While I’m waiting on mine with mint and lime, let’s pick up the transcript of the oral arguments in Corban v USAA and go in a different direction than we did in SLABBED Daily yesterday.
Justice Pierce brought up the subject of payment for flood damage with both parties.
JUSTICE PIERCE: Real quick, in your brief, you said that you want to use the flood damage receipt by the Corbans to meet your burden [of proof]. How do you propose to do that?
MR. COPELAND: Well, when we talked about this before, one point that did not come up – it came up, but not at the same time – it is, as we clearly accept, if the Corbans come in on the structure — keep this on the structure. If the Corbans come in and say, ‘We have suffered a direct physical loss, ‘ and it’s a request for admission, we would readily admit that. We know they did. And it’s a tragedy that it happened. They can sit back down.
So really we come in with the burden of proof with that established, as we accept the burden of proof. And where that is an issue, and where it comes up in the courtroom is when you get experts that want to say that there was no flood damage. And it simply does not benefit the pursuit of justice for a party, whether it be USAA or the Corbans, or anyone else, to make a claim and accept $350,000 in flood damage, and then put on a paid witness to say that that did not occur. That simply does not benefit the trying to find what’s true and right.
There has to be a name for what Mr. Copeland is describing other than “slimball”. Let’s see if Judy Guice comes up with it when she answers the same question.
JUSTICE PIERCE: Ms. Guice?
MS. GUICE: Yes, your Honor?
JUSTICE PIERCE: If you can touch on the issue on the flood insurance and how that would play out in the trial below, and I would like to hear your take on it.
MS. GUICE: Yes, your Honor. I appreciate the opportunity to do that.
What the insurance industry is trying to do is relieve itself of the burden of proof by the fact that flood insurance payments were made to the Corbans and others similarly situated.
That is an improper avenue for them to follow. The record in this case is clear of a couple of things that are important.
First, that the flood insurance was paid by USAA. They were the right your wrong carrier that made the decision that they could pay flood insurance to the Corbans. So, number one, they’re acting in their own interest in making that determination.
They determined they had enough evidence immediately after the storm to pay the flood insurance, even though they claimed they didn’t know what the cause was, and therefore couldn’t pay any wind damage.
But the other important and perhaps most important factor is that the National Flood Insurance Program determined early on that it would resolve all doubts concerning coverage in favor of the insured, exactly what we’re asking the Court to declare the law of Mississippi to be here.
And if it is of any probative value, that under 403 it should be excluded. It should be excluded because, number one, it’s unduly prejudicial. There is no direct link between the acceptance of flood proceeds under these circumstances and any fact in issue.
So if the doubts are resolved by the flood carriers, and properly so in favor of coverage, and if USAA is the company deciding to make the payments, then how in the world does the acceptance of flood proceeds under an insurance policy that the Corbans have paid for, for all these years, where they don’t have to sign a proof of loss, the check is given to them when they are homeless, when they are trying to determine how they can change an office into living space, where they are trying to determine how to make repairs to their home, and where USAA is saying, “We still have to investigate the wind loss,” your Honor, I would submit that it is of no prohibitive value.
Number two, it should be excluded under 403 because it would constitute an undue waste of time because then we would have to put in all this proof about how USAA did it based on their own self-interest at heart, how the government accounting office has issued reports saying that there was insufficient proof after Hurricane Katrina for payments to be made, making recommendations that there are conflicts of interest under circumstances such as where USAA has both the homeowners and the flood. All of that would have to come in —
JUSTICE DICKINSON: You’re not saying that — you’re not saying that if one of your witnesses at trial testifies, one of your experts or Dr. Corban testifies there was no flood damage to that home, that the Defendant doesn’t have a right to say, ‘Well, you accepted flood insurance benefits?’ You’re not saying that, are you?
MS. GUICE: No, your Honor, I’m not.
JUSTICE DICKINSON: Okay. Well, I understood — maybe I understood Mr. Copeland incorrectly, but I understood him to say they don’t plan to use that, unless it’s a proper predicate is laid, to me meaning that it’s used for impeachment or some appropriate purpose; that he’s not going to stand up and just say that.
MS. GUICE: Well, but he never told us what he thought a proper predicate would be. And we do know from the motion he filed and the pleadings that were filed in the case that he has advocated that it is a judicial admission that the insurance company could talk about it in opening statements. That’s in the record, your Honor.
JUSTICE DICKINSON: So you’re saying his position today is a new one?
MS. GUICE: Yes, sir, it is.
Mrs. Guice explained but gave this practice no name; so, I suppose, “slimball” it is.