At your request, we have provided a report that we prepared regarding the Mucha Property at 2558 South Shore Drive, which is located less than 400 feet from the McIntosh house...
As can be seen from my Special Inspection report of the Mucha house, we concluded that the structure of the Mucha house was destroyed by wind before the storm surge of Hurricane Katrina arrived. The Mucha house was subjected to these conditions during the landfall of Hurricane Katrina on August 29, 2005 …
Mr. Mucha…stated that he saw the garage blow apart before 9:00 AM on August 29, 2005. This garage landed in the street in front of the house.
The disclosures of the Rigsbys’ expert witnesses included the post-Katrina engineer’s report on the Mucha residence prepared by John A Fowler PE, President of Fowler Engineering.
There is over 1,000 feet of unobstructed open marsh behind the house which leaves a very large unobstructed path with for wind to come across the marsh from the south and southeast during a storm and damage the house. This is probably the reason why the Mucha house was destroyed by wind and some of the neighbors’ houses were not. The neighbors’ houses did not have an unobstructed path between their house and Hurricane Katrina as the Mucha’s did. With the Mucha’s house standing for some period of time before it was totally destroyed during Hurricane Katrina, it shielded the other houses in the neighborhood. The other houses in the neighborhood are also at varying angles to one another and shield each other, but this is not the case with the Mucha’s house.
With engineering reports like this replaced with one claiming flood damage, State Farm was unable to keep the whistleblowing Risby sisters down on the Farm.
Little wonder, then, State Farm filed a Motion for Protective Order to limit the Rigsbys’ discovery to the McIntosh property only. After all, State Farm’s Protective Orders are Dispositive Motions in disguise – a very thin disguise in the Rigsby qui tam after the Company’s local counsel Robert Galloway tossed his reputation for integrity to the wind in his Reply to the Rigsbys’ Response in Opposition to State Farm’s attempt to conceal evidence of the alleged fraud: Continue reading “the good neighbor doesn’t want to play in the McIntosh neighborhood – Part 3: Rigsby sisters designate experts and disclose expert testimony”
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”
Companies will soon learn that the best protection and defense against a potentially serious and morale lessening whistleblower suit is to have in place a corporate culture that emphasizes ethical conduct by all involved in the company.
In contrast to the opinion expressed in a lecture at the Brookings Institute, the dockets of Katrina litigation provide ample evidence that the corporate culture of State Farm is one that, instead, views a protective order as the Company’s best protection and defense. At SLABBED we call the tactic gutting a case to settlement. However, by any name, the process begins with a protective order that consistently ends up disposing of so much evidence it effectively disposes of most plaintiffs’ Constitutional right to a jury trial and, in turn, either disposes of the case itself or forces settlement,.
SLABBED has published numerous posts documenting how the routine protective orders granted State Farm have repeatedly been used to shield damaging evidence of State Farm’s claims handling following Katrina. One such post quoted a plaintiff’s attorney who wrote:
It is black-letter law that a litigant who might be embarrassed, incriminated, or exposed to litigation through dissemination of materials is not, without more, entitled to the Court’s protection. Stated otherwise, those types of harm do not constitute “good cause” for entry of a protective order under the Rules…
State Farm has not right to an automatic protection from the public being granted access to evidence of its misconduct in the arena of responding to Hurricane Katrina claims in Mississippi.
Discovery in a qui tam case, more than any other, should be transparent for the Relators stand in the place of the USA which in turn represents the public interest. We the people, therefore, have a concomitant right to know. Nonetheless, as SLABBED recently reported in Qui Tam Olympics – the protection game: ex rel Rigsby v State Farm, State Farm filed for a Protective Order seeking to limit the Rigsbys’ discovery. Counsel for the Rigsbys has now filed the Relators’ Response in Opposition :
State Farm asserts that the contested discovery requests “do not pertain to the McIntosh flood claim and amount to mere speculation by the Rigsbys of the type that has been condemned by this Court.” State Farm’s Motion at 6. In fact, the Relators have tailored carefully their discovery requests based on this Court’s August 10, 2009 Order…and this Court’s related rulings in individual policyholder cases. Accordingly, all of the discovery sought by the Relators seeks information that may lead to admissible evidence regarding whether the Defendants submitted a false claim with respect the McIntosh flood claim. Continue reading “State Farm’s Protective Orders are Dispositive Motions in disguise – more games scheduled for the qui tam Olympics”
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!”
Qui Tam Olymics – Defendants’ games pit Judge Vance (Branch) against Judge Senter (Rigsby) introduced the interplay between the Rigsby and Branch qui tam defendants. The name of the Olympic event currently taking place in Judge Senter’s Mississippi courtroom is the Protection Game – State Farm hardball versus the Rigsby sisters. The next post in this series will cover the protection game going on in ex rel Branch over in Louisiana before Judge Vance – hopefully by then I’ll have mastered whatever trick is needed for the slides to run as a show!
A post on Insurance Law Hawaii (h/t CLS) sent me racing to the Branch qui tam docket thinking I’d missed an Order more recent than those I linked in taproot – digging out the fact on Branch qui tam.
As it turned out, I had not. Sop posted Judge Vance’s 69-page Order of October 19 in Judge Sarah Vance Educates Insurers about Federal Court Jurisdiction in False Claims Act Cases that I linked in taproot.
However, while SLABBED focused on the big picture of Judge Vance’s ruling; i.e., Branch was moving forward, Tred Eyerly, the attorney who writes Insurance Law Hawaii, pointed to the ruling of Branch Consultants qualified as an “original source” – a ruling the Defendant are challenging in their Motion for Certification of an Interlocutory Appeal.
State Farm tried to run the “original source” rabbit in the Rigsby qui tam; but, the dog didn’t hunt. Let’s take a look at why and see if we pick up the scent of the “good neighbor”. Continue reading “Judge Vance’s decision consistent with ABA analysis of Supreme Court’s Rockwell decision – a Branch qui tam update”
Taproots develop from the radicle of the seed, which forms the primary root. It produces branches called the secondary roots, and they in turn produce branches to form tertiary roots…very difficult to uproot – the plant itself gives way, but the root stays in the ground and may sprout again.
Who better than Judge Sarah Vance to do the digging and get to the fact of the Branch Consultants qui tam claim? None that I can think of considering the depth of research evident in the Order that Sop reported in Judge Sarah Vance Educates Insurers about Federal Court Jurisdiction in False Claims Act Cases – A Branch Qui Tam Update.
However, shortly after Judge Vance’s well-reasoned 69-page Order was issued, the Defendants filed for certification of an Interlocutory Appeal to the Fifth Circuit:
Relying on pre-Rockwell out-of-circuit decisions, this Court has reached a different conclusion, finding that Branch’s investigation of a publicly disclosed fraud provides direct and independent knowledge such that Branch is an “original source” whose allegations provide this Court subject matter jurisdiction. It is this question Defendants seek to have certified for interlocutory appeal: whether a “sleuth” like Branch, without first-hand involvement in an alleged fraud, can qualify as an “original source” by providing additional examples of a publicly disclosed, alleged fraudulent scheme.
Naturally, the Branch Consultants responded in Opposition:
…whether a particular case was decided pre-Rockwell or post-Rockwell misses the point. Instead, the relevant question is whether Rockwell overruled any of the legal points on which the Court based its decision. It did not, and Defendants do not argue otherwise. Continue reading “taproot – digging out the fact of Branch qui tam UPDATED”
The Justice Department announced Thursday that it had secured nearly $2 billion from lawsuits filed under the False Claims Act’s qui tam provisions in the year ending Sept. 30. And it promised to do more. Tony West, assistant attorney general for the civil division, said in a statement, “Rooting out fraud and safeguarding taxpayers from illegal conduct are among the Justice Department’s highest priorities.”
Given the importance being placed on False Claims Act cases, a decision out of the 9th U.S. Circuit Court of Appeals (pdf) on Wednesday should take on greater significance, especially for parties that end up settling but don’t admit to any wrongdoing. (To us, that seems to be pretty much everybody.) The 9th Circuit ruled that the False Claims Act does not preclude a settling defendant from seeking recovery and bringing claims against a third party for its alleged violations. h/t CLS
Yoo hoo, down here Mr. West, we’re waiting for you to walk that talk and join the Rigsby qui tam. Meanwhile, Law.com has more on the 9th Circuit decision. Continue reading “Whoda’ thought it – Rooting out fraud and safeguarding taxpayers from illegal conduct are among the Justice Department”
My computer broke before I could post the breaking news (hence the “almost”). $%#& Now, I’m broke; $%#& However, Sop (and everyone else who saw the Katrina survivor I typed on until today) will tell you that I’ve needed a new computer at least as long as he’s known me.
I’ve got one now…it looks a lot like the trip to the beach I was planning because I didn’t just buy one, I bought two and an external hard drive that backs up what I put on them (and will hold more than I’ll have to save before placing my order with Walmart) – but enough of that and on to the (almost) breaking news.
Rigsby qui tam is going to trial. December 1 is the date…2010 is the year – according to the scheduling order locked in my old computer.
It’s been a long day. I started shopping after lunch but didn’t have everything working until an hour or so before midnight. So, tomorrow Scarlett (or maybe the next day) I’ll come up with the scheduling order and update this post. Meanwhile, let us all ponder WTF is the reason there will be no trial on the Rigsby qui tam claim until the sixth year following Hurricane Katrina.
SLABBED has been talking about the Maustaud directive on expedited claim handling process. Like most good conversations, one thing led to another – and the most recent “another” was a discussion of the relative merits of the qui tam claims filed by the Rigsby sisters and the Branch consultants.
The last SLABBED update on Branch – Support for Rigsby qui tam found hanging on the Branch qui tam docket – reported Judge Vance had requested the parties submit an order for preservation of documents.
The content of that post as well as that of a more recent post on an order issued by Judge Vance – Federal District Court Judge offers tutorial – proof of loss and segregation of damages – is relevant to the ongoing conversation about the Maustaud directive.
For example, the June update on Branch reported a Statement of Interest in Opposition to Defendant State Farm’s Motion to Dismiss filed by the United States among the entries made before the Order dismissing Branch was issued:
The fact that FIA and the WYO carriers enter into an agreement, and the agreement relates to the WYO carriers’ alleged violation of the FCA, does not mean that the FCA claim is founded on that agreement. Rather, the FCA claim is founded on the defendants’ alleged violation of a federal statute which prohibits a person, like the defendants, from acting with appropriate scienter to submit false or fraudulent claims to the government or make false statements in order to avoid an obligation to the government. Further, the FCA provides for relief – treble damages and penalties – that is not available under the Arrangement but that arises instead by statute.
The Fifth Circuit reinstated Branch, in part, last February. The current conversation, like an off-blog mention of the case last June, reminded me to check the docket where this time I found the most recent entry was this past July, the Order and Reasons of Judge Vance’s decision on the preservation of documents : Continue reading “Let’s talk – the Branch qui tam, Rigsby, and Judge Sarah Vance”