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.
State Farm’s engineer somehow managed to spread an I-saw-nothing-therefore-I-know-nothing-with-certainty determination over two pages. As incredible a feat as that is, nothing is insufficient to prove cause of loss.
Basic math and basic law required State Farm to pay the Kodrin’s claim. However, their claim was denied.
A jury looked at the evidence and saw what the engineer reported – nothing. Instructed on the basic law that applied, the jury determined the Kodrin’s claim should be paid. The jury then applied basic math and the law and determined 0 proof = 0 reason for denial = bad faith x law = additional award to the Kodrins.
In a calculated move, State Farm took the jury’s decision to the Fifth Circuit and there the justices recalculated the case as 0 + 0 = 1 with 1= jury decision and determined this added up to 0 – 1=0 thus the law of the State of Louisiana was not applied.
The Kodrin’s asked the Fifth Circuit to reconsider; but, the Fifth declined – a decision that only makes sense if one understands the Justices had not considered the law of the State of Louisiana in their decision, consequently, they could not reconsider what they had never considered.
It is well established that individuals with disabilities develop coping strategies. However, oral arguments can only compensate for dyslexia. Dyscalculia requires a different set of compensating strategies but the Fifth Circuit needs just one – a reminder that the laws of math are beyond their authority.
The Kodrin’s Writ to the Supreme Court has it wits about it – the questions posed address only the authority the Fifth had to uphold the established Law of the State of Louisiana and Constitution.
The Constitutionally endowed right of a trial by jury and the primacy of state law are so fundamental that the greatest barrier the Kodrin’s Petition faces may prove to be anyone believing the Fifth Circuit could reach a decision contrary to either.
Regardless of what one thinks about Mississippi’s Supreme Court, the Justices clearly had read the briefs filed in Corban v USAA and understood Oral Arguments as the opportunity to ask questions for clarification, including the basis for calculation, leaving the math to the jury.
The Fifth Circuit, on the other hand, may need to hire a reader to ensure members comprehend the issues before attempting to reach a decision. Likewise, Court’s the best coping strategy to compensate for the dyscalculia that resulted in their convoluted decision in Kodrin is fidelity to the primacy of state law and the Constitution.