And now the sequence of events in no particular order – a Katrina litigation update

So much happened while I was out last week that the Dan Rather quote makes a good introduction to this update on Katrina litigation reporting the sequence of [selected] events [from last week] in no particular order:

Watson v Nationwide:

Nationwide may not be able to determine the sequencing of the loss until the event is over; but, Judge Senter had no problem determining the sequence, deciding the event was over, and issuing an Order on Nationwide’s Motion for an Extension of Time…to Take Remand-Related Discovery-

Nationwide has asserted that the non-diverse defendants in this action were fraudulently joined to defeat this Court’s diversity jurisdiction. This is an issue upon which Nationwide, as the removing party, has the burden of proof, and an issue on which Nationwide expected to prevail at the time this case was removed. Yet in the ten months that have elapsed since removal, none of the non-diverse defendants has sought a ruling on the merits of the plaintiffs’ claims against them. Nor have the defendants taken the discovery they now contend is crucial to establishing this Court’s diversity jurisdiction.

In these circumstances…I do not believe it is necessary to delay a decision on the plaintiffs’ motion for an additional forty-five days, as Nationwide requests. I will therefore deny Nationwide’s motion.

SLABBED reported the Watson’s Motion to Remand and For Sanctions in On the other side – policyholders v Nationwide.

Hasbrouck v Nationwide:

Also filed in Jackson County Chancery Court and removed by Nationwide, Hasbrouck v Nationwide provided one of  last week’s most unusual events in Nationwide litigation- an Order granting a Motion for Protective Order filed by State Farm!

In its motion, State Farm requests that the Court enter an order prohibiting the disclosure of the Absolute Release with Covenants entered into between State Farm and Della D. and Edward C. Lanier. The Laniers have joined in support of this motion. The Laniers settled their lawsuit with State Farm in Civil Action No. 1:06cv563. As part of the settlement, the parties executed a document entitled “Absolute Release with Covenants”, which contained the terms of  he settlement, including the requirement that the settlement be confidential. On May 20, 2009,
Defendant Nationwide served the Laniers with a subpoena duces tecum commanding the Laniers to produce all documents related to their insurance claim resulting from Hurricane Katrina. State Farm filed the instant motion in response to the subpoena duces tecum.

In their response, Defendants state that the Laniers were identified by P Plaintiffs as witnesses with discoverable knowledge. The subpoena, according to Defendants, seeks only non-privileged, non-confidential documents. As such, Defendants represent that they do not seek confidential documents connected to the Laniers settlement with State Farm, including the Absolute Release and Covenants. Thus, Defendants do not object to a protective order…

Judge Walker did earlier rule in Plaintiff’s favor when he denied Nationwide’s motion to strike one of Hasbrouck’s expert witnesses.  Nonetheless, his protective order did not consider the related claim in Hasbrouck’s complaint:

Plaintiff’s insured property was completely destroyed by Hurricane Katrina and
was rendered a total loss. The overwhelming meteorological and physical evidence at the site of the insured property, surrounding area, and eyewitnesses established that insured property was proximately and efficiently destroyed by hurricane wind, tornadoes, microbursts, mesocyclone activity in the absence of and prior to the arrival and inundation of any storm surge.

Walker did not conduct an in camera review of the Absolute Releanse and Covenant before issuing the Order.  Hopefully, he has not gutted another policyholder’s case.

O’Keefe v State Farm:

O’Keefe v State Farm keeps on tickin’ and O’Keefe keeps on kickin’ with this Reply to State Farm’s Response to Plaintiffs’ Supplemental Evidence in Support of Plaintiffs’ Supplemental Evidence in Support of Plaintiffs’ Motion for Declaratory Judgment /Partial Summary Judgment re: Inflation Index.

State Farm’s Reply avoids responding to the issue actually raised by Plaintiffs in their Supplemental Evidence. Rather, State Farm’s  Reply seeks to offer further argument in support of State Farm’s incorrect contention that the inflation coverage provisions of the subject policy are “not relevant” to the current litigation. As shown in Plaintiffs’ Motion, the inflation coverage provisions of the subject policy are relevant to Plaintiffs’ claims because Plaintiffs allege State Farm is actively misrepresenting the amount of available coverage under the subject policy to its insureds…

The point raised by Plaintiffs’ Supplemental Evidence is that, contrary to State Farm’s inaccurate suggestion to this Honorable Court in its Response to Plaintiffs’ Motion, there is no such animal as the “Inflation Coverage Index”…Those words in the State Farm policy merely refer to an inflation index, the source of which is not identified in the subject policy of insurance.

State Farm further tries to confuse the issues by suggesting in its Response that Plaintiffs have somehow offered a “new argument” in their Supplemental Evidence. Such is not the case. Plaintiffs’ argument today is the same as it was when they filed their motion:  There are two numbers that must be utilized to calculate inflation coverage under the policy, a numerator and a denominator. The denominator for the formula is easy – it is a distinct figure set forth on the Dec Page of the subject policy. The question that is not as easy to resolve, because State Farm’s policy fails to identify which source of inflation rate indexes is to be utilized for calculating inflation coverage – it merely refers to an inflation index, is what the numerator should be.

Politz v Nationwide

Counsel for Mrs. Politz  filed a Notice of Issuance of Subpoena to Produce Documents, Information or Objects seeking additional information on Dr. Webb’s qualifications and related experience, for example:

A copy of any “learned treatise” (as per Federal Rule of Evidence 803(18)), any medical article, textbook, journal or other authoritative source referenced in any report which you have given in the above-captioned case, or upon which you have relied, or may reasonably expect to rely, in offering opinions in the above-captioned case (include a copy of the title page, table of contents, and all relevant sections of said document).

A copy of your prior testimony list for the last four (4) years.

A copy of any transcripts from any depositions you have ever given (whether as an
expert, party, or other witness).

Mrs. Politz is the poster child for the sequence described by Nationwide at the Corban Oral Arguments before the Mississippi Supreme Court:

MR. LANDAU: If – again, we wouldn’t pay a dime for things where we can carry our burden, which is right there in the policy, of showing that the loss was caused concurrently –

JUSTICE PIERCE: I’m giving you — the example is 95 percent of the home is destroyed, the flood comes in and gets the other five percent, and you know that.

Does your interpretation of the word “sequence” mean you pay zero?

MR. LANDAU: Yes, your Honor.

SLABBED reader CLS posted a related comment on the Allstate Finance Board:

“Court documents and testimony show that Dell employees KNEW that they were NOT ALLOWED to sell cameras UNDER the CONTRACT that COVERED Dell’s GOVERNMENT SALES.

E-mail messages show Dell officials noting the PROHIBITION and trying to come up with NAMES other than “CAMERAS” to DESCRIBE the equipment they wanted to sell to New Orleans, Baton Rouge and others. They came up with “SURVEILLANCE MODULE” and “EYEBALL.”

Emphasis added – change a few WORDS and the story is the same. nowdoucit?

Do you see it?

Dell State Farm, Nationwide, Allstate, USAA, and employees KNEW that they were NOT ALLOWED to sell cameras bill wind damge to the National Flood Insurance Program UNDER the [WYO] CONTRACT that COVERED Dell’s the Company’s sales and claims handling of the GOVERNMENT SALES Flood Insurance Program…

Great catch, CLS!

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