Minding their quis and tams and with just three days to respond to Judge Senter’s order of invitation, the attorneys for the Rigsby sisters only took two before filing the Relators’ Response to State Farm’s Memorandum to this Court!
They made short work of it, too. Without a single attached Exhibit, the nine-page document said all that needed to be said in less than six pages:
In its April 6, 2009 Order, this Court offered Relators Kerri Rigsby and Cori Rigsby (“Relators”) an opportunity to respond State Farm’s Response and Memorandum to its prior order… in which State Farm objected to the depositions of Alexis “Lecky” King (“King”), Brian Ford (“Ford”), Jack Kelly (“Kelly”), and three eyewitnesses to the effects of Hurricane Katrina on the McIntosh home. Relators respectfully submit that State Farm’s response provides no basis to doubt the necessity and relevance of those depositions.
The Relators also respectfully submit three well-reasoned points to support their position.
- State Farm Has Failed to Offer Any Reasonable Rebuttal To the Need for Depositions of Eyewitnesses Such as Ron Mucha, Linda Mucha, and Mike Church.
- Lecky King Should Be Deposed Because She is the Central Figure in State Farm’s Fraud
- Brian Ford and Jack Kelly Should Be Deposed Because Their Prior Depositions Did Not Address All Necessary Issues and State Farm Itself Has Argued That the Prior Depositions Were Not Taken By Qualified Counsel.
State Farm’s Response continually tried to limit the case to the actual flood claim; i.e. NFIP documents. The Rigsbys quickly dispensed with that notion by pointing out:
As the Court noted, the Relators have alleged that the defendants submitted false claims by “exaggerating the extent of the flood damage where both types of policies were in force on the same property”… The Court acknowledged that “in most cases, the question is how much wind damage had occurred by the time the storm surge reached the insured property.”
Later, they return to this issue when addressing State Farm’s effort to limit the deposition of Lecky King. Further, State Farm is attempting to isolate its conduct in adjusting the McIntoshes’ flood claim from its conduct in adjusting the McIntoshes’ wind claim, but legally, those are not separate events.
If Lecky King had accepted Brian Ford’s conclusion that the interior damage to the McIntosh house was primarily due to wind and authorized payment under the McIntoshes’ homeowner policy for interior damage to the house, State Farm would have been required to revisit its payments under the McIntosh flood policy and make sure that the same damage was not being paid for under both policies.
And if State Farm had determined that the initial payment made by the government under the McIntoshes’ flood policy included payment for damage that was caused by wind, State Farm would have been required to reimburse the government for that payment.
Accordingly, even if Lecky King was not involved in the initial payment of the McIntoshes’ flood policy, her conduct in adjusting the McIntoshes’ wind policy is no less relevant to the question of whether the federal government was defrauded.
State Farm’s effort to disqualify all former qui tam counsel, IMO, is the low point in the company’s below-the-belt approach to Katrina litigation. Consequently, I read the issues the Relators raised over State Farm’s objection to the deposition of Ford and Kelly with great interest.
State Farm argues that Brian Ford and Jack Kelly should not be deposed because they have already been deposed by members of the Scruggs Katrina Group when they were representing the McIntoshes, and the Rigsbys were fully represented in those depositions because their interest in Ford and Kelly “is largely co-extensive with those of the plaintiffs in McIntosh” Response.
Less than a year ago, State Farm took the opposite position when it argued that if Provost Umphrey were allowed to represent the Rigsbys it would create a “nonwaivable and irreconcilable conflict of interest” because “the positions taken by the Rigsbys in the False Claims Action are necessarily and irreconcilably inconsistent with the interests of Provost Umphrey’s policyholder litigation clients.”
By State Farm’s own argument then, the Scruggs Katrina Group could not have adequately represented both the Relators and their policyholder clients when they deposed Ford and Kelly…For example, Ford and Kelly were not shown expert reports addressing the height of the water in the McIntosh home, and they were not asked about the “wicking” effect of sheetrock on water (which would produce a waterline on the walls of five and a half feet, even where the water itself never reached more than three feet in depth). The Relators should be allowed to have independent counsel depose Ford and Kelly.
Interestingly, the Rigsbys did agree with State Farm’s suggestion an in-person, pre-hearing conference would be helpful before closing their Response:
The Relators have identified seven witnesses with information directly and obviously relevant to the allegations of State Farm’s fraud on the McIntosh claim. State Farm’s objections to those depositions range from the false to the frivolous and should be rejected. Accordingly, Relators again respectfully request leave of the Court to depose Alexis “Lecky” King, Brian Ford, Jack Kelly, Craig Robertson, Mike Church, and Ron and Linda Mucha.
As I finished reading, I couldn’t help but think of the Order Judge Senter issued in June 2008:
With the SKG having been disqualified as counsel in all the Court’s remaining State Farm cases, it is my sincere hope that the type of normal, professional, and focused advocacy necessary to resolve the individual merits of the cases still outstanding will presently come to the fore.
Perhaps it has, even if only for this moment.
- The year’s at the spring,
- And day’s at the morn;
- Morning’s at seven;
- The hill-side’s dew-pearled;
- The lark’s on the wing;
- The snail’s on the thorn;
- God’s in his Heaven –
- All’s right with the world!