Scrooges and Stooges – State Farm attorneys pack the sleigh!

More rapid than eagles these coursers they came

Scrooges and Stooges that went straight to work

Filling stockings with motions and giving justice a jerk!

Katrina insurance litigation is beginning to not look at lot like Christmas – even when State Farm slips in a check.  Take Kuehn v State Farm, for example.  Anita Lee reported State Farm pays up, but argues award was in error in Monday’s Sun Herald:

State Farm Fire & Casualty Co. recently paid a couple $179,100.31 for Katrina damage, but their attorney said the check came too late to save Henry and June Kuehn’s Cove Place home.

Attorney Earl Denham said the two-story house further deteriorated as the Kuehns awaited settlement of their insurance claim. The city of Ocean Springs wants the property cleaned up.

U.S. District Judge L.T. Senter Jr. ordered the Katrina payment in August, but State Farm has asked him to reconsider the ruling.

“This amount is tendered without recourse, but with the understanding that this is not an admission of an amount owed,” said a letter sent with the check by State Farm attorney Scot Spragins of Oxford. “Given the circumstances, State Farm has decided to make this tender to eliminate the threatened destruction of the Kuehns’ home.

“State Farm intends to continue to litigate the issue. In the event that we are successful and it is determined that these sums are not owed, then State Farm will not seek reimbursement.”

Denham replied the next day:

If it occurs to you and to State Farm to do the right thing by the Kuehns, instead of the strategic thing, which you have attempted through this cynical, tardy tender, then why don’t you engage in meaningful and realistic negotiations to settle my clients’ damages instead of continuing at the Kuehns’ expense in trying to redirect the law of appraisal in Mississippi? We stand ready, as we have always been, to engage you in good faith.

The stocking were hung by the O’Keefe chimney with care,

In hopes that a Scrooge or Stooge would soon be there.

Thus far, however, the docket in O’Keefe v State Farm shows nothing since Judge Ozerden’s December 9 Text Only Order denying as moot all pending Motions. In light of the parties’ announcement to the Court of settlement of all claims in this case…

A stop at the Rigsby’s was next on the list and Stooge stuffed in a Motion to Clarify the Non-Application of the Mississippi Competency Law with a Memorandum of Support:

Federal Rule of Evidence 601 provides that state competency law applies in civil actions where “State law supplies the rule of decision.” Expert designations are approaching and State Farm has previously identified at least one expert in this matter who would at least arguably be required to, but does not currently, possess a limited Mississippi engineering license if state law applied. Because this federal False Claims Act case arises under federal law, Mississippi competency law does not apply under Rule 601…State Farm respectfully requests this Court to enter an Order holding that state competency law does not apply in this federal False Claims Act case, which is not a diversity case, but rather arises under federal law.

As dry leaves that before the wild hurricane fly,

When the Rigsbys meet with an obstacle, they mount to the sky.

As usual, the Rigsbys took the high road in their Response :

Cori and Kerri Rigsby (“Relators”) do not oppose State Farm’s request for an order clarifying the application of Mississippi’s engineering license requirements to this case. The Relators expressly reserve all rights under the Federal Rules of Evidence to challenge experts designated by the other parties. The Relators further reserve all rights to challenge experts based on the application of the Statute, should the Court determine that the Statute is applicable to this case.

And then, in a twinkling, the court heard on the roof

The prancing and pawing of a Scrooge and Stooge hoof.

Scrooge and Stooge are busy shopping – judge shopping – to ensure Judge Walker rules first on the similar motions filed in three of Coast attorney Deborah Trotter’s cases: Lebon v State Farm, Lizana v State Farm, and New Light Baptist Church v State Farm. A look at the dockets is all it takes to see the prancing and pawing around various deadlines to manipulate the schedule or that there are not three wise men advising the effort.

Santa isn’t the only one who made a list to check twice, Trotter has her own that’s she’s checking to make certain she gets what she needs to prepare her cases.  Details of the many issues on the table will take a separate post.  However, Plaintiff’s Motion to Compel Information Regarding Defendant’s Insurance Agreements for Liability, Reimbursement or Indemnification provides an example – plus it makes a good gift for SLABBED’s friend from the finance board, CLS:

Plaintiff is entitled to know the identity and description of any and all policies of insurance which State Farm contends cover or might cover State Farm for liability with regard to Bad Faith, Unfair Claims Practices, agent negligence and/or agent misrepresentation described in the subject Complaint, as requested above. Further, pursuant to the Federal Rules of Civil Procedure 26(a)(1)(A)(iv) the Defendant State Farm is required to provide for inspection and copying, without awaiting a discovery requests, “any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.”

The information required and requested seeks to determine whether or not State Farm informed its insurer of liability and/or potential liability arising from the State Farm’s improper handling of Plaintiff’s insurance claims and/or if State Farm notified its insurer of potential claims by Plaintiff, which may have included estimated values of those claims for which reimbursement would be sought by Defendant State Farm…

Information and communications to any third party insurer of State Farm, including without limitation insurance agreements with Arrow Re and Alpha Winds, or any excess-of-loss treaty, regarding the Plaintiff’s insurance claims and/or Defendant State Farm’s handling of Plaintiff’s claims are directly relevant to Plaintiff’s contractual and extra-contractual claims of coverage denied, Bath Faith, Unfair Claims Practices, agent negligence and/or agent misrepresentation as outlined in Plaintiff’s Complaint and/or State Farm’s defenses.

But I heard them exclaim, ere they drove out of sight,

Merit aside, your claim we will fight!

And, then I heard:  You Stooge, you missed Bossier! Surely not! Scrooge has been nickel and dime picking Bossier since the verdict was announced.  Christmas would be over before this post was finished if I attempted to explain the disputed cost issues involved; so, I’ll save that for the new year and let this text from Bossier’s Reply in Support of Motion for Review an Objection to Clerk’s Taxation of Costs speak for itself:

The critical question in determining whether attorney’s fees are available as an element of damages in an insurance bad faith case is not whether punitive damages were awarded. Instead, the critical inquiry is whether an award of punitive damages was warranted. The recent decision by this Honorable Courtin Jowers v. Boc Group, Inc., 608 F.Supp.2d 724 (S.D. Miss. 2009), carefully analyzed the dispute between the parties as follows: [D]efendants assert that ‘plaintiffs must satisfy two requirements before attorneys’ fees may awarded (1) they must prove that defendants are liable for punitive damages; and (2) they must advance a justification for the award of attorneys; fees.’ Defendants further argue that the Jowerses have not met the second of these requirements.

In response, the Jowerses contend that defendants are entirely wrong: Mississippi case law does not impose either of the two requirements listed by defendants; and, the Jowerses have advanced a recognized justification for the award of attorneys’ fees. Having canvassed Mississippi case law, including dozens of cases not cited by the parties, the Court concludes the Jowerses are fully correct…

Explaining further, the Court held: Under Mississippi law, ‘attorney’s fees may be awarded in two circumstances: (1) where the contract or a statute provides for attorney’s fees or (2) where the losing party’s conduct was outrageous enough to warrant punitive damages.’ Of course, only the second circumstance is pertinent in this case. And as to that circumstance, the courts are careful to note that attorneys’ fees may be awarded when punitive damages are ‘warranted’ not necessarily actually awarded. Thus, the Mississippi Supreme Court has confirmed: ‘This Court’s holding in Greenlee and other cases was that attorney fees may be awarded in cases in which the awarding of punitive damages
is proper.

This Court did not hold in Greenlee that the actual awarding of punitive damages was a prerequisite for the awarding of attorney fees, and we expressly hold here that such an actual awarding of punitive damages is not a prerequisite for the awarding of attorney fees.’ Thus, defendants are not accurate when they assert that, before attorneys’ fees may be awarded, plaintiffs ‘must prove that defendants are liable for punitive damages.’ Rather, the burden on the Jowers was only to prove that an award of punitive damages would be proper.

And laying a finger aside of the nose,

And giving a nod, up Bossier’s chimney they rose!

Scrooges and Stooges do not make good neighbors!

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