So, what’s up besides the Saints? Well, for starters there’s the trial of Bossier v State Farm that got underway yesterday after the jury was seated mid-afternoon. The grapevine reported there was time for opening statements (with no personal commentary re: Bossier’s motion in limine) and one witness before Court ended for the day. The second day began at 10am and hopefully I’ll get another grapevine report or there will be something in the Sun Herald.
State Farm filed an an 11th hour trial brief, but an interesting one nonetheless, that sets forth the Company’s position on the meaning of the Corban decision:
State Farm anticipates that Plaintiff at trial may attempt to satisfy his burden of proof merely by pointing to the totality of damage to his house at the conclusion of Hurricane Katrina. Yet, such an approach by Plaintiff would be insufficient under Corban to satisfy his burden of proving accidental direct physical loss under the policy. Under Corban, proving “damage” is not the same as proving that a “loss” occurred, and the Mississippi Supreme Court in Corban criticized courts and parties that have “conflated the terms ‘loss’ and ‘damage.'” Corban, 2009 WL 3208704 at *8. “The policy does not cover or exclude ‘damage,’ but rather covers or excludes ‘loss,’ and it is to ‘loss’ that the deductible is applied.” Id. In an event like Hurricane Katrina, there are different forces, “at different times, causing different damage, resulting in separate losses.” Id. at *10. Thus, the term “loss” “should not” refer to the “totality of the damage.” Id. at *9 (second emphasis omitted; quoting Appleman on Insurance § 192.03[H](2009)). Indeed, the Mississippi Supreme Court in Corban rejected the view “that loss is not determined until the hurricane is over.” Id. at *13. Rather, there may be “‘many losses because property can consist of many elements.'” Id. (emphasis in original); see also Dickinson v. Nationwide Mut. Fire Ins. Co., 2008 WL 941783, at *5 (S.D. Miss. April 4, 2008) (Senter, J.) (forces “may cause damage to different parts or items of the insured property”).8 Therefore, under Corban, Plaintiff cannot discharge his burden of proving an accidental direct physical loss merely by pointing to the totality of the damage to his house at the conclusion of Hurricane Katrina. Similar to the insurance policy at issue in Corban, Plaintiff’s homeowners policy insures for “accidental direct physical loss,” not damage. Ex. P-8 (Homeowners Policy) at 7. Plaintiff’s theory in this case is that he sustained a loss (or losses) to his house before storm surge flooding arrived. Applying his theory to the Corban framework, Plaintiff must prove by a preponderance of the evidence that this pre-surge loss (or losses) actually occurred. It is immaterial to Plaintiff’s initial burden whether any other loss occurred later because each loss comes into being (if at all) at the moment it happens:
No reasonable person can seriously dispute that if a loss occurs, caused by either a covered peril (wind) or an excluded peril (water), that particular loss is not changed by any subsequent cause or event. . . . The insured’s right to be indemnified for a covered loss vests at the time of loss. Once the duty to indemnify arises, it cannot be extinguished by a successive cause or event. The same principle applies in reverse. In the case of a loss caused by an excluded peril, that particular loss is not changed by any subsequent covered peril or event. Nor can that excluded loss become a covered loss, after it has been suffered.Corban, 2009 WL 3208704, at *9 (citations omitted).
Frankly, it appears State Farm is confused about the difference in damage and loss. Wind caused the Bossier’s loss and water damage followed. I suppose the Corban Court erred in assuming anyone capable of earning a law degree would understand the Opinion. Now, it seems that someone is going to have to write Corban for Dummies.
In the 1990s two publishers discovered that ignorance was not only bliss but also very profitable. IDG Books Worldwide and Macmillan U.S.A. were responsible, respectively, for the series of books for “dummies” and guides for “the complete idiot”… Written in basic language and infused with a dose of humour, the books proved to be a tonic for those struggling to keep pace in the Information Age. (emphasis added)
Next – and not about the Saints either – is Judge Ozerden’s Order denying O’Keefe summary judgement on two issues – but on the basis of their prematurity. Since this is better than the “not a chance” treatment of an O’Keefe motion – or, alternately as they say, better than State Farm usually allows – I decided to report it now and not wait for orders on the other motions O’Keefe has others pending.
Plaintiffs seek partial summary judgment and a declaration regarding the inflation coverage provision in their insurance policy…Plaintiffs ask the Court to declare that the policy provides inflation coverage, to determine the amount of inflation coverage available to the insureds, and to declare the appropriate method by which to determine the “factor” by which the amounts of coverage shown on the declarations page must be multiplied. State Farm counters that, because whether the declared policy limit is exhausted is a remaining question of material fact, Plaintiffs’ Motions are “inherently premature and moot.”
…Discovery in this case is ongoing. The Court is of the opinion that determination of the inflation question, at this stage of the proceedings, would not actually resolve any claim or any part of any claim asserted by Plaintiffs… A ruling on the merits of Plaintiffs’ Motion would therefore be premature. The Court is not empowered to issue an advisory opinion as to how the policy will be interpreted in the event that, at some point in the future, sufficient evidence is presented that Plaintiffs’ declared policy limits are exhausted. Such would need to occur before a resolution of the inflation coverage issue became necessary. Plaintiffs’ Motion for Partial Summary Judgment will therefore be denied without prejudice as premature. The Court expresses no opinion, one way or the other, as to whether Plaintiffs’ interpretation is correct. The Court will revisit the inflation issue later, if and when it becomes appropriate….
In addition to their Motion for Partial Summary Judgment, Plaintiffs seek a declaration regarding the inflation coverage provision at issue in this case… The Court is likewise of the opinion that this Motion should be denied without prejudice.
A quick note here about Lizana v State Farm (sorry Saints fans, you’ll have to wait for Sop). Lizana’s counsel, Deborah Trotter, filed Notices for 30(b)(6) depositions in this case as she’d done in Lebon and New Light Baptist last week. Hmmm…
Last is a report on claims dispute litigation over Allstate’s handling of property destroyed by fire, not Hurricane Katrina. I stumbled upon Butcher v Allstate and have continued to follow the case because the Butcher property was destroyed before Katrina had a shot at it – and the case just now ending, which means most litigation must last longer than the gestation period of an elephant.
IT IS FURTHER ORDERED, that the Butchers shall have Judgment against Allstate Insurance Company for Pre-judgment Interest at the rate of 8% per annum from and after Dcember 25, 2004 (which is 60 days after the Proof of Loss was executed) on the property damage claim in the amount of One Hundred Thirty Six Thousand Five Hundred Seventeen Dollars and 82/100 ($136,517.82), ($78.73 per day for 1,734 days) and on the personal property claim in the amount of Thirty Six Thousand Seven Hundred Eight and 78/100 Dollars ($36,708.78), ($21.17 per day for 1,734 days) for a total pre-judgment interest of One Hundred Seventy Three Thousand Two Hundred Twenty Six and 60/100 Dollars ($173,226.60)…
It is further ordered that interest on the total Judgment in the amount of One Million Seventy Nine Thousand Seven and 80/100 Dollars ($1,079,007.80) shall accrue at the rate of 0.35% per annum until paid…[and]…that the Butchers shall recover from Allstate their costs as may be taxed.
The interest breaks down to $34,645.32 for each of the five years since the Butcher’s lost what obviously was a very nice home. Although the jury also awarded the couple a total of $450,000 for the associated mental anguish and emotional distress, five years is simply an inexcusable length of time.
Considering her age, Nationwide simply does not have enough money to cover what the Company has done to Helen Politz when it promised to “be on her side”.