Internet access in North Dakota yet.

What has generated all the traffic? Several factors have contributed to attracting readers to Terra Extraneus’ pages. Here are a few of them:

• Our very first posts on this blog were reviews Rod Heggy and I both wrote of George Barna’s latest book, Revolution. Barna’s book, in which he not only predicts but essentially endorses the decline of the traditional church, has created considerable controversy. Our reviews continue to draw steady search engine traffic to Terra Extraneus two months later. That’s one of the primary reasons we started this blog, to speak out on a broader scale to fellow Christians about our concerns for the condition of the modern church. It is gratifying to know that in our small way, we are succeeding in participating in the conversation. (Our reviews of Revolution are here: Rod’s and Terry’s).

• Although we have never met Joe Carter, Rod and I both admire what Joe does on his own blog, Evangelical Outpost, and as moderator of World Magazine’s blog, Worldviews. On Feb. 1, Joe gave Terra Extraneus a plug on Evangelical Outpost. The traffic that brief mention brought our way was phenomenal. On that very day we had 131 visitors – our record to date – and traffic continued to be elevated for several days after.

• We wrote a couple of articles about a church split in Dallas, and those articles have attracted scores of readers from the Dallas area. Rod and I wrote those articles because we care about the two churches specifically involved, and because we care about the condition of the American church in general. We hope those who came to read what we wrote share that motivation. We are grateful to one of the ministers of the church for enhancing the conversation by writing a letter to Terra Extraneus to discuss the issues from his perspective. (See “Dallas Minister Responds…”)

• Completely by serendipity, we ended up drawing traffic from scores of children from all over the world who are participating in Queen Elizabeth II’s annual essay contest. One of the British Commonwealth essay questions this year is “How hard is it to keep a secret?” I knew nothing about the queen’s contest when I wrote a post last month titled “Hard to Keep a Secret.” Quite ironically, that post was about how surprised we were by all the traffic our blog was receiving. We ended up drawing children from many of the 53 British Commonwealth nations who have been researching for their essays. I wonder if any of them mentioned Terra Extraneus in their essays.

What have Rod and I learned in our first two months as blogging novices? I think the No. 1 lesson has been the huge amount of time and hard work it requires to keep writing a quality blog. It was never our goal to write a “dear diary” blog, or to merely point out a few links each day to good posts on other sites. It is our goal to make substantive comments on issues that matter under the categories we have defined — including the Christian faith, the church, and public policy. To do so requires a lot of time devoted to reading and research, and then more time writing. It is something we are very much enjoying, although we also find the challenge overwhelming.

One of the great things that happened during Terra Extraneus’ second month is that readers finally started leaving comments. During the first month, as first-time readers sniffed around the edges of our blog, we had almost no comments. Then, finally, just a couple of weeks ago, the doors seemed to open and we began receiving lots of interesting comments from our readers. That’s the way we want it. Rod and I have some things to share, but our intention from the start has been for Terra Extraneus to be not so much a soapbox as a public forum. We do not believe we have all the answers figured out. We have some concerns, and we have some questions. Terra Extraneus is a place for you and us to discuss those concerns and explore those questions together. Thanks for coming along for the ride.

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Did you see this 1½-minute video when it made the e-mail and blog rounds a few months ago? Came across it just now while clearing out old emails, and can’t resist sharing. Morning Musume is Japan’s top-of-the-charts pop-music girl group. This clip is from a TV special in which the girls outdo anything we’ve seen so far on U.S. reality TV. If you’re a tad squeamish, you might want to take a pass on this one. Here’s the link (by the way, yes, that’s thick cuts of meat attached to their foreheads): Girls Meet Lizard.

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I commented the other day on anonymous blogging (see the last three paragraphs of “Time for Chase to Make Some Cuts”). I’m much less interested in reading the thoughts and opinions of an anonymous blogger. When I read a blog, the first thing I do is look for information about the author. I want to know who’s writing, and I want to know something about the blogger’s background, occupation and credentials, which are informing what he or she has to say.

I understand the fears connected to blogging under one’s real name. Identity theft is a concern. How some wacko may respond to something you have written is another danger. Beyond that, there is the fear that you may say something, no matter how honest or factual, that you live to regret. Publishing your words with your real name attached comes with a high level of accountability. That can be scary.

However, if a blogger isn’t willing to be held accountable for what he writes, why bother reading it? It really is no different than the situation anyone else faces in a high-profile job or activity. Public officials, artists, authors, etc. must find a way to live comfortably in the public eye. Part of the solution, obviously, is to be careful about the things one says or does.

Some common sense cautions should go a long way toward minimizing the dangers of blogging under one’s real name. I asked Brian over at An Audience of One if he ever runs into any problems as a result of blogging while working as an administrator of a public school system. In response, he has provided some sensible guidelines. If you are a blogger, it’s worth reading “My Blog and My Job.”

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If the word purist has any meaning, then the Oklahoma law blog of choice is that of Jim Calloway, more formally known as Jim Calloway’s Law Practice Tips. While not exclusively addressing Oklahoma legal issues, or even legal issues, per se, Calloway’s blog is a helpful buffet of technical and procedural law practice guidelines. Non-lawyers, too, can benefit from Calloway’s constant work in progress: application of technology to practical business problems. Indeed, his blog site is like an FAQ for the web, as well as the practice of law and the web, and maybe business and the web.

Calloway knows his stuff. He is director of the Oklahoma Bar Association’s Management Assistance Program, and manages several OBA projects, including the OBA-NET, the bar’s official online community, and the OBA Solo and Small Firm Conference.

Calloway’s recent article, titled in part “Web 2.0″ was not only published in hard copy but was posted on the Oklahoma Bar Association website. Jim suggested it might actually be more valuable on the website than in hard copy, because of the imbedded links, and I agree. Jim’s blogsite also is a sort of aggregator in which Calloway identifies web sources and sites that are of value to lawyers, as well as computer problem solvers.

Jim also serves to a great extent as the eyes and ears of Oklahoma lawyers regarding Internet advances in technology, customs and procedures. While Oklahoma lawyers, and this is not state specific, tend to rely on various types of vendors, as a group we would do better to compare what we are told to Jim’s reviews before we commit.

As a result, Jim Calloway’s Law Practice Tips blog is the best model I have seen of the value and implementation of micropublishing niche technology and professional practice subject matter. That’s why it is the first blog I’m adding to Terra Extraneus’ Law Blogs blogroll.

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This is one in a series of posts by Rod Heggy, as he surveys Oklahoma-related law blogs. See this other post in the series: “A Blog To Disagree With.”

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Terry Hull has commenced a project to review the 300+ blogs listed on the Blog Oklahoma directory. I have decided to do the same regarding Oklahoma-related law blogs. The first such blog to catch my eye may have to be in the “ones I like to disagree with” category.

Though he graduated from Oklahoma City University Law School in December 2005, and now faces one or more bar examinations, blog author J. M. Branum, Esq., is a senior member of the Oklahoma blogging community, with an archive going back to 2001.

Many Oklahomans would find some of his political views extreme or even offensive. But his taste for Oklahoma writers and other things makes his site worth browsing, and much of that material would not be objectionable to anyone. Also, we would imagine from the quality of his site and the range of subjects he entertains that he would be capable of healthy debate. If that impression is false, a bar examination and a year or so in law practice would instill in him the necessary humility. Too, it will be interesting to see if he can maintain his interest in his micropublishing enterprise through the coming testing and post-law school employment.

Mr. Branum’s views on military service seem extreme. His home page offers links for deserters and those who wish to interrupt by termination their military service. While many people found such positions less extreme in the 1960s and 1970s, when military ranks were filled by the involuntary draft, the Selective Service Act expired in 1973 and has not been resurrected as an involuntary draft. Thus, the people today wishing to vacate their contract to serve in the armed forces are not in the armed services by accident or by coercion, but sought and accepted the duty. They gave their word. Here in Oklahoma, that still means something.

The fact that a soldier might find military service objectionable because of personal political views is laughable. No one would be so lacking in intelligence to not know, prior to volunteering for service, that soldiers are sent and given orders to go, often to fulfill foreign policy obligations of the nation. The opinions of soldiers about the nation’s foreign policy are not relevant to their oaths of service and are not necessary to fulfill their voluntarily assumed duties. Theirs is to obey all but unlawful orders.

Mr. Branum will have to give his word upon successful completion of the bar examination. No one will let him out of that oath. He can resign from it. But, as long as he carries a valid bar card, that oath follows him and everything he will do or say. I wish him much success, but I would caution him never to underestimate the gravity of that oath. Our society cannot continue as a free democracy without people like Mr. Branum, who are willing, once qualified, to take the oath of attorney and keep their word.

Likewise, today, our military operates the same way.

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This is one in a series of posts by Rod Heggy, as he surveys Oklahoma-related law blogs. See this other post in the series: “Jim Calloway: King of the Hill.”

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“Tulsa’s Blogfather,” Michael Bates, is the stand-out among the “B’s” of Oklahoma bloggers.

In a previous post, “Oklahoma Blogs: 10,000 to A,” I assigned myself the arduous task of surveying the 301 blogs listed in the Blog Oklahoma directory — blogs written “in or about Oklahoma.” I began by surveying the 16 blogs whose names begin numerically or with the letter A. Today I move on to the 17 “B’s” on the Oklahoma blogroll.

Several of the “B” blogs appear to have bitten the dust. At least five of them haven’t posted a thing since October or November 2005. I discussed the high attrition rate of blogsites in my previous article, citing Perseus Development Corp.’s description of an abandoned blog as one that has not posted in at least two months. That describes two-thirds of all blogs, according to Perseus, and several on the Blog Oklahoma directory. One blog I checked had not posted since 2004. Blog Oklahoma should consider some minimum standards and some spring cleaning of its blogroll.

A couple of still-active blogs caught my eye. One is Black Ice Highway, written by a New Mexico truck driver named Keith. In addition to writing about the trucking life, Keith uploads photos of I-40 traffic which he takes while driving his rig at 75 mph. You’ve been warned. Another is BlogOklahoma.us, which is dedicated to finding, photographing and commenting on historical sites in the Sooner State.

WORD OF THE YEAR: PODCASTING
The Bart and Cindy Podcast Show is one of six podcasts on the Blog Oklahoma list. Bart and Cindy have been putting up podcasts three or four times a month since May 2005. Who in the heck are Bart and Cindy? Good question. Don’t search their blogsite for an answer, because they aren’t telling.

I was able to dig up some info about B&C by searching the Net. The phone book lists Bart and Cindy Vleugels at a northwest Oklahoma City address. Bart moved to Oklahoma in 1993 from his native Belgium. He is a videographer, audio engineer, and does commercial voice-overs. I can’t turn up anything about Cindy Vleugels. In the one B&C podcast I listened to, Cindy refers to her former days as a TV reporter, but she doesn’t give any details.

What is The Bart and Cindy Podcast Show about? Well, it’s all about Bart and Cindy. What they watch on TV. Where they went over the weekend. What’s going on in Oklahoma City. “Cindy’s new dress.” An extremely casual 20 to 30 minutes of Bart and Cindy talking with each other and cutting up a lot.

Podcasting is one of the hot trends of the blogosphere. The New Oxford American Dictionary declared “podcasting” 2005’s “word of the year.” (“Blog” was Merriam-Webster’s “word of the year” for 2004). One significant feature of podcasting is its “time-shifting” capability. Rather than needing to tune in on your radio at 1 p.m. sharp to listen to your choice of radio blowhards, you can select from thousands of podcasts available online, download them to your computer or portable player, and listen at your leisure.

Podcasting gives anybody the ability to put themselves out there on the audio market for those looking for something to listen to, in direct competition with traditional broadcasters. It gives people like Bart and Cindy their shot, and gives us more choices.

By the way, you don’t need an Ipod or MP3 to listen to a podcast. You can listen on your computer. Just click the podcast button and Windows Media Player or some similar software should open up and play the podcast for you. Personally, I prefer reading to listening, but podcasting is hot and getting hotter.

THE TULSA BLOGFATHER
Michael Bates’ Batesline is by far the best of the Oklahoma “B’s.” Bates, 41, of Tulsa has been writing Batesline since May 2003. He has been called “Tulsa’s Blogfather.” Batesline was voted Best Political Blog in the 2005 Okie Blog Awards. It is among the top 1000 blogs on the TTLB Ecosystem, receiving more than 750 visitors a day.

Batesline is a mix of politics and faith, with a big focus on Oklahoma, especially Tulsa. On his “top five” list Bates includes Ronald Reagan and Martin Luther, which tells you a lot about his politics and his religion.

Michael Bates is an MIT alum who works as a software engineer. But it is his involvement in Tulsa politics and his rising star as a writer that has made him a well-known Tulsa personality. In addition to his blogsite, Bates writes a weekly column for Urban Tulsa Weekly magazine and does a weekly radio spot on a Tulsa talk radio station.

Bates was an unsuccessful Republican Tulsa City Council candidate in 1998 and 2002. Bates calls Tulsa’s city leaders the Cockroach Caucus, and has become a leader of the opposition against Tulsa’s Vision 2025 economic development plan. He has an ongoing feud with the Tulsa World (a Vision 2025 supporter). The World (which Bates refers to as the Tulsa Whirled) warned Bates to stop reproducing World content on his site, and even warned him to stop linking to content on the World’s site. The World’s over-reaching requests drew national attention. That was in February 2005. Surely since then somebody at the Tulsa World has been informed that blogging has arrived and is here to stay.

Bates also has managed to get into a fuss with Oral Roberts University, which is nearly as powerful in Tulsa as the Whirled World, calling attention to political endorsements made by Richard Roberts and faculty members at ORU, which is a non-profit religious institution.

In other words, if he thinks the cause is right, Michael doesn’t mind being a troublemaker. I think I like him. I like his blog, too. One caveat: the content is mostly local Tulsa politics, and that is likely to be of less interest to the rest of Planet Earth. But if you use the category list — which includes blogosphere, bookshelf, culture, education, faith, family, music, technology, and whismy – I think you’ll find something you like.

I’m adding Batesline to the Terra Extraneus blogroll.

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Terry Hull is working his way through all 300+ blogs listed on the Blog Oklahoma blogroll. For other reviews of Oklahoma blogs, see:
> “Oklahoma Blogs: 10,000 to A.”
> “Oklahoma Blogs: Time for Chase to Make Some Cuts.”
> “Oklahoma Blogs: More Blogs Filed Under C.”
> “Oklahoma Blogs: D Is for Dave World.”

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Most Oklahoma high school seniors do not qualify to attend either of Oklahoma’s major publicly supported universities and just barely qualify to attend the regional universities. Oklahoma’s class of 2005 earned ACT scores below the national average, below even the scores of the class of 2004, and most of them could not quality to attend either OU or OSU based on ACT scores.

The ACT is the main standardized test officially relied upon for admissions criteria at Oklahoma’s universities. The University of Oklahoma requires an ACT score of 24, Oklahoma State University requires an ACT score of 22, and the regional state universities, which we used to call colleges, require an ACT score of 20. However, the January 2006 Oklahoma High School Indicators Project report, “Mean ACT Scores by Oklahoma High School Site,” indicated that the 2005 Oklahoma graduating class generally earned a composite score of 20.7.

Worse, the national average was 20.9, and Oklahoma seniors scored below that. Finally, the 2005 score was lower than 2004’s overall score of 20.6.

How does the Oklahoma education establishment explain this?

The August 17, 2005 Oklahoma State Regents’ news release regarding the ACT Report indicated that “higher education officials aren’t totally surprised or alarmed by the drop.” Oh, really?!

The Oklahoma State Regents indicated the state’s education establishment was concerned, … well, sort of. “However, they are feeling optimistic that a more diverse group of students see college in their future.” It is not the educator’s fault!! It is the lack of diversity among students that caused it! Oh, really?!

Also, what “future” are they talking about? The Oklahoma High School Indicators Project Report, “Mean ACT Scores by Oklahoma High School Site,” has provided this data for every year since 2000, and in every year, Oklahoma has scored below the national average. In 2000, the highest statewide score was achieved, 20.8, and the score has drifted downward since then, and in all years, was below the scores needed to attend Oklahoma’s main universities. In other words, the data did not indicate it was anomalous.

But, the Oklahoma State Regents hypothesized that “when this class took the pre-ACT PLAN test two years ago, scores were lower than in previous years. So, this drop in ACT scores was expected,” Chancellor Paul G. Risser said. “However, we also commend principals and superintendents statewide who have reached out to first-generation, low-income and minority students and helped them take the ACT on their path to college.” Thus, it appears the state educational establishment is blaming low-income students. Or, is it blaming minorities?! Oh, really?! But, in five years, the state has not developed a plan to address the plunging scores.

Is it any wonder that patron and taxpayer patience has reached unparalleled levels of frustration, and incredulity has reached new levels? Oh, did I forget, it is the parents’ fault! It is the lack of money! Have I covered all of the reasons given by the education establishment?

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Brian Stone writes, “I’m Gonna Get Me A Lawyer.” Pretty funny — another good post at An Audience of One. I can’t begin to imagine what school administrators like Brian must put up with dealing with parents.

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