Closing the barn door after the horse is out does not cure the original violation – Bossier v State Farm

To read State Farm’s response, one would think that it was mere coincidence that “undersigned [State Farm] counsel discovered the omission” of documents on August 3, 2009, just hours after the subject motion was filed by the Plaintiff.

Not knowing Bossier’s counsel, Judy Guice, I can’t say for certain when she developed her eagle eye, only that she has one and it is focused on State Farm’s counsel:

Indeed, State Farm’s counsel not once, in its response or in its letter to the Court of August 3, takes responsibility for withholding the ordered documents until after Plaintiff’s Motion to Show Cause…

Plaintiff should not be required to have his counsel’s time spent on checking and double checking State Farm’s work to ensure that Court orders are complied with.

That this strategy is intentional is obvious by the not only unapologetic but hostile response received from opposing counsel when discrepancies and omissions are pointed out…

Not only does Bossier’s Reply in Support of Motion for Order to Show Cause for Failure to Follow Court Order take State Farm’s counsel to task, Guice holds the Court’s feet to the fire:

This Court has issued death knell sanctions against plaintiffs for allegedly failing to answer discovery and comply with court orders concerning discovery. See, e.g., Prestia v. USF&G, Civil Action No. 1:08-cv-1432-LG-RHW at ECF 38 and 39. Defendant has shown no reason why substantial sanctions should not be levied against it for disobeying a valid order of this Court.

Just in case the Court missed the point, two days later Bossier filed an Application for Review of, and Objection to, August 10, 2009, Order of U.S. Magistrate Judge:

The Magistrate Judge’s order of August 10, 2009, concerns additional documents reviewed in camera that were subject the Magistrate’s order of June 5, 2009, but not provided to the Court pursuant to the order until after Plaintiff filed a Motion to Show Cause [75]. These documents apparently relate to communications between State Farm individuals and attorneys hired by State Farm who are not litigation counsel in this case, for the time period between March 10, 2008 and April 25, 2008.

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…

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 badfaith 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).

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

Given this testimony, it is critical to Plaintiff’s claims for contractual and punitive damages that any and all evidence relating to materials furnished to State Farm and/or Terry Blalock and, in particular, the affidavit of Joseph Ziz who witnessed the destruction of Plaintiff’s substantial outbuilding prior to the arrival of water, be discovered. If Blalock rejected this affidavit in his
refusal to pay for the outbuilding prior to filing suit, Plaintiff is entitled to know why.

Given the gaps in documentation that exist under the Magistrate Judge’s order, Plaintiff is unable to determine what evidence was considered by Blalock. In addition, Plaintiff is entitled to discover the basis for State Farm’s supplemental payment of approximately $13,000.00 prior to the time suit was filed and why it did not pay at that time additional damages, including for the loss of the outbuilding. The Magistrate Judge was manifestly in error in shielding these documents from discovery.

Moreover, the documents permitted to be withheld by the Magistrate Judge include relevant, non-privileged communications between Terry Blalock and Goodloe Lewis. In 30(b)(6) deposition testimony of State Farm, via designee Terry Blalock, State Farm testified that it would consider eye-witness accounts of wind damage in deciding whether to pay claims.

Like Bossier, SLABBED has an interest in who saw what in the Bossier’s  neighborhood as it is proving to be a hot spot for claims disputes despite it’s distance from the Gulf.  A footnote in the brief addresses this point:

Pages from Bossier 8 19

Multiple eye-witnesses apparently exist in this neighborhood, none of which have been identified by State Farm despite its knowledge of same. For example, the McIntosh home is lessthan two miles from Mr. Bossier’s home. See, Exhibit “A” attached hereto. McIntosh neighbors saw homes “blown apart” as did other neighbors whose names have been obliterated by State Farm from claims files. See, Application for Review of and Objection to, June 5, 2009, Order of United States Magistrate Judge, at ECF #61-2.

Bossier is proving Katrina litigation “is a small world” – barns and all!

3 thoughts on “Closing the barn door after the horse is out does not cure the original violation – Bossier v State Farm”

  1. Bossier’s counsel is pointing out an endemic abuse in this court that persisted throughout the entire Katrina litigation. The cure will not come from chastising; a formal complaint needs to be lodged.

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