Oops! State Farm’s experts on damage to Bossier’s home aren’t licensed – Judge Senter to issue ruling today

The trial resumes at 9:30 this morning. Judge L.T. Senter Jr. is expected to rule on how extensive testimony will be from two State Farm experts, an oceanographer and Florida university professor with a doctorate in engineering.

The witnesses are not licensed engineers, so Senter must decide if they can dispute a damage report, ordered by Bossier, in which a licensed engineer concluded that wind effectively destroyed the house.

Is State Farm trying to set up a run-to-mama-Jones appeal to the Fifth Circuit?  I don’t know the answer but I’d bet a slab Judge Senter is giving the possibility a great deal of thought.  Whatever else one can say about State Farm aside, no one would ever suggest the Company wrote “Insurance Claims Litigation for Dummies”– so there must be a reason the State Farm defense team looks like a bunch of monkeys f*&%#$% footballs in the Bossier trial. Anita Lee reports on what took place in court Thusday for the Sun Herald in State Farm manager notes: ‘Just say no’:

Two independent adjusters for State Farm testified in a Hurricane Katrina insurance trial Thursday that an 8-foot tidal surge destroyed the home of Reginald “Ed” and Katie Bossier on Back Bay, but both adjusters also said they could cover only visible wind damage.

Biloxi policyholder Reginald “Ed” Bossier is trying to prove State Farm failed to meet its obligation to adequately investigate his claim and cover losses unless proof established that floodwater caused them. He is seeking policy limits of $650,000 during the U.S. District Court trial that began Monday.

Bossier had tried in late September 2005 to line up an inspection, his State Farm claim log showed, but was told no appointment could be made. Pilot Catastrophe Services adjuster Lee Ann Johnson, who was assigned to State Farm, said she was juggling 100 claims from the Aug. 29 hurricane.

On cross examination, Bossier attorney Judy Guice indicated to the jury that State Farm delayed adjustment of wind losses where water also was involved. She produced notes State Farm team manager Steve Burke took during an Oct. 4 manager’s meeting. “Denials, start doing now,” he wrote. The same day, Johnson scheduled an inspection of Bossier’s property.

On Oct 7, the day of the inspection, Guice told the jury that Burke wrote during another meeting: “Just say no. Pay on the back side if wind.

Johnson responded: “That was not a directive I had received at all from State Farm to begin denials. State Farm doesn’t operate that way.”

Johnson said she recommended to her team manager, who agreed, that Bossier’s losses above the 8-foot water line should be covered.

Johnson and Shellie Leverett, a Pilot adjuster who reviewed the file for State Farm in April 2008, both told the jury that tattered shingles on the roof eaves indicated wave action. They said a roof with most shingles and gutters intact showed the wind was not strong enough to cause structural damage and debris in the trees also indicated an 8-foot water line.

They were unable to rule out the possibility that wind broke some of the many windows in the house before the tide surged ashore. Leverett said she did not know how strong the wind would have to be to cause broken glass.

“I was able to determine the winds were not strong enough to support structural damage,” Leverett told State Farm attorney John Banahan.

Witnesses for Bossier have testified that the water line inside the house was 3 1/2 inches and the wind up to 135 mph. Bossier also produced photographs of trees with broken limbs or twisted tops, indicating high wind.

Both adjusters testified on cross-examination that they did not review State Farm-ordered reports on nearby properties where engineers found wind damage. No engineering report was ordered for the Bossier house.

Based on Johnson’s inspection, State Farm initially paid Bossier $2,300 for roof and siding damage. Leverett issued a second check for $13,000 because the wrong material had been used to calculate the amount owed. She said she was unable to locate an eyewitness who claimed a tornado destroyed Bossier’s outbuilding.

The first entry on the Bossier’s file said, “8 feet of water came — all personal property was washed out.” Johnson said that information would have come from the policyholder, but other entries in the claims log indicated Bossier relatives first contacted the insurance company. The date of the loss was incorrect, as was some other information in the claims log.

The trial resumes at 9:30 this morning. Judge L.T. Senter Jr. is expected to rule on how extensive testimony will be from two State Farm experts, an oceanographer and Florida university professor with a doctorate in engineering.

The witnesses are not licensed engineers, so Senter must decide if they can dispute a damage report, ordered by Bossier, in which a licensed engineer concluded that wind effectively destroyed the house.

24 thoughts on “Oops! State Farm’s experts on damage to Bossier’s home aren’t licensed – Judge Senter to issue ruling today”

  1. Confused! Have the SF “experts” already testified? If so, “You can’t ‘un-ring’ an already rung bell.” Is the Judge being asked, after-the-fact, to instruct the jury to disregard the testimony of SF’s “experts”? Bottom line: If the “experts” have not yet testified, Senter will allow them to testify, and instruct the jury to “give such weight to the testimony” as their credentials warrant. If they have already testified, Senter wiil do NOTHING. Still “confused” about a trial which may qualify as a Chapter in “Mondo Bizzaro”.

  2. Probably Brian and we’ll see if we can find out for sure. For our readers that are unfamilar with State Farm’s hired engineering gun from the University of Florida, one post where he is mentioned can be found here.

    From the article I suspect team Bossier must be very happy with the trials progress as my untrained but well informed legal eye indicates Judy Guice has established all the elements of a first class bad faith case. OTOH I also heard from a courtroom observer the Bossier’s own expert did not come across real well on the witness stand and that some of State Farm’s pictures shown at trial appear to support the 8′ of water claim. That said they used pictures of obvious wind damage to the McIntosh residence in their attempt to support their flood theory in Ex Rel Rigsby and not having seen the pictures I’ll reserve judgement.

    While the eventual ultimate height of the surge is not salient to damages covered under the Bossier’s all perils policy (especially in light of the eye witness accounts of pre surge wind damage) getting that nuance across to the jury is not as easy as it appears at first blush.

    Like McIntosh it is possible for any of us to calculate the amount of flooding on the Bossier property. State Farm likes to use surge numbers that bear no reality to the final numbers released by the government. The data point needed is the property’s location/address. I suspect like McIntosh State Farm has overstated the flooding level on the Bossier property by several feet. I will say the property’s location on the Back Bay means wave action is not a factor.

    sop

  3. Sorry for not posting in such a long and then buttn in, but. I was told this was Shelly Leveretts first storm as an adjuster and I thinks its funny that she is on the stand of this huge case. Matter of fact, she was not even an adjuster when Katrina hit. Somebody check my math but doesn’t NFIP require three years experience to adjust flood claims.

  4. Two points here:
    1. It is extremely significant that SF intentionally put flood adjusting ahead of wind adjusting — the purpose being to make sure nothing in their file confirmed wind damage at the time they handed over federal treasury money under the flood policy;

    2. I believe Mississippi has some unique law on expert testimony of engineers; it may be in the rules and regs of the engineering licensing board (which appear to have been written after an an agency tailgate party), as interpreted in a reported case; the rule, unless it’s been changed, is that you must have a license in Mississippi to testify as an expert engineering witness; if my recollection is correct, this comes from a reported case in Mississippi;

  5. A license has zero to do with whether or not they are qualified.

    This is a slam dunk loss for plaintiffs and reversible error if Senter rules otherwise.

    SOP’s statement about the nuance of the flood line is dead on. The biggest obstacle with properly trying these cases is not necessarily getting the information, although you will have to work your tail off to get it, but incorporating the information into your case in such a way the jury understands why the information shows bad faith.

    As long as Guice lays a great foundation about the purpose behind all-risks policies and how the law requires insurers to adjust claims under them, she should be fine.

  6. The qualifications of an expert who is tendered as an expert witness in a Federal Court trial is governed by The Federal Rules of Evidence, rather than State law. The “relevance” of a license, or no license, is best illustrated by the fact that the Captain of the TITANIC had a license (he wasn’t even on the bridge when the iceberg was struck).

  7. AD brings up a good point re “is license needed to testify?” In the first analysis, it’s a choice of law issue, federal or state. In a diversity case, one can get on shaky ground fast automatically calling something “merely procedural” that has substantive features. Admitting an expert or not, is essentially a Daubert process in federal court. Lack of license is absolutely a factor for the Court to note in the hot coal walk of a Daubertized expert witness. It may be persuasive for P counsel to note in the record that the forum law requires a license (assuming that’s true).

  8. I kinda see the point being made by the plaintiffs. I’m not an attorney, but I believe in the state of Louisiana, it is illegal to perform any engineering work, including reviewing the work of others and providing an opinion that is based upon engineering principles, if the engineer is not licensed by the state. They could potentially exclude the testimony/opinion of the expert because, in Louisiana it is incumbent upon ALL officers of the court to report such illegal practice to the DA as soon as it is discovered.

    Just my .02 worth.

  9. I have great respect for the opinions of NAAS. Did the “rest” of you know that the “engineering imprimaurs”, which were bestowed upon “Federal Goverjment Contractors” by the U.S. Army Corps of Engineers, pre-KATRINA, were bestowed by engineers within the COE organization by engineers who were NOT licensed By the State of “Louseyanna”?

  10. Kurt Gurley and the Florida Coastal Monitoring Program at UF are funded by State Farm, RMS, et al to create models that conclude that winds were not strong enough to have created substantial damage to the properties where there was plenty of physical evidence of substantial damage caused by winds and wind-driven debris.
    See my comment from April for more about FCMP:

    http://slabbed.wordpress.com/2009/04/21/there-are-as-many-opinions-as-there-are-expert-in-rigsby-qui-tam/#comment-7318

  11. BM is correct. State Farm “buys” weather, and did so during its global denial campaign, post-Katrina. Another example to add to Brian’s is SF’s dealings with ” Weather Data, Inc.” Weather Data, Inc. was formed by a Kansas TV weatherman named Smith, who found out he could make a killing by selling designer weather data to corporate cheats. (Corporations are forever on the prowl and will pay handsomely for phony statistics to buttress all kinds of fraudulent conduct — accounting fraud, insurance claim fraud, phony stats for rate filings, etc.)

    When SF made its global denials on wind (and maxed out federal flood policies), it needed to say it relied on weather data. Like any savvy racketeer, it went straight to the junk science file, found Weather Data, Inc., and clicked on “add to cart.”

  12. Thank you SOP and AROD. There’s always an exception to the rule. Not being either an attorney or an engineer, it is my personal understanding that, if you’re not licensed in Louisiana, but properly licensed in the State where you practice engineering, you can get a temporary engineering permit from the Board in Louisiana if you apply BEFORE beginning the work. Also, I think the rule says, if you have a proper and current license in your home state, and you work for a properly licensed firm in your state that also has a proper Louisiana license, then you can work under their “umbrella.”

  13. The BEST Hurricane expert bar none is Dr. Hall and guess what? He does not own a La. engineering La. license.

    State Farm basically slandered him in at least 5 motions in limines for not having a license. In response to each one I cited the Federal Rules of Evidence and associated jurisprudence regarding qualifications and won every motion, even one in front of Judge Englehardt and Judge Africk.

    State Farm basically Daubert proofed Dr. Hall for me.

  14. Great post there NRB.

    Let me give a theory out about USAA and paying for the weather. USAA hired Tim Marshall do at least one report in Bay St Louis, Mississippi on Beach Blvd. I know it was my co-workers. USAA had reports which listed wind at speeds so low, like 75 mph, as to be criminal. Well enter the Websters. Their house didn’t flood. Yet. USAA had to say it did. Why? Because they had a ton of Tim Marshall cut-n-paste jobs floating up and down Beach Blvd. saying the wind was so low no structural damage could possibly happen. The house was in an area on the beach in Bay St. Louis which just so happened to not flood. But guess what. They had to assert flood or try to explain how Tim’s 85 mph hurricane caused this—

    http://www.pbase.com/nomofilm1/image/57178967

    The first federal trial in Mississippi against USAA over Katrina damage ended in September 2007 with a mid-trial settlement with policyholders Kevin and Sherrye Webster.

    A jury had sided with the Websters and concluded wind, not flood water, destroyed their home in Bay St. Louis, Miss., but the settlement ended the trial before jurors could consider punitive damages.

  15. I have to agree that Dr. Neil Hall of Metaire, LA is one of the best Engineers around and I’m writing from Tampa, FL — his reputation precedes him. Not only is he a great engineer, he is a true gentleman and a true asset to his profession. Having worked for a plaintiffs’ ins. atty., I’ve had the pleasure of meeting with and talking with Dr. Hall on many occasions.

    Can somebody tell me if Dr. Hall is the expert in this case? If he is, the engineering (expert) aspect of the plaintiff’s case is in great shape!

    SHIRLEY HEFLIN

  16. P.S. I can think of “MILLIONS” of reasons why State Farm wouldn’t want Dr. Hall on the other “side.”

    SHIRLEY HEFLIN

  17. I don’t believe the Bossier’s used Dr Hall Shirley. I’ll add I’ve heard consistently good things about the man’s level of professionalism.

    If memory serves State Farm has used Dr Hall before which made their going after him ridiculous. His rep is so good because he lets the facts of the damage patterns dictate his professional opinions, rather than the wishes of his paymaster. I suspect that is the reason he ended up doing so much work on the policyholder side after Katrina.

    Steve don’t get me started onTim Marshall, the man is a corporate whore who lives life on his knees.

    sop

  18. Insurers want to use weather data and modeling to override actual physical evidence and eyewitness accounts. Kurt Gurley’s modeling 4 years after the fact should be irrelevant. What information was the basis for the denial? If they did not perform an adequate assessment then it is too late to show up with b.s. Science now.
    On the other hand when plaintiffs tried to form a class or mass action of slab claims the insurers insisted that each property was different and had to be assessed on its own. That would appear to preclude any confidence in modeling over physical evidence and witness reports.

  19. You know what, sop, that’s the main word I left out about Dr. Hall and your reply reminded me: HE’S HONEST AND HE’S NOT A WHORE…for anybody.

    SHIRLEY HEFLIN

  20. THIS IS FOR BAM BAM…ARE YOU A WRESTLER? I know Steve Kearns here in Tpa, FL….his wrestling school is about 1 mile from my house.

    SHIRLEY HEFLIN

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