Breaking News! Jury decides for Bossier – Phase II starts Thursday! UPDATED

Minute Entry for proceedings held before District Judge L. T. Senter, Jr: Jury Trial held on 11/10/2009: PHASE I COMPLETED, JURY VERDICT returned in favor of Plaintiff; Court ruled State Farm had no arguable reason for delinquency, therefore, PHASE II of JURY TRIAL TO BEGIN 11/12/09, at 1:00 P.M.; COUNSEL to reconvene in Chambers, 11/12/09, at 10:00 A.M.

I’ve been Sop’s blog partner almost two years now; and, Bossier v State Farm is one of the few cases the first case I’ve covered that has come close to trial.  In fact, the only trial other than Bossier that I recall at the moment is Lisanby v USAA.

The jury’s decision is sealed; but the minute entry tells us a jury of peers heard the evidence and decided in Bossier’s favor and Judge Senter’s ruling – no arguable reason for delinquency – set the stage for Phase II.

Congratulations to the Bossiers and to their attorney and tireless advocate, Judy Guice!

UPDATE: The Sun Herald story leaves me wondering what the Court “sealed” and “redacted” – and if State Farm inaccurately portrayed the Bossier property as an oceanfront home to the jury or State Farm representative Bob Lapinski made the error in his statement:

After deliberating for 80 minutes Tuesday, a jury said Reginald Bossier isn’t entitled to any additional money for damage to his Biloxi home during Hurricane Katrina, but State Farm does owe him $52,300 for damage to its contents…

“The jury found that the home was destroyed by water, not wind,” State Farm representative Bob Lapinski said after the ruling. “State Farm showed the 8-foot storm surge had a devastating effect on the Bossier one-story, oceanfront home.”

Lapinski said State Farm paid for minor damage to shingles and siding caused by the wind. He said the company gave Bossier the benefit of the doubt for damage to the outbuilding. “That could have possibly occurred because of wind.”

Credit the Sun Herald for pointing out the Bossier’s property was definitely not “oceanfront property”.

38 thoughts on “Breaking News! Jury decides for Bossier – Phase II starts Thursday! UPDATED”

  1. Actually Nowdy there was one other case we watched from afar back in 2008 and it too was a less than limits verdict. For a variety of reasons such as not having access to court records online etc we never covered it. Also we had Aiken v USAA in the very early days.

    I mentioned last week that a courtroom observer mentioned to me off blog the Bossier’s expert didn’t come across very well on the stand. You may also may remember in the same comment I spoke of the difficulty involved in decoupled waterlines and surge heights from covered damage and how getting that nuance across to the jury was difficult. The reason I mentioned it was because of our experience with that 2008 case.

    I didn’t see where the Sun Herald gave Bob Lapinski any geography lessons though it is clear he is geographically challenged if he called the Bossier’s place “oceanfront”. He also makes it sound as if they threw the Bossiers a bone on their outbuilding which they clearly didn’t 4 years after the fact. The arbitrary delay of policy payments is manifest bad faith and to the extent the total amount delayed ended up well over 6 figures should be an embarrassment to State Farm though we all know they won’t man up and admit that.

    The bottom line is that anything less than limits was a loss for Bossier in a larger legal/economic sense. I still look for State Farm to appeal.

    Once again the people in Katrina land prove there is no such thing as home cooking when it comes to our juries.

    sop

  2. This is great news! :)

    “…The jury found that the home was destroyed by water, not wind..”

    Boy, that was a shocker – guess that “non-licensed” Professor wasn’t as effective as State Farm desired.

    See, a jury made of “common people” is so smart and usually underestimated by ins. companies. More than smart is the fact that they have COMMON SENSE which, obviously, was a missing component in State Farm’s agenda.

    I see that the jury awarded $52,300.00 for CONTENTS (noting the amounts previously paid – piece by piece, of course, – on the claim).

    Can you answer something for me? I see where SLABBED indicates:

    “PHASE II of JURY TRIAL TO BEGIN 11/12/09, at 1:00 P.M.;
    COUNSEL to reconvene in Chambers, 11/12/09, at 10:00 A.M.”

    WHAT IS PHASE II OF THE JURY TRIAL? I’m taking it to mean that maybe they’re going to assess (and/or agree upon) an amount for “bad faith” damages(?). Or what? What is “Phase II”?

    I’m in Florida and in Florida the bad faith cause of action (i.e., a lawsuit)is filed separately and is assigned a brand new case # – separate and apart from the case # utilized in the jury trial herein.

    I mean (unless Phase 11 of this jury trial set to re-convene on 11/12/09) is not meant to figure out bad faith damages, I’m curious to know what “Phase 11” of the jury trial is supposed to accomplish.

    I would appreciate you clearing this up for me. Tx.

    SHIRLEY HEFLIN
    (Tampa, FL)

  3. It is the bad faith phase Shirley. The contents was for the outstructure which State Farm made a belated late payment 4 years after the fact in an admission it was destroyed by wind. They negliected to give the Bossiers a check for the covered contents.

    Lawyers (not a party to this case) are telling me offline the punis could go as high as $1MM though no one expects that much of an award.

    No matter how State Farm spins this, the fact the jury awarded a penny more to the Bossiers means they got the adjustment wrong or in this case the no adjustment.

    sop

  4. To borrow from Actor William Bendix of “The Life of Riley”, “What a revolting development this is.” This is a “loss” for the plaintiff and his lawyers. Does Mississippi have a rule, or jurisprudence, to the effect that punitives cannot exceed 3 times the amount awarded in general damages?

  5. Great news!

    Hopefully the jury doesn’t hurt them too hard. I say that because a good, but not outrageous punitives/penalties award would keepthe 5th Circuit a.k.a. The Star Chamber, out of it.

    I am still worried about the decision to not allow SF’s expert to offer an engineering opinion.

  6. NRB given the verdict I don’t see what the Farm has to gain by appealing that aspect of the case. By making the belated payment on the outbuilding they admitted it was destroyed by wind. The jury award was for the content in that building. The punis are an entirely different matter.

    sop

  7. Let me get something staright. What was the total breach of contract claim worth? (1) home, (2) other structures, (3) contents and (4) additional living expenses?

    I thought the policy limits were in the neighborhood $500,000.00 plus?

  8. Also, while our penalty statutes may or may not be as good as Missisippi’s punitives statutes, I am glad I don’t have to worry about bifurcated trials here.

    Also, any word on what State Farm’s last offer pre-trial was?

  9. Also, the 5th is not going to allow a large punitives award to stand based on an other structure.

    The home and SF’s arbitrary and capricious failure to pay on the home is what will trigger a large punitives award. The 2 issues are connected— if they didn’t owe money on the home, then the punitives claim falls.

  10. I retract all of my comments.

    I didn’t realize the jury gave them nothing on the home.

    This is a terrible verdict in my opinion. This will embolden State Farm going forward and will be shining example about how to do back end loss adjustments.

    Just my opinion, but this is not good.

  11. Yep sad to say but I agree NRB. If all the jury had was the experts and the Bossier’s didn’t do so well as I heard then it became a crap shoot. The difference between Bossier and Lisanby, besides one being in state court was the experts.

    sop

  12. This underscores why I responded so vehemently when attacked previously for my handling of a SF case which resulted in my clients netting a very high six figure settlement. I remain convinced and this case underscores my belief, that a jury might see past the evidence and simply say “water did it because we all saw on TV what occurred with respect to the storm surge.”

    The 2 attorneys who assisted me in the case are the 2 best and I emphasize best attorneys in this area period and their work directly contributed to our success. However, when dealing with what is possibly someone’s last chance to obtain money to re-build their lives, there is only so much risk we as attorneys can tell our clients to take.

    Just my opinion.

  13. My counter to that NRB is that settlements late in the game are an irrecoverable loss to the public. I’ve spent countless hours researching “settlement” and am of the opinion that the “tort reform that needs to happen” is on the defense side of the bar. The insurance industry’s unwillingness to honor its contractual obligation to policyholders has tied the court system in knots, delaying and denying justice and shielding evidence that could have expedited the resolution of other claims.

    The public interest would be better served by a two-track civil system – settlement courts and trial courts. Your clients got a great deal, the defendant insurer got a great deal, but the public got no return on its investment. It’s the way the system works – the system sucks and it needs to change.

  14. First off I’d like to thank NRB for kicking off the mystery as to which case he is referring as we now have several google search hits from people going back in our archives trying to figure it out. I won’t say whether we’ve blogged the case or not to keep the mystery going except to say that when Chip Merlin posts with us he does so using his name alone so our researcher can scratch Chip off the list as it is not McIntosh. ( We did cover the controversy on McIntosh for those so interested)

    sop

  15. Also of note is the Sun Herald changed their misleading headline from “no money for wind” to “limited to contents”. I wonder if the mistake was self caught or if someone complained.

    sop

  16. Even though it was “technically” a win, the litigation (and pre-litigation) costs were no doubt outrageous – they usually are but, since they won, they’ll get most of them back! Indeed, they’re probably right around the area of the jury’s verdict (the first verdict, that is)! Indeed, the insured was seeking his policy limits of $650,000.00.

    Prior to trial (and according to a very recent Sun Herald story) the insured was paid (after 4 years) the following:

    “…State Farm had paid Bossier $93,480 for wind
    damage,including $77,000 for the outbuilding four
    years after Katrina as the case headed to trial.”

    Then the jury verdict was (the first one – not the bad faith
    aspect one):

    Recent jury verdict (Contents) $52,300.00
    Jury verdict for ALE -0-

    Well, Sop, you’re saying that the 2nd “trial phase” today is for the “bad faith” portion of the case and that just really seems foreign to me because (a) we do it differently in Fla., and (b) in essence, one is conducting a trial WITHOUT DISCOVERY and all the evidence, abuse, etc., discovered and obtained during discovery! How is that going to come out and be presented in court if (a) it never happens and (b) it never happens (yes, I said that twice).

    SHIRLEY HEFLIN

  17. By the way SOP, there were multiple high value settlements obtained by me and my partner so much so that the insurers basically paid us off to get rid of us. I spent many, many nights as a one man show briefing issues and gearing up for trials. My wife told me to get help at one point I became so consumed with litigating hurricane cases. Having been born and raised in the New Orleans area I was beyond angry that insurance companies would essentially kick their insureds in the head while they were bent over from Katrina. Its the classic “this is why I went to law school” type of cases.

    The point is I agree the public deserves to know what is going on. However, the risks to our clients, especially with a lopsided judiciary may be too much to bear in the end. Settlement is a settlement meaning everybody evaluates their cases and then decides how much money is fair in relation to the risk involved.

    For example, I just stepped into court here in New Orleans two (2) weeks ago against a big insurer on a underinsured motorist claim where penalties were sought. We had an unbelievable case and the insurer was not going to pat anything above the u/m policy limits. So I said “fine”, let’s try this sucker and let 12 people decide whether or not I right or wrong. The jury of 12 was sat and right as I called my first witness defense counsel ran over and offered the farm (my top dollar figure which was below what I would have recommended settlement for). Keep in mind I spent 2 weeks preparing for trial not including the 24 hours I spent preparing for what turned out to be a 6 hour deposition of the adjuster on top of all the other work. I was ready and willing to take my shot.

    However, the money was too good for me to tell my client “turn it down, I truly believe the claim is worth more.” You think I liked doing all that work only to have the case settle? Heck no, but it was in the client’s best interest.

    You guys do a tremendous job with this site because it provide an extra-judicial forum for exposing the heinous activity that occurred in the aftermath of Katrina. The problem is that courts and sometimes juries are unfortunately different than the readers of this site.

  18. O.K. “The opera ain’t over ’til the Fat Lady sings.” But she already “sang” in phase 1, and it is unlikely that Mr. Bossier is going to receive a “windfall” (no pun intended) in Phase 2. What the verdict, and “bad” result, for the plaintiff in Phase 1 demonstrates, is that litigation is ALL ABOUT MONEY. Litigation is NOT about “proving” that State Farm and its Executives are LIARS (we already KNOW the answer to that one). Bossier and his lawyers obviously lost sight of what this case was all about, namely: “How do we put as much MONEY as possible in Mr. Bossier’s pocket?” While I mean no disrespect to SOP or Nowdy, the SLABBED “coverage” did NOT prepare SLABBED’s readers for this result; quite the contrary, which came as a BIG surprise, at least to me. And now let the “recriminations” begin: “How many jury trials did Mr. Bossier’s lawyers bring to verdict prior to this case? How many of those brought to verdict did they win? How many did they lose? How many of their jury-verdict cases were insurance coverage cases? How much money did they leave on the table by taking this case to trial? What about in other cases tried to a conclusion before a jury?” AROD’s Bottom Line: Although State Farm is DISPICABLE, and although their lawyers are DISPICABLE, and although SF is NOT a “responsible” corporate citizen, State Farm is NOT stupid. They would NEVER have allowed this case to proceed to trial if there had been a reasonable expectation that they would LOSE. SLABBED did not adequately “prepare” us for that eventuality. I thought a WIN for Bossier was “in the bag”.

    1. Click the link in my first comment on this thread Ashton as I did sound a cautionary note during the trial. Otherwise our coverage was limited to highlighting the Sun Herald’s coverage as we were not there in person. I think from Senter’s settle with honor comment he would have ruled a bit different if this was a bench trial but then again he has probably forgotten more law than most lawyers learn. As I said getting the nuance of covered damages versus where the water line was is very difficult.

      Due to my prior experience with Aiken and the other case I will not name, I took it as a given this case was a crap shoot as is any case that goes before a jury. So while we all understand the law was on the Bossier’s side that is not the same as translating that into a jury verdict for limits.

      And while I’ve banged on Banahan I’ll also say he is regarded as a fine courtroom litigator. So while I appreciate the page view ramifications of the recriminations you mentioned it is also unfair to not give State Farm’s lawyers some credit for a job well done in the court room as evidenced by the results.

      To the extent we may have conveyed a mistaken picture of the future results we’ll accept the blame. The Judy Guice I know is not only a good lawyer but she is also a big girl who can roll with the punches so just as with McIntosh we won’t shy away from the recriminations.

      sop

  19. Thank you NRB for the compliment. And for our part, as you know from our offblog communications, as a matter of editorial policy we will not second guess the calculus that goes into settling though we do not hide the fact we want these cases tried from a larger social good standpoint. As an attorney “social good” is not your client and we do understand that.

    The broader concept of confidential settlements is a public policy flaw we’ll continue to address (as Nowdy has in this thread).

    Shirley stay tuned because we should have the phase 2 verdict soon.

    sop

  20. Right now State Farm to my knowledge is 4-0 in hurricane trials. Kodrin is a “L” for plaintiffs because of the 5th Circuit’s reversal of the penalties award. I also have an extremely good source who told me State Farm offered the Kodrins $500,000.00 to settle before trial. The deicison initially seemd like a good one until the emperor (the jury verdict) was exposed as having no clothes (at least that’s what the 5th Circuit stated).

    There were 3 other trials in the Eastern District of La. involving State Farm where plaintiffs received $0 or less than $20,000.00. One tried by a person I consider to be an excellent trial lawyer, but who was woefully under-prepared for trial and did not conduct proper discovery leading to a $10,000.00 judgment when the demand I believe was close to a million on a commercial policy.

    As I have said very often, State Farm is the BEST I have come across when it comes to evaluating cases for purposes of whether or not to proceed to trial. They take the measure of plaintiffs’ counsel as well as the facts and make a decision. So far, they have been 100% correct in all their decisions. Allstate is the opposite, i.e. they are the WORST when it comes to evaluating cases for purposes of trial. Another thought is that Allstate really doesn’t care about the ultimate Judgment; they don’t ever settle. Although that changed after Weiss.

    Let’s see what the jury does in Bossier as far as punitives, before declaring Bossier an absolute “L”. I would love to know what the last SF offer was to Mr. Bossier.

  21. Great comments and I’ve started post to offer a little more “food for thought” – for now, just saying that I agree with Sop and am not selling State Farm’s counsel short as they obviously did good job presenting their case. I’m sure Guice did, too. If you watched Monday night game this week, the courtroom was similar picture of two teams working hard to win…the whistle here blows on Thursday.

  22. My complaint about the trial and the verdict is that after the 5th Circuit threw back Broussard, the insurers get away with avoiding the burden of proof for years until trial. Even if State Farm can produce experts four years after the fact who never saw the property but can convince the jury that most of the loss was caused by flooding, that does not change the fact that the insured (and the taxpayers who paid flood claims to those with flood policies and disaster assistance to those without it) were owed a fair adjustment immediately after the hurricane. What proof did State Farm rely on to deny the claim in the first place? They disregarded the physical evidence and the eyewitness account and instead used cooked data that they dared not present in court. I don’t doubt that some of the loss was caused by flooding and should be excluded to the extent that State Farm could prove how much was due to flooding, but they have to be made to prove it at the time of the denial. Any system that lets them deny a claim and not have to offer any proof until four years later in court, is not a just system. The only just solution is to allow people to buy hurricane insurance that would cover hurricane losses without needing to dispute how much was caused by wind and how much by flooding.

  23. The absurdity of it all. For God’s sake, it’s supposedly a basic promise to promptly indemnify for accidental destruction of an asset – to many, their MOST important asset. Fitted with trip wires, it serves no purpose other than to keep a lot of cat herders employed. Like a lot of other profoundly stupid things human beings do, the land mined policy form, serviced by a retinue of leeches – bloated federal courts feeding on the federal treasury, paid experts, defense lawyers, lying insurance companies, and on and on – is useless as a risk transference device.

    Going to court on an insurance policy reminds me of the old days in cell phone billing. The expected profits from the 16 or so labyrinthine “plans” — splicing and dicing minutes and 100 other insidiously complicated gimmicks — collapsed under the weight of unsurpassed admin costs.

    The only sensible thing to do with insurance is stop the complication. One contract, all perils, no tricks or trap doors, and streamlined claims payment. Everyone benefits when the loss is redeemed. Simply put, like a human body, society functions better and more profitably, when the injury is cured – quickly, and without 50 nurses per patient.

  24. Slab cases are better than cases in which the houses are still standing. Once the homeowner’s lawyers have to start talking to a jury about the “burden of proof” relative to a home that took on lots of flooding, the jury seems to get lost. All the jury knows is that it sees a structure that was massively flooded.

    There seem to be many “experts” on this thread pontificating about Katrina jury trials. I don’t see them talking about their own experiences with Katrina juries. Maybe I have none either, but Monday morning quarterbacking from a disgracefully disbarred lawyer and others is just hot air, no matter how smart they are.

    It’s like reading the comments attacking Judge Vance, but supporting Joan Benge. What alternate universe are these guys living in?

  25. Brian is spot on.

    I have been turning over in my mind what kind of evidentiary rule or law the La. legislature could pass that would all but bar back ended loss adjustments.

    Currently, you have to trust the jury to see it for what it is…. a pre-text as Judge Kern Reese said in Orellana v. La. Citizens.

    In Bossier the jury didn’t get it. Whose fault that is? I don’t know.

  26. “hot air?” I’m going to kindly think of them as people’s opinions…and then I’m going to remind myself how lucky we are to be able to express them.

    SHIRLEY HEFLIN

  27. I beg to differ a little bit sock puppet.

    First and foremost, I have tried jury cases. Second, I in no way indicted Judy Guice. Instead I did the exact opposite explaining how the nuances can get lost on the jury.

    Lastly, as far as slab vs. home still standing, it depends. My best Katrina case which settled for 6x policy limits concerned one plaintiff/homeowner whose 2 story home in New Orleans East took on 4 ft f flood water but had the roof taken off and one side. Pictures from the inside showed the crying effect all over the walls and the ceilings had dropped. The h/o insurer paid my client $20,000.00 on a home that was undisputedly destroyed by wind and rain. If forced to try the case, I thought about foing the following in opening: standing up with blow-ups of the home, looking at the jury, then holding up a copy of the $20,000.00 check, looking at the jury again, and sitting down. The point is the insurer had zero defense. In a slab case, they do have a defense, especially if the home was located close to water.

    As far as Judge Benge vs. Judge Vance, give me Judge benge any day. Its absurd to kick someone off the bench for what she may have meant. Also, give me a judge who will decide issues based on the law.

    Remember who worked for, with and vacations with Judy Barasso,

  28. There is one issue that I find worth mentioning with regard to the second phase of this litigation, and that is the issue of extracontractual damages. Extracontractual damages in Mississippi are recoverable upon a showing of simple negligence, and include everything from mental anguish to attorney’s fees and litigation costs. These damages are compensatory in nature, and are not intended as punishment to the insurer. I will state that I haven’t seen the jury instructions in this particular case, but this is the law.

    Because the jury did find that SF was negligent in failing to pay at least $52,300 that should have been paid on the contents claim, and given the fact that Judge Senter found as a matter of law that SF had no excuse for failing to pay the majority of what it did pay until 4 years after the storm, extracontractual damages are clearly appropriate. Again, these are compensatory damages, and compensatory damages are used as the base multiplier for punitive damages.

    Thus, if the jury does find that punitive damages are appropriate, the base punitives multiplier should likely be $52,300 + litigation costs (including expert costs) + mental anguish damages + attorney’s fees. This could result in a significantly higher number than simply using the contents award as a basis for punitive damages.

    That being said, what the law says a jury ought to do and what it actually does are often very different things.

  29. Joan Benge is no longer a judge and should not be referred to as such. Ronald Bodenheimer, Alan Green and C. Hunter King should not be referred to as “judge” either. Benge clearly did not decide the case at issue (Demma) “based on the law.” Her own words and glaring inconsistencies in her testimony undoubtedly establish just the opposite.

    NRB might be the only person alive (maybe one other) who believes former judge Joan Benge should be mentioned in the same breath as Judge Sarah Vance. Does the fact that she vacations with a certain lawyer mean that Judge Vance cheats for that certain lawyer? If you have evidence of that, maybe you should file a complaint. If not, maybe you should shut down the innuendo.

    NRB, I also noticed you said “jury trials,” but not Katrina jury trials. This seems to be what lawyers do when they intend to mislead people.

  30. Sock puppet I know how try a case, don’t worry. The reason I have not had to try a case is because the insurers PAID a ton of money to my clients.

    As far as Joan Benge she awarded $4,000.00 including specials on a cracked tooth. The juddgment wa ssupported by the law and the evidence.

    As far as Judge Vance read her Chauvin decision the VPL (a true abomimation) and every other ruling she made up until a year ago in Katrina litigation. For example, the burden of proof was settled both jurisprudentially and statutorily in La., yet she as an Eerie court judge waited until the 5th Circuit ruled in Dickerson. Meanwhile, she became the poster child for insurance companies and their lawyers citing her garbage opinions that plaintiffs as owners of all-risks policies had to prove what wind damaged as opposed to defendant insurers showing the nature and value of what flood damaged.

    Anywho sock puppet I hear a playground calling your name so run off and play with the other great judges like Vance— what a joke!

  31. By the way sock puppet, I noticed you have no retort to the slab vs. structure standing post.

    Bossier proves you have no clue as to what you are talking about.

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