Day: September 16, 2008

Reconciling the McIntosh Settlement: A Possible Explanation

Nowdy and I, with the help of an unlikely commenter and the offline perspective of others may have an explanation that reconciles the settlement offer made by State Farm as reported by Duesouth to the amount State Farm publicly disclosed.

The first tip was the 404 error I got when proofing Nowdy’s first post on the settlement yesterday.  Nowdy is a stickler for accurately naming her linked court docs but out of habit she named it an “order for dismissal” originally when it was actually a “Judgment of Dismissal”. What we initially thought was strange wording of the document made more sense when Rule 68 of Federal Civil Procedure was mentioned today. We sent out the email plea for background information and received this reply:

I wonder if there was a FRCP, Rule 68 “offer of judgment” in McIntosh…. It means if the plaintiff does not recover more than the offer of judgment, the plaintiff has to pay all costs incurred by the defendant after plaintiff refuses the offer. These costs could be significant in a case like McIntosh.

That started to tie things together and the mystery leverage State Farm had on the McIntoshes becomes more clear. Nowdy, the consummate researcher found an article out of Massachusetts that expanded on the concept:

Offers of Judgment pursuant to Mass. R. Civ. P. Rule 68 are often used in civil cases in an attempt by the defendant/insurer to gain leverage in settlement negotiations against a plaintiff by imposing the potential for an award of costs against the plaintiff. In theory, a Rule 68 Offer of Judgment should have the Continue reading “Reconciling the McIntosh Settlement: A Possible Explanation”

Does the Fed Read Slabbed? You Can Bet Your Sweet Ass…..

Upon further review the Fed decided the economy needs AIG to survive but they drove a hard bargain. Besides effectively taking control of AIG under the deal Treasury Secretary Paulson gave current CEO Robert Willumstad his walking papers. The hoot is Paulson hired Ed Liddy of Allstate infamy to take his place.

The Wall Street Journal has the story:

The U.S. government seized control of American International Group Inc. — one of the world’s biggest insurers — in an $85 billion deal that signaled the intensity of its concerns about the danger a collapse could pose to the financial system.

The step marks a dramatic turnabout for the federal government, which had been strongly resisting overtures from AIG for an emergency loan or some intervention that would prevent the insurer from falling into bankruptcy. Just last weekend, the government essentially pulled the plug on Lehman Brothers Holdings Inc., allowing the big investment bank to go under instead of giving it financial support. This time, the government decided AIG truly was too big to fail. Continue reading “Does the Fed Read Slabbed? You Can Bet Your Sweet Ass…..”

State Farm pulls "Mac the knife" in Rebuttal to Rigsbys 1st Response with ADDENDUM

Oh, the line forms on the right, babe
Now that Macky’s backed down.

Well, the shark with the pretty teeth filing State Farm’s Mac-the-knife Rebuttal to the Rigsbys’ first response should have heeded Bobby Darin’s words of wisdom – I do not go in ever with a song I don’t think is a hit.

Not only is the Rebuttal out of tune with both qui tam and case law, it’s full of sour notes and filled with the usual State Farm song and dance – defense mechanisms!

State Farm offers two arguments in rebuttal that even google knows are weak and attempts to make related points for each:

The “quick trigger” of the public disclosure bar was pulled before this suit.

State Farm pulls “Mac the knife” in Rebuttal to Rigsbys 1st Response with ADDENDUM

Oh, the line forms on the right, babe
Now that Macky’s backed down.

Well, the shark with the pretty teeth filing State Farm’s Mac-the-knife Rebuttal to the Rigsbys’ first response should have heeded Bobby Darin’s words of wisdom – I do not go in ever with a song I don’t think is a hit.

Not only is the Rebuttal out of tune with both qui tam and case law, it’s full of sour notes and filled with the usual State Farm song and dance – defense mechanisms!

State Farm offers two arguments in rebuttal that even google knows are weak and attempts to make related points for each:

The “quick trigger” of the public disclosure bar was pulled before this suit.

Galveston: "Nothing to come here for right now"

This picture conveys some of the destruction in the Galveston Texas area from Hurricane Ike.  While Governor Perry calls those who stayed “knuckleheads” I hope he also explores how the knuckleheads in Texas government failed to reach those who called for help in evacuating in advance of Ike’s arrival such as 79 year old Margaret Winters.

Today, the Houston Chronicle contains a grim reminder of the price for staying on a Barrier Island in the face of a mere Cat 2 storm:

Through dark and filthy water, the tangible last remnant of Hurricane Ike, search-and-rescue teams continued combing Galveston Island and other coastal communities hit hardest by an overwhelming storm surge. The hope was for more survivors — a hope rewarded more than once Monday. The fear was that grimmer discoveries awaited. Continue reading “Galveston: "Nothing to come here for right now"”

Galveston: “Nothing to come here for right now”

This picture conveys some of the destruction in the Galveston Texas area from Hurricane Ike.  While Governor Perry calls those who stayed “knuckleheads” I hope he also explores how the knuckleheads in Texas government failed to reach those who called for help in evacuating in advance of Ike’s arrival such as 79 year old Margaret Winters.

Today, the Houston Chronicle contains a grim reminder of the price for staying on a Barrier Island in the face of a mere Cat 2 storm:

Through dark and filthy water, the tangible last remnant of Hurricane Ike, search-and-rescue teams continued combing Galveston Island and other coastal communities hit hardest by an overwhelming storm surge. The hope was for more survivors — a hope rewarded more than once Monday. The fear was that grimmer discoveries awaited. Continue reading “Galveston: “Nothing to come here for right now””

It's a Slabbed Family Feud

No sense in hiding it any longer, the McIntosh settlement has created some controversy in the slabbed family. Nowdy broke that “story” this morning.

Let’s begin by contrasting this statement made by the relators in the filing Nowdy profiled against today’s well written Anita Lee piece in the Sun Herald.

Upon information and belief, the McIntosh case was settled in its entirety late in the evening on Saturday, September 6, 2008. The next day, Sunday, September 7th, the plaintiff filed a motion to dismiss that was laden with gratuitous praise with respect not only to the wind claims at issue in that case, but also to the McIntoshes’ flood claim. The motion reads like a document written by (or for) State Farm for use in this case, and the timing alone raises enormous issues of credibility. The motion also fails to provide any basis for its conclusory statements. As a result, any attempt to use the McIntosh motion to dismiss in this case will only raise more material issues of disputed facts.

From Lee’s story:

A State Farm news release issued after the McIntosh settlement became final Monday said, in part, that Scruggs “made up allegations in this lawsuit to launch a public relations plan to lure politicians, the media and others into publicly attacking State Farm. This was a tactic that diverted precious time and resources away from resolving Katrina claims.” Continue reading “It's a Slabbed Family Feud”

It’s a Slabbed Family Feud

No sense in hiding it any longer, the McIntosh settlement has created some controversy in the slabbed family. Nowdy broke that “story” this morning.

Let’s begin by contrasting this statement made by the relators in the filing Nowdy profiled against today’s well written Anita Lee piece in the Sun Herald.

Upon information and belief, the McIntosh case was settled in its entirety late in the evening on Saturday, September 6, 2008. The next day, Sunday, September 7th, the plaintiff filed a motion to dismiss that was laden with gratuitous praise with respect not only to the wind claims at issue in that case, but also to the McIntoshes’ flood claim. The motion reads like a document written by (or for) State Farm for use in this case, and the timing alone raises enormous issues of credibility. The motion also fails to provide any basis for its conclusory statements. As a result, any attempt to use the McIntosh motion to dismiss in this case will only raise more material issues of disputed facts.

From Lee’s story:

A State Farm news release issued after the McIntosh settlement became final Monday said, in part, that Scruggs “made up allegations in this lawsuit to launch a public relations plan to lure politicians, the media and others into publicly attacking State Farm. This was a tactic that diverted precious time and resources away from resolving Katrina claims.” Continue reading “It’s a Slabbed Family Feud”

Rigsbys locked and loaded; fire Response to 2nd set of dispositive motions in qui tam case

Better grab a cup of coffee – the Rigsbys qui tam counsel were locked and loaded when they fired this Response to the second set of dispositive motions on target with Judge Senter’s scheduling order and it’s going to take a while to cover all the points.

In truth, it’s impossible to cover all the points in a single post – that’s why we link readers to the actual documents.

The legal basis State Farm cited for the motions in this set are Rules 12(b)(6) failure to state a claim upon which relief can be granted; and 9(b): In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally. However, the lack of a legal basis is no barrier to State Farm making a claim which should be a Rule 11 violation IMO – or grounds for divorce! Ohmygod, are they not ever the nagging spouse reciting history before stating the current complaint.

The qui tam counsel for the Rigsby sisters seems to have their number and disposed of both the questions of law and the nags AKA “specious arguments” – given the purpose of these motions is to establish the Rigsbys have a case, not try the case before it goes to trial as State Farm is just itching to do.

The response to 12(b)(6) and 9(b) is something you just need to read as it’s going to take the rest of this post to cover three points – the recent McIntosh dismissal; State Farms allegations about the “broken” seal; and the Rigsbys voluntary dismissal of certain counts and four defendants – and provide a summary of what you’ll find detailed in the Response.  btw, I’ve omitted citations and all emphasis below is mine. Continue reading “Rigsbys locked and loaded; fire Response to 2nd set of dispositive motions in qui tam case”