The past isn’t dead (Kodrin v State Farm), it’s not even past (Payment v State Farm)

…evidence concerning dissimilar and out-of-state matters are improper as a matter of federal constitutional law.

What if there were out-of -state matters about State Farm’s Katrina claims handling that are not dissimilar as the motion in limine claims?  While the  dozen such motions the company filed in Payment v State Farm prior to making the Offer of Judgment initially brought McIntosh v State Farm to mind, Dr. Payment’s case is much more akin to Kodrin v State Farm, the first Katrina case against Start Farm heard by a jury in Federal Court in Louisiana.

Rebecca Mowbray had the story in the November 18, 2007 edition of the Times Picayune’s online.

…the jury’s message was clear: If companies want to deny payments under homeowners insurance policies because the damage was instead caused by flood, they darn well better be able to prove that flood was indeed what destroyed the home.

The jury’s message was even clearer after one juror contacted David Rossmiller.

“Since we were not allowed to read or listen to news, I was curious what had been reported the last couple of days and when I came upon this blog and this statement: the Kodrins have agreed, by accepting the flood money that at least that amount of damage to the home was due to uncovered flood. This infuriated me since this was exactly why they did not want to file a flood insurance claim (which is paid by the government, not the insurance companies). It proved after the fact that State Farm was trying to get away with not paying on the wind policy that this couple has paid to them religiously since 1993 and it was brought out by the plaintiffs’ attorney in the trial that State Farm ‘encouraged’ their claims reps to write flood claims rather than wind claims in the area of Port Sulphur. We decided that it is very possible and probable that when the water topped the levee, the wind had already damaged their home an hour prior. We decided to give them the maximum allowed on their wind policy and for lost contents, loss of garage, cost of living in another city and having to relocate to another town (from what was Mrs. Kodrin’s childhood home and property). Through all of this the past 2 years, Mrs. Kodrin was having serious health problems and although it did not sway our decision, we knew it was exacerbated by this stress. Had State Farm simply honored their agreement with the Kodrins back in 2005, they would have saved a lot of trouble and expense. We awarded as much as we thought we could without being extravagant but some of us would have given them more if we could have. It was not our goal or task to set a precedent for future claims against insurance companies for Katrina or Rita claims.”

It’s also clear that State Farm does not want to have a jury consider Dr. Payment’s similar case – particularly since Dr. Payment has retained the same expert witness, Neil Hall,who provided evidence wind destroyed the Koudin’s property, not storm surge as State Farm claimed.

Motion in limine #9: to Preclude Testimony or Evidence That Plaintiff’s Home Was Completely Destroyed by Wind (filed by State Farm in Payment v State Farm)

An earlier story in the Times Picayune provides more background on the Koudin case.

According to Judge Carl Barbier’s pretrial order, the Kodrins’ roof was found 1,000 yards away and all that remained of their 177 Holiday Drive home was the rear steps and the mailbox.

The Kodrins believe their home was destroyed by a tornado, and say that when the first State Farm adjuster came to their house in October 2005, he said the destruction appeared to have been caused primarily by wind.

But a State Farm expert who visited the property in December 2005 said there was no evidence that the home had been damaged by wind before the arrival of the floodwater, and many homes in the area had been similarly damaged by Katrina’s waves. The company refused to make any homeowners payments on the property.

The couple hired their own engineer, who said exactly the opposite: that their home was likely obliterated by wind before the waves rolled in.

The Kodrins may have been underinsured on their property, which had been Judy Kodrin’s childhood home. While State Farm says the market value of the home was $110,000 — in the same ballpark as the Kodrins’ structure coverage of $116,886 — the Kodrins say the cost to replace their home is estimated at $341,745. The Kodrins also estimate that the contents of their home was worth $125,397, but they had $79,695 in contents coverage.

They have received the policy limits of their flood coverage, $56,800 in structure payments and $19,200 in contents payments.

The Kodrins want State Farm to pay the limits of their homeowners policy on both structure and flood, and note that even with both the flood and structure combined, they won’t be made whole.

The Kodrins , who now reside in Raceland, also are asking State Farm for $10,506 in additional living-expense payments to cover the costs of being displaced. Flood policies don’t cover living expenses.

They also are asking for damages and attorneys fees on their claim.

State Farm says the couple has failed to prove their home was destroyed by wind, and that when they accepted flood payments, they agreed that their home was destroyed by flooding.

The list of similarities between the two cases includes more than just the shared expert witness – or the Offer of Judgment attempting to keep both out of court.

Koudin refused and was awarded $594,699.82. State Farm posted bond in this amount and filed an appeal with the Firfth Circuit in July.

There’s more to mine from the twelve motions but that’s all for tonight.

4 thoughts on “The past isn’t dead (Kodrin v State Farm), it’s not even past (Payment v State Farm)”

  1. I’ve been following your blog since I found it searching for info on slab cases I’ve been following. Just curious if you will be following up on both Payment and Kordin appeals. I appreciate your way with words and find myself coming back for more. A big fan~

  2. Welcome, Theresa, and thank you! The Payment case settled; so, I wasn’t expecting an appeal. Kodrin, yes, as to our intent; but I do need to check and make certain I haven’t missed something. It seems there are more active cases now than ever in federal court here – a lot were settled in mediation and then in negotiation, often small groups represented by the same attorney(s) or firm(s).

    I’ll add that one concern I have is that those settling prior to the start of 09, were short-changed. I’m trying to “warm” to the concept of settlements as a positive and even preferred outcome but haven’t found it easy.

    Would love to know the source of your interested in slab cases. If you haven’t read Sop’s story and looked at the pictures, take a look (left sidebar).

    I should add that if you know of cases we’re not covering that we should, please feel free to make mention.

  3. I’m with you on the activity in Federal Court. I missed that Payment settled!!

    One sidebar is that I’ve seen the Kodrin name spelled several different ways. I found the original complaint after my post to you and thought I would apologize for the misspelling. It is Kodrin, and say it with a cajun accent and preferably with a shrimp poboy since some of the most wonderful shrimp come out of Port Sulphur!

    I completely concur that news of another case settling is quite bittersweet. I think it happens as a result of getting too close to the fire and being weary from the journey. It’s the settled cases that are chock-full of the things we would like to be able to get our little paws on…This is why I’m watching you like a hawk, as you’re posting the goods as you find them, and almost in real time.

    Thanks for your diligence in reporting these cases that keeps me riveted every time I visit. I certainly appreciate it your way with words!

  4. Appreciate the heads up on the spelling of Kodrin – but you certainly has seen it spelled both ways and in one paragraph, too!

    You’ve made several interesting/important points – shrimp included – I suppose the courts don’t think its their job to deal with the “scorched” and weary but I do.

    If I can find the right words, I’m going to try and explain why as I finish the post on “just-us-justice” that I popped up on my way out this afternoon.

    Other than the settlement documents themselves, everything that has been filed up to that point is available. State Farm has been allowed to seal a lot of case documents (depositions given by employees, comes to mind, first) and I’m certain others have as well. When a case comes to court, however, a third party is added (we the people) who pay to operate the judicial system, and I don’t see any formal recognition or sense of obligation coming from the court.

    If you’ve read Gagne v State Farm here, you’ll see the settlement left motions on the table. That particular case would have decided some important issues and we lose that public benefit. Somehow that seems “unjust” of the system of justice.

    I’m so pleased to know the case reporting is appreciated – it’s a rather intimidating task for someone who isn’t a lawyer but no one was prepared to be slabbed either.

    Join in anytime – particularly when you catch a typing or spelling error! Thanks.

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