We will not now allow defendant to raise as a defense plaintiff’s failure to perform an act which defendant itself greatly hindered plaintiff from performing

Admittedly, I can’t hold my own with the comments here and here on SLABBED this morning; but, I’ve read about  plaintiffs that were hindered from performing the act and just plain f%*&@#.

I’ll also admit that I lifted the title from a line in Merlin’s new post and that Fowler v State Farm provided my introduction to the hindered act:

In the simplest terms, State Farm cannot refuse to pay the funds due and owing under the policy, then insist that Plaintiffs rebuild before they are entitled to sue for recovery of the replacement costs.

Most gulf coast residents simply do not have the financial resources to rebuild an entire home to completion without the benefit of the insurance benefits due from their homeowner’s insurer. State Farm could greatly reduce its exposure following hurricanes by simply denying coverage, then insisting that the maximum recovery is the actual caSh value Wlder the policy – normally significantly less than replacement costs – simply because the homeowner hasn’t completed rebuilding the home, which they simply can’t afford to do without the insurance proceeds State Farm withholds.

Homeowners are not required to do such a vain and useless thing; they aren’t required to incur the expense of rebuilding their home in the hope and expectation that State Farm would then reimburse them for full replacement costs under the policy, particularly where, as here, State Farm has already denied any responsibility under the policy.

Judge Ozerden subsequently issued the order that f%*&@# Fowler:

Because it is undisputed that Plaintiffs have not rebuilt their property, evidence of or reference to “replacement cost” is irrelevant and speculative, and therefore inadmissible. See Fed. R. Evid. 401, 402. The probative value of any such evidence is further substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. See Fed. R. Evid. 403.

State Farm’s Motion in Limine No. 12 will be granted. Plaintiffs will be prohibited from mentioning, submitting evidence, or eliciting testimony regarding “replacement cost,” or estimating the amount it would cost to replace or rebuild their property.

Maybe Fowler can return the favor one day.  It appears his claim meets the criteria of Judge Senter’s Order in the Rigsby qui tam.

Merlin’s post, however, was inspired by a Def Leppard concert and I don’t want to spoil his story by taking more than these paragraphs:

In short, defendant’s failure to pay on the claim hindered, and quite possibly even prevented, plaintiff from complying with her obligation to repair or replace the building. Had defendant immediately paid in good faith the actual cash value of the loss, holding the additional amount due under the replacement cost provision in reserve until the replacement was made or contracted for, or had otherwise worked with plaintiff to insure her financial ability to immediately proceed with the replacement or repair, a different result might be called for.

However, defendant did not work with plaintiff to promptly pay the claim and enable her to repair or replace the building; rather, it did as much as possible to hinder plaintiff and delay or prevent the payment of the claim. We will not now allow defendant to raise as a defense plaintiff’s failure to perform an act which defendant itself greatly hindered plaintiff from performing…

For the above-stated reasons, we conclude that the trial court properly determined that plaintiff was excused from performing her obligation under the policy to repair or replace the building due to defendant’s dilatory tactics.”

Chip has citations and music to inform  a discussion of dilatory tactics – and I suppose that Adult Emporium over in Mandeville also sells them.

2 thoughts on “We will not now allow defendant to raise as a defense plaintiff’s failure to perform an act which defendant itself greatly hindered plaintiff from performing”

  1. Judge Lemmon was made aware of several La. cases right on point and in one Allstate case she proceeded to ignore them and limited the plaintiff to ACV.

    Another case of a judge wilfully ignoring the law and defying common sense and logic with his/her ruling.

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