Spragins and Mullins launch State Farm’s new Gomer defense strategy hoping it will fly – right over Judge Walker’s head

Gaaw-aawl-ly. Spragins and Mullins come off like two Goobers.  They must think Judge Walker is dumb as rock to try the Gomer Strategy in cases with plaintiffs represented by Deborah Trotter or Judy Guice; but, that’s exactly what shows on the dockets of  Lizana v State Farm and Montet v State Farm and pops up on Bossier v State Farm, too. GFL!

Let’s start with Spragins’ Gomer Rebuttal to Opposition re: State Farm motions for a protective order in Lizanna and Montet :

The plaintiffs have responded to State Farm Fire’s motion for a protective order with the concern that the proposed protective order is a “blanket protective order.”

Paragraph 4 of the proposed Consent Protective Order clearly states that “confidential information” may be so designated on the face of the document. State Farm Fire has produced untold numbers of pages of documents in Katrina litigation marked “confidential,” and never had such designations challenged.

The proposed Consent Protective Order is a duplicate of hundreds of such orders entered in prior and current Katrina cases, both by consent and over objection. The response of the plaintiffs presents no new argument or information suggesting that in this particular case the proposed Consent Protective Order is in any way inappropriate.

Obviously thinking Walker can’t tell a hood ornament from a carburetor, State Farm offers the following offers the following as a concession:

Recently, in the case styled O’Keefe, et al v. State Farm Fire and Casualty Co., et al, and having Civil Action Number 1:08cv600-HSO-LRA, United States Magistrate Judge Anderson once again found that good cause exists for a protective order in Katrina litigation against State Farm. The finding of good cause was echoed in the protective order issued in D. Neil Harris and Assoc., P.A., et al, v .State Farm Fire and Cas. Co., et al, Civil Action Number 1:08cv1489-HSOMTP, as it has been in numerous Katrina cases in which State Farm Fire has been a defendant.

In any event, Judge Anderson also held that the protective order advanced by State Farm in O’Keefe was overly broad, and in her order dated July 2, 2009, directed the O’Keefes’ counsel to submit plaintiffs’ proposed protective order for entry.

In acknowledgment of the O’Keefe ruling, State Farm Fire attaches hereto as Exhibit C an amended proposed protective order. The order is essentially identical to that entered in O’Keefe, except that language has been added to Paragraphs 1 and 4. The additional language is intended to allow State Farm Fire to indicate the confidential nature of documents by labeling them as “Trade Secret Materials.” Said changes will, in the event such materials are produced in the instant litigation, simply decrease the expense and increase the efficiency of producing said
materials.

The amended proposed protective order attached hereto also addresses plaintiffs’ concerns of a “blanket protective order,” in that it more clearly delineates the procedure for marking protected documents as confidential.

Finally, the proposed protective order contains no directive that the documents listed in State Farm Fire’s motion will not be produced. It instead allows the documents to be produced and available to the plaintiffs subject to the reasonable restrictions that protect State Farm Fire’s proprietary interests as set forth in State Farm Fire’s motion for the protective order. Accordingly, plaintiffs’ cries that they will not have the documents available are nothing more than a red herring.

Surprise, surprise, surprise! The Rebuttal totally ignores plaintiff”s argument in the citation-filled Opposition filed in both cases.  The SLABBED post If you don’t stand for something, you’ll fall for anything reports on Trotter’s Opposition in Mintet and State Farm has secrets but not for long details her Opposition in Lizana.

Meanwhile, the other Goober shows cause by asking Judge Walker to believe it took State Farm the entire two months he was sorting email messages in camera to realize some were left out – conveniently, the very ones Guice listed in Bossier’s Motion to Show Cause.

On August 3, 2009, undersigned counsel sent a letter to the Court (copying Plaintiff’s counsel) and explained that emails within the homeowners claim file were inadvertently left out of the emails originally submitted to the Court for in camera review. See Aug. 3, 2009 Letter (attached as Exhibit A). These emails had a Bates stamp for the homeowners claim file (i.e.”HO”). Once undersigned counsel discovered the omission, it was promptly acknowledged and remedied. Id. at 1.

If Judge Walker lets this Goober turn the Court into a mail reading and sorting service, someone needs to buy him a dress.  Shazam!

Guice didn’t come from Mayberry and she was ready for this Goober with an Application for Review of, and Objection to, July 31, 2009, Order of United State Magistrate Judge because she found protecting from discovery under a claim of “anticipation of litigation” multiple emails generated between March 6,2008, and June 19, 2008, relating to this claim was clearly erroneous and contrary to law.

Gaaw-aawl-ly! It seems a key element in State Farm’s Gomer strategy is one Goober trying to cover the other Goober.

On March 6, 2008, prior to the filing of suit, counsel for Plaintiff notified Scot Spragins, one of State Farm’s attorneys in Hurricane Katrina litigation, of this case in order to “give SF the opportunity to resolve the above matter before filing suit.” At that point and time, Mr. Bossier, whose home was required to be bulldozed due to extensive damage, and whose substantial outbuilding was rendered a slab from the winds of Hurricane Katrina, had been paid only $2,300 from State Farm.

Unbeknownst to Mr. Bossier or his attorney, on April 8, 2008, the claim was sent to State Farm’s special handing unit (SHU) in Hattiesburg. Exhibit 1, portions of claims file, at 0446-HO. The claims file reflects that on April 28, 2008, Daphne Flowers received the file from the “litigation team” and assigned it to claims representative, Shellie Leverett “to review info submitted by Insd Atty, attempt to obtain witness statement and reconcile.” Exhibit 1 at 0446-HO.

Included among the information from the attorney that was to be reviewed was an affidavit from eyewitness Joseph Ziz. This affidavit, dated January 8, 2008, had previously been supplied to State Farm. In said affidavit, Mr. Ziz relates that he saw Mr. Bossier’s substantial outbuilding and fence completely destroyed by wind prior to the arrival of water. See, ECF 82-3.

In the course of her review, Ms. Leverett determined that the amount due Mr. Bossier for undisputed wind damage had been erroneously calculated.

Specifically, State Farm paid to patch a 25 year roof when, in fact, the entire 40 year roof required replacement. Moreover, State Farm paid to replace siding destroyed by the wind based on the cost of wood siding when, in fact, the siding was stucco. The total additional payment was approximately $15.000.00. (Exhibit 2, Leverett depo at 156-57).

Ms. Leverett computed the additional amounts that should be paid and transferred her report, along with the file, to SHU in May 2008. Neither the claims file nor any other documents produced in this case reflect the action taken by SHU during the four to six week period of time in which it had the file prior to issuing payment. The additional payment recommended by Leverett was sent in a check dated June 19, 2008.

Ms. Leverett testified that notwithstanding Mr. Ziz’s affidavit, she did not pay any money for the loss of Mr. Bossier’s dwelling extension or fence because “it was impossible for me to determine how much damage did occur to the fence.”

Specifically, Ms. Leverett agreed that, consistent with State Farm policy, “when it
couldn’t be determined how much wind damage may have occurred, then no
payment would be made.” (Exhibit 2, Leverett depo at 127-33.)

As Guice pointed out in a footnote:

This is of course the complete opposite of what the policy and Mississippi law require. When the cause of loss cannot be determined, State Farm fails to meet its burden of proof and therefore owes for the entirety.

The brief continues with additional evidence of bad faith that shows State Farm has more Goobers per capita than Mayberry in its heyday:

State Farm has now taken a recorded statement of Mr. Ziz and his sworn deposition testimony and has still failed to pay any monies whatsoever for the loss of his dwelling extension or fence. Plaintiff maintains that this failure constitutes bad faith.

Plaintiff also maintains that the blatant “errors” made in the initial claims handling process during which State Farm determined that only $2,300 would be paid for loss that it now admits had a value of approximately $15,000 is also bad faith. Specifically, it took State Farm three years and multiple reviews in order to rectify these errors.

By the time Ms. Leverett got the file, it had been reviewed by team manager Tip Pupua prior to the initial denial, the mediation team from State Farm that participated in mediation with the Department of Insurance, at which State Farm offered nothing, and the so-called State Farm “re-evaluation” process undertaken in conjunction with an agreement with the Department of Insurance.

State Farm relies on the June 2008 additional payment as evidence of State Farm’s “good faith.” See [86] State Farm Memorandum of Law in Support of its Motion for Partial Summary Judgment at 7.

Under the facts of this case, it was clearly erroneous and contrary to law to protect emails relating to State Farm’s additional tender of the $13,561.85 check in 2008 and its refusal to pay for the dwelling extension and fence given the eyewitness affidavit of Mr. Ziz. Where, as here, claims file documents involve the discussion of the claim which subsequently results in litigation for alleged bad faith handling, an anticipation of litigation defense does not apply and cannot be used to shield the documents from discovery. See, Cantrelle Fence and Supply Co., Inc. v. Allstate Ins. Co., 550 So. 2d 1306, 1310 (La.App. 1989). (emphasis added)

The mere fact that attorneys were involved at this particular stage of the claims handling process does not protect the documents from discovery. Plaintiff is entitled to all discovery relating to State Farm’s payment in June 2008 of the additional $13,561.85, the reasons for said payment, the timing of said payment, and why the payment was not made previously. Similarly, Plaintiff is entitled to all discovery relating to State Farm’s intentional refusal to pay for Mr.
Bossier’s dwelling extension and fence despite sworn affidavit testimony from an eyewitness who saw the destruction of same prior to the arrival of water. The Magistrate Judge’s order denying said discovery is clearly erroneous and contrary to law.

Shazam! the moral of this post is that two Goobers with a Gomer strategy is bad faith! (surely Judge Walker will recognize that)

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