The Kodrins Take the 5th to the Supremes

I saw this breaking story on the case of Kodrin v State Farm show up in our Times Picayune RRS feed and immediately recognized the case since we covered it extensively. (here, here, here, and here) It was also the case where I exposed Rossie as a Katrina legal charlatan as his penchant for letting State Farm ghost write his blog finally caught up with him.

All that aside I wish I could get empart some hope that the Kodrin’s appeal to the Supremes will amount to anything other than a quixotic effort, after all we are a policyholder blog. Simply put, while we all know State Farm acted in bad faith in how they adjusted the Kodrin’s wind claim simply knowing that fact is not enough; the evidence must be introduced into the trial record and it is largely missing in Kodrin. The first “here” I linked above is what I think history will judge as the definitive post on the topic of Kodrin and getting bad faith cases past the 5th Circuit and our newer readers will also find out what was missing from the Kodrin equation. Without further commentary on my part following is today’s Times Picayune story on the Kodrin appeal to the US Supreme Court:

A Port Sulphur couple who lost their home in Hurricane Katrina has asked the U.S. Supreme Court to reverse a lower court ruling rejecting their assertion that State Farm Fire & Casualty Co. acted in bad faith when handling their claim.

Judy and Michael Kodrin originally sued in U.S. District Court and won a $356,318 award, which included the full value of their homeowners policy plus additional penalties and attorneys fees.

But a three-judge panel of the U.S. 5th Circuit Court of Appeals threw out the penalties and attorneys fees, reducing the overall award to $117,084, out of which the Kodrins would have to pay their own legal fees if they recover no additional damages.

The 2007 trial proceeding was one of the few State Farm cases in Louisiana to reach a jury.

State Farm said the house was destroyed by flooding and that payments should come from the National Flood Insurance Program. The Kodrins said the house was destroyed by wind, making State Farm liable under the homeowners policy it issued.

The 5th Circuit let stand the jury’s finding that State Farm owed under the homeowner’s policy. But it rejected the conclusion that the insurance giant acted in an “arbitrary and capricious” manner.

At the time, State Farm said it was pleased with the appellate court’s decision.

The Supreme Court receives thousands of appeals each year, but in recent years has accepted fewer than 100 for oral argument. The high court, now in recess, begins its next term in October.

10 thoughts on “The Kodrins Take the 5th to the Supremes”

  1. I just read the Brief – it looks beautiful (from a Legal Secretary’s standpoint)! I see Dr. Hall was the Kodrins’ engineer – he’s such a nice man – and a great Engineer.

    I’m sure I’m not in the minority when I say I hope the Kodrin Appeal is “picked.”

    SHIRLEY

  2. Unfortunately, there is next to zero chance the Writ will be granted. The Supremes rarely touch insurance issues since insurance issues are usually governed by state law and the Supremes don’t like wading into state law issues.

    While I commend the kodrin team for framing the issue as an Eerie court gone awry, the fact is the 5ht basically said “you didnt provide evidence of bad faith” and thus, we are stripping your penalties awards. This is not the type of ruling that will get the Supreme’s attention.

    I have a better suggestion for team Kodrin, lobby Congress to raise diversity jurisdiction to $250,000.00. That way, the 5th Circuit will have less of an opportunity to ignore the law and hand down unfounded legal rulings.

    At the end of the day, the 5th Circuit is the worst, most active Circuit in the country and any plaintiff better heed their ineptness before treading into federal court.

  3. Not at all in the minority, Shirley. I haven’t had a chance to read it; but, as I recall, the case documents were well done but not well argued at the 5th.

  4. Spot on NRB. If you listen to the oral arguments the Kodrin’s attorney was asked point blank where is the bad faith in the trial record and his non answer rivaled Chris Landau’s nonsensical interpretation of ACC in Corban which was punctuated by the statement (and I’m paraphrasing and “at the home office who knows what happened there?”

    Now of course this plays into why State Farm lawyers will take sanctions like in Frught than produce relevant documents.

    In the magic jurisdiction for insurers that is Judge Walker’s court room the Farm is actually aided and abetted in such endeavors which means there will probably never be sustainable bad faith consequences in the form of punis as the plaintiffs have lost that battle before it ever had a chance to start..

    sop

  5. Thank you, John, for putting the very impressive record on the table in such detail.

    I’m going to print and read again, visit your site and then come back here with questions/comment.

  6. Our pleasure John and we hope you stay in touch with us. We write about many cases including those that haven’t worked out and sometimes we have to sort through (in our non lawyer brains) the why behind some of the judicial decisions.

    Sometimes our analysis leads us to be a bit critical as this post illustrates. In case of the Kodrins they have the misfortune of residing in the 5th Circuit which is without doubt not only the most conservative appelate circuit in the country it is also the least consumer friendly IMHO. That said they have sustained bad faith penalties in several cases so to me the key was trying to find the differences in the cases to see what will fly past Edith and her big business loving compadres there and it was from that perspective that drove the subsequent our blogging on the case.

    Like Broussard before you the bad faith is in really manifest in the trial record and as such the Kodrin’s jruy verdict would fly past many other judges that don’t share the same level of affection for corporate defendants as the jurists on the 5th. Unfortunately like Broussard the trial record does not have it laid out the the Nth degree which is the commonality we’ve found in the cases that the 5th has upheld.

    Our hope is to the extent we look closely at these cases we will enable your brothers on the policyholder lawyer bar to have the benefit of the experience.

    Nothing would make us happier than to see the Supremes pick up the case and set the 5th circuit straight on the level of minutia required to prove insurer bad faith. But reality tells me they passed on the opprtunity to correct Edith Jones’ abomination and slaughter of the concept of anti concurrent causation in Leonard thus I hold little hope for the Kodrins.

    We all wish the Kodrins the best of luck and God speed in their recovery.

    sop

  7. Dear Mr. Redmann: Again, I assert that you (and your Firm) did (and continue to do) a great job on behalf of Mr. & Mrs. Kodrin. Sure, maybe statistically it is a “long shot” that the Supreme Court will “pick” the Kodrin case for consideration, but this is where we must rely upon the “…..AND LIBERTY AND JUSTICE FOR ALL…” doctine which has made us the great country that we are today.

    Further, if State Farm had acted in “good faith” from the BEGINNING of this case, the Kodrins (obviously) would never have had to seek legal counsel. State Farm, after buying their “expert” and subsequently denying the Homeowner’s Claim and solely blaming flood, then turning this case into the “Samson v. Goliath” fight you desribed above (i.e., them having 2-3 law firms vs. your small, local Firm), being a sore loser and not paying the jury verdict (hence, the appeal to the 5th Circuit which has now lead to the Writ before the Supreme Court of the United States of America).

    One can only imagine how much State Farm has spent on attorney’s fees to date in the Kodrin case – probably more than their policy limits. No doubt they have a “Reserves Account” established for attorney’s fees – that money’s got to be factored in somewhere in every premium dollar a State Farm insured nationwide pays every day so it’s a mere pittance (and expectation) for them; but IT’S A ONCE IN A LIFETIME EVENT (NIGHTMARE) FOR MR. & MRS. KODRIN. I hope one day they can take comfort and reflect that even though their own insurance company wasn’t there for them when they needed them most, you and your law firm were. are and will be again if they need you. That’s the best compliment a lawyer can get – that and getting paid. :)

    Best wishes,
    SHIRLEY HEFLIN

  8. Slabbed folks, and Ms. Heflin,

    I am grateful for the opportunity to address these matters with you.

    Thank you all for your kind (and prompt!) comments. You (and other readers) are encouraged to do as much homework on this case as you wish, and then ask me anything you’d like about it and/or my handling of it.

    Truth is sunshine and an antiseptic; let only the bad guys fear it!

    Respectfully,

    John W. Redmann
    Counsel for the Kodrins
    http://www.redmannlaw.com

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