"The Hunting of the Snark" in newly filed "fits" in McIntosh and Rigsby qui tam

Once upon a time there was a Boojum . Believe it – two or three are still around. In fact, I’m certain one was in charge of my Friday. Otherwise, I wouldn’t be motivated to hunt the Snark in these Katrina cases.

Lewis Carroll’s poem was written in eight fits and there were five new documents on Pacer when I got home from work. However, three gave me a fit; and, five plus three is eight. Works for me, has to – as I’d really have a fit if anything slabbed my weekend.

Fit the First: The Landing of the usual crew on Pacer – not exactly a ship but there’s a lot of rock-your-boat information in the 700 plus pages of these documents.

Just the place for a Snark! I have said it twice:
That alone should encourage the crew.

Fit the Second: The Bellman’s Speech sorry about that; but, the honor goes to Judge Walker; and it’s really a shame because this is one of his better Orders.

It’s just the temptation was more than I could resist given this line from the summary linked above: After crossing the sea guided by the Bellman’s map of the Ocean — a blank sheet of paper — the hunting party arrive in a strange land.

He had bought a large map representing the sea,
Without the least vestige of land:
And the crew were much pleased when they found it to be
A map they could all understand.

He was thoughtful and grave—but the orders he gave
Were enough to bewilder a crew.
When he cried “Steer to starboard, but keep her head larboard!”
What on earth was the helmsman to do?

I believe the map Tina Nicholson brought him from Oxford did wonders for his sense of direction. It certainly seems to have done wonders for his vocabulary as the language of the Order is a clear as the map is clean – a one-hour deposition of each sister, not a minute more it would seem and, unlike others, this order from Judge Walker order is totally void of reference to the sisters having stolen anything.

Frankly, IMO, the Rigsbys never been in a better position when giving a deposition. I do believe it the first ever they’ll have given with any qui tam attorneys present – and I expect Tina Nicholson will be there and that she keeps a timer in her purse after Oxford – the ticking, bell-ringing kind.

Fit the Third: The Baker’s Tale: and “Miss Tina” has the recipe. Cooked goose, I believe, is her specialty.

“It is this, it is this—” “We have had that before!”
The Bellman indignantly said.
And the Baker replied “Let me say it once more.
It is this, it is this that I dread!

Should the Court overrule Zach and Richard Scruggs’ Fifth Amendment objections to the questions posed to them at their depositions, the Plaintiffs request an Order clarifying on which topics the Defendants may question the deponents. In view of the Defendants’ demonstrated inability to contain their questions to the narrow range of topics permitted by the Court, Plaintiffs further request that the Defendants not be allowed to conduct live depositions again, but be required to submit written questions and that those questions be reviewed in advance by the Court.

Folks, that’s paragraph one, page one of a whopping total of 295 pages – and, she takes names, too! Read the motion and notice she has included the transcript from the depositions of the Scruggses and added a Table of Contents that points out the 22 examples of State Farm violating Judge Walker’s order allowing a very narrow point of disc0very.

Fit the Fourth: The Hunting as if it’s not long past time for the first qui tam discovery – filed jointly by Maison Heidelberg and the attorneys from Gilbert Randolph.

“It’s excessively awkward to mention it now—
As I think I’ve already remarked.”
And the man they called “Hi!” replied, with a sigh,
“I informed you the day we embarked.

“You may charge me with murder—or want of sense—
(We are all of us weak at times):
But the slightest approach to a false pretence
Was never among my crimes!

Relators request State Farm to produce: (1) the documents allegedly downloaded, copied, taken, or transferred from the premises, files, records, or systems of E.A. Renfroe & Company, Inc. or State Farm by the Rigsbys that refer or relate to any insurance claims involving damages caused or alleged to have been caused by Hurricane Katrina (the “False Claims Documents”) and (2) underwriting files for policies known to be referenced in the False Claims Documents.

In other words, give us back the documents you had Judge Acker fetch – they were, exactly as we have claimed, evidence collected for use in a federal case. Guessing, of course, since I’m not a lawyer, that the inclusion of the following example of the crimes allegedly committed by State Farm and those paid for their assistance is because of anticipated reluctance (understatement) to provide the underwriting files.

State Farm argues that that “the Rigsbys cannot show that they produced evidence of a meritorious fraud claim.” State Farm’s Motion to Dismiss. The Relators’ Evidentiary Disclosure, however, describes several ways that the defendants committed fraud. For example, State Farm instructed claims adjusters to always “hit the limits” of flood policies when they were adjusting flood claims.

The Evidentiary Disclosure explains in detail that adjusters used a program called “XACT TOTAL” to calculate flood claims and hit the policy limits. The program calculated the costs to rebuild the home based in part on square footage and other features in the houses, and the adjusters were instructed to re-enter such data until they eventually “hit the limits.”

The underwriting files will support the Rigsbys’ allegations because State Farm requires applicants for home owner’s insurance to list their homes’ square footage and other features in their applications.

Where State Farm inflated the square footage or other features in XACT Total, they will not match the information in the underwriting files. Accordingly, the Relators believe that the underwriting files will show precisely which claims were fraudulent with respect to these criteria

Fit the Fifth: The Beaver’s Lesson if he will tell but I believe he’s taking the 5th.

“You boil it in sawdust: you salt it in glue:
You condense it with locusts and tape:
Still keeping one principal object in view—
To preserve its symmetrical shape.”

The Scruggses certainly did and now are compelled to explain why they shouldn’t be compelled to answer – and I’m a bit compelled myself to get their explanation in this post – 400 pages distilled to four inches max just simply cannot be done. The law here must be abundantly clear as many of the citations used by the Scruggses also appear in similar cases when the 5th has been taken. – State Farm representing Lecky King for example.

State Farm did not pretend to use the depositions as discovery tools “crucial to its defense of Plaintiff’s bad faith claims.” 1-4]. Instead, knowing in advance that the Scruggses likely would assert their constitutional privileges, State Farm spent two days accusing the Scruggses of various and sundry crimes, torts, ethical violations, and personal indiscretions that had little or nothing to do with the McIntoshes’ claims against State Farm.

The goal apparently was to use the inflammatory questioning and the Scruggses’ invocation of privileges to create an impression in the media that everything asked by State Farm was true. The result of this media campaign was just what State Farm sought:

“Clearly, the record couldn’t be more plain that Sen. Lott and his associates were talking to people that were key advisers to Mr. Scruggs, paid consultants and those who were creating an illusion that simply doesn’t have any basic fact,” Farm attorney Jim] Robie told Legal Newsline on Thursday.

“I expect to follow-up deposition of both Zach and Dick, which will now have to take place in a federal penitentiary,” Robie said. “They clearly had a close liaison with Sen. Lott.”

Though State Farm previously told this Court that this issue and others had nothing to do with its McIntosh defenses, it was precisely these issues that State Farm sought to explore at the Scruggses’ depositions, and now seeks to have re-opened by its current Motions to Compel.

Nailed it, I believe is the term – and IMO nailed a lot more than the glaringly obviously media event staged and claimed as depositions. The legal team for the Scruggses took a slightly different approach from Nicholson but also documented the violations committed by State Farm’s attorney according to objections made by their counsel during the depositions.

Appendices “1” and “2” list all of the questions that State Farm asked of the Scruggses. The questions are coded to indicate justifications for certain work product and attorney-client privilege objections Appendix “3” contains a summary of the work product and/or attorney-client privilege justification for each such question State Farm asked of the Scruggses.

A throughly documented and very interesting 400 pages easily understood by a non-lawyer – to the extent that anyone finding it funny is more likely to be the joke, particularly if an attorney themselves.

Fit the Sixth: The Barrister’s Dream but a nightmare for others – those who were slabbed by Katrina, their insurer, mediation and/or the courts – and, in the case of the Rigsby sisters, all of the above and then some.

Does the summary of this fit seem at all familiar?

In the Barrister’s Dream, the Snark not only serves as judge and jury…but acts as the counsel for the defense as well, besides finding the verdict and passing the sentence.

“My poor client’s fate now depends on your votes.”
Here the speaker sat down in his place,
And directed the Judge to refer to his notes
And briefly to sum up the case.

Perhaps it will ring a louder bell after you read the State Farm Motion in Opposition to the Clarification requested by the Rigsby sisters – the motion they filed to confirm their role as witnesses in the qui tam case.

But the Judge said he never had summed up before;
So the Snark undertook it instead,
And summed it so well that it came to far more
Than the Witnesses ever had said!

(emphasis mine)

The Rigsbys’ Motion for Clarification asks this Court “to clarify the McIntosh Order by confirming that it does not preclude the Relators from testifying in this case…State Farm submits that it is premature to preemptively determine what testimony the Rigsbys might properly – or improperly – attempt to offer in this Action. Thus, State Farm submits that the Motion for Clarification should be denied without prejudice, with State Farm permitted to reserve any objections to any proffered evidence for assertion at the appropriate time, with the Court then taking up, “in due course, any justiciable controversy that may arise as this case
proceeds to a resolution on its merits.

More of the we-submit and it-has-been-decided and below the added twist of an oh-by-the-way.

Due to the short nature of this Response and the lack of case citations herein, State Farm respectfully requests the Court to waive Miss. Unif. Dist. Ct. R. 7.2(D)’s requirement for a separate response memorandum of authorities.

Waive what? How much time would it take the army of lawyers working for State Farm to find the related law. It should only be a matter of minutes – unless there is none and then it would take forever, about as long as it takes to settle a claim when there’s evidence of both wind and water.

The Judge left the Court, looking deeply disgusted:
But the Snark, though a little aghast,

As the lawyer to whom the defense was entrusted,
Went bellowing on to the last.

(emphasis added – and then some)

…and no doubt the good neighbor was hot on the trail behind him. Good neighbors love judges, you know.

Fit the Seventh: The Banker’s Fate wouldn’t we all like to know

And the Banker, inspired with a courage so new
It was matter for general remark,
Rushed madly ahead and was lost to their view
In his zeal to discover the Snark

But while he was seeking with thimbles and care,
A Bandersnatch swiftly drew nigh
And grabbed at the Banker, who shrieked in despair,
For he knew it was useless to fly.

But, my how they have tried since Katrina – even when their own industry is clipping their wings.

Was State Farm–its longtime advertising claims to the contrary–not a good neighbor when it came to dealing with the multitude of Hurricane Katrina claims in Mississippi? Did this really have to end up in court? Or should the carrier have been more proactive and flexible in adjusting claims where the source of normally excluded water-related damage was less than clear?

I’ve been hearing grumbling within the industry that while the assault on the standard flood exclusion is alarming, State Farm practically invited legal challenges and public scorn by the way it adjusted those claims and stiff-armed the unfortunate homeowners affected. The result was another body blow to the industry’s already tarnished reputation–a problem that reverberates far and wide through onerous state and federal legislative initiatives.

He offered large discount—he offered a cheque
(Drawn “to bearer”) for seven-pounds-ten:
But the Bandersnatch merely extended its neck
And grabbed at the Banker again.

I found other comments like that on a recent read around and thought about how Sop had recently written about the campaign of distraction waged by the industry with attacks on the Rigsby sisters and others. I even found one industry leader speaking out from his home on the Coast and must be the only one who doesn’t know James W. Greer, CPCU, President, Association of Property & Casualty Claims Professionals.

As a lifetime claims professional, I will never quit writing, teaching and showing those who are interested the way things should be done to serve the best interests of the industry and its customers according to the best practices and behaviors of a bygone claims age. Perhaps someday a change in mindset will once again begin to evolve.

Clearly, for the Mississippi Gulf Coast, the Katrina catastrophe, the animosity and the litigation, it was never really about flood…nor was it about the flood exclusion. It was, and is, about the failure of the insurance industry to keep its promise…a promise that it will respond when loss occurs.

The only thing sold in insurance is peace of mind. The victims of this storm, and certainly those in Mississippi, will never again find peace of mind in insurance.

Actions do speak loudest. On the Mississippi Gulf Coast, the insurance industry simply failed to act. In the end, it will pay dearly for that decision, as will all of society.

Fit the Eighth: The Vanishing yes, but who will it be?

“There is Thingumbob shouting!” the Bellman said,
“He is shouting like mad, only hark!
He is waving his hands, he is wagging his head,
He has certainly found a Snark!”

In the midst of the word he was trying to say,
In the midst of his laughter and glee,
He had softly and suddenly vanished away—
For the Snark was a Boojum, you see.

5 thoughts on “"The Hunting of the Snark" in newly filed "fits" in McIntosh and Rigsby qui tam”

  1. What a wonderful morning to wake up to and read here on slabbed! Dang, Nowdy, you done found the mother lode of documents. Mardi Gras in New Orleans doesn’t get much better than this! I can’t tear myself away from reading all the documents posted. Thank you so much for this most excellent post.

  2. You need to publish this with hand drawn illustrations just like a Carrol story…eghads! What a piece of work. It is like trying to climb a great tree but really you need to assemble a team and set up a base camp first on the first root to get ready for the approach to ascent.

  3. Editilla, is that a suggestion because of all the funny bunnies that keep cropping up in the litigation or the quantity of the text?

    Sadly, I can’t draw or compose a graphic that would work but I have thought all day that I needed to up the size of the title type of each fit.

    Do you think that would be a reasonable/helpful alternative?

    In one sense, it should have been more than one post; but, I believe it’s important for readers to see connections that are often lost when related items/events are not visually linked at some point. Thought I’d try but the small number of comments have made me wonder if I packed so much in there that people are still reading – or if I’ve missed a great afternoon of television.

  4. One of my favorite snarks is in the Scruggses’ response to State Farm’s motion to compel and it is at the top of page 2, starting off splendidly:

    These [deposition] questions show the hypocrisy of State Farm

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