The subject policy contains language commonly referred to as the “Anti-Concurrent Causation Provision” or “Weather Conditions” exclusion which State Farm has characterized as preventing any recovery for wind damage when the insured property also sustains damage caused by another weather condition… The Mississippi Supreme Court has rejected the argument that the anti-concurrent clause is not ambiguous or not enforceable. The Mississippi Supreme Court held, in Corban v. United Services Automobile Assn., 20 So.3d at ,-r,-r 32, 40-41, that the anti-concurrent clause was ambiguous and unenforceable to the extent that it purported to exclude any wind loss if it occurred separately from and in any sequence to excluded water loss.
State Farm has already argued this exact issue before the United States District Court for the Southern District of Mississippi in another identical Hurricane Katrina related case this month. (See Memorandum Opinion in Charles Spansel and Janet Spansel v. State Farm Fire and Casualty Company…) In Spansel, the District Court found that “State Farm has not shown it is entitled to summary judgment on this portion (anti-concurrent clause) of the declaratory judgment claim”. In light of this ruling and others like it, the doctrine of collateral estoppels prohibits State Farm from contending here that the contract for insurance is not ambiguous as to any perceived anti-concurrent clause.
Plaintiffs’ Motion for Declaratory Judgment, one of five motions the Robohms filed on the 19th of January, was followed on the docket by State Farm’s Motion for Summary Judgment or in the alternative Partial Summary Judgment and supporting Memorandum:
Plaintiffs’ claim for declaratory judgment fails because…it is at odds with Mississippi Supreme Court precedent establishing that the water damage exclusion in the applicable policy unambiguously excludes damage from storm surge and that the anti-concurrent causation clause excludes damage caused by wind and flood acting concurrently. See Corban v. United Servs. Auto. Ass’n, 20 So. 3d 601,614-15 (Miss. 2009).
Buckle up, folks. We’re going to the other end of the Coast – 423 East Beach Drive, Ocean Springs – and way back to see what this case is about before discussing the other motions filed yesterday.
- The Robohms filed the Complaint in this cause of action against State Farm on the 28th of August, 2008 – the day before the third anniversary of Hurricane Katrina, the SOL for filing Katrina-related litigation.
In this case, there is no question that the Robohms have established a loss that is covered by the general insuring language of the…[all-risk]… Policy. Thus, State Farm has the burden to prove that the loss would not have occurred in the absence of the excluded event. State Farm does not and will not meet this burden of proof.
- State Farm did not answer the Complaint until the following January (January 13, 2009). A few days after filing the Answer, the Company began an effort to remove State Farm Mutual as a defendant – an effort that dominated the docket from the date the Company’s Motion to Dismiss was filed (January 16, 2009) until May 7, 2009 when Judge Senter entered an Ordergranting State Farm’s Motion.
- At that point the docket began to move along like most others and continued to do so until just before Thanksgiving (November 20, 2009) when State Farm modified its usual Motion for Protective Order and sought protection for documents provided by the third-party Mississippi Windstorm Underwriting Association.
State Farm seeks protection as to documents produced pursuant to subpoena by third parties, specifically MWUA. In the instant case, plaintiffs’ policy with State Farm Fire had
a wind exclusion, meaning that damages to the structure caused by hurricane wind were excluded from payment under their State Farm Fire policy. However, plaintiffs had wind coverage at the time of Katrina with the MWUA.
MWUA is unwilling to respond to the subpoena without the entry of a protective order.
- Needless to say, the mention of the Windpool sent me back to the Complaint as I understood the MWUA provided coverage of last resort. I confirmed the Robohms had purchased a State Farm all-risk policy but found:
As State Farm failed to deliver the Plaintiffs a copy of the subject policy of insurance until after Hurricane Katrina destroyed the Plaintiffs’ home and property, and failed to provide the Plaintiffs with a copy of, or express notice of, any exclusions to the coverage listed on the declarations page which showed coverage available to the Plaintiffs.
State Farm has not and cannot sustain its burden of proof because the Plaintiffs’ loss was caused by wind, at least in part; and because State Farm abandoned and breached its duty to conduct a timely, thorough and competent inspection of the Plaintiffs losses. Moreover, State Farm concluded neighboring homes sustained wind loss. State Farm ignored evidence of Hurricane Katrina’s straight-line winds, tornados, severe thunderstorm cells, and air-borne missiles in the neighborhood and vicinity of Plaintiffs’ home.
- In December, the case really started rockin’ when State Farm entered a Motion to Strike Plaintiff’s Expert Witnesses (December 16, 2009) that Judge Walker granted on the 7th of January 2009, a day after he granted the expanded Protection Order that State Farm filed in November.
Fast forward from that point to yesterday, January 19, 2009 – the deadline for filing dispositive motions – and the three motions in limine filed by Robohm:
…Plaintiffs purchased a flood insurance policy separate and apart from the policy of insurance that is the subject of this litigation, and receipt of policy benefits because of that purchase should be treated as a collateral source and excluded under the collateral source doctrine. Moreover, receipt of flood insurance proceeds is irrelevant. Alternatively, any relevance of such evidence is outweighed by issues of undue prejudice, confusion, and other Miss. R. Evid. 403 (2009) considerations.
The issue in this case relates to Plaintiffs’ entitlement to policy proceeds due the Plaintiffs under a policy of insurance policy issued by Defendant State Farm. Plaintiffs will establish that substantial additional amounts should have been paid under that policy; and that Defendant’s failure to do so was a result of gross negligence and bad faith conduct, including lack of adequate investigation…
Nothing in the State Farm policy allows Defendant to utilize the flood insurance proceeds to its benefit. Defendant does not contend that any overlap exists between what is covered under the flood policy and what is covered under its policy of insurance. Thus, the “subrogation” provision of the policy does not apply in this case…
Neither Donald or Natalie Robohm were required to sign any proof of loss or other statement in order to receive flood proceeds from the United States government. Indeed, they were not required to acknowledge or attribute any of the damage in question to flood. Moreover, Plaintiffs were not provided with any prior notice that Defendants would attempt to use the acceptance of proceeds under a separate policy of flood insurance, limited as they were, in mitigation of contract benefits owed under the State Farm insurance policy. Thus, no election of remedies or judicial admission or estoppel applies in this case…
The following facts are undisputed: a. In both their Complaint, Plaintiffs have alleged, among other things, that State Farm acted in bad faith by denying benefits to Plaintiffs without a reasonable basis. b. On or about December 17, 2008 State Farm offered to settle additional living expenses for the sum of $4,920 and on or about July 16, 2009 offered to settle additional living expenses for the sum of$14,635.07.
Rule 408 of the Federal Rules of Evidence plainly states that a compromise or offer to compromise is not admissible to prove liability or the invalidity of a claim.
The narrow exception to Rule 408 does not exclude evidence offered for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or provingan effort to obstruct a criminal investigation or prosecution. Even if settlement evidence is admissible for other purposes, it should still be analyzed under Fed. R. Evid. 403. Rule 403 provides for the exclusion of evidence where its probative value is substantially outweighed by the danger of unfair prejudice.
State Farm has maintained an absolute position that the Robohms are not owed money under its insurance policy, a position that has been restated by the company even after the mediations took place.
To allow State Farm to offer evidence of its offers for any purpose would only serve to confuse the jury. Even if State Farm were to attempt to use this evidence for a purpose other than to prove the invalidity of Plaintiffs’ claim, its probative value, if any, would be substantially outweighed by the danger of unfair prejudice.
- MOTION in Limine to Exclude Evidence or Argument that Expert Testimony is Necessary to Prove Emotional Distress
In their Complaint, Plaintiffs have alleged, among other things, that Plaintiffs suffered emotional distress as a result of the actions of Defendant.
During the course of discovery in this matter, Defendant has taken the deposition of the parties at which time the treating physician( s) information was provided to the Defendant.
The Plaintiffs disclosed the facts surrounding their emotional distress in Core Disclosures, Interrogatory Responses, Requests for Production Responses and during their respective depositions.
The Mississippi Supreme Court has clarified the burden for recovery of mental anguish and emotional distress in breach of contract cases: “Plaintiffs may recover such damages without proof of a physical manifestation. Furthermore, expert testimony showing actual harm to prove mental injury is not always required.” University of Southern Miss v. Williams, 891 So.2d 160, 172-73 ,-r31 (Miss. 2004).
The fifth and final motion filed by the Robohms yesterday was a MOTION for Review of Magistrate Judge Order – specifically the State Farm Motion to Strike Plaintiffs’ Expert Witnesses granted by Walker on the basis of untimely filing.
This application is filed to correct a prejudicial error of the Magistrate Judge striking the untimely filed Designation of Expert Witnesses .
…During the claims handling process, prior to litigation, State Farm was given a copy of the Plaintiffs’ expert reports. Pre-Discovery Information was provided to State Farm on May 2, 2009 which, again, contained a copy of the said reports. Interrogatory responses were served upon State Farm on July 14,2009 and Request for Production responses were served upon State Farm on July 15, 2009. Both responses contained information regarding the expert witnesses and the Response to Request for Production again contained a copy of the expert reports. The Responses to Request for Production and Interrogatories included the curriculum vitae, opinions and reports of eachexpert, requirements of Fed. Rules of Civil Procedure at Rule 26. Natalie Robohm submitted to deposition on July 15, 2009. Donald Robohm submitted to depositions on July 14, 2009 and again on September 29, 2009. In each of the depositions the Plaintiff provided expert and fact witness disclosures to State Farm…
The Plaintiffs’ untimely filed their Designation of Expert Witnesses  immediately upon discovery of the omission…
Upon receiving the information disclosed, as set forth above, State Farm proceeded to issue a subpoena to expert witness Ted Biddy and requested deposition dates for both experts, Ted Biddy (engineer) and Stephen Wistar (meteorologist). The deposition of Ted Biddy commenced on January 4,2010. State Farm has deposed other witnesses in this matter disclosed in Plaintiffs discovery responses, depositions and pre-discovery disclosures…
On January 7, 2010 the Magistrate Judge entered an Order granting Defendant’s Motion to Strike Plaintiffs’ expert witnesses, Ted Biddy and Stephen Wistar based upon the untimely filing of the formal document entitled Designation of Expert Witnesses. This Order unduly punishes the Plaintiffs and erroneously elects form over substance…
Considering the information provided above, the Plaintiffs request that this Court find that any perceived failures be found harmless as is permitted under Federal Rules of Civil Procedure at Rule 37, as Plaintiffs provided all required information…
The Order, as it stands, restricts the Plaintiffs’ use of their experts reducing their testimony only to rebuttal to the Defendant’s expert testimony…
Defendant’s Motion to Strike Plaintiffs Expert Desigantion is due to be denied because all four (4) factors for set forth in the Fifth Circuit in Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 882-883 (5th Cir.2004) weigh heavily against striking Plaintiffs’ expert designation.
Additional evidence Walker’s Order was a prejudicial error was provided by none other than State Farm in the Company’s Motion for Summary Judgment:
If the Robohms needed additional evPlaintiffs’ claim for breach of contract should be dismissed because Plaintiffs admit that their house sustained at least $250,000 in flood damage and that such damage was sufficient to render their house uninhabitable. Accordingly, Plaintiffs are not entitled to additional living expenses (“ALE”) under their homeowners policy. Further, Plaintiffs cannot offer expert testimony that their house was rendered uninhabitable by wind, rather than flooding. Where there is a dispute as to whether wind or water damaged a structure, expert testimony is required to prove causation. Bossier v. State Farm Fire & Cas. Co., No. 1:08CV408, 2009 U.S. Dist. LEXIS 108595, at *14 (S.D. Miss. Nov. 20,2009).
And, that, SLABBED readers is the best example yet of State Farm playing the Court like a drum to gut a case – an expected outcome when settlement, not justice, is the Court’s all consuming focus.