Judge Ginger Berrigan, Welcome to the infirmary of the SLABBED

Since I’m not a lawyer, I really just have one standard and that’s does an argument or decision make sense.  A lot of these decisions just don’t. Why?

Judge Helen “Ginger” Berrigan of Louisiana’s Eastern District Federal Court is one judge I had in mind when responding to Chip Merlin’s comment on the need to better educate judges trying Katrina insurance cases.

However, I don’t believe Judge Berrigan needs educating.  Instead, it appears she’s contracted the highly contagious strain of 5th Flu that causes Leonard hallucinations and delusions of coverage.

Now, I’m not a doctor either; but, I could tell Judge Berrigan was was coming down with something when I read the  Order and Reasons she issued in Adams v Lexington. So, I examined the docket and several of the documents; and, then, I read her history.

Based on what I learned, I suspect she had a natural immunity to the 5th flu as she showed no symptoms of Leonard hallucinations in her reasoning when she threw a wrench into FEMA’s effort at redemption with an order barring FEMA from trying to reclaim some of the money it had thrown at anyone claiming to be a Katrina victim.

In her ruling, Judge Helen Berrigan criticized FEMA for writing notification letters laced with “incomprehensible hieroglyphic abbreviations” and urged the government “to return to their original mandate of alleviating their suffering and focus its substantial powers on continuing to help those entitled to relief.”

Somehow her immunity weakened as Adams v Lexington made it way through her court; and, by the time she needed to rule on the various motions for summary judgment, the  “incomprehensible” portion, it seems a Leonard hallucination made the decision go down like tonic for a cure.

The plaintiff apparently agrees that the policy language qualifies for inclusion under the rule recognized in Bilbe v Belsom…and Leonard v Nationwide…[and] that there is no coverage under the policy for any damage caused by wind and flood, or by wind “concurrently or in any sequence with” water.

If only she only gone to the ACC-doc-in-a-blog she would have had the right prescription.

So we can see the [Leonard] court is dead wrong when it analyzes storm surge as being the product of concurrent causes.  Perhaps in a philosophic sense it is correct, perhaps not, that wind that drives waves is two forces or two causes.

In this philosophic sense, I still see flood as flood, whether it human negligence, earthquake, wind or some other factor can be said to be in the causal chain, but I can see the argument for the other side.  But we are not talking about philosophy with this case, we are talking about the contract language.

There is absolutely no need to discuss storm surge as involving concurrent forces once you accept that it is flood.  By definition, it becomes one force, one peril, one cause.  It will only confuse others, and perhaps the court itself, by trying to get fancy with a causation analysis that can’t lead anywhere.

The “doc” recommends a second opinion – this great piece of Leonard analysis on the blog of the Merlin Law Group,

After finding that the anti-concurrent causation language was not ambiguous, Judge Edith Jones went too far and provided the following:

If, for example, a policyholder’s roof is blown off in a storm, and rain enters through the opening, the damage is covered. Only if storm-surge flooding – an excluded peril – then inundates the same area that the rain damaged is the ensuing loss excluded because the loss was caused concurrently or in sequence by the action of a covered and an excluded peril. The district court’s unsupported conclusions that the ACC clause is ambiguous and that the policyholder can parse out the portion of the concurrently caused damage that is attributable to wind contradict the policy language.“Where did that come from? Virtually every adjuster and claims manager I have ever deposed with that similar hypothetical situation in a Katrina loss has said coverage would be granted under the all-risk policy for the full amount of the loss. Maybe Judge Jones and her colleagues know more about how to deny insurance claims than the people that could profit from doing so.

From a practical standpoint, where is there going to be any coverage if the flood policy has the typical exclusions regarding pre-existing loss or “roof leaks or wind-driven rain” as found in the National Flood Policy? Policyholders with all-risk and flood coverage under separate policies are left with the absurd result of having no coverage at all under this wrongly reasoned opinion.

Bilbe v Belsom was a mutation; but, the problem with the 5th flu when you have a Leonard hallucination –  it’s hard to knock out.  The only known hope for a cure is to quarantine Leonard opinion.

I suppose that’s easier said than done – unless, you happen to be Ginger Berrigan who blows off ill wind, doesn’t mind getting into plenty of water, and seems to regularly get at least eight hours of unrest.

6 thoughts on “Judge Ginger Berrigan, Welcome to the infirmary of the SLABBED”

  1. And in this case styled Adams v Lexington ol girl Ginger wrote this:

    The motion for summary judgment filed by American International Group, Inc. (?AIG?) is GRANTED. (Rec. Doc. 71). The plaintiff appears to agree that AIG was not an insurer of the alleged losses. The plaintiff otherwise fails to raise a genuine issue of material fact that AIG was involved in his claim in any manner other than as a holding company. Instead, it appears that the plaintiff relies solely on the use of the domain name @AIG.com as the basis of the claims against AIG, even though the subject emails seem to clearly identify the insurer as Lexington Insurance Company (?Lexington?).

    Perhaps hubby depends on insurance defense work alittle too much???

    Sunshine on my shoulders makes me happy………

    sop

  2. Maybe, Sop, but I doubt it – and I’ve read more about her than any judge we’ve encountered. There’s more about her to read and that’s worthy of mention, too

    JMHO but I believe what we’re seeing is someone from the grassroots of social justice making hay in the sunshine by applying the same logic at a higher level.

    The problem I saw with the decision, in general, is she appears to have accepted the Leonard decision instead of examining it to discover it is not acceptable.

    Someone needs to make the relationship between AIG and Lexington a question before we can expect a different answer; but, again, that’s JMHO.

  3. As many of you know, we have fought round and round with Judge Berrigan and even recently “won” a motions battle with State Farm in her court.

    You must break down issues like burden of proof into little bity tiny pieces almost as if you were talking to a grade school child. Otherwise, she will blindly accept the bad faith garbage insurers put before her.

    The Leonard decision which came out of Mississippi, does not supercede La. R.S. 22:658.2 or the other long line of Louisiana state and federal court cases, i.e. Griletta and Dickerson.

    She is dead wrong and the opinion like her opinions in Ferguson and Braniff are so preposterous that one must simply laugh and shake their head.

  4. Welcome, NRFB, legally you are correct about Leonard, the problem is that it supercedes logic there and here.

    When I started the post, I had a working title “smart judge, dumb decision (part 1) – and, sadly, a long list of possible posts from the courts in both states and the 5th.

    However, the deeper I dug into the case documents, the more I became convinced that without those “little bitty tiny pieces of information” building a mental map that would detour around Leonard, the result was inevitable.

    A post from the past – “If the facts don’t fit the theory, change the facts” – provides more about mental maps.

    http://slabbed.wordpress.com/2008/03/02/if-the-facts-dont-fit-the-theory-change-the-facts-2/

    Judge Berrigan is dead wrong in this decision but the 5th was dead wrong in Leonard and the decision was clearly contagious!

    IMO, the “Hey, it’s a Big Easy, Dummy” award goes to the judge who came out of nowhere and had what could only have been a brain fart AKA the decision that blew the Foti Anti-trust case.

    Leonard, on the other hand, may have been hormonal. You guys haven’t considered getting some of these folks put on shots, by chance, have you?

    Until someone comes up with the “cure” it seems the best option is to keep feeding those little bitty tiny pieces of justice.

  5. By the way, Berrigan cited Vance’s decision in Hyatt which we all know does not trump La. statutory law, or La. appellate or Supreme Court decisions on burden of proof.

    Also, she conveniently ignored Vance’s most recent opinion in Pontchatrain Gardens v. State Farm citing Dickerson and holding that the insured as owner of an all risks policy has no obligation to “segregate damages” and the defendant insurer must prove its exclusion and is not liable for any damages defendant proves were caused by an excluded peril.

    Ignorance is bliss, I guess.

  6. To update my 2-18-2009 comment I offer this subsequent post:

    http://slabbed.wordpress.com/2009/03/18/no-respect-for-judge-berrigan/

    Folks insurance law is not that hard to grasp. The concept of when a judge should recuse themselves per the federal handbook is not that hard to grasp. The fact that Judge Berrigan got these insurance cases wrong time and again and refused to recuse herself in Bernofsky v Tulane et al. despite collecting a paycheck from Tulane as adjunct faculty member should tell everyone what they need to know about the quality of this supposed impartial jurist.

    And today the fact she presides over several related massive white collar criminal cases involving the son of a judge she clerked for once simply does not pass the smell test.

    The public deserves a truly impartial judge and the targets of the massive criminal investigation including the now indicted Dominick Fazzio deserve no less as we’re firm believers in the rule of law here on Slabbed. It would be nice if Judge Ginger demonstrated, even belatedly, she honors the same ideals by stepping aside in all the cases related to Fred Heebie.

    sop

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