Chip Merlin’s Gulf Coast case law update provides context for SLABBED update on recent developments in selected Katrina cases UPDATED

Merlin lived up to his name when, like the magician, he pulled this list of case law out of his hat, so to speak, and posted it on his blog last week – providing the context  for an update on several cases we’ve followed on SLABBED.  Case law was the focus of Merlin’s presentation at a recent Windpool Conference session for adjusters and the listed cases are those expected to “affect those adjusting claims in Gulf Coast areas outside of Florida”:

• Fonte v. Audubon Ins. Co., 8 So. 3d 161 (Miss. 2009)
• Certain Underwriters at Lloyds London v. Law, 570 F.3d 574 (5th Cir. 2009)
• Guideone Mut. Ins. Co. v. Rock, No. 06-218, 2009 WL 1854452 (N.D. Miss., June 29, 2009)
• Corban v. United Services Automobile Association, 20 So. 3d 601 (Miss. 2009)
• Watson v. Allstate Ins. Co., Slip Copy, No. 07-3462, 2009 WL 1704730 (E.D. La., June 17, 2009)
• Dickerson v. Lexington Ins. Co., 556 F.3d 290 (5th Cir. 2009)
• Campbell v. Shelter Mutual Ins. Co., No. 07-1983, 2009 WL 56003 (E.D. La., Jan. 7, 2009) (Following Dickerson)
• Korbel v. Lexington Ins. Co., 308 Fed. Appx. 800 (5th Cir. 2009)
• Copelin v. State Farm Ins. Co., No. 06-4115, 2009 WL 36188 (E.D. La., February 12, 2009)
• Marketfare Canal, LLC v. United Fire & Cas. Co., 594 F.Supp 2d 724 (E.D. La. 2009)
• Grilletta v. Lexington Ins. Co., 558 F.3d 359 (5th Cir. 2009)
• State Farm Lloyds v. Johnson, 290 S.W. 3d 886, 52 Tex. Sup. Ct. J. 1042 (Tex. 2009)
• Spicewood Summit Office Condominiums Ass’n, Inc. v. America First Lloyd’s Ins. Co., 287 S.W. 3d 461, (Tex. App.-Austin, 2009)
• Temcharoen v. United Fire Lloyds, 293 S.W. 3d 332 (Tex .App.-Eastland  2009)
• Moffett v. Computer Sciences Corp., et al., 647 F.Supp. 2d 517 (D. Md. 2009)

A second listing of related “practical points” followed and included, among others, two of particular interest:

Mental distress claims brought about by wrongful claims conduct will be recognized in Mississippi and Louisiana. The Louisiana standard to support such a claim is very low. Adjusters must be trained to use the “golden rule” with adjustment activities and appreciate the emotional distress caused by a catastrophe followed by a serious discussion of adjustment.

In Mississippi, the insurer bears the burden to prove the amount of excluded flood damage under an all risk policy. The policyholder must prove the amount of wind damage caused to contents under a named peril policy.

Considering these points, it’s only natural the both Politz v Nationwide and Hillier v USAA settled as both insurers went far beyond what the related State law required in their demands related to plaintiffs’ mental distress claims.  SLABBED wishes both full sails and fair seas and makes note of the tireless effort of their counsel – Kris Carter of Denham Law for Mrs. Politz and Tina Nicholson of Merlin Law Group for the Hillier litigation.

Two additional cases settled at recent Settlement Conferences – although it appeared State Farm counsel Scot Spragins needed a little help from his friend:

Minute Entry for proceedings [in Robohm v State Farm] held before Magistrate Judge Robert H. Walker: Settlement Conference held on 2/2/2010. After lengthy negotiations, the case settled. Judge Senter will enter the closing order. (JR) (Entered: 02/02/2010)

Minute Entry for proceedings [in New Light Baptist Church v State Farm] held before Magistrate Judge Robert H. Walker: Settlement Conference held on 2/2/2010. This case settled at the conference. Judge Ozerden will enter the closing order. (JR) (Entered: 02/02/2010)

Spragins has another State Farm case in the process of settlement.  Unfortunately, the plaintiff died waiting on State Farm to honor its contract.  Settlement in Estate of George Nixon v State Farm is “pending Chancery Court approval for the estate. Attorney Scot Spragins’ office will notify the Court when approval is obtained”.

State Farm is making a full court press (pun intended), including a recent Offer in Judgment, to force settlement of Kuehn v State Farm – and Spragins is passing out settlement checks like hotcakes in his cases should Kuehn’s lower the boom on his conduct Sop reported in From a simple ass to an ass-clown (April 2009)

Sunquest v Nationwide is another appraisal case we’ve been following for sometime because of our regard for the work of Lewis O’Leary, the appraiser selected by both the Kuehn’s and the Sunquest plaintiffs.

After Nationwide sharpened its teeth on Mrs. Politz, the Company started trying to sink its teeth into O’Leary.  In doing so, it appears the Company is biting off more than it can chew.  Judge Senter issued a related Order today: (Order corrected and reissued 4/4/2010 with corrections to text as indicated below)

The Court has before it Plaintiff’s motion and Defendant’s cross-motion to appoint an Umpire to participate in the appraisal of the total loss (from all causes) sustained by the insured property during Hurricane Katrina. This motion will be GRANTED.

I have considered all the nominations made by the parties, and, based on my personal observation of him while testifying in Kuehn v. State Farm Insurance Company, Civil Action Number 1:08CV577 LTS-RHW, I find that John G. Minor Voelpel is qualified to act as the umpire in this appraisal and should be designated as the Umpire.

Accordingly, it is hereby ORDERED That the plaintiff’s motion [94] and the defendant’s cross-motion [130] to appoint an Umpire to participate in the appraisal of the total loss (from all causes) sustained by the insured property during Hurricane Katrina is hereby GRANTED, and

That John G. Minor John A. Voelpel, III, of Voelpel Claims Service, Inc., is hereby appointed the Umpire for this appraisal. Mr. Minor’s Voelpel’s customary fee of $250.00 per hour portal to portal plus travel expenses (mileage at the rate approved for federal employees, airfare, hotel expenses, and meals when appropriate) is hereby ACCEPTED and APPROVED.

That the appraisal of the total loss (from all causes) sustained by the insured property during Hurricane Katrina shall be completed and the written findings of the appraisal signed by the appraisers and the umpire shall be filed with the Court in this action within forty-five days of the date of this order.

Minor Voelpel was Umpire of the appraisal team examining State Farm’s appraiser for the Kuehn property and it was his testimony on the appraisal process that defeated attempts to discredit State Farm’s appraiser John Minor. During Minor’s deposition,  Kuehn counsel Earl Denham discovered, as Sop reported:

Lawrence “Lucky” Tucker and H. Scot Spragins…inserted themselves into the appraisal process and, as agents for State Farm, attempted to direct the appraisal process and caused it to be handled differently from the twenty to thirty other appraisals conducted by State Farm by appraiser John Minor in the wake of Hurricane Katrina.

Justice! How sweet it is!

Justice is even sweeter with today’s (4/4/2010) corrected Order and the clarifying comment Louis O’Leary posted on SLABBED.  Let it be a lesson to all that Lewis O’Leary spoke up to make the truth known when others in his position would have remained silent.

Once again, I find myself reminded of a card I saw posted by the cash register in a Clarksdale drugstore that said, “I wasn’t called to be perfect, I was called to be faithful”.  I’ve read nothing in any document that indicates Lewis O’Leary is anything other than faithful – faithful to the truth.

Justice! How sweet it is when the truth is known.

Nowdy