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.                

Kodrin sf engineer report

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.

8 thoughts on “Kodrin v State Farm: a Writ with its wits about it”

  1. I’ll say it once again– unfortunately, the Kodrins’ Writ has almost no chance of being granted. I commend the Kodrin team for framing the issue as an Eerie court gone awry. As I have said on this site multiple times, federal courts here in Louisiana have abused and overstpped their authority by attempting to “make law” and repeatedly failing to follow well accepted and embedded principles of Louisiana law.

    However, the U.S.Supreme Court is going to look at the Kodrin case as a case where the 5th Circuit found manifest error in the jury’s conclusion of bad faith, nothing more, nothing less. I would be shocked if the Supremes looked at this case from a constitutional perspective.

    While we can debate the merits of the 5th Circuit’s finding and certainly agree the 5th was overly active and likely wrong, this is just not the kind of case the U.S. Supreme Court tends to accept Writs on.

  2. Actually, NRB, your earlier comment is the reason for this second post on the Kodrin’s Writ.

    I just repaired the link to the Writ in this post, btw.

    Did you notice there was Co-counsel listed who has a specialized practice in this area? http://www.certworthy.com/about.htm

    Obviously, I can not read with your lawyer eyes, so could you please point me to the “manifest jury error” identified by the 5th?

  3. Basically, a jury’s factual findings are subject to a “manifest error” review on appeal. This means that the 5th Circuit may not substitute is findings of fact for that of the jury’s findings, unless it determines the jury committed manifest error. Outside of the 5th Circuit, this a very difficult and high standard for an appellant (State Farm) to meet. In the Kodrin case, the 5th Circuit simply said “we don’t see record evidence of bad faith and thus, we are fidning manifest error.”

    I unfortunately had the La. 4th Circuit do the same thing to me in a State Farm automobile case pre- Katrina. The Judge who wrote the opinion susbtituted his findings of fact on liability for the accident and zeroed my client. The La. Supreme Court of course refused writs.

    In contrast to the heightened and hence, more difficult standard of manifest error, legal rulings may be addressed de novo. This means the appellate court can all but ignore what the trial court did and make its own rulings.

    In sum, I think the constitutional issues will not sound well with the Supremes. Also, as indicated previously, the Kodrin case does not have any real implications for Joe Blow sitting in Idaho. The Supremes are reluctant to take cases that have very limited or narrow impacts regardless of the merit.

  4. It shouldn’t matter if the court addressed it with the judges standing on their heads, the evidence was there and the jury saw it…on second thought maybe they were

  5. Nowdy, after just reading Dennis P. Derrick, Esquire’s, VERY IMPRESSIVE Resume, citing he is:

    “…a seasoned attorney with an established appellate practice in Massachusetts since 1977,”

    I have more hope than ever for Mr. & Mrs. Kodrin. They deserve the bad faith damages awarded to them as a matter of law – nobody was doing them any favors by giving those damages to them. Frankly, I believe “Joe in Idaho” would be greatly affected if a jury of his peers awarded him punitive (or bad faith) damages only to have an Appellate Court take them away from him.

    So kudos to Attorneys Redmann and Derrick and I hope they kick major ass in their continuing endeavor. We need more attorneys in this world that possess just an ounce of their stamina and faith in the judiicial system….win, lose or draw.


  6. Dear Mr. Redmann: It’s really too bad we can’t “clone” million of attys. like you !!

    You said it best when you said what’s true:

    “…And, under basic insurance law, whatever State Farm and their expert did not know, they are/were required to assume facts beneficial to the insured..”

    Now there’s a concept that’s obviously foreign to SF in the instant cause (and many others, of course).

    I’ve said it once and I’ll say it again, the Kodrins are so lucky to have you, your Firm and the over-the-top qualified Appellate Counsel, by their side. 🙂


  7. Ms. Heflin – I’m sorry we can’t clone millions of appreciative people like YOU. Maybe a few judges like you, too. 😉 Thanks so much for your very kind and supportive words; they mean a lot.

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