A little background here for new readers and a refresher for others: Larry, a character on the old Newhart show, spoke for himself and his two mute brothers, both of whom were named Darryl. (h/t Sop for the reminder). “Qui Tam Olympics” is SLABBED shorthand for the insurance industry’s effort to play Mississippi Judge L.T.Senter and the Rigsby qui tam case against Louisiana Judge Sarah Vance and the Branch Consultants’ qui tam case and, now, the Denenea case too.
Got the picture? Meet the cast. Although the roles change when to their advantage, at the moment Allstate has taken the role of Larry, State Farm that of one Darryl with the rest of the industry playing the other.
In other words, those in the insurance industry that were “all in it together” – “it” being “the scheme” of fraudulent claims handling that followed Hurricane Katrina – are still “all in it together” with “it” being a pull-the-wool-over-the-court’s-eye scheme to fool the federal courts into dismissing all three qui tam cases. How do I know? Well, wet wool smells – some say like a wet dog – and I picked up the scent reading documents filed in all three cases.
Hold your nose and I’ll link this wool-pulling scheme to the scheme and the qui tam insurance defendants that are among “The Ten Worst Insurance Companies in America”– and, if you’ll follow me as I briefly introduce Moffett, et al v Computer Sciences Corporation, et al (Maryland), I’ll also briefly introduce a breath of fresh air, Opperman, et al v Allstate, et al (New Jersey).
Ready? If you consider betting on the weather as “1”; add another “1” – advancements to the variety of software applications available to assess the risk associated with litigation described in them thats got and them thats not (chapter six of the scheme) – and calculate the sum with “Allstate’s confrontational attitude towards its own policyholders…[that]…was the brain child of consulting giant McKinsey & Co.” you’ll find a “2” stinks to high heaven.
The “wool-over-the-court’s-eye scheme” is a carefully planned, money-making litigation strategy, developed as an element of the scheme:
“Innovative software, pioneering use of technology, and a highly touted management program – the laudable tools of success when used as intended…became together, the newest version of the tricks of the trade fashioned by the most advanced information management system ever made – the human brain – into the scheme, a needle hidden in a haystack of needles.”
The illustration to the right most likely explains how these tools came together – perhaps, even earlier than Isabel, the hurricane force behind Moffett, et al v Computer Sciences Corporation, et al :
“A multi-plaintiff lawsuit against Homeland Security Undersecretary Michael Brown, FEMA Acting Director David Maurstad, Computer Sciences Corporation President Paul Cofoni, seventeen insurance companies, their vendors and adjusting firms and others was filed Wednesday in United States District Court, Greenbelt, Maryland, alleging that the group conspired to defraud thousands of catastrophe victims who had purchased flood insurance through the National Flood Insurance Program (NFIP).
As a result, many family units were destroyed — left to live in campers without indoor plumbing when temperatures dropped below freezing, with no place for children to study or play.
In February 2004, pattern recognition and fraud detection expert Mr. Steven Kanstoroom found that many insurance adjusters were using software programs that relied upon new construction pricing rather than far costlier repair and renovation pricing.”
More discussion of Moffett will be required as we follow Larry and his two brothers Darryl through each of the qui tam cases. At the moment, however, let’s grab a bit of fresh air from Opperman, et al v Allstate, et al:
In the New Jersey case, Opperman v. Allstate, the court ordered defendants to provide plaintiffs with “unfettered” expert access to the Integriclaim loss-calculation software program used by defendants to adjust plaintiffs’ claims… Here the plaintiffs allege that after they suffered a covered fire loss, Allstate submitted loss estimates that were unreasonably low. When confronted by plaintiffs over the loss estimate, Allstate represented that the estimates were based on “Home Depot”…
Plaintiffs claimed they then visited Home Depot stores but were unable to purchase the materials at the prices quoted by Allstate…Defense attorneys argued that there were less intrusive means than unfettered access to the software to obtain the requested information. Further, Allstate said, Marshall & Swift’s trade secrets would be compromised by plaintiffs’ access to the software.
The court ruled the information contained in the software system was relevant to plaintiffs’ claims because it was “central to the issues in the case and should be produced.” Noting that plaintiffs’ claims were based on Allstate’s repair cost estimates that were supposedly based on Home Depot pricing, the court said it was necessary for plaintiffs to learn precisely how Allstate computed loss estimates. The key to the computation, the court said, was the software system configured for Allstate.
Neither side disputed that the software contained Marshall & Swift’s trade secrets. The court found, however, that the steps plaintiffs agreed to put in place during the inspection of the software would protect Marshall & Swift’s trade secrets.
It will take time to dig through this landfill of litigation but I promise to follow with a post on each case. In the meantime, I trust both Judge Senter and Judge Vance know s#!% when they smell it!