Where did I get such a question? Well, after I read Sop’s recent post with a reference to the Order and Opinion in Boyd v State Farm et al issued last week by Judge Senter, the question came to mind. Ordinarily, reading the Opinion would – and should – have answered my question.
However, Judge Senter’s Opinion does not address the Statue of Limitations governing RICO and the Katrina RICO case was filed on June 20,2007 – the same day the Boyd complaint and approximately 200 nearly identical complaints were filed. However, the date on the Mediation Agreement signed by Boyd was July 19, 2006, almost a year earlier.
Judge Senter’s Opinion also does not address the potential confusion possible when the Q&A that MDI issued with the announcement of the Katrina Mediation Program failed to mention the finality of the Agreement.
Mediation is a non-adversarial, non-binding, alternative dispute resolution procedure designed to facilitate the resolution of claims as fairly and quickly as possible. During the mediation conference, a neutral person (the mediator) guides a discussion of several ways to solve a problem. The mediator does not make decisions for the consumer or the insurance company, but simply helps to develop workable solutions by both parties. Mediation is nonbinding, meaning that neither party is legally obligated to accept the outcome.
I understand there is a distinction between neither party legally obligated to accept and the obligation created when the parties accept the outcome and sign the Agreement; however, the Q&A not only does not make the distinction, it fails to mention the legal obligation of a signed Agreement.
Consequently, I wondered if a signed MDI Mediation Agreement can prevent a policyholder from later filing under RICO and just thought I’d toss the question out.
For reference, here’s the conclusion Judge Senter reached in his Opinion and reflected in his Order.
In my view, the reservation of a right to file a new claim based on “additional insured damage that was not known to the parties prior to the mediation” could only refer to additional and unknown property damage covered by the plaintiff’s State Farm policy. This provision of the settlement agreement cannot be reasonably read as a reservation of the right to pursue a tort claim for fraud or bad faith in the adjustment of the plaintiff’s storm damage claim. Such a construction would undermine the very purpose of this type of settlement agreement, i.e. to finally resolve a disputed claim by a compromise payment that puts an end to the parties’ legal differences.
I will grant State Farm’s motion unless the plaintiff establishes, by appropriate and specific affidavit, his discovery of additional damage to the insured property that was unknown to him at the time this settlement agreement was signed. Plaintiff has recently retained new counsel to replace the SKG. (Notice of Appearance Docket Number ). I will hold State Farm’s motion in abeyance for a period of fourteen days to allow sufficient time for the plaintiff’s new counsel to confer with the plaintiff and respond to my requirement concerning this affidavit.
Because this is a court of limited jurisdiction, the discovery of additional insured property damage will not sustain subject matter jurisdiction unless the additional damage is sufficient to meet the minimum amount in controversy required for diversity jurisdiction under 28 U.S.C. §1332.
Again, for reference, here is the language in the Mediation Agreement Boyd is challenging.
2. This settlement amount is full, complete and a total final payment by the insurance company to the insured(s) for the Katrina claim brought to the mediation. Both parties release any and all Katrina claims of any kind whatsoever against one another, except that if the insured(s) discovers additional insured damage that was not known to the parties prior to this mediation, the insured(s) may file a supplemental Katrina claim, which shall be treated as a new claim.