Rigsbys respond to Forensics – an impermissible attempt to relitigate issues that were correctly decided in the first place

SLABBED provided the post-hearing briefs – Read ‘em while they’re hot – briefs filed by State Farm, Haag, Forensic, and Rigsbys post-hearing in the Rigsby qui tam – and linked the documents filed by the defendants following Judge Senter’s Order – Evideniary disclosure is Michael Oher of Rigsby qui tam.

Claiming the Forensic motion for clarification is an impermissible attempt to relitigate issues that were correctly decided in the first place, today the Rigsbys filed Relators’ Opposition to Motion of Forensic Analysis & Engineering Corporation for Clarification of Order Denying Motion for Summary Judgment.

Forensic’s Motion to Reconsider should be denied because it merely rehashes the arguments Forensic previously made without pointing to any newly discovered evidence or identifying any manifest error. See also… (“F.R.Civ.P. 59. . . is not a vehicle for a litigant to ask the Court to reconsider adverse decisions it is simply unwilling to accept.”)…

Forensic, like Haag, attempts to hang its hat on the date the McIntosh claim was paid – grasping at a straw man, no doubt encouraged by State Farm.

Forensic argues that, notwithstanding the evidence of its conspiracy, the Relators’ claims against it should be dismissed for the simple reason that Forensic’s involvement in the McIntosh claim began after the flood claim had already been paid. Motion to Reconsider at 3-4. This argument is wrong for several reasons.

First, because the Relators have established an agreement and overt acts performed in furtherance of that agreement, they do no not need to provide a specific instance of a false claim that resulted from the conspiracy…

Second, the timing of the McIntosh claim is irrelevant because if State Farm had accepted the conclusions in the Ford report, it would have been required to reimburse the federal government…

And third, even if Forensic’s liability were limited to conspiring to submit a “reverse false claim,” the conspiracy provisions of the False Claims Act encompass conspiracies to submit reverse false claims.

In a footnote to the third point, the Rigsbys note:  Forensic criticizes the Relators for not having previously responded to Forensic’s position that reverse false claims are not actionable under the conspiracy provisions of the False Claims Act…

… because Forensic first made this argument in its Post-Hearing Rebuttal Brief, docket entry [350] at 7-8, the Relators have been previously unable to respond.

The Rigsbys back up their contention: this Court correctly denied Forensic’s motions to dismiss the Relators’ claims.

Conspiracy to violate the False Claims Act requires: “(1) the existence of an unlawful agreement between defendants to get a false or fraudulent claim allowed or paid by the Government and (2) at least one act performed in furtherance of that agreement.” U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 193 (5th Cir. 2009) (internal citation omitted).

At the summary judgment stage the Relators need only provide evidence “that would allow a reasonable jury to find that these conditions have been met.” U.S. ex rel. Farmer v. City of Houston, 523 F.3d 333, 343 (5th Cir. 2008). As explained more fully in the Relators’ Consolidated Post-Hearing Brief, after State Farm fired Forensic for the conclusions in Brian Ford’s report, Forensic agreed not only to change the conclusions in the McIntosh report but to also draft future engineering reports that would support State Farm’s efforts to mischaracterize wind damage as flood damage.See Relators’ Consolidated Post-Hearing Brief at 15-20, docket entry [348]. More specifically, Forensic agreed not to perform any engineering or wind analysis on damaged homes, to ignore eye witness accounts completely, and to only determine the predominant cause of damage rather than actually describing the amount of damage caused by wind and flood. Id. Forensic did this despite the fact that some of its employees recognized State Farm’s clear incentive to have engineering reports created that shifted the cost of insurance coverage to the federal government. Id.

The weekend is pressing and SLABBED will take another look at Forensic next week when looking behind door #2, the State Farm Bank.

9 thoughts on “Rigsbys respond to Forensics – an impermissible attempt to relitigate issues that were correctly decided in the first place”

  1. Please note, I just repaired link to Relators’ Opposition to Motion of Forensic Analysis & Engineering Corporation for Clarification of Order Denying Motion for Summary Judgment.

  2. Thank God “summaries” go to Judge Senter and not the string puppet. This obscene abuse, “re-dressing” every lost motion in Rule 59 clothes, is an old defense tactic. The Court has no one to blame but itself. The fact that this Court is yet to sanction State Farm or its gang of conspiring co-defendants after years of serial rule violation, is simply demoralizing.

  3. State Farm Accused of Forgery to Avoid Claims
    By SOLOMON MOORE, TIMES STAFF WRITER
    June 04, 1997

    A former State Farm Insurance employee alleges in court documents that the company withheld key evidence to fend off lawsuits by policyholders and forged documents to avoid paying out earthquake-related claims.

    The sworn statements by Amy Zuniga, a former regional claims specialist who said she quit the company’s litigation unit last year after an unwanted transfer, are included as evidence in a lawsuit against the firm by a Sherman Oaks couple who contend that they were cheated out of their earthquake insurance coverage.

    In a sworn declaration made public Monday by the 2nd District Court of Appeal, Zuniga said State Farm officials in Southern California routinely lied in court, denying that they had documents requested by opposing parties in lawsuits. Zuniga also described the firm’s aggressive litigation tactics in which “every effort was to be made to make it financially unfeasible for the insured to obtain any benefits regardless of whether liability was clear or not.”

    State Farm officials deny any wrongdoing.

    Zuniga worked in State Farm’s regional litigation unit, located in Newbury Park in Ventura County, which monitored lawsuits against the company. Her job was to respond to discovery requests by opposing attorneys and to prepare witnesses for depositions.

    State Farm employees are trained to avoid giving direct answers and to be as evasive as possible during sworn depositions, she said in her declaration.

    “Witnesses were taught not to answer a question with a ‘yes’ or ‘no,’ to minimize the likelihood of giving a truly responsive answer,” she said in her declaration. “The entire point of this training was to make it as difficult as possible for the insureds’ attorney to learn any meaningful information about the company, its practices or the insureds’ claim.”

    She also alleges that State Farm agents routinely forged documents to avoid paying out claims to Northridge earthquake victims.

    In her declaration, she said that in 1996 a senior State Farm executive told her and department colleagues that “State Farm witnesses should not admit that forgeries happen, unless and until they are compelled to do so by court order.”

    Zuniga also said company executives insisted that she not use the word “forgery” when discussing the subject. “[A senior State Farm official] went on to state that we have to decide how to tell our story should the company be compelled to admit that it has knowledge of the ‘unauthorized signatures.’ He said we should try to make this practice look like a ‘service.’ “

  4. Damn!. I was wondering if you all met with the forged documents thing yet. If I recall that’s a crime. It’s amazing to see two sets of documents on the same subject. Saying two different things. Not like an opinion. But more like a horse speaking from his mouth and his ass at the same time. The insurer’s are talking shit. But hey, What do I know. IMHO, forged court orders are like a copy of the constitution in that hopefully they are few when it involves a huge amounts of money. and violate so many. Could there be value of such to the history of what has occurred here.

    In line to the insanity of the forged document.
    i.e. and here is the fraudulent document by Snake Farm showing their rat ate the 12 foot cobra.

    The policy holders have their written policies and the true facts. Sadly that’s a lot of loss to go with the pain and all sufferings, and BAM instead of any relief for years of payments made. Here comes the fraud of forgery. Given the cost of running the courts. The public at large are getting hit along with the victims.

  5. Don’t count on Magistrate Judge Walker to do anything other than turn his head and tell Scot Spragins he is a swell guy. This is what happens when a Federal court becomes a magic jurisdiuction for corporate interests. Only schmucks need play by the rules.

    sop

  6. Re Steve’s comment on the Amy Zuniga saga:

    The Zuniga saga, along with the historic Campbell in case Utah and the Sing case in California should have long ago resulted in an investigation of State Farm for racketeering. (The department of justice claims to have an open investigation file on SF). When any litigant in this country invokes the power of a court where SF is a party, the case should start off with a record filing of the main orders entered in these cases. No court should be allowed to ignore the history here, nor should SF be permitted to keep it secret. What SF will sometimes do is simply dump a sack of money on a whistleblower and induce them to sign a contract (IMHO unenforceable as against public policy) committing their entire body of knowledge to perpetual secrecy. (Incidentally, I’m told the Zuniga woman vanished, and hasn’t spoken publicly in years).

    In the last decade, we’ve seen a first time phenomenon in American Judicial history – huge corporations are unafraid to mount direct assaults on the court system. Their thinking is “if some of us are too big to fail . . . then for damn sure we’re too big to let some punk judge we can get politically removed or marginalized, push us around.” Sometimes they simply purchase a judge seat at the appellate level. SF bought one such pimp and put him on the Illinois Supreme Court to reverse the Avery case. Massey Coal followed this lead in West Virginia, and purchased a pimp judge for the W.Virgina Supreme Court, all to reverse a 50 million verdict. (See Caperton v. Massey).

    SF, Allstate and their fellow predators are thoroughly convinced that the court system is essentially powerless against them. A 5-4 decision in Caperton convinces them that they’re just an inch away from legitimizing judicial bribery – the purchase of judges and court seats.

    Consider what Allstate did in Florida – and don’t think for one minute they don’t coordinate every move – in several cases Allstate was ordered to produce the McKinsey documents. Fines were imposed for every day Allstate refused, but nothing else was done. No defaults were entered, no licenses revoked, nothing. The state commissioner ordered the documents be produced. Allstate ignored the orders and refused to produce docs or pay the court fines. Allstate’s attorneys, fearful of state bar action, were told to file papers calling this “respectful civil disobedience.” Four (4) years passed without the ordered documents being produced. Finally, when the state commissioner (in this instance not your typical pimp) banned Allstate from writing business, the docs were produced. Four years . . . can you imagine what would happen to a citizen litigant who tried this?

    An attorney who regularly represents SF was convicted of wire fraud years ago. Doesn’t bother them at all – he still appears in their cases . . . and can you imagine the illegal things this guy does for a pathologic predator like SF? See what people don’t get is . . . we’re now Mexico, Nicaragua, Bolivia and Russia . . . we’re that third world we always said was so beneath our dignity.

    It’s inconceivable that any court, state or federal, would ignore this history and permit these atrocities to go unchecked. But, I guess you can see why SF isn’t worried about defrauding the federal flood program and taking on any court system that tries to hold them accountable . . . especially if the prize for pulling this off is billions in ill gotten gains. I for one want to see some SF boys and girls, and Mr and Mrs Renfroe in jail.

  7. “We’re that third world we always said was so beneath our dignity.”

    I read your comment earlier in the day, juriscribe, and this sentence is a particularly sad and sobering thought. There has been/still is taking place is “so beneath our dignity” – some beneath all human dignity – that I fear we no longer think of dignity the same way.

  8. I’ll add to Juriscrbe’s comments that we covered Allstate’s Florida debacle extensively in 2008. State Farm and other insurers have since been gunning for McCarty’s job. From reading Chip Merlin’s blog it looks like with Crist’s departure that is exactly what will happen.

    Bend over Shirley you folks in Florida are fixing to get the ol’ ISO.

    sop

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