The Scarlet K

…while the stated intent of a “scarlet letter” would be to protect the public, in actual use it has been used as a method to increase the severity of a punishment.

Who wears the Scarlet K of Katrina? According to a Daily Journal story now making the rounds – Two years after indictments, state’s legal community tries to fix Scruggs case damage –  it is the debarred and the Bar:

a stain on the profession…a scar on the Mississippi Bar…a devastating blow

A far more devastating blow, however, is the Bar’s betrayal of the spirit, if not the letter, of the Rules of Professional Conduct that provide a framework for the ethical practice of law – a betrayal that wrongly hung a scarlet K on some and wrongly ignored the conduct of others. Continue reading “The Scarlet K”

The feeling is Mutual – so is the fact

…these competing interests–the right to full and free access to the courts and the right to be free of groundless and vexatious litigation–are important considerations in the evenhanded process our judicial system provides for the resolution of legitimate disputes …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.

Judge L.T. Senter, Abney v State Farm June 4, 2008

A few weeks later (June 20, 2008), Judge Senter restated his position and SLABBED reported Judge Senter loses patience with the Farm and threatens sanctions:

It is time and past time for the internecine and acrimonious warfare among the attorneys to stop and for the focus to shift to the task of resolving the many remaining cases on their merits. Anything short of this will not be tolerated.

Judge Senter’s commitment to focus on the individual merits of the cases is as reassuring, and I believe as heartfelt, as his wonderfully warm smile.  Consequently, it grieves me greatly to say his north Mississippi roots are showing when he segregates the role of State Farm Mutual from the “merits of the case”.

State Farm Mutual is to State Farm Fire what SKG was to the attorneys working for the member law firms – two parts of the same whole, according to his Order  in McIntosh v State Farm disqualifying all attorneys of the member firms; but, contrary to his opinions and orders when plaintiffs attempt to hold State Farm Mutual accountable for the conduct of one of the claims handling process.

Consider, for example, this text from an Order issued the 17th of March, 2008 in Marion v State Farm denying plaintiffs applications for review of certain orders of the Magistrate Judge: Continue reading “The feeling is Mutual – so is the fact”

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?”

about the video of oral arguments in Corban v USAA

Submitted as comment, this review of the Corban video is a must-read that contributes much to the discussion. h/t Brian Martin

Aside from interesting reading, these comments provide background for the post  I’m writing on cases currently in litigation and I’ve taken the liberty of adding links and bringing the comments forward as a post.

I recommend the video of the oral arguments.

USAA’s attorney tries to make their position seem reasonable by acknowledging some burden of proof in the oral arguments though he did not acknowledge that burden in motions and USAA has not applied that burden in practice.

Nationwide’s attorney then clumsily stated ACC the way most companies actually applied it and the Justices jump all over him. Continue reading “about the video of oral arguments in Corban v USAA”

Catching Up: Anita Lee Reports on Former SKG Clients

Nowdy has been doing PACER searches for a couple of weeks now and her findings are born out in Anita Lee’s report from the Saturday Sun Herald. Insurance industry bloggers predicting the demise of these cases were a wee bit premature with their prognostications.

…..The Scruggs Katrina Group, reincarnated as the Katrina Litigation Group, was disqualified in April from representing policyholders in 180 lawsuits SKG filed against State Farm. Judge L.T. Senter Jr. ruled then the member law firms knew or should have known Scruggs unethically paid two former insurance adjusters who were potential witnesses in some of the cases.

The Texas law firm Provost Humphrey, recommended by SKG lead attorney Don Barrett, wound up with 62 percent of the 112 cases in which policyholders retained new attorneys, with Coast attorneys taking on the remainder. Continue reading “Catching Up: Anita Lee Reports on Former SKG Clients”

ACC not proximate cause of "peace of mind"

When they come up with an on-line 12-step program for bloggers, I’ll be signing in with a my name is nowdoucit and I google – and, suppose I’ll be required to admit that I went on an ACC binge after Proximo post this comment responding to my mention of the ACC clause in a post I put up today.

To win this argument one has to believe the insurer’s “sneaked” this language into the policies when AG Hood and others weren’t looking or that it is sooooo very deceptive that they didn’t know what it REALLY meant…Yeah, ACC is a bitch to understand but it wasn’t put in there the week before the storm hit.

Bitch to understand is right – just check that thread and you’ll see several comments from Brian Martin, including one that, when considered with the text from the State Farm wind/water protocol Proximo posted later, leads me to believe NFIP claims should have a different adjuster when an insured has other policies in place.

One certainty at this point is the ACC is not new. Brian confirmed that and so did Robert Hunter, director of insurance for the Consumer Federation of America, quoted in Home-Insurance Traps published by Consumer Reports.<span

“I knew the clause existed but I did not understand it, in part because it is so illogical. And I am an expert,” Hunter adds. “Imagine what consumers don’t know.”

Rather than imagine, I read Why Are Insurance Contracts Still Incomprehensible? posted on the TPM Cafe. Continue reading “ACC not proximate cause of "peace of mind"”

A dun? Surely not with Duggins

When PACER popped up with Scruggs v Zuckerman Spaeder, there didn’t seem to be a lot of news value in the story – particularly given all the other things we’re working on.

That certainly wasn’t the case, however, when the firm withdrew as counsel for the Rigsby sisters with a cheap shot at Scruggs heard round the world – if mention in Fortune is any indicator – one that, no doubt, embarrassed the Rigsby sisters.

This motion to withdraw is the result of the inability of the Rigsbys and others to pay Zuckerman Spaeder LLP’s fees and expenses going forward, or to adequately satisfy existing fee and expense obligations.

Given the remaining balance is $1.7 million plus change, whatever had been paid prior to that should have been more than enough to buy better manners – not to mention better results.

Speaking of results, how is it that Scruggs ended up getting the dun for the bill when between Judge Coleman and Judge Senter the liability of all members of the joint venture seems abundantly clear?

No real news value like I said but definitely worth a mention.

State Farm grabs the torch back and burns Provost-Umphrey

You give credit where credit is due and the hands-down winner of the Most Believable Motion by State Farm Attorney contest is H. Scott Spraggings of the Oxford firm Hickman, Goza, and Spraggins for his Motion to Disqualify Provost-Umphrey.

He probably won’t accept the grand prize – a picture of the Qui Tam attorneys with the message “Thank you, Scott” inscribed and signed by Tony Dewitt.

Spraggins built his mansion of a motion without reference to the sand of the two assumptions Judge Senter accepted as fact in deciding to disqualify the Qui Tam attorneys – and, in doing so, provides compelling evidence of the lack of due process in the premises underlying Senter’s decision to disqualify the two Missouri firms. Continue reading “State Farm grabs the torch back and burns Provost-Umphrey”

Eeny, Meenie, Miny, Moe

If you have a case against State Farm, you’re already in the game. Judge Senter made that Rule. What you’re trying to do is stay in the game – and to keep playing you need a lawyer.

To start the pick-a-lawyer game, just pick one – Eeny, Meeny, Miny, Moe.

Eeny, Meeny, Miny, Moe.
Catch a lawyer by the toe.
If State Farm squeals, don’t let go.
Eeny, Meeny, Miny, Moe.

My mother said
To pick the very best one
And you’re it!

You picked Eeny. Sorry, you’ll have to pick again. Eeny’s second cousin twice removed went to kindergarten with the third son of the second wife of the uncle of Dickie Scruggs. Continue reading “Eeny, Meenie, Miny, Moe”

Lumpkin & Reeves disqualified by Order issued today

Judge Senter issued an Order ruling Lumpkin & Reeves are disqualified as counsel for McIntosh in McIntosh v State Farm.

The first opportunity this Court had to address the scope of its Memorandum Opinion [1172] and Order [1173] entered in this cause of action is in its order [1183] dated April 16, 2008, which includes the following excerpt:

The Order [1173] entered in the instant case refers to and includes “other attorneys associated as counsel for the plaintiffs by these firms” and “any other associated counsel.” The Court intentionally used broad language because it was unclear to what extent other lawyers were involved in this and other litigation who might argue, for example, that they had never entered a formal appearance on behalf of plaintiffs and, thus, are eligible to represent one or more of them. Whether appearing or not, actual participation in or connections to this or other litigation are major concerns for the Court.

Clearly, Judge Senter intends to call the shots. Continue reading “Lumpkin & Reeves disqualified by Order issued today”