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.
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.
…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.
You see, State Farm has a bank. A thrift to be exact. And it likes to offer loans, and other banking products to its insurance customers. But the people that they do this through are not employees of State Farm. They are the various independent agents (as State Farm likes to call them) that run State Farm offices.
Russell introduced State Farm’s Bank so well in A different State Farm Battle (January 2008) that it seemed appropriate to give it another run. It should come as no surprise that State Farm’s website has a more formal introduction (another h/t to Steve):
State Farm Bank, F.S.B. received formal approval for a thrift charter from the Office of Thrift Supervision (OTS) in November 1998 and is generally referred to as “State Farm Bank®”. Its focus is on consumer-oriented financial products, complementing State Farm’s insurance focus on personal lines.
State Farm Bank is a nontraditional financial institution and does not have branch offices. The bulk of direct customer interaction and product assistance is provided by State Farm® agents, augmented by a telephone call center, mail and the Internet. As of December 31, 2005, the Bank held $12 billion in total assets.
Documents filed in Katrina litigation introduce State Farm’s Bank in a different light – suggesting just how nontraditional it may have been following the storm. In fact, the amended RICO complaint added the State Farm Bank as a Defendant:
… State Farm Bank is wholly-owned by State Farm Mutual, and is headquartered in Bloomington, Illinois. As of March 21, 2003, State Farm Bank had assets totaling in excess of 5,000,000,000 (five billion) U.S. dollars.
State Farm Bank aided and abetted a civil conspiracy by providing substantial assistance in carrying out the civil conspiracy. State Farm Bank aided and abetted a civil conspiracy by committing one or more tortious acts in concert with State Farm, or pursuant to a common design, engaged in same with State Farm.
State Farm Bank knew that State Farm’s conduct in the civil conspiracy was a breach of duty to the Plaintiffs as insured policyholders, and yet the Defendants and each of them gave substantial assistance or encouragement to the scheme. State Farm Bank’s aiding and abetting a civil conspiracy to conduct corrupt property inspections and procure contrived inspection reports was a direct and proximate cause of damages sustained by Plaintiffs.
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…
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.
Relators deny that information about a criminal enterprise and rampant fraud against the United States taxpayer is in any way commercially sensitive, confidential, or private information.
As someone with no law degree writing about Katrina litigation, I’ve often thought of the litigation process as justice at dance. All parties begin with feet together; every move thereafter choreographed by the Rules.
Complaints, step one in this ritual, require a corresponding Answer. A well written complaint tells the plaintiffs story in an engaging way. However, a well written Answer, or so I’ve gathered, can be an endless list of some variation on the dry as dirt “deny paragraph”.
Thereafter, however, the litigation process is a series of moves by one party and corresponding moves by the other with the moving party always in the lead – although the matter in litigation defines the process as a waltz, a tango, or, as is the case in ex rel Rigsby v State Farm, a bombom, doo wop doot doot because State Farm answered with a counterclaim. Continue reading “You go girls – Rigsbys answer State Farm’s counterclaim”
President Obama signed the Fraud Enforcement and Recovery Act containing significant amendments to False Claims Act the very day on May 20,2009 – the very day the pre-trial hearing on the Rigsby qui tam claim commenced in Southern District Mississippi Federal Count.
Among the most significant provisions of the new law are its amendments to the False Claims Act, 31 USC §§ 3729-33 (FCA). According to the Senate Judiciary Committee Report, these amendments—the first substantive revisions to the FCA in more than 22 years—were enacted to reverse judicial interpretations which “undermined” the statute by “limiting the scope of the law…”
The cumulative impact of these amendments is to alter significantly the landscape of FCA jurisprudence.
One analysis posed the question when is an amendment not an amendment. The answer – or rather the answer from the perspective of Congress – is when amendments are made as clarification to reflect the original intent of the law.
If the Rigsbys’ qui tam claim were filed today, there would be enormous benefit in these amendments. Even as a pending case, however, the Rigsbys’ claim is subject to certain provisions.
Forensic’s Motion to Reconsider should be denied because it merely rehashes the arguments Forensic previously made without pointing to any newly discovered evidence or identifying any manifest error. See also… (“F.R.Civ.P. 59. . . is not a vehicle for a litigant to ask the Court to reconsider adverse decisions it is simply unwilling to accept.”)…
Forensic, like Haag, attempts to hang its hat on the date the McIntosh claim was paid – grasping at a straw man, no doubt encouraged by State Farm.
Tim Marshall, storm chaser…drove from his home in the Dallas area to a Slidell parking garage in an extended cab Chevy pickup, loaded down with supplies and technology, to track Hurricane Katrina…
The Sun Herald’s Anita Lee described Marshall, a shareholder in Haag Engineering, as appearing every inch the mild-mannered engineer in his business suit and oversized wire-rimmed glasses on the witness stand. But get him out of a courtroom and it’s like Superman stepping from the phone booth.
Oklahoma attorney Jeff Marr, on the other hand, told Lee, The jury hated him…They viewed him as a professional witness… gave him the consideration his expert opinion deserved and wrote him off.
Following Hurricane Katrina, Haag’s Superman, the professional witness, became a survey-thumping Reverend Leroy holding forth in the Church of What’s Happening Now -Mississippi’s Southern District Federal Court.
Abundant evidence exists to document the role Haag played in State Farm’s claims handling. The date of the Survey’s publication, on the other hand, only documents the date a published report was available; but, Haag’s post-hearing brief attempts to play word games with the Court:
The evidence [sic] has shown that the Haag Survey did not exist at the time the McIntosh flood claim was adjusted and submitted to the government.
Really hot – and much larger than the hot spot identified here and here – if Derek Wyatt’s 30(b)(6) deposition of Stephan Hinkle in Pontius v State Farm is considered:
I actually was in Biloxi when I wrote…[the Wind-Water Protocol]… And I had done — Iwent out and saw the damage, basically, and saw the — well, the first area I went to when I was there was right near this claim office on Pops Ferry Road in Biloxi (Location A). There’s this development called Destiny Plantation. (Location C) It’s right on the back bay of Biloxi. And I had occasion to drive down there. And I — there, I comprehended the nature of the damage, is what made me kind of outline in my mind how to do this.
But the gate to Destiny Plantation is on Brody Road (Location B), which is about a half a mile inland from the shore. You go in the gate and there was no damage whatsoever to the homes immediately around the gate. You take the road south toward the bay, and immediately you notice where the water stopped. And by the time you get down to the bay itself, the homes that were built were totally destroyed. They were slab homes. Which indicated to me that we’ve got a situation here.
How many other hot spots were there given the estimated number of State Farm policyholders with dual coverage Hinkle provided applied to the flooded areas of all three coastal counties and not just this one area in Biloxi?