Federal District Court Judge offers tutorial – proof of loss and segregation of damages

Intended as a tutorial or not, Louisiana Federal District Court Judge Sarah Vance wrote one in her pick ’em up – put ’em down examination of the case law on proof of loss and segregation of damages.  Follow her through the process that leads to an insurer must also make a specific showing of what damage was caused by the excluded cause. (Order and Reasons Imperial Trading v Travelers )

The plaintiffs in this case are the owners and lessees of commercial properties that were damaged during Hurricane Katrina. At the time of the hurricane, the properties in question were insured by defendant Travelers Property Casualty Company of America. Plaintiffs submitted a claim to Travelers shortly after the hurricane, and Travelers advanced plaintiffs $1 million for the covered losses to one property on September 25, 2005.  Plaintiffs claim that Travelers failed to participate in the adjustment process in good faith after that point, reimbursing plaintiffs for portions of the covered loss in small increments over the following year but denying coverage for several claims falling under the coverage of the policy.

The plaintiff’s claim at issue in this order is for a loss of more than $8,000,000.  Both parties filed motions for partial summary judgment – plaintiffs’ as to burdens of proof and segregating damages; defendant’s as to plaintiffs’ claim for damages to contents.

The parties agree that such stock was covered by the insurance policy and that it was damaged. The policy notes that the insurer “will pay for direct physical loss or damage to Covered Property caused by or resulting from a Covered Cause of Loss.” “Covered Cause of Loss” is defined as “risks of direct physical loss” unless the loss falls into a particular exclusion.  “Stock” is included among the Covered Property section, and is defined elsewhere as “merchandise held in storage for sale, raw materials and inprocess or finished goods, including supplies used in their packing or shipping.”


The Lesson: Who bears the burden of segregating covered from non-covered losses once and insurer shows that an exclusion applies to some loss? Continue reading “Federal District Court Judge offers tutorial – proof of loss and segregation of damages”

With Post Katrina Mental Health on my mind

Katrina claimed another person this past Monday, at the railroad crossing not far from the street where I plan to rebuild:

The death of a pedestrian found at a Waveland railroad crossing early Monday has been ruled a suicide, authorities said.

Waveland Police Chief James Varnell said Joan Edna Murphy, 54, of Molokai Village in Diamondhead, was dead when public-safety workers arrived at the train crossing near Waveland Avenue. Murphy was struck by an eastbound freight train.

A CSX Railroad employee notified authorities seven minutes after midnight. Police, fire rescue personnel and an ambulance crew responded. Continue reading “With Post Katrina Mental Health on my mind”

Some folks were Slabbed by Katrina. Slabbed by Sugar??

Well folks I’m not quite certain what to say except the felony of the day here at slabbed is buggery which also reminds me of what insurers did to the people here after Katrina. The Charlotte Observer has the story:

A Conway, S.C., woman who had video surveillance of a man having sexual intercourse with one of her horses said she found the suspect behind her barn Monday night and pointed a shotgun at his head until police arrived and arrested him.

Rodell Vereen, 50, of Longs, is charged with buggery and trespassing after Barbara Kenley, who owns Lazy B Stables on Coates Road in the Wampee section of Horry County, told officers she had video of the suspect having sex with a horse then wanted to catch him at her barn.

“That stable was my getaway, my stress relief,” said Kenley, who has owned the stable for 20 years. “Everybody has a place they like to go to get away. Now it is totally destroyed. It is the only thing I have in life.”

Kodrin v State Farm: a Writ with its wits about it

Roof to the Kodrin property (Redmann website) The roof was found 1000 feet from where the property stood. Wind blowing in that direction preceded the arrival of flood water when wind was blowing in the opposite direction. The force of water entering the property was not strong enough to have moved the roof from where it landed.

Sop caught the breaking news Kodrins take the 5th to the Supremes last week and, wanting to know more about the Writ, I picked up on the invitation of Kodrin’s Counsel and made a trip to the Redmann Law website.

Kodrin, much to my surprise, is not petitioning the Court to hear insurance issues.  Instead,  Kodrin raises two questions about the federal authory over state law.  Obviously the underlying issues are about state insurance law but the question Kodrin presents are clearly about the extent of any related federal authority, if any authority at all:

  • The court of appeals ruled that under Louisiana law as long as an insurer relies upon its own engineer’s opinion that petitioners’ loss of their home from Hurricane Katrina was not covered under their homeowners’ policy because it was flood-caused rather than wind-driven, it is not acting in bad faith and cannot be assessed extra damages and attorney’s fees under Louisiana law when it wrongfully denies coverage. Does this result overturn settled Louisiana law which penalizes an insurer who acts in bad faith in denying coverage even when it relies upon its own engineer’s opinion in doing so, creating unprincipled federal common law on the subject and subverting the policies of comity and federalism announced by this Court in Erie R. Co. v. Tompkins, 304 U.S. 65(1938)?
  • Did the court of appeals nullify petitioners’ right to a jury trial by usurping the jury’s finding that respondent had acted in bad faith when it delayed deciding about whether petitioners’ homeowners’ policy would cover the loss of their home and then eventually denied coverage for the loss as flood-caused rather than wind-driven?

Skadden Arps attorney Shelia Birnbaum represented State Farm before the Court in Campbell and  figured prominently in State Farm’s settlement with the Scruggs Katrina Group.  Her name came to mind when I opened a State Farm engineer’s report you really could write on a napkin.                 Continue reading “Kodrin v State Farm: a Writ with its wits about it”