Drake v Nationwide goes another emotionally distressing round

The high water level or storm surge of a hurricane and specifically Hurricane Katrina is generally misunderstood by the general public. Most people think that the storm surge is a virtual wall of sea water that suddenly comes ashore as the hurricane makes landfall.

While this may be true to some extent at the actual center of the eyewall of a hurricane as it makes landfall, it is not true for the storm surge or high water away from the center of the storm. Rather, the rising of the storm surge or high water is a gradual occurrence as you get further from the center -of the storm, even in the most intense winds of the northeast quadrant of the hurricane.

I have interviewed two eyewitnesses to the Hurricane Katrina high water occurrence, and they each tell very similar accounts. A third eye witness on lovers lane in Ocean Springs reportedly tells a similar account. The witnesses state that the water rose gradually, first in the edge of their yards, then by progression up to the steps of their house and finally up on the sides of the house to the highest water level.

The witnesses state that the high water stayed at the highest level for a short period of about 30 minutes and then receded in the same gradual manner as the water rose. The witnesses who gave these accounts were located in Pascagoula near the water; at D’Iberville on the Back Bay of Biloxi; and on the waterside of Lovers Lane in Ocean Springs. (emphasis added)

With Ted Biddy’s February 9, 2006 forensic analysis of the loss documenting wind speed and water level across the Coast , it is difficult to believe Nationwide let the Drake’s claim for ALE reach the point of litigation.  The State’s windpool and the Federal flood program picked up the tab for the slab; and, all that was left for Nationwide to pay was approximately 1/10th of the total loss.

Nonetheless, four years after Katrina left the Drake’s with a slab, Nationwide is pursuing a motion for summary judgment.   Obviously, the Drake’s oppose the motion.  A memorandum in support of their position summarizes the basis for their opposition as, Defendants are not entitled to dismissal of Plaintiff’s claims as a matter of law…Biddy’s report is among the Exhibits supporting the Drake’s opposition to Nationwide’s motion for summary judgment.

Nationwide, as usual, piles on other motions – one is a motion to strike the Drake’s expert witness, Tom Barrett, the adjuster for the Blake’s claim filed for coverage under their policy with the Mississippi windpool.  Naturally the Blake’s oppose the motion to strike Barrett’s testimony. While their Nationwide  policy did not cover flood or wind damage, it did provide ALE if the cause of loss was wind damage.

Nationwide’s 30(b)(6) representative, Charles Higley, admitted that Nationwide determined at least by July 24, 2006 that the Plaintiffs are entitled to coverage under the Coverage D: Loss of Use for losses suffered by the Plaintiffs as a result of Hurricane Katrina.

Over three years after determing the Blake’s are entitled to coverage, Nationwide is still litigating the claim!  Worse yet, if such is possible, after subjecting the Blakes to four years what can only be called a run-around, Nationwide is attempting to strike the Blake’s claim for emotional distress – a motion the Blakes also oppose.

Nationwide’s [91] Motion to Strike Claims for Emotional Distress is disingenuous and without merit. Nationwide ignores the fact it was ultimately provided detailed information regarding Plaintiffs’ medical treatment for anxiety related conditions caused by Nationwide’s conduct, and that Nationwide thereafter requested and was granted an independent medical examination of each of the Plaintiffs with regard to their claims for emotional distress.

More importantly, Nationwide takes the mistaken position that medical testimony is required to prove emotional distress, mental anguish, and other such damages. This is not the law in the State of Mississippi. As this Court has previously ruled, damages such as mental anguish and emotional distress are recoverable upon a showing of simple negligence if they are foreseeable to an insurer as a result of its negligent conduct. (emphasis added).

The Company’s continued denial of related Mississippi law is a mistake and a particularly offensive one.

Insanity is repeating the same mistake over and over expecting a different outcome, Nationwide should be in a straight jacket!