Judge Senter modifies Magistrate’s Order in part – Bossier v State Farm

Plaintiff does not have carte blanche in the discovery process (and Plaintiff’s thoroughness in the pursuit of information may not equate to discoverability), but at the same time Defendant should not unilaterally determine that certain material is restricted.

Judge Senter’s Order granted the Bossier’s motion in part and modified Magistrate Judge Walker’s order in part.  However, what he means by, “The issues in this case appear to be no different from those in other typical Hurricane Katrina lawsuits” is very different from what a good many others would mean by those same words – and that part confounds the total impact of the Order.

For example, when Judge Senter repeats and expands on this position again later, he states:

In light of the Court’s observation that this case is no different from other Hurricane Katrina insurance litigation, the remainder of Plaintiff’s discovery requests are overly broad…

Yet, what he sees as “overly broad,”  others might see as merely scratching the surface :

“meetings [and other events] of any description”; documents (and other items) “of any sort whatsoever” related, inter alia, to handling “Hurricane Katrina claims” and “wind vs. water claims”; and the handling of NFIP claims (when there was no flood insurance in this case)…

Likewise, what he sees as unreasonable, some would say is the only reasonable way to discover why the typical Hurricane Katrina insurance lawsuit includes property near the water with no flood insurance:

…the Magistrate Judge required State Farm “to produce those documents containing [Defendant’s] directives, guidelines, policies and procedures for handling Hurricane Katrina claims in general or Plaintiff’s claim specifically.” Anything beyond, including the formulation of those directives, guidelines, policies, and procedures, is unreasonable.

However, the modification Judge Senter made was to a portion of Walker’s Order that was in dire need of correction:

In his interrogatories and request for production of documents propounded to Defendant, Plaintiff sought information relating to claims investigated by Defendant within ½ mile of Plaintiff’s property. While it is true that the Court “has not adopted a per se ½ mile radius as a presumptively reasonable area within which an insurer must produce claims information as to its other insureds,”  this particular distance has been used in other cases on this Court’s docket as a benchmark for discoverable information.

Defendant’s response to Plaintiff’s  motion merely recites that the 1/10 mile distance it chose “should be sufficient.” Defendant also claims that cases on this Court’s docket cited by Plaintiff to allow discovery of other claims involving ½ mile are not precedent, yet at the same time Defendant in its response relies on one of the cases on the docket to support its position in connection with another issue. (Marion v. State Farm Fire…)

This Court will not go so far as to adopt ½ mile as an absolute distance entitling Plaintiff to information related to other claims. However, the Magistrate Judge’s order provides no basisfor accepting Defendant’s unilateral decision to limit Plaintiff to the 1/10 mile figure, and it should not matter how many claims fall within the latter distance if the former may also be “reasonably calculated to lead to the discovery of admissible evidence.” Discovery of information beyond the distance chosen by Defendant is also not necessarily “unreasonably cumulative or duplicative,” nor “obtainable from some other source that is more convenient, less burdensome, or less expensive.”

Therefore, this matter is referred to the Magistrate Judge to revisit Plaintiff’s interrogatories 1 and 21, and requests for production 3 and 7, to the extent they may be implicated and consistent with the above comments as well as the specific interrogatories/requests made in this case, not others. Again, this Court is not mandating strict adherence to the ½ mile distance, and consideration may be given to other factors governed by the standards of the discovery rules and the particular circumstances surrounding Plaintiff’s property.

I’d call that a give-’em-enough-rope modification myself.

You can count on State Farm to come up with “particular circumstances”, that’s a given.  The question is how Judge Walker will respond – the night has a 1000 eyes and, in this case, some belong to everyone involved the litigation of claims on property within a 1/2 mile of Bossier’s and others are likely the eyes of those involved in cases that had a policyholder living near a body of water with no flood insurance.

The issues in this case appear to be no different from those in other typical Hurricane Katrina insurance lawsuits. There was no flood insurance policy in effect on Plaintiff’s property at the time of Hurricane Katrina.

Judge Senter’s statement begs the question why!

3 thoughts on “Judge Senter modifies Magistrate’s Order in part – Bossier v State Farm”

  1. Nowdy instead of wondering why the Bossiers had no flood insurance my question is why is that salient at all as they are trying to collect on their all perils policy issued by State Farm.

    Senter is right that this case is no different from any other Katrina case where State Farm, hosed it’s all perils policyholders – he gets off in the weeds IMHO when he brings other seperate and distinct contracts or lack thereof into the equation.

    sop

  2. It’s salient Sop because so many people with property on some body of water did not have flood insurance – not just Bossier or one or two here and a couple more there but people all up and down the Coast.

    Policyholders have had little success holding their agents accountable for assuring them the company’s “all perils” policy was all they needed.

    Various investigations of claims handling following Katrina have pointed out the WYO arrangement is a conflict of interest – so all companys have the same conflict and all company’s have the same bait ‘n switch solution.

    Dumping wind damage claims on the NFIP offset the loss from dumping the commitment to sell flood coverage (and selling a company’s “all peril” as all that was needed.)

    What you get is the insurance version of “original sin” complete with snake.

  3. I understand that Nowdy, we too were told we didn’t need flood insurance by our State Farm agent beacause our property was not in the flood plain according to the old maps.

    But that fact has no bearing on recoveries under the all perils policy people like the Bossiers were sold.

    Sup disagrees with me on this and being on the inside of the industry his perspective is especially valuable but I’ve always operated under the assumption these agents are sales people not risk managers. I understand that is not the way these agents are portrayed by their industry but if I had followed the advice of my State Farm agent I too would not have had flood coverage.

    Earl Carr has it exactly right, you need flood coverage even if you live in the mountains. The advice agents gave pre Katrina was based strictly on the requirements of the related mortgage, not the risks that were screaming to be managed.

    So people ended up under insured for flood with all perils polciies covering wind that weren’t worth the paper they were written upon. And the taxpayers still ended up getting stuck with the bill.

    sop

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