Catching up on Katrina litigation

With a lot of catching up to squeeze in a single post, I’ll jump right in and start with Bossier v State Farm as the trial starts in just a few days.  Judge Senter tied up all the loose ends with two orders issued last Friday.  First up is his Order granting in part Bossier’s only motion in limine.

Plaintiff’s Motion in Limine addresses three subjects: the admissibility of evidence surrounding Plaintiff’s receipt of a Mississippi Development Authority (MDA) grant and a loan from the Small Business Administration (SBA) arising from the Hurricane Katrina loss which is the subject of this cause of action; the interjection of personal comments by counsel for the Defendant during voir dire; and a letter from one of Defendant’s employees unconditionally tendering a check to Plaintiff for the payment of dwelling extension coverage under the insurance policy at issue here.

This Court has held consistently that the…award and receipt of a grant/loan is between Plaintiff and MDA/SBA…“except for the fact that Plaintiff[], as part of the grant process, admitted that [his] dwelling sustained flood damage, any other element of the MDA grant process is not admissible as evidence…

As for statements of a personal nature during voir dire (or, for that matter, any time during the trial), counsel for Plaintiff and Defendant shall be required to keep any personal remarks within narrow and reasonable bounds, but each will be granted some leeway to put the jury at ease during voir dire. During the opening statement, these types of remarks shall be very limited so that the emphasis is on the evidence and the facts the parties believe the evidence will establish.

Finally, the request for exclusion of the tender letter is based on hearsay. Indeed, this letter is replete with statements that do not even purport to be within the first hand knowledge of the Defendant’s employee who signed it. The letter will be excluded unless the signer takes the stand to sponsor the letter and be cross examined about it. The Court notes that this employee is not listed as a witness by either party in the Pretrial Order.

Judge Senter’s second Order granted State Farm’s motion to amend the pre-trial order to add Bossier counsel Stanton Fountain as a “may call” witness.  Senter noted it would be a “manifest injustice” to do otherwise but added:

Allowing Defendant to add a may call witness to the pretrial order is not the same as determining whether Defendant will be allowed to call the witness at trial or if any testimony the witness may give is admissible. The Court will make those rulings at the appropriate time.

Next up, the most recent docket entry in O’Keefe v State Farm –  one O’Keefe’s counsel claims is necessary to preserve the issues addressed herein for appeal in the event the Court does not grant the relief requested herein – Plaintiffs’ Application for Review of the United States Magistrate Judge’s Order Denying Plaintiffs’ Motion to Compel Depositions.

Plaintiffs respectfully request that the Honorable District Court Judge vacate, reverse and/or modify the findings and rulings in the United States Magistrate Judge’s [280] Order denying Plaintiffs’ [189] Motion to Compel Depositions1 of State Farm employees Juan Guevara and Dan Carrigan because the factual findings upon which they are based and legal conclusions therein are clearly erroneous, and/or because the rulings therein are clearly erroneous or contrary to the law…

Plaintiffs further respectfully submit that the subject [280] Order is clearly erroneous because it has the effect of prohibiting the Plaintiffs from conducting essential discovery into the very claims on which this Court staked its jurisdiction; and is therefore tantamount to a ruling on a dispositive motion dismissing the claims of the Plaintiffs related to State Farm’s alleged manipulation and misapplication of the NFIP guidelines, which ruling would be outside the statutory authority of the Magistrate Judge pursuant to the Federal Magistrate Act, 28 U.S.C.§ 631 et. seq…

O’Keefe v State Farm is one of three cases SLABBED began following in February of this year.  An April update provides background for the matter at issue in this latest motion:

O’Keefe, as you may recall from the earlier post, was initially filed in State court.  As reported in that post, the O’Keefe’s legal fees increased dramatically once the case was moved to federal court.

In his Application for Review of the Magistrate’s Order, O’Keefe turns the clock back to the Court’s denial of his motion to remand the case to State Court.

This case was removed to this Court from the Circuit Court of Jackson County, Mississippi, on September 11, 2008. State Farm’s sole and only basis upon which it claimed that jurisdiction exists in the United States District Court was that the Plaintiffs were allegedly asserting claims regarding the administration of the NFIP, and that this claim created a federal question allegedly providing original and exclusive jurisdiction in the United States District Court.

Plaintiffs strongly disagreed with the State Farm and filed their Motion to Remand on October 13, 2008, showing that Plaintiffs’ claims were not claims made under any federal law, but rather claims that would show that State Farm, acting independently of the Federal Government and as part of an institutional scheme to deny and/or limit exposure on homeowner’s claims like the Plaintiffs’, manipulated, applied and/or misapplied guidelines for adjusting and paying the Plaintiffs’ NFIP claim administered through State Farm as a WYO carrier, in a fashion designed to avoid State Farm’s burdens under its own homeowner’s policy, avoid its duty to fully investigate and/or prove the cause of Plaintiffs’ losses, and impermissibly shift State Farm’s responsibility to compensate the Plaintiffs for their losses to the federal government through. (See [33] Motion to Remand, App. “B”). On January 13, 2009, this Court ruled contrary to the position of the Plaintiffs’, holding: Original and exclusive federal question jurisdiction exists over those claims related to the administration of NFIP AND the adjustment of the Plaintiffs’ SFIP, including their breach of contract and fraud claims.

Pursuant to this Court’s judicial determination that Plaintiffs asserted colorable federal law claims; and this Court’s determination that the claims made by the Plaintiffs convey original and exclusive jurisdiction to this Court under 28 U.S.C. § 1446(b), Counsel for Plaintiffs began their quest to schedule the depositions of State Farm employees Juan Guevara and Dan Carrigan, the employees responsible for establishing and implementing the Katrina specific guidelines and other procedures under which State Farm administered and manipulated payments under the NFIP policies for which it was the WYO carrier, including the Plaintiffs’.

On March 13, 2009, Counsel for Plaintiffs attempted to confirm dates for the depositions of Mr. Guevara and Mr. Carrigan with Counsel for the Defendants… Counsel for State Farm did not respond to Plaintiffs’ request; and on April 30, 2009, Counsel for Plaintiffs again wrote a letter to Counsel for Defendants requesting the depositions of Mr. Guevara and Mr. Carrigan…Without replying to Plaintiffs’ repeated requests for deposition dates, counsel for State Farm declared on May 18, 2009 that Mr. Guevara and Mr. Carrigan would not be made available for deposition… After Defendants refused to make arrangements for the depositions of Mr. Guevara and Mr. Carrigan, Plaintiffs filed the Motion to Compel on August 21, 2009.

It is the resulting Order denying that Motion that O’Keefe is asking “the District Judge” (Ozerden) “to vacate, reverse and/or modify” so Mr. Guevara and Mr. Carrigan “are made available for deposition” because:

  • Plaintiffs will show that the findings and rulings in the subject Order denying Plaintiffs’  Motion to Compel the Depositions of Mr. Guevara and Mr. Carrigan are clearly erroneous, because the Order does not consider or acknowledge the claims and defenses that are at issue in this case – and effectively finds that the claims on which this Court staked its Jurisdiction are not colorable.
  • The Order’s finding that there is no material distinction between this case and the prior Katrina cases cited by State Farm is also clearly erroneous, because there is a material distinction between those cases and the case at bar. Specifically, the cases cited by State Farm are cases that were either initially filed in Federal Court, and/or that were removed to Federal Court based upon the existence of diversity jurisdiction. In this case, the Court found the existence of Federal Question jurisdiction, based upon the Court’s Judicial determination that the Plaintiffs have asserted colorable claims regarding State Farm’s administration of the NFIP, and related adjustment of the Plaintiffs’ SFIP, which Plaintiffs alleged was manipulated and misapplied by State Farm as part of an institutional scheme to wrongfully deny Plaintiffs’ homeowner’s claims, as set forth above. No Judicial determination of the Jurisdiction establishing existence of such claims occurred in the “other Katrina-related” cases on which the Magistrate Judge appears to have relied.
  • Plaintiffs further respectfully submit that the subject  Order is clearly erroneous because it has the effect of prohibiting the Plaintiffs from conducting essential discovery into the very claims on which this Court staked its jurisdiction; and is therefore tantamount to a ruling on a dispositive motion dismissing the claims of the Plaintiffs related to State Farm’s alleged manipulation and misapplication of the NFIP guidelines, which ruling would be outside the statutory authority of the Magistrate Judge pursuant to the Federal Magistrate Act, 28 U.S.C.§ 631 et. seq..
  • Plaintiffs respectfully submit that the subject [280] Order is clearly erroneous because it does not address any issues related to whether, nor does it find that Plaintiffs’ request for depositions of Messrs. Guevara and Carrigan is outside the scope of discovery pursuant to the claims asserted in this cause. The Order does not contain an analysis of whether, nor does it rule discovery should be limited by F.R.C.P. 26(b)(2)(C). Rather, the Order only states that the Court has not allowed this type of discovery in other “Katrina-related cases”, and thus will not allow same in the case at bar… (emphasis and bullet format added)

Plaintiffs have shown that the subject  Order is clearly erroneous and contrary to law for at least four independent reasons:

(1) findings of fact contrary to facts in the Record;

(2) findings and rulings inconsistent with and not supported by Fed.R.Civ.P. 26(b)(1);

(3) findings and rulings inconsistent with Fed.R.Civ.P. 26(b)(2)(C)(iii),and

(4) the ruling effectively violates 28 U.S.C. §636 (b)(1)(A)…

Plaintiffs respectfully submit that each of these reasons independently support the relief sought herein, and that collectively they mandate such relief. Plaintiffs respectfully request this Court vacate and reverse the subject  Order denying Plaintiff’s Motion to Compel Depositions, and Order that Messrs. Guevara and Carrigan be made available for deposition forthwith. (emphasis added)

Nothing less than I’ve reported would provide enough information to catch up on the Katrina litigation covered thus far; so, a two-part post this will be.  However, part two will not follow right away; maybe tomorrow.

One thought on “Catching up on Katrina litigation”

  1. Don’t count on Ozerden to do anything other than help State Farm Nowdy, he was unable to let go of his prior career as an insurance defense lawyer when he became judge.

    Kurt Engelhardt in NOLA had to be bitch slapped several times by the 5th cirtcuit before he finally begain appling the law to the insurance cases in his court. Ginger Barrigan OTOH doesn’t seem to mind being reversed to the point where she has marginalized herself judicially. Ozerden doesn;t strike me as a radical like Berrigan so there may be hope for him.

    sop

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