I believe it is appropriate to conduct a hearing on the pending motions to allow the parties to present evidence concerning the question whether the payment of the flood insurance limits in the McIntosh case was justified, as a matter of law.
No one following Katrina insurance cases would have expected Judge Senter to issue a Burger King have-it-your-way order.
Took the case straight to the extra value meal of Big Mac; he surely did, but, you can’t blame him. Who hasn’t wanted to take a bite since the most peculiar settlement of any to date?
IMO, you really can’t fault him, either, for hitting the drive-thru window instead of parking and going in – not when he clearly put a lot of work and thought into his Order.
My reading of the Amended Complaint and the documents submitted in connection with the pending motions leads me to the following conclusions:
1. The merits of this action depend on evidence that the defendants, acting in concert, systematically submitted false flood insurance claims to the United States, claims that were not valid under the terms of the Standard Flood Insurance Policy (SFIP) used in the National Flood Insurance Program (NFIP).
2. It is the amount of the flood insurance claims that the Relators allege to be false, i.e. the allegation is that the defendants acted in concert to submit flood insurance claims in an amount greater than the flood damage that actually occurred.
3. The Relators allege that the motive for the submission of these false claims was the defendants’ desire to reduce the exposure under State Farm homeowners policies, which covered wind damage, by exaggerating the extent of the flood damage where both types of policies were in force on the same property.
4. The Relators allege that the defendants had the opportunity to submit these false claims because the insurers are authorized to evaluate and settle claims for both wind damage and flood damage, and the adjustors and engineers the insurers hired were in a position to inflate the amount of flood damage they observed.
5. There is no allegation that the defendants ever submitted claims to the United States that were fabricated, only that the defendants acted in concert to inflate or exaggerate the amount of the legitimate flood insurance claims that they submitted.
The order sets the hearing in the Rigsby Qui Tam for the 20th of May.
I am going to treat all of the dispositive motions as motions for summary judgment because I will hear evidence outside the pleadings. To meet their burden of proof on their pending dispositive motions, the movants (the defendants) must show that there is no genuine issue of material fact and that the McIntosh flood insurance payments were justified, as a matter of law. If the defendants meet this burden of proof I will dismiss this action on its merits
Meanwhile, the Rigsby sisters can keep that thought in mind – and consider it a Happy Meal.