The “drafts file” is overflowing (again) and time is short (again) – nothing to do but pull a handful of things I think worth a mention and go for what Sop has called a “round-up” post.
First up is an update on Young v Scruggs – brief because the case is stuck on proper service of the summons issued to Dick Scruggs, a discussion I passed on recenty when reporting Defendant’s Rebuttal. What’s happened since the, however, is more interesting. First, the defendants fied a Motion to Strike Purported Summons that basically restated the argument Scruggs was not lawfully served and there was a pending motion to dismiss on that basis. Next, plaintiffs pop up and file Notice the summons has been reissued – and on that same day, according to the docket, defendants filed anAmended Motion to Strike that cites and attaches a recent Mississippi Supreme Court ruling on the subject that’s worth a look.
The latest news on USA v Minor (Whitfield and Teel) makes for interesting reading – so did the recently filed Motion for Rehearing that was sitting in drafts when most media had the story up. Here’s the Motion and here’s the latest:
Pursuant to Federal Rule of Appellate Procedure 28(j), Paul Minor notifies the Court of the Supreme Court’s recent decision in Citizens United v. FEC, No. 08-205 (Jan. 21, 2010). That decision clarifies that the jury instructions in this case, which allowed the jury to convict the defendants of honest services fraud for campaign contributions made with only an intent to influence and without any quid pro quo, violate the First Amendment. h/t Legal Schnauzer (entire letter posted there)
Now, news on the “odds” – the first “odd” appears to be Gerald Nielsen or, more accurately, Mr. Nielsen appears to be odd – long on ego but short on memory. Continue reading “Scruggs, Minor, and some legal odds and ends (pun intended) – Nielsen, Wilson, Robie and Tort Reform”
They sought it with thimbles, they sought it with care;
They pursued it with forks and hope;
They threatened its life with a railway-share;
They charmed it with smiles and soap
Even with the pleadings reported in The Barriester’s Dream – Plaintiffs’ Oppose Scruggs’ Motion to Dismiss, Scruggs refused the role of Snark in this latest filing in Young v Scruggs, Defendants’ Rebuttal Brief in Support of their Motion to Dismiss:
Plaintiffs’ RICO claims do not fail because of a technical misstep; they fail because the series of events alleged in the Complaint and the RICO Statement do not rise to the level of a RICO violation which entitles Plaintiffs to that statute’s special remedies.
The brief states, There is no magic language Plaintiffs can add to their pleadings to create a RICO cause of action. Believe me, there is also no magic language to make a discussion of law related to serving Richard Scruggs with process interesting reading. The rest, however, is interesting reading and an apt reminder that RICO is not something you just toss out to get your case in federal court.
Defendants Scruggs et al make three clear arguments for dismissing Plaintiffs’ RICO claims: Continue reading “Scruggs defendants file Rebuttal in support of Motion to Dismiss Young v Scruggs”
With this week’s GAO release of Financial Management: Improvements Needed in National Flood Insurance Program’s Financial Controls and Oversight, there is no longer a need for a juggling act to find the truth of claims made in earlier reports and the evidence policyholders present the courts – and, in the interest of judicial economy, the qui tam defendants should just kiss their arguments goodbye:
FEMA’s Bureau and Statistical Agent (BSA) serves as a liaison between the government and WYO insurance companies. GAO identified weaknesses at three levels of the NFIP transaction accountability and financial reporting process.
- First, at the WYO level, our internal control testing of a statistical sample determined that almost 71 percent of WYO company claims loss files did not have the necessary documents to support the claims, or reports were filed late.
- Second, incomplete BSA-level premium data files (lacking key information such as insureds’ names and addresses) prevented an assessment of the reliability of reported NFIP premium amounts. Further, BSA-level internal control activities were ineffective in verifying the accuracy of WYO-submitted data.
- Lastly, FEMA’s financial reporting process uses summary data that is overly reliant on error-prone manual data entry.
Apparently, the Branch Defendants decided no one would notice the OIG only examined .0062% of total claims and decided they would try and pass off Hurricane Katrina: Wind versus Flood Issues (Exhibit A, Response to the Branch Proposed Discovery Plan) as a statistically reliable report and sell it to Judge Vance: Continue reading “New GAO report pulls juggling act from qui tam Olympics – puts Rigsby and Branch in the lead!”
The Mississippi Supreme Court shined in its analysis of the term “concurrently.”
At the top of the SLABBED blogroll and now dear to our heart as well, Insurance Law Hawaii writes Corban Presents Well-Reasoned Analysis of Anti-Concurrent Causation Clause:
Having now read the full Corban decision, I am impressed with the clarity of the analysis set forth in the opinion. See Corban v. United Services Automobile Assoc., 2009 Miss LEXIS 481 (Miss. Sup. Ct. Oct. 8, 2009). The Mississippi Supreme Court carefully considered the facts, offered a common sense analysis to the anti-concurrent causation clause, and determined the provision had no application to the facts at hand. The case has implications for Hawai`i because homeowners’ policies issued here typically include an anti-concurrent causation clause. Continue reading “Insurance Law Hawaii reviews Corban decision – Impressed with the clarity of the analysis”
Attention now turns to several dispositive motions filed by Plaintiff concerning  the issue of the anti-concurrent cause clause in the subject insurance policy;  the issue of windstorm;  the dwelling extension coverage; and  “accidental direct physical loss” suffered by Plaintiff.
At the time these motions were filed, some of the issues were the subjects of an appeal to the Mississippi Supreme Court, Corban v. United Services Automobile Assoc…; the Supreme Court issued an opinion on October 8, 2009, and rejected the principal conclusions reached by the United States Court of Appeals of the Fifth Circuit in Tuepker v. State Farm Fire & Casualty Co…and Leonard v. Nationwide Mutual Insurance Co… However, that does not mean that Plaintiff is entitled to the requested relief.
In addressing Bossier’s dispositive motions, one of the three Orders he issued in Bossier v State Farm last Friday, Judge Senter enters the conversation on the impact Corban will have on the remaining policyholder claims in litigation.
While the Mississippi Supreme Court did not agree with the Fifth Circuit’s interpretation of the anti-concurrent cause clause found in homeowner insurance policies, especially with respect to the “in any sequence” portion of the provision, the decision did not change the essence of this Court’s approach regarding the meaning and–for practical purposes–inapplicability of the anti-concurrent language.
The Mississippi Supreme Court expressly adopted this Court’s analysis in Dickinson v. Nationwide Mutual Fire Insurance Co…Now that the Mississippi Supreme Court has issued its decision, this Court sees no reason to delay trial, for the intention to follow Dickinson and the interpretation of the anti-concurrent cause language has been consistently clear and has merely been affirmed by Corban.
The Mississippi Supreme Court did not go as far as Continue reading “Judge Senter applies Corban, issues trio of Orders in Bossier v State Farm”
I am of the opinion that an attempt to try the Relators’ claim and State Farm’s counterclaim in a single proceeding is likely to hopelessly confuse the jury on the merits of both claims. Accordingly, I will bifurcate the trial of these two claims, and I will hear the evidence on the Relators’ qui tam claim first. I will stay discovery on State Farm’s counterclaim until the trial of the Relators’ claim has been completed, and I will schedule a separate trial to reach the merits of the counterclaim.
It’s been over a year since Judge Senter made his priority perfectly clear.
…I have watched the property damage insurance claims, the contract claims at the heart [of] these cases, being pushed off their rightful place at center stage by the escalating heat of the battles…it is my sincere hope that the type of normal, professional, and focused advocacy necessary to resolve the individual merits of the cases still outstanding will presently come to the fore.
SLABBED applauded him then and we applaud him again today. Since this post started with his bottom line, let’s back up and look at his logic path.
The parties have submitted letters to the Court stating their respective positions on the discovery that must be conducted to prepare for trial on the merits of this action. The main disagreement between the parties is whether this discovery and the trial itself should include State Farm Fire and Casualty Company’s (State Farm) counterclaim for the Relators’ alleged misappropriation and misuse of certain claims documents. Continue reading “BREAKING NEWS! Judge Senter moves State Farm counterclaim to separate trial; will try Rigsby qui tam first”
In the meanwhile, so I may know the outer limits of the potential claims involved in this action, I will require State Farm to submit, in camera, a list containing the name of the insured, the address of the property, and the amount of flood insurance paid, for all SFIP claims that meet the following criteria…
Clearly, Judge Senter thought his Order (August 10, 2009) was sufficient; but – well, his Supplemental Order Setting Deadline for State Farm’s in Camera Submission of List of Properties (September 11, 2009) speaks for itself:
On August 10, 2009, I entered an Order requiring State Farm to submit, in camera, a list of properties covered under its homeowners policies and meeting three specified criteria. State Farm has not yet responded to this portion of the Order, and I note that the Order did not specify a time-frame for the preparation and submission of this list. (emphasis added)
I find that setting such a time-frame is required in the interest of justice.
Accordingly, it is hereby ORDERED That State Farm Fire and Casualty Company shall submit the list called for under item number 6 in my order  of August 10, 2009, within thirty days of the date of this Supplemental Order, i.e. on or before the close of business on October 19, 2009.
Judge Senter obviously has mastered the art of diplomatic double speak – a credit to what some call good home training. Note how gently he points out State Farm Continue reading “Judge Senter sends State Farm engraved invitiation to produce documents in Rigsby qui tam for his review”
A week from today, August 29, 2009 will mark the beginning of the fifth year following Hurricane Katrina – time for a 7th inning stretch.
Although I had to double down on posts the day before, I had my 7th inning yesterday – reflecting on what I know and don’t know about Katrina litigation and what I need to know to help the slabbed.
“This Court” – the Southern District Federal Court hearing Katrina litigation – needs a 7th inning for reflection as well.
As the storm moved inland and it became possible to assess the damage, there was little doubt a legal storm would follow – that it so quickly became a Category 5 was the only surprise.
Much of the post-Katrina preparation for the legal storm to come fell to Magistrate Judge Walker — largely by default: “One week after the storm, the U.S. Marshals located all of the federal judges on the Gulf Coast and determined that I was the only judge whose home had not been destroyed.”
Katrina litigation began with the Court in a survival mode. Continue reading “What’s the score? Can’t tell – this Court needs 7th inning stretch”