Category: Gilbert Oshinsky LLP

Rigsby sisters add to qui tam legal team – hmmm…

Applications to appear as counsel pro hac vice are a dime a dozen in Katrina litigation.  Even then, “lawyering up” is something I usually see from a party on the downside of an issue – and clearly the Rigsby sisters were on the up side after Judge Senter ruled in their favor.

Scot GilbertThe addition of Scott Gilbert could be nothing more than the chairman and co-founder of Gilbert Oshinsky making his association official.

Based in Washington, DC, with offices in Los Angeles and Austin, Gilbert Oshinsky LLP is a law firm representing a wide range of clients, including corporations, partnerships, non-profit organizations and individuals in complex disputes, including  high-stakes litigation, bankruptcy matters, class actions and ADRs.  Best known for representing policyholder interests in insurance coverage matters, Gilbert Oshinsky LLP also has an active public interest practice that specializes in complex multi-plaintiff actions involving cutting-edge issues.

Then, again, a look at his biography suggests the addition of Scott Gilbert sends a message.

An internationally recognized innovator in the field of strategic ADR, Scott has crafted creative and workable solutions to some of the most complex legal challenges in mass torts.

Over the course of his career, Scott has helped elevate the prominence of ADR in legal and public venues as a valuable strategic option in negotiating and settling contentious multiparty disputes.

The message, however, could simply be he’s ready for the challenge of working in a place where strategic ADR means meet me out back and anything other than whup a$$ is sissy stuff like the MID mediation that shielded so much of the fraudulent billing of wind damage to the NFIP.

We’ll know for certain, I suppose, if he rides in on a Harley.

Rigsby qui tam – what’s hot, what’s not, what’s up?

Judge Senter’s Opinion covered a lot of ground and left only one issue outstanding:

The next four State Farm motions seek the exclusion of the Relators’ four expert witnesses: Patrick J. Fitzpatrick, Ph.D. [294]; Keith G. Blackwell, Ph.D. [296]; R. Ralph Sinno, Ph.D. [298]; and David J. Favre [300]. I will address the motions [294] [296] [298] [300] challenging the qualifications of the Relators’ expert witnesses in a separate opinion.

SLABBED has given these four motions little more than passing mention although we’ve covered State Farm’s backdoor approach attacking the credibility of these same witnesses in other cases.

Frankly, State Farm’s use of “demonstrative evidence” at the hearing made their motions “moo” to me (as in “bull$%&t”) and, instead, SLABBED posted State Farm plays video game at Rigsby qui tam hearing after noticing items on State Farm’s evidence list were contrary to an earlier Order that read in part:

Defendant will not be allowed to introduce “demonstrative evidence” under the guise of calling it a “supplement,” especially when it appears that the sole purpose for offering the “supplement” is not to fulfill a duty under the Federal or Local rules, but to avoid the Court’s prior ruling on a similar issue. Furthermore, placing the burden on Plaintiff at this late date to counter this material is unduly prejudicial.

That same thinking should apply to State Farm’s effort to disqualify experts who have testified in countless other cases.  However, in pulling the post to add the link to this one, I noticed something interesting related to what’s hot in Judge Senter’s Order

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…

We’ll get to the criteria after looking at these maps: Continue reading “Rigsby qui tam – what’s hot, what’s not, what’s up?”

Judge Senter’s decision on Relator’s claim of Retaliatory Discharge raises question – Where’s the evidence?

There is no evidence in this record to indicate State Farm had the authority to terminate the Relators’ employment status. Accordingly, I will grant State Farm’s motion for summary judgment on this portion of the Relators’ claim.

In awarding State Farm summary judgment on this point, Judge Senter put his yardstick for all decisions on the table – evidence and controlling law.

However, his decision on the Relators’ Claim for Retaliatory Discharge from Their Employment begs the question – Where’s the evidence?

In a zoo? Exactly. Isn’t that where seals usually do their tricks? In this case, the zoo is the Federal Court for the Northern District of Alabama and the trick seals do in that zoo is shield evidence – the contract between E.A. Renfroe and State Farm, for example.

Knowing what evidence is needed begs a second question that in turn begs a third – Could the Rigsby sisters overturn this decision? and, in their position, Would you focus on winning every battle or winning the war?

E.A. Renfroe  provides adjusters under contract with the Company to separately contracted insurance companies and other entities.  Not all employee leasing and temporary help agencies are as specialized as Renfroe but all professional employer organizations (PEO) contract with individuals and separately contract with employers.  However, these agencies are “third parties” and the contracting employer retains the authority to hire and fire, set compensation and other terms of employment. Continue reading “Judge Senter’s decision on Relator’s claim of Retaliatory Discharge raises question – Where’s the evidence?”

Another mother’s child and Judge Senter’s order – Rigsby qui tam goes to trial!

Based on the evidence I heard from the stand, particularly Kerri Rigsby’s own testimony, it appears to me there is sufficient evidence to support the conclusion that she does indeed possess direct and independent knowledge of the facts she has alleged in support of the allegations in the Amended Complaint. This evidence is also sufficient to create a genuine issue of material fact on the merits of the Relators’ substantive allegations.

Sop probably thought I’d want to start this post with, I told you so.  As tempting as that is, I chose to preface Judge Senter’s Memorandum Opinion with a tip of my hat to Pat Labrano, Cori and Kerri’s mother.  Known to the unwashed in the blogosphere as “Ma,”  I had the unexpected opportunity – and pleasure – to meet both Pat and Kerri several months ago when my search for Sushi landed us in the same Ocean Springs restaurant.

Kerri was, as Chip Merlin described her, the type you want to call your friend.  So was her mother and, clearly, the two of them were also friends.  I might add, they were also beautiful and gracious women.

With that truth told, I yield to Judge Senter to tell another – the story of the McIntosh claim, constructed in large part from Kerri’s testimony but clearly verified in other documents available to him.

I  have also included in total the section he titled, Scope of Further Proceedings and, in a separate post, I’ll cover the Summary Judgment awarded State Farm on the Risgby’s claim of retaliation.

Kerri Rigsby is an experienced insurance adjustor who had been working for Renfroe for approximately ten years at the time of Hurricane Katrina. She testified that within a few daysafter the storm, when State Farm was just beginning to adjust the losses under the SFIP policiesand under its homeowners policies, she attended a meeting convened by State Farm. Kerri Rigsby testified that during this meeting the person giving instructions for adjustors and their supervisors to follow told his audience Hurricane Katrina was a “water storm” and the adjustors should go out and “hit the limits” of flood insurance policies. Defendants deny these allegations. Continue reading “Another mother’s child and Judge Senter’s order – Rigsby qui tam goes to trial!”

Bossier v State Farm – collateral damage or just really bad bad faith claims handling?

During the claims adjustment process, and prior to filing suit on August 20, 2008, Plaintiff provided State Farm with an affidavit of his nearby neighbor, Mr. Ziz, who witnessed the total destruction of the outbuilding and fence prior to the arrival of water.

Joseph Ziz signed his affidavit January 08, 2008, and State Farm continued to deny the Bossier’s claim over the next eight months until the Bossiers finally filed suit just a few days before the SOL on the third anniversary of Hurricane Katrina.

State Farm did not confirm Mr. Ziz’s account of the damage to the Bossier’s property until after the suit was filed. Counsel for the Bossiers attached Mr. Ziz’s affidavit to a Motion for Partial Summary Judgment on Dwelling Extension filed August 7, 2009, the deadline for dispositive motions in the case. (Exhibit 2)

Counsel also attached  the May 11, 2009, recorded statement State Farm took of Mr. Ziz confirming his eye witness account (Exhibit 3); and Mr. Ziz’s sworn deposition testimony given July 9,2009, that confirms without contradiction his eyewitness account of the destruction of the outbuilding and fence prior to the arrival of water (Exhibit 4).

The Bossiers also filed a Motion for Partial Summary Judgment on Accidential Direct Physical Loss with a related Memorandum of Support. Sop sent all of these over just as I was finishing the post on Judge Walker’s in camera review of State Farm’s privilege log.

Thanks to a comment on the Order from eagle eye Shirley Heflin, legal secretary for Chip Merlin for 20 years before she became a full-time student, I caught an important connection that I’d missed earlier.

And my personal favorite part of this is: “The privilege claimed for all the documents reviewed by the Court is “anticipation of litigation.” … Documents prepared in the ordinary course of business are not protected as prepared in anticipation of litigation…”

If it were allowed, it would mean that State Farm was “investigating” a claim with an eye toward litigation for who knows how long? From the inception of the claim?…No, that’s not the way its supposed to be.

I pulled Walker’s Order and checked dates in a footnote to her “favorite part”.

Location of Bossier property relative to McIntosh property
Location of Bossier property relative to the location of the McIntosh property

1The emails are dated between March 6, 2008 and June 19, 2008

Why would Scot Spragins be corresponding with others in “anticipation of litigation” of the Bossier’s claim after State Farm was in receipt of the Ziz affidavit?  What was taking place from March to June that might have caused State Farm to decide to let the Bossier claim go to litigation? Could Bossier be collateral damage?  The docket for McIntosh v State Farm during the period email messages were flying suggests that possibility – and so does the location of the Bossier property relative to McIntosh. Continue reading “Bossier v State Farm – collateral damage or just really bad bad faith claims handling?”

SLABBED welcomes Judge Susan Braden – Katrina’s Lady Justice gives MR-GO the go!

A federal judge in Washington ruled Monday that plaintiffs can go forward with a lawsuit charging the federal government with “taking” the value of their land in St. Bernard and the Lower 9th Ward through flooding caused by the building the Mississippi River-Gulf Outlet.

Court of Federal Claims Judge Susan Braden, appointed by President George W. Bush, refused to dismiss the lawsuit, which federal attorneys contended was filed too long after the six-year statute of limitations in such cases should have run its course.

Mark Schleifstein had the story – Mississippi River-Gulf Outlet lawsuit can go on, judge says – for the Times-Picayune.  Glancing at reader comments on this and related stories shows some take exception to Judge Braden’s Republican connections.  However, her resume indicates no one should sell Susan Braden short:

In July 2009, Judge Braden was appointed as a Member of the Standing Committee on Ethics and Professional Responsibility-Judges Advisory Committee to the American Bar Association…  On February 14, 2007, Judge Braden was elected as a Member of the American Law Institute and is working on the Institute’s Restatement and Unjust Enrichment Project. From 2005-2008, Judge Braden was a Member of the Editorial Board of the American Intellectual Property Law Association.

Prior to joining the bench, Judge Braden litigated complex civil cases in private practice before both trial and appellate courts.

Courting Influence reports that from 1990-1992, Judge Braden was a partner in Anderson, Kill, Olick & Oshinsky.  Oshinsky, who has since left the firm, recently formed Gilbert Oshinsky and became a partner to August Matteis and Craig Litherland – the Rigsby qui tam lawyers!  Small world!

It will be interesting to see how far the cases goes with Braden’s “green ligh”. Continue reading “SLABBED welcomes Judge Susan Braden – Katrina’s Lady Justice gives MR-GO the go!”

Borrowed servants? Great idea, could use one who irons and cooks. (a Rigsby qui tam post)

Alabama law recognizes the borrowed servant doctrine as a complete defense to liability…(11th Circuit)

In other words, under Alabama law, Renfroe had no liability to State Farm and the Rigsby sisters could dismiss their claims against against Renfroe without impacting their case against State Farm.

the Alabama Supreme Court recognized that “one [Rigsby] in the general employ of one master [Renfroe] may with respect to particular work be transferred to the service of a third person [State Farm] in such a way that he becomes for the time being the servant of that person, with all the legal consequences of that relationship.” (United States Fidelity & Guaranty Co. v. Russo Corp. with names inserted) Continue reading “Borrowed servants? Great idea, could use one who irons and cooks. (a Rigsby qui tam post)”

SLABBED Daily – May 20 (qui tam Hearing)

At 10am this morning, Judge Senter will begin hearing evidence in the qui tam case filed by whistleblowers Cori and Kerri Rigsby, ex rel Rigsby v State Farm.

Judge Senter has limited the scope of the hearing to two issues:

To meet their burden of proof on their pending dispositive motions, the movants (the defendants) must show that there is no genuine issue of material fact and that the McIntosh flood insurance payments were justified, as a matter of law. If the defendants meet this burden of proof I will dismiss this action on its merits.

I am interested in the Relators’ first hand knowledge of the conspiracy they have alleged…I am particularly interested in evidence that there was insufficient flood damage to the McIntosh property to justify payment of the applicable SFIP limits.

We are all indebted to the Rigsbys’ counsel for bringing  what I called their quiet dignity to the qui tam case and to our Court.

Most of all, we are indebted to two courageous young women, Cori and Kerri Rigsby who will stand before Judge Senter on our collective behalf.

What does the LORD require of you but to do justice…(Micah 6:8)

Matteis, Litherland, Davidson – you shake my nerves, you rattle my brain

Gosh, guys, this may not seem like a proper thank you for the quiet dignity you’ve brought to the qui tam case; but, the SLABBED do thank and welcome you to Mississippi –  where justice often requires…

[youtube=http://tr.youtube.com/watch?v=4bB5xL577r4]

SLABBED Daily – April 30 (update:Rigsby qui tam, MRGO)

I could offer the reason this second evening edition of the SLABBED Daily is that I was waiting on Judge Senter’s bit of housekeeping news:

TEXT ONLY ORDER finding as moot Defendant Exponent, Inc.’s  Motion to Dismiss; finding as moot Defendant Jade Engineering’s  Motion to Dismiss for Lack of Jurisdiction; and finding as moot Defendant Jade Engineering’s Motion to Dismiss. These motions are rendered moot in light of the Court’s  order dismissing these two defendants, among others. NO FURTHER WRITTEN ORDER SHALL ISSUE.

The truth, I’m sorry to say, is that I just got so caught up in MRGO that I forgot!  I don’t expect the qui tam lawyers to forget about the two events noticed yesterday – their upcoming deposition of Lecky King on May 5 and Jack Ford’s the following day.

However, according to the Notice of Supplemental Production also on the Docket yesterday, State Farm had a little trouble remembering important things, too.

State Farm has so far been unable to confirm to its satisfaction whether exhibit 7 to the April 30 and May 1, 2007 Cori and Kerri Rigsby deposition transcripts in McIntosh is still subject to restrictions. For that reason, out of abundance of caution, Exhibit 7 to those depositions is not being produced at this time.

Otherwise, the included a list of 16 items produced and delivered to the attorneys for the Rigsby sisters and this snark:

Nothing in this submission constitutes consent by State Farm to the Rigsbys Continue reading “SLABBED Daily – April 30 (update:Rigsby qui tam, MRGO)”