by Don Winslow
104
Boone goes back to Schering’s office at 10:00 p.m.
Parks the van down the road and walks up to the office complex. The lock is easy—it only takes him a couple of minutes to get in.
He turns the little flashlight on, sticks it in his mouth, and hits Schering’s desk. The computer is on “sleep,” and, to Boone’s relief, Schering was still logged on. Boone double clicks on an icon marked “Billings” and is soon scrolling through Schering’s recent time records. Boone sticks a thumbdrive in the port in back of the hard drive, drags and clicks, then removes the thumb, peeks out the window, and goes out the door.
Thanks to technology, he thinks, rifling records is so much easier than it used to be.
105
Back in his own office, Boone switches on his computer, sticks in the thumbdrive, and peruses Schering’s billing records.
He seems to have been working on four cases at the time of his death.
One of them is a multimillion-dollar house on a ridge in Del Mar that appears to have developed a serious slab crack in the foundation, with further cracking in the driveway. The second apparently involves major stucco cracking throughout a strip mall in Solana Beach. The third features a condo complex on the bluffs overlooking the beach. The bluff, as far as Boone can discern, appears to be sliding away.
The fourth is the infamous La Jolla sinkhole.
106
What spices were to the early Portuguese navigators, what gold was to the Spanish conquistadors, tobacco to Virginian plantation owners, and opium to Afghani warlords, real estate is to Southern California businesspeople.
Real estate—land, houses, and business parks—is the bottom-line source of wealth on the golden, coastal strip. It’s the basis for investment, lending, exchange, retail, money laundering, you name it.
So when eighteen expensive homes suddenly drop into a hole, the symbolic value is enormous.
The bottom, literally and metaphorically, falls out.
Someone is going to pay.
The question is, who?
Which, Boone thinks, is a very pertinent question when you want to know who had a motive for wanting Phil Schering in the past tense, because the late Phil was a soils engineer, not only a soils engineer but also an expert witness soils engineer, not only an expert witness soils engineer but also a very effective expert witness soils engineer who could potentially have a big say in determining . . .
. . . who pays.
Phil was billing an insurance company.
107
“Insurance companies don’t generally kill people,” Cheerful says, “in the physical sense. They hire lawyers who kill people in the financial sense.”
At first, Cheerful wasn’t, well, cheerful about Boone waking him up late at night, which for him is anything after 9:00 p.m. So when Boone rang his bell at the unheard-of hour of eleven twenty-three, Cheerful expected that someone had better be dead. Well, yeah, someone was, but it was Phil Schering, and Cheerful didn’t give a damn about that, except for how it might affect Boone.
Cheerful has a very simple philosophy about humanity. He loves his few friends—basically the Dawn Patrol—and would do anything to help them. The rest of the human race exists solely to make him money.
Which it does.
And money is the topic that Boone came to seek his advice about. Cheerful looks at the copy of Schering’s bill and says, “Technically, Hefley’s is not an insurance company. It’s a reinsurer.”
“Meaning that it insures again?”
Correct, Cheerful instructs him. Sometimes a primary insurance company takes on a risk that is too large for it to cover on its own, so it mitigates some of that risk by insuring it with a “reinsurer.”
“Kind of like a small bookie laying off a piece of a large bet?” Boone says.
“That’s a rough but adept analogy,” Cheerful admits.
“So a bunch of expensive homes drops into a hole,” Boone says. “The insurance company can’t handle the whole loss, so they turn to the reinsurer to pick up the bill.”
It’s not that simple, Cheerful explains. For one thing, it’s highly unlikely that all the homes, or even a majority of them, would have the same insurance company, and even less likely that each of those carriers would reinsure with Hefley’s. The company probably had one or more of the destroyed homes, which, as total losses, would stack up into the tens of millions of dollars, and hired Schering to determine the cause of the loss.
“But the cause of the loss is simple,” Boone says. “The landslide.”
“That’s ignoring the question,” Cheerful grumbles, “of what caused the landslide. What was the cause of the cause?”
“Why does that matter?”
“It matters a lot,” Cheerful says.
Insurance companies do not write coverage for earth movement. It’s right there in the small print under “Excluded Coverages.” What the underwriting gurus would tell you is that insurance is meant to protect you from accidental, sudden events—storms, floods, fires—and that earth movement is neither sudden nor accidental. It takes a long time and it’s no accident. The earth is always moving—that’s what dirt does.
“So Hefley’s is off the hook anyway. The earth moved.”
“Not so fast,” Cheerful says. “You can’t just look to the cause of the loss, you have to find the ‘proximate cause.’”
“You mean, what sort of caused it?”
“Not the approximate cause, surf bum,” Cheerful says. “The proximate cause.”
“What’s that?”
“Go to the library,” Cheerful says. “Preferably a law library. You know any good law firms?”
“Yes.”
“Good night.”
“Good night,” Boone says. “Are those baby hippos on your pajamas?”
“Yes. So what?”
“Nothing. It’s just funny, that’s all.”
“Is it?”
“No.”
“I didn’t think so. Get out.”
Boone gets out.
108
Petra was amazed at how quickly Boone became adept at researching case law.
He’d phoned her and asked her to meet him at her office, saying that he needed her help, and she’d come. Without saying how he’d come about the information, which might have compromised her as an officer of the court, he told her what he’d learned about Phil Schering and why he needed to research something called “proximate cause.”
She showed him how to use the search vehicle on the computerized case law, and he was at it like a Supreme Court clerk. Truly impressive. They worked at it all night. By the time a pink sky snuck through the east-facing window, Boone had for himself a good grasp of the existing California case law regarding earth movement and coverage.
“There’s a chain of events leading up to any loss,” he says. “Some causes of loss are either implicitly or explicitly covered under the insurance contract, and some are specifically excluded. California case law states that if a cause of loss isn’t specifically excluded by the contract, then that cause is covered and the insurance company has to pay for the damages.
“‘Proximate cause’ doctrine—which is basically an amalgam of a number of decisions in cases—states that the insurance company, in analyzing coverage, has to determine the nearest, most important cause of the loss—the ‘proximate cause,’ if you will. Unless the ‘proximate cause’ of the loss is specifically excluded, the loss is covered.”
“So,” Petra says, “in the case of houses that were destroyed by falling into the sinkhole, the ‘proximate cause’ is earth movement, which is specifically excluded, so the insurance company is not liable.”
“Not so fast, counselor,” Boone says. “ ‘Proximate cause’ doctrine used to be the precedent, but in more recent cases, such as Neeley v. Firemen’s, the law has evolved to now state that while the proximate cause of the loss must be decided, if any event in the chain of events leading to the loss is not specif
ically excluded, then the loss is covered and the insurance company has to pay.”
Christ, that’s sexy, Petra thinks. She leans in a little closer and asks, “So, what impact does that have on your analysis of these cases?”
“The real issue seems to be negligence.”
“Negligence?”
“Negligence,” Boone repeats. And what is that perfume? Because it’s really affecting his concentration. But he pushes through it and says, “Negligence is not specifically excluded as a cause of loss. But ‘weak link’ doctrine, if you will, holds that if negligence is found anywhere in the chain of events, then the loss is covered.”
“Is that what it holds?”
“Yes, it is.”
“I see.”
“No, I don’t think you do,” Boone says, looking into those amazing violet eyes. “See, if negligence occurs in the chain of events, the insurance company must pay the insured even if it intends to pursue subrogation—”
“What’s subrogation?”
“Subrogation . . .” Boone says. “Subrogation is when an insurance company sues the negligent party to recover the money it paid the insured.”
“That’s right. You’ve got it.”
“I do?”
“Oh, yes,” she says. “You know, you might want to think about law school.”
“Do you feel the same way about desktop sex as you do kitchen-counter sex?” he asks.
“No,” she says, “they are two entirely separate entities in my mind.”
“That’s good.”
“That’s very good.”
He has one leg of his jeans off when they hear a door open, then footsteps come down the hall. Boone hops over and closes the door.
“Is someone here?”
“Becky?”
Petra gets up and straightens her clothes as Boone does the same. Then she rearranges her hair and opens the door.
“Well,” Becky says, “it’s nice to know that someone gets in before me from time to time. Good morning, Boone.”
“Good morning, Becky.”
“We were doing some research,” Petra says.
“Well, there you go.”
“We’re almost finished.”
“I’m sorry I interrupted.”
“Boone,” Petra says, “I think that’s about as far as we can get on this—for the moment, anyway. I think I’ll just go splash a little water on my face and track down a coffee.”
She walks past Becky.
“Yeah,” Boone says, “I think I’ll . . .”
“Fly?”
“Yeah, you know, take off.”
“Your fly, idiot,” Becky says with a smile. “Zip your fly!”
“Thanks.”
“Don’t mention it.”
It’s a long drive to Pacific Beach.
He doesn’t bother to catch the end of the Dawn Patrol.
109
Cheerful looks up from the desk as Boone comes in.
“You’re in early.”
“Yeah, well,” Boone says, “you gotta grow up sometime.”
“You look like hell.”
“And feel worse,” Boone says. “But I do know about negligence.”
“You’ve always known about negligence,” Cheerful says.
“No, I know about capital N negligence,” Boone says. He runs down what he learned in the all-night session with Petra, leaving out the coitus interruptus part. Or, more accurately, he thinks, the Becky interruptus.
“We don’t know,” Cheerful says, “what Schering’s report was going to say, because he didn’t live long enough to produce it. But if he was billing for the insurance company, it probably meant that they hired him to produce a certain result, and that result would be that there was no negligence involved in the chain of events, which would get them off the hook.”
“Maybe,” Boone says, “or that there was clear negligence that they could successfully subrogate.”
“If Schering was killed over this,” Cheerful says, “somebody knew what his report was going to say, and it was dangerous enough that they killed to prevent him from testifying to it.”
But how would anyone know? Boone wondered. Did Schering talk about it? Telegraph it somehow? Write a preliminary report? Or . . .
“Was he putting himself up for auction?” Boone asks.
“His opinion for sale to the highest bidder?”
“Which could mean that the losing bidder might have decided he didn’t want to lose,” Boone says.
“Or,” Cheerful offers, “the highest bidder decided that he didn’t want to pay.”
110
“You’re saying that Phil Schering was a whore?” Alan Burke asks, a little out of breath because he and Boone have just paddled out to the break and Alan hasn’t hit the Gentlemen’s Hour in a while.
You want to know what kind of cardio condition you’re in, paddle a surfboard, even in a mild sea. It will tell you all you need to know. It tells Alan he needs to hit the Gentlemen’s Hour more often, or maybe get one of those roller boards and put it in the office.
“A whore?” Boone asks.
“A geo-whore,” Alan says cheerfully. “Listen, I cut my teeth on all those dirt cases back in the eighties and nineties, and there was a geo-whore on every corner. They knew what opinion you wanted without you having to tell them, and they delivered it. You got to court, it was pretty much a battle between your geo-whore and their geo-whore. You get a whore who gives good testimony, you usually win.”
“Did you know Schering?”
“No,” Burke says. “He’s newer to the game. But I’ll have Petra run a search and grab his testimony transcripts, and that should give us an idea of what his shtick was. So you don’t think Dan Nichols did it?”
“No. Do you?”
“I don’t,” Alan says. “It’s too retro. People don’t kill over adultery anymore, they just divorce. Did you know they had a prenup?”
“Nope.”
“Yup,” Alan says. “So Dan loses a little money and goes out shopping for the next trophy wife. Big deal. She’s done him a favor by leaving on her own before her sell-by date.”
“Cynical.”
“SoCal.” Alan shrugs. “So Boone . . .”
“So Alan.”
“Look,” Alan says, “a good investigator is hard to find, so much as I’d hate to lose one . . . you don’t want to do this the rest of your life. It’s a living, but there’s no upside. So here’s my offer: I’ll finance your way through law school; you have a job in my firm when you pass the exam.”
Whoa.
Speaking of SoCal, in other places offers like this are made on the golf course; here it’s out in the surf, or absence thereof.
“Alan, I don’t know—”
“Don’t answer now,” Alan says. “Think about it. But really think about it, Boone. It would be a big change for you, but change can be a good thing.”
“Sure.”
“Let me know.”
“Okay.”
“Son of a bitch.”
“What?”
Alan points. “A wave.”
Boone looks. Sure enough, a ripple about a hundred yards out breaks the otherwise flat surface of the sea. Then it appears as a small ridge, then it builds into an actually rideable wave. Nothing to make the cover of Surfer, to be sure, but definitely a wave.
“It’s yours,” Alan says.
“No, you take it.”
“You sure?”
“Positive.”
“You’re a gentleman.”
Alan starts paddling. Boone watches him catch the wave, then gets up, and feels the wave pass beneath him.
I’m a gentleman, he thinks.
Dave is waiting for him on the beach.
111
“What’s up?” Boone asks.
“I heard.”
From the steely look on Dave’s face, Boone knows what he’s talking about. “You have a problem with it?”
“You don’t?”
“Of course I do,” Boone says. He hesitates, then adds, “Look, weird as this sounds, I think it’s what Kelly would have wanted.”