Category: Leonard v Nationwide

The Price We Pay For “Pro-Business” Courts

As I’ve said in prior posts, I firmly believe Americans can no longer claim we’re “a government of laws not of men” as John Adams, our 2nd US President once pronounced. Adams’ words came to epitomize the venerable “rule of law” in America. In his era, the critical debate was “rule of law” vs. “rule of man.” The prospect that America might become “a government of men not of laws,” is exactly what Adams and our founders feared most, and warned us to stay away from. In their day, “rule of man” referred to the British King George III, who . . . well, just take a look for yourself:

In 1776, the year of our Declaration of Independence, Thomas Paine anonymously wrote a pamphlet titled Common Sense which stated: “in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.” Adams, a contemporary of Paine, expounded on Paine’s Common Sense, and made sure the Massachusetts Constitution of 1780 included the words “a government of laws not of men.”

In Adams’ and Paine’s day, the King was law, and he served no one except himself. Today, billionaire monopolies are the “King makers.” By purchasing our legislatures, individual judges and elected officials, they bastardize “the rule of law.” Their aim is make America a government of men, not law. This is what happens every day in Latin America, and why we call them “third world.” If we acquiesce, and accept their bastardization of America’s founding premise, we’re right back where we started in 1776. Put another way:

we cannot let this ↓ Continue reading “The Price We Pay For “Pro-Business” Courts”

Da Corban spin continues: AIA prefers denial while the National Underwriter carries III press release calling it news

Robert Hartwig isn’t the only prostitute (I mean shill) who will say or do anything (and I mean anything) for the right amount of money. Not to be left out and preferring denial over Hartwiggian threats the AIA issued the following press release: (Nowdy isn’t it about time we got some more hits out of Montana on my post about former Bush Groupie Marc Racicot)

The decision issued yesterday in the case of Corban v. USAA by the Mississippi Supreme Court confirms that the water damage exclusion and anti-concurrent causation (ACC) clause – two key issues in Hurricane Katrina litigation — are valid provisions of the insurance contract and will continue to be important to insurers in adjusting wind versus water claims, says the American Insurance Association (AIA).

“First, and most importantly, the Corban decision reaffirms the longstanding flood exclusion provision found in most homeowners’ insurance policies, that expressly excludes coverage for hurricane driven water (or storm surge),” said James Whittle, AIA Assistant General Counsel. “The water damage or flood exclusion has now withstood every post-Katrina court challenge, and remains a part of regulator-approved insurance contracts throughout the country.” .

“Second, the court upheld the use of the ACC clause that was at issue before the court,” said Whittle. “With this ruling the court has provided meaningful guidance to consumers and insurers. Nothing in this decision changes the important role that insurers play in recovery by adjusting claims according to their contracts with policyholders.”

Meantime the National Underwriter has emerged from their months long Corban slumber carrying a III / AIA press release billed as a news story. While I don’t necessarily buy into James’ harsh critique of Anita Lee’s report on Corban it is worth pointing out Anita Continue reading “Da Corban spin continues: AIA prefers denial while the National Underwriter carries III press release calling it news”

Corban v. USAA

CORBAN v. USAA – THE 1500 DAY GREEK TRAGEDY

Pardon the obvious patronage, but it’s fitting that Slabbed pay homage to the dedicated lawyers and astute circuit judge who were involved in Corban’s journey to the Mississippi Supreme Court. FOR THE PLAINTIFF: Judy Guice; Clyde Gunn; Richard Phillips; Christopher Van Cleave; Neil Harris; William Corban Gunn. THE CIRCUIT COURT OF HARRISON COUNTY: Honorable Lisa Dodson.

Yesterday, October 8, 2009 – exactly one thousand five hundred (1,500) days after Katrina – the Supreme Court unanimously ruled that the Harrison County Circuit Court erred in applying the Fifth Circuit’s interpretation of an ACC clause.  First, when I say “erred,” that doesn’t mean the Judge botched it. She didn’t. As a matter of fact this particular Judge, Lisa Dodson, did exactly what a judge is supposed to do in this situation – defer. Asked to rule on competing summary judgment motions, Judge Dodson was forced to chose between the devil – in this case 5th Circuit Judge Edith Jones – and the deep blue sea – our own Supreme Court. She did the right thing, though it meant walking with the devil a while. More on “Dodson’s dilemma” below.

First, let’s de-bone Corban. The decision says the ACC clause cannot be used to defeat a wind loss, unless the insurer, by a preponderance of the evidence, first proves that wind and water acted indivisibly, and “contemporaneously converged” in causing the loss. Second, the Court trashed the “in any sequence” language in the ACC, finding it “ambiguous.” So, post Corban, “Mississippi Insurance Law for Dummies” might read something like this: “in Mississippi, the ISO-type ACC clause does not apply to all-risk policy losses, and can’t be legitimately invoked, except in one rare instance: when the loss was caused by the indivisible forces of wind and water, and the insurer can prove it.” In a word, Corban says “you get the loss you bought.” But, as astute Bam Bam readers will see, there’s still a problem.

The heart and soul of Corban is on page 22 of the opinion: “The ACC clause applies only if and when covered and excluded perils contemporaneously converge, operating in conjunction, to cause damage resulting in loss to the insured property.” See the problem yet? Let me re-write the quoted part putting “wind” and “water” where they belong:

“The ACC clause applies only if and when [wind] and [water] perils contemporaneously converge, operating in conjunction, to cause damage resulting in loss to the insured property.” Continue reading “Corban v. USAA”

Reaction to Corban Ripple Across the Media

Anita Lee’s story on Corban is here with commentary from head III shill Robert Hartwig himself (picture found here). The bottom line per Judy Guice:

“To me, this was always much more than just a business issue. This was a personal issue to me. Getting the law straight was really one of the critical parts of my recovery and I’m relieved that has now happened.

“The overwhelming feeling I have right now is relief that our children and grandchildren, and everybody else who had to suffer like we’ve all suffered since Hurricane Katrina, will not be stuck with the harsh law, the incorrect law that was previously created and has now been corrected by our Mississippi Supreme Court.”

Chip Merlin has written a series of 3 posts on Corban which address all the fine points of the decision. This is from Part 2:

This ruling confirms State Farm’s Wind/Water Protocol is the wrong test under Mississippi law because it improperly shifted the burden upon the policyholder to prove that the wind caused the damage rather than the insurer having to prove that the damage was excluded. Corban undermines the Fifth Circuit reversal of Judge Senter in Broussard vs. State Farm and as I suggested in Broussard’s Bad Faith Decision Impaired by the Mississippi Supreme Court.

There is one important mistake the Court did make in its decision when it held: Continue reading “Reaction to Corban Ripple Across the Media”

Weathers Bitch Slaps Eleuterius while the Supremes sing a new legal precedent song: An O’Keefe v State Farm update

We have activity in the Federal Case O’Keefe v State Farm and this time due to a somewhat unlikely source, the Mississippi Supreme Court. This is a good topic because it appears from the conduct of the Corban proceedings the Court is once again deciding cases based on legal precedent which had become somewhat of a rarity in recent years as Chamber of Commerce approved justices like Jess Dickinson issued several very curious rulings such as in Jenkins holding the statute of limitations for a wrongful death case begins at the point of injury rather than the death itself in a ruling that favored a corporate defendent at the expense of the deceased family as the deceased evidently lingered and lived too long after the injury for his estate to sue. The public spectacle of Mississippi’s highest court beclowning itself lead to a reversal of Jenkins though I suspect the family remains SoL, forever shafted by Justice Dickinson.

Such behavior out of this State’s highest court explains why I had no confidence the Supremes would do justice in Corban but I’ll admit I was very pleasantly surprised, especially that Justice Dickinson actually asked intelligent questions during the proceedings and appeared to be open to the law, no doubt with an eye to the electoral calender. Regardless of the reason I almost suffered a heart attack when I read the latest from O’Keefe and then discovered Justice Dickinson voted with the other justices to reverse a badly decided case against an insurer where the agent made material misrepresentations to the customer. The agent’s legal arguments that the cause of action was time barred due to the statute of limitations had originally prevailed in the lower courts. For the State Farm agent in question in O’Keefe, this ruling could not have come at a worse time.

Nowdy covered the legal arguments of SF agent Marshall Eleuterius that the O’Keefe’s claim against him was time barred due to the Statute of Limitations in a post from this past Monday. The Thursday before, however, the Mississippi Supreme Court ruling in Weathers v Met Life detailed above was handed down and team O’Keefe wasted no time letting the Federal Court know about Weathers and the nitty gritty details in the case, especially the parts where Stephens v Equitable was too restrictive: Continue reading “Weathers Bitch Slaps Eleuterius while the Supremes sing a new legal precedent song: An O’Keefe v State Farm update”

Insurer defendants attempt detour of Road Home

Having discovered the detour attempted by the insurer defendants of Louisiana’s Road Home litigation – a petition to the Fifth Circuit with leave to file an Interlocutory Appeal granted the 19th of this month – SLABBED turns to the orders of Judge Duval for background on the issues under Appeal.

The Louisiana Road Home program is a grant program funded by the United States Department of Housing and Urban Development (“HUD”) and operated by the Louisiana Recovery Authority. In the wake of Hurricanes Katrina and Rita, Congress appropriated funds for disaster relief to be administered through HUD’s Community Development Block Grant Program. HUD distributed some of these funds to Louisiana, which in turn created the Road Home program to distribute these funds as grants to homeowners. Road Home grants are designed to compensate homeowners up to $150,000.00 for structural damage, exclusive of contents damages, caused by Hurricanes Katrina or Rita.

Katrina litigation in Louisiana has suffered from the Fifth Circuit’s overly broad definition of “flood” and off-the-wall ruling on anti-concurrent causation, as well as the heavily promoted image of “Katrina the flood”.   However, Sop will likely be as surprised as I to learn, Despite the request of this Court, the State could not point to any federal statute or regulation governing the Road Home program that could create a legal subrogation.

Congress appropriated disaster assistance funds to existing federal programs, including HUD’s CDBG program, subject to rules governing the allowable use of program funds.  The CDBG rules required each recipient state to develop and submit a plan for approval and the federal approval process includes a review to ensure a plan is consistent with related federal law.

Consistent with federal law, the Road Home program prohibits providing any relief Continue reading “Insurer defendants attempt detour of Road Home”

Nationwide keeps MacGuffin in the plot with Opposition to Politz motions

Since needless repetition can suggest mental health issues, could it be that Nationwide’s handling of the Politz claim has caused the Company emotional distress, too?

Maybe so.   Defendant Nationwide’s 18-page Response in Opposition to Plaintiff’s Motion for Review of Magistrate Judge’s Order, of course, has more pages than the 12-page, trimmed-down revised version filed as Defendant’s Response in Opposition to Plaintiff’s Motion for Leave to Designate Mental Health Expert.

With enough similarities in text and exhibits to make a case for stress-related repetition, it takes a while to realize that Nationwide is making the mental health of Mrs. Politz a MacGuffin in the litigation of Politz v Nationwide:

A MacGuffin (sometimes McGuffin) is “a plot element that catches the viewers’ attention or drives the plot of a work of fiction…Commonly, though not always, the MacGuffin is the central focus of the film in the first act, and later declines in importance as the struggles and motivations of characters play out. Sometimes the MacGuffin is all but forgotten by the end of the film.

In making her mental health a MacGuffin, Nationwide employs the classic abuse strategy of blame the victim:

Plaintiff (not Nationwide) had all the relevant information about her treatment and use of antidepressant medications in order to properly retain and disclose a mental-health expert. Moreover, she had all of this information at the time she filed this action and, thus, well in advance of the Court’s original expert deadline.

Opposition to Plaintiff’s Motion to Designate Mental Health Expert

And, then, with this distracting statement in place, Nationwide builds its case with a Continue reading “Nationwide keeps MacGuffin in the plot with Opposition to Politz motions”

1:30pm CST live from Mississippi Supreme Court – Oral arguments in Corban v USAA

Click here to access the Mississippi Supreme Court broadcast.

The Court is hearing an Interlocutory Appeal of the Corban decision – a decision based on the application of the Fifth Circuit’s Erie guess in Leonard v Nationwide.

Anti-concurrent causation intended to contractually overturn efficient proximate cause – according to in-house attorney for State Farm

…and that I know because David Rossmiller said it was in an article he wrote on Plain English for the Spring 2008 issue of the Oregon Association of Defense Counsel.

In a 1985 article about the drafting of State Farm’s anti-concurrent-cause provision, Michael E. Bragg, an in-house lawyer with the insurer, said drafters made attempts to reduce the clause to language the layperson could understand, but they failed. When the drafters made the language understandable to the average person, they considered the language insufficiently precise to do what it was intended to do, which was (1) to contractually overturn the so-called “efficient proximate cause” analysis, a common law default rule that almost all jurisdictions use to analyze first-party property loss in the absence of a different, contractually mandated analysis; and (2) to stop the spread of new, judicially created causes of loss,and confine covered causes of loss only to those that companies intended to insure. This is important to remember because it is the key to the limits of Plain English laws.

As the Bragg article shows, simplified language was unsuitably risky because it did not address the court precedents that insurers wanted to cancel out. It did not contain the terminology and phrases used by the courts, nor did it accurately state the jargon of insurance causation, where words like “concurrent” and “sequential” have meanings far different and more complicated than their meanings in common parlance. Insurers, then, do not write for consumers, they write for courts.

This revelation was written as support for the points Rossmiller makes points questioning the value of Plain English laws for consumer contracts that have been enacted in some 35 states, including Oregon. Continue reading “Anti-concurrent causation intended to contractually overturn efficient proximate cause – according to in-house attorney for State Farm”