Bossier following compass – Agreed Order provides map

Bossier’s compass points toward the November trial:

…partial summary judgment…will streamline the presentation of the case and clarify the issues for the jury.

Judge Walker’s recent Agreed Order, on the other hand, gives Bossier a map – leading me to conclude there are times when:

if you don’t give State Farm an inch, the Company will give you a mile.

Of course, there is also the distinct possibility of Judge Senter’s Order modifying the related portion of an earlier Order of Magistrate Judge Walker had something to do with that:

This cause of action is between Plaintiff and Defendant arising under a direct contractual relationship, with Defendant owing Plaintiff certain obligations, including the implied duty of good faith and fair dealing, and the legal responsibility to fairly investigate and evaluate his claims and respond appropriately.

Bossier map
A google map created to show the agreed to boundaries stated in Judge Walker's Order with the location of the Bossier property added and the relative distance to the McIntosh property noted.

Whatever the reason, the outcome was clear  – Bossier’s counsel and counsel for State Farm were able to reach an agreement:

after referral from the District Court regarding the production of other State Farm claim files near the Bossier property, and the Court having discussed same with the parties, and now being advised that the parties have reached an agreement as to the appropriate area from which the other claim files will be selected now enters this Agreed Order.

The appropriate area agreed to by the parties is bordered on the west by Sharon Hills Drive; north by Brasher Road; and east by Waters View Drive.  The northern shore of the Back Bay of Biloxi provides the border to the south.

Judge Walker’s Order indicates he also set some boundaries:

…these other claim files shall be produced within 14 days from September 3, 2009…no fact witness names are to be redacted from any documents contained within these claim files, and that with regard to those claim files previously produced in this action, State Farm is to provide the names of the fact witnesses whose identities were previously redacted…the names of fact witnesses contained in these claim files produced pursuant to this Order are subject to the Protective Order on file in this case and shall remain confidential for use in this litigation only.

Bossier now has both a map and a compass going into the November trial date – and four motions for partial summary judgment pending in addition to the motion for review and sanctions and replies showing on the docket for three of the four:

Reply in Support of Motion for Partial Summary Judgment on Dwelling Extension

Plaintiff’s subject motion deals only with his claim under the dwelling extension coverage of the policy. Nonetheless, however, State Farm “cuts and pastes” 12 pages of boilerplate before arriving at the first kernel of relevance. On page 13 of its response, filed 1,456 days following the loss, State Farm states:

“On August 24, 2009 State Farm, through its counsel, has advised Plaintiff’s counsel that State Farm will unconditionally tender the sum of $77,467.28 for the damage to Plaintiff’s dwelling extension as a homeowners claim payment for the loss of the outbuilding and fence. The check for this amount is being processed and will be mailed to Plaintiff’s counsel within the next few days.”

Given that State Farm could have made this decision on any of the 1,456 days before it did, one must wonder whether the 1,457th day was chosen because it just happened to be the day State Farm’s summary judgment response was due on the subject motion. Far from making the subject motion moot, State Farm’s belated admission constitutes a confession of the subject motion.

Bossier continues with a press on the unpaid building contents and concludes with:

State Farm did not base any denial of the contents claim on insufficient documentation, nor has it ever raised such an issue prior to August 24, 2009.Under the doctrines of waiver, estoppel, and “mend the hold”, State Farm cannot assert a new position to save its defense of no coverage under the policy. As was explained by the United States Supreme Court:

“Where a party gives a reasons for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground, and put his conduct upon another and adifferent consideration. He is not permitted thus to mend his hold. He is estopped from doing it by a settled principle of law.”

The two other replies are quick work for Bossier, just not as quick as these excerpts make them seem:

Defendant misperceives the scope of Plaintiff’s Motion for Partial Summary Judgment Regarding “Accidental Direct Physical Loss.” The scope is twofold: The Hurricane Katrina loss to the home constitutes an “accidental direct physical loss” and all is covered unless State Farm can prove the applicability of a valid exclusion as to any part. The undamaged portion of Plaintiff’s home which was required to be demolished likewise constitutes an “accidental direct physical loss” shifting the burden to State Farm to prove the applicability of a valid exclusion.

In actuality, State Farm demonstrates precisely how the ACC is being misused in Hurricane Katrina litigation to shift the burden of proof under an all risk insurance policy from the insurer to the insured. In this regard, tucked away on the last page of its brief is Defendant’s tired though partially camouflaged argument that Plaintiff must prove the amount of damage caused by wind. This argument is in direct contravention of Mississippi law relating to the burdens ofproof under an all risk policy. Moreover, it is directly contrary to State Farm’s own testimony in this and other cases, as well as the policy language written by State Farm.

Bossier continues to press discovery issues in a Reply in Support of Application for Review of, and objection to, August 10, 2009, Order of United States Magistrate Judge – although the title rivals the reply in length. Actually, there is little to be said at this point that hasn’t been repeatedly stated in the plaintiffs’ attempt to secure a completed discovery prior to trial.

…the Magistrate Judge’s order does not provide sufficient information to determine which of said emails may fall within potentially discoverable categories.

In addition, the Magistrate Judge’s order failing to address attorney’s fees was clearly erroneous and contrary to law. The record reflects the time and effort required to obtain discovery in this case. The subject motion was necessitated when State Farm failed to comply with the Court’s order that State Farm deliver all withheld emails to the Court, requiring yet additional motions. Attorney’s fees and expenses should be awarded, and the Magistrate Judge’s failure to address same is clearly erroneous and contrary to law.

The issue of proper documentation of  privilege logs is so old that it actually predates the filing of Bossier.  There really is no excuse for the Court’s failure to insist State Farm follows the rules – and no justice, either.