treading water – Gagne asks court to reconsider effect of payment for flood damage

If you read my last post on Gagne v State Farm, you may recall it ended with with the discussion of a motion that referenced  Gagne’s motion to reconsider rulings in prior cases on the effect of an insured’s cashing checks offered by State Farm drawn on Federal Flood Insurance funds.

In some recent Hurricane Katrina insurance cases, this court has made statements and rulings indicating that where plaintiffs have been paid flood insurance benefits, they may be estopped from denying that their insured property was damaged by storm surge to the extent of the amount of the flood benefits paid. This court has said this estoppel is based on the fact that receipt of flood insurance benefits constitutes an admission that some damage was caused to their homes by flooding.

Since it’s not an everyday word for most of us, let’s stop and define estoppel.

estoppel: A legal principle that prevents a person from asserting or denying something in court that contradicts what has already been established as the truth.

The motion continues; but, cleverly shifts the responsibility from the court to those bringing similar cases before the court.

Gagné does not believe that the plaintiffs in the cases involving the prior rulings on this point have brought to the court’s attention the appropriate law regarding the prerequisites for either precluding a party from taking a particular position or offering evidence in support of that position under the law concerning either judicial admissions or judicial estoppel nor have they had such compelling factual testimony including an admission by State Farm’s flood adjuster.

Gagne’s opinion of the appropriate law for the court to consider is found in the Memorandum in Support of the motion for reconsideration.

This court has said this estoppel is based on the fact that receipt of flood insurance benefits constitutes an admission that some damage was caused to their homes by flooding….

This court’s prior decisions which state that an insured is estopped from denying that their insured property was damaged by storm surge to the extent of the amount of the flood benefits paid based on the fact that receipt of flood insurance benefits constitutes an admission that some damage was caused to their homes by flooding fails to satisfy several of the requirements for judicially estopping a party from taking a position or presenting evidence inconsistent with prior action.(emphasis added) Continue reading “treading water – Gagne asks court to reconsider effect of payment for flood damage”

Aiken v USAA Back in the News

We covered this case extensively last January including the verdict. What we didn’t know then that we know now is that Dr Aiken makes a portion of his living as an expert witness for insurance companies against policyholders. The irony of this suit is not lost on us and I bet it plays out in unexpected ways for Dr. Aiken down the line. By all accounts the second home the Aiken’s lost was very nice indeed. In any event the jury award was not big enough for their liking so the Aikens are taking their case to the Fifth Circuit per this AP story picked up by the Sun Herald:

A federal appeals court has scheduled arguments for Feb. 4 in a Mississippi homeowner’s appeal of a jury verdict that favored his insurance company in a Hurricane Katrina damage case.

The 5th U.S. Circuit Court of Appeals will hear arguments in New Orleans in the appeal filed by David and Marilyn Aiken. Continue reading “Aiken v USAA Back in the News”