What’s up? What’s going down? – a quick look around at Katrina litigation

Let’s start with this update on Rigsby qui tam defendant Forensic Engineering (FAEC).  At last mention, Forensic had not obtained substitute counsel and Judge Walker had denied current counsel’s motion to withdraw. setting an April 2 deadline for submission of the Company’s designation of experts.   What’s up includes FAEC’s Joinder and Designation of Experts:

(“Forensic”)…joins in the Supplemental Combined Expert Disclosure…and Supplemental Expert Disclosures…filed by State Farm Fire and Casualty Company (“State Farm”) in this matter, to the extent applicable to Plaintiffs’ claims against Forensic.

Pursuant to Fed. R. Civ. P. 26 (a)(2), Forensic also designates John B. Kelly, P.E., as one of their experts. John B. Kelly is a Principal Structural Engineer that will opine that all the engineering reports and revised engineering reports were true and correct, and done in accordance with sound scientific/engineering principles and observation of the conditions at the site.

Forensic, of course, “reserves the right to call any expert listed, designated or called by any other Party” – and it’s safe to say there will be witnesses that offer a view contrary to that of Kelly.

What’s going down? It seems the Easter Bunny joined Santa Clause and the O’Keefe’s have now reached a settlement in Dancel Group, Inc. et al v. United States Fidelity and Guaranty Company et al in addition to the settlement of O’Keefe v State Farm, announced in the SLABBED post that published Christmas Eve.

What’s up with Kuehn v State Farm? Hard to tell, frankly.  In the Christmas Eve catch-all linked above, SLABBED reported the what the Kuehn’s Counsel, Earl Denham, wanted to go down.

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.

What Denham got in return for his offer of “good faith” was the legal equivalent of ashes and switches, an Offer of Judgment on the 20th of January – and today State Farm filed another. 

What’s going down in Sunquest v Nationwide? A trial – actually two – unless something unforeseen happens in either Sunquest I (Carriage House) or Sunquest II (Compass Point).  Let’s start with what went down on the Court-ordered appraisal of Carriage House as explained in Judge Senter’s Order :

The Court has received correspondence from the umpire indicating that there is no agreement by two members of the appraisal panel as to the amount of damages sustained from all causes by the insured property during Hurricane Katrina. For the purposes of a complete record, the pertinent documents submitted by the umpire are attached to this order…

Because there is not agreement by any two members of the appraisal panel, this Court determines that the appraisal process is complete and there is no binding appraisal. This cause of action will not be delayed further…

The “pertinent documents” Judge Senter attached are the correspondence from the Court appointed Umpire, John Voelpel, with his itemized cost of wind/water damage from Hurricane Katrina and his estimate of Replacement Cost Value at $3,810,772.81 attached, along with related correspondence to him from the Appraiser appointed by each party.

Nationwide’s Appraiser, David Horton, wrote Voelpel he could “not agree with your Award for the present amount and continue to stand firm on my number of $2,735,308.45 which includes both Overhead and Profit.

Lewis O’Leary, the Appraiser for Sunquest, did not offer a different amount and it’s not clear how the lack of documentation he cited constitutes a disagreement with Voelpel as O’Learly simply stated that Nationwide’s Appraiser had not provided him “with RMR’s wind and water estimate. They have had mine for 7 months and I do not have his”.

Judge Senter certainly will strain to find any “good faith” in Nationwide’s decision to stand by an estimate that is more than a million dollars less than Voelpel’s while refusing to provide O’Leary with required documentation. Nonetheless, he was prepared when Sunquest filed a motion to withdraw their request for an Appraisal of Compass Point:

On March 22, 2010, Mr. Voelpel rendered his appraisal opinion in Carriage House. On the same day both Mr. David Horton, Nationwide’s appraiser, and Mr. O’Leary informed Mr. Voelpel that they did not agree with his estimate. By letter March 24, 2010, Mr. Voelpel informed the Court of this disagreement.

The issues and facts of this matter are substantially similar to those of the Carriage House matter.

Tens of thousands of dollars will be spent by the parties in completing the appraisal in this matter. Insureds see no reason why this appraisal will have a different outcome than the appraisal in Carriage House, in which no decision by the appraisal panel was reached.

Accordingly, Insureds wish to withdraw their request for appraisal in this matter in order to preserve the resources of the parties.

Judge Senter followed with a brief Order stating:

Based on Plaintiffs’ request for relief and the fact that it is not opposed, the Court will accordingly ORDER that Plaintiffs’ [226] Motion to Withdraw Appraisal is GRANTED, and that the Court’s [78] Order granting Plaintiffs’ [36] Motion for Appraisal of the Entire Loss is hereby VACATED, except to the extent that it is ORDERED that the parties shall bear equally the fees and expenses incurred to date by the Umpire appointed by the Court [225]. This cause of action will not be delayed further…

Now you have what’s up and what’s going down and are left to wonder what’s next – and that we must wait to find out.