Some friends are in the news today

Long Beach resident Kevin Buckel and United Policyholders executive director Amy Bach to be specific. Kevin’s website details his thus far fruitless pursuit of a statutory Policyholder Bill of Rights for Mississippians. It has been blocked in committee in the Senate by Sen. Eugene “Buck” Clarke, a GOP free market true believer over at the Big Rock Candy Mountain in Jackson.

We’ve also chronicaled Mr Buckel’s efforts at fostering transparency at the Mississippi Department of Insurance as he has taken our current Commish to court after the claims files used in the sham Market Conduct Study began under Mr Chaney’s predecessor turned insurance lobbyist George Dale as overseen by former Deputy Commish Lee Harrell who now works for State Farm law firm Baker, Donelson, Bearman, Caldwell and Berkowitz. Mr Chaney has thus far successfully stonewalled those efforts. Anita Lee picks up more recent events here:

A Coast policyholder is appealing to the state Supreme Court for access to Mississippi Insurance Department records that would show the dollar amount of Katrina claims denied by insurance companies.

Long Beach policyholder Kevin Buckel filed a written request in January 2009 for records showing the total amount of damages homeowners claimed, the total amount paid and the total amount denied by private property insurance companies. MID maintains the agency does not have the records.

United Policyholders of America is helping Buckel fund the appeal. Continue reading “Some friends are in the news today”

State Farm puts the Court to the test in Bossier – files nine motions in limine UPDATED

Defendants mistakenly believe that just because evidence is prejudicial it is not admissible. Not so. All relevant evidence is necessarily prejudicial.

Are we going to see yet another case gutted before trial? Obviously,  State Farm would like nothing better.  The Company filed nine motions in limine on the last day of September with trial set for little more than a month away.

Taken in the order of just how offensive the motions are to the public interest, SLABBED examines the nine starting with #7: to Preclude Testimony or Evidence Relating to Interpretation of Insurance Policy Provisions or Principles of Mississippi Law and to Exclude the Wind Water Claim Handing Protocol.

State Farm anticipates that Plaintiff may attempt to introduce testimony and/or evidence regarding a State Farm document known as the Wind Water Claim Handling Protocol… That document, however, should not be used for any purpose during the trial of Plaintiff’s claims. First, the document should not be used during the coverage phase of trial because how an adjuster investigates a claim has no bearing on what damage wind or flood caused to Plaintiff’s property or on whether those damages qualify for coverage under the plain terms of the homeowners policy.

Second, the document is also inadmissible during the later phase of trial (if any) involving claims for extra-contractual and punitive damages because (1) introducing the protocol would inject unfair prejudice against State Farm and needlessly confuse the jury by introducing a purported investigatory process alongside the controlling Mississippi investigatory standard beyond the abilityof any instruction by the Court to cure and (2) the document does not evidence bad faith or other culpable conduct. (Emphasis added – and doubled)

The following excerpt from the November 1, 2006 deposition of Stephan Hinkle, principal developer of the Protocol, provides just one of the many reasons the Court should carefully consider this motion. Continue reading “State Farm puts the Court to the test in Bossier – files nine motions in limine UPDATED”

State Farm has secrets – but not for long!

Coast attorney Deborah Trotter is at it again – and this time she’s challenging “secrets” by number in her Response to the whisper-in-your-ear Motion for Protective Order the great nuzzler Scot Spragins filed  Lizana v State Farm!

Defendant identifies 46 documents in its privilege log that it claims qualifies for protection as trade secrets. However, the description of those 46 documents is vague and general. Defendant cannot meet its burden to make a “specific showing” that the document or information withheld qualifies for protection by beginning each description with the word “Specific.”

The Privilege Log from State Farms motion and excerpts from Lizana’s Opposition citing igascullen1specific items by number with reference to related Rules and/or Code Sections cited in the Response (also by number!) follows — all supporting Trotter’s contentions:

The Uniform Local Rule 26.1(A)(1)(c) requires that “a party withholding information claimed privileged or otherwise protected shall submit a privilege log that contains at least the following information: name of the document; description of the document; date; author(s); recipient(s); and nature of the privilege. To withhold materials without such notice subjects the withholding party to sanctions under FED. R. CIV. P. 37 and may be viewed as a waiver of the privilege or protection.”

Defendant lists only three of those categories in its privilege log: 1) Document, 2) Description, and 3) Privilege. Defendant identifies 46 documents in its privilege log that it claims qualifies for protection as trade secrets. However, the description of those 46 documents is vague and general. Defendant cannot meet its burden to make a “specific showing” that the document or information withheld qualifies for protection by beginning each description with the word “Specific.” Continue reading “State Farm has secrets – but not for long!”

Anita Lee fires up da Grilletta: In Mississippi “the deck is stacked against the policyholder”. Bill of Rights Anyone?

Things get a tad busy this time of year and the lack of blogging time on mine and Nowdy’s part means there is insurance news we don’t cover. Fortunately our friend Sup brought up the policyholder bill of rights, a story I’ve been following but which fell on my B list because of severe time constraints. A story we have been following and in fact broke right here on Slabbed was the recent Grilletta decision at the 5th Circuit which was a major victory for policyholders. Thanks to Anita Lee I get to maximize my time and kill two birds with one stone as the legal points that gave policyholders protections against being jerked around by a bad faith insurer in Louisiana do not exist in Mississippi. Before I link the salient source docs in our archives let’s begin with Ms Lee’s excellent story on Grilletta:

The 5th U.S. Circuit Court of Appeals handed a victory to Louisiana policyholders this week in a Katrina insurance case, but the ruling won’t benefit Mississippians because the state lacks a law requiring timely payment of claims.

In the Louisiana case of Grilletta v. Lexington Insurance Co., a trial judge levied a penalty equal to 25 percent of the undisputed amount paid for wind damage because the company failed to act on the claim within 30 days of receiving proof of the loss. In fact, the appellate ruling said, “Lexington arbitrarily sat on the claim for over two months” after an adjuster concluded wind had destroyed the house. Lexington then hired an engineering firm that blamed the loss on storm surge, excluded from coverage. The April 2006 report also noted wind damage.

In June 2006, Lexington sent the policyholder a $311,055.38 check for the wind damage.

A trial judge levied a 25 percent penalty on that amount for the arbitrary late payment. The judge rejected penalties for the additional amount awarded at trial, $248,325.42, reasoning there was a legitimate coverage dispute.

The appellate court ordered the judge to assess the 25 percent penalty on coverage awarded at trial, saying failure to make timely payment on a covered claim exposes the insurer to penalties on the entire claim.

Mississippians, hundreds of whom waited more than two years for Katrina payments, lack similar protection and are unlikely to get it from the current Legislature, say policyholder attorneys and state Sen. David Baria. Baria is sponsoring a bill that mandates timely payment of claims.

“I believe that would get the insurance companies’ attention as far as treating policyholders more fairly,” said attorney Ben Galloway of Owen Galloway & Myers in Gulfport. “Right now, the deck is stacked against the policyholder. We’ve seen it over and over in Katrina litigation.

“There’s really not much incentive for insurance companies to be fair with insureds on a claim.” Continue reading “Anita Lee fires up da Grilletta: In Mississippi “the deck is stacked against the policyholder”. Bill of Rights Anyone?”

What a surprise! Deputy Commissioner of MID joins law firm representing State Farm

The announcement in the Sun Herald  mentioned Deputy Commissioner of Insurance Lee Harrell was leaving the Department to join a law firm.

The Mississippi Insurance Department’s deputy commissioner, Lee Harrell, is leaving after 16 years to work for Baker, Donelson, Bearman, Caldwell and Berkowitz law firm…Harrell spent most of his career under former Insurance Commissioner George Dale, who was defeated for re-election in 2007. Dale, the nation’s longest-serving commissioner, now works in the government relations department of Adams and Reese law firm.

Unlike Dale, Harrell is an attorney. He was unavailable for comment Wednesday. Chaney said Harrell will focus on insurance cases in his new job. Baker, Donelson represents insurance companies and policyholders…Harrell oversaw a market conduct study of State Farm after Dale’s departure. (emphasis added)

Chip Merlin connected the dots.

Anita Lee, of the Sun Herald, recently reported that the deputy insurance commissioner who “oversaw” the Mississippi Insurance Department’s Market Conduct Study of State Farm following Hurricane Katrina has left the Mississippi Department of Insurance. Guess who hired him? The lawyers who represent State Farm in Hurricane Katrina matters. Continue reading “What a surprise! Deputy Commissioner of MID joins law firm representing State Farm”

some for you, some for you, some to share – Judge Senter plays Santa in limine

Judge Senter’s Order on the various motions in limine in Payment v State Farm reminded me of Santa passing out gifts – and he kindly listed the various motions much like we’ve done here on SLABBED; so, they’ll be easy to follow.  Since I’m way short of time to do more than just get this up, I reversed the order of the Order and made it a post.

Ten of the twelve filed by State Farm are subject to this Order:

The Court will address the [106] Motion to Preclude Evidence or Testimony that Plaintiff’s Home was Completely Destroyed by Wind, and its companion–the [107] Motion for a Ruling that Plaintiff’s Acceptance of a Flood Insurance Payment Constitutes an Admission that at Least that Amount of Flood Damage Occurred and that the Flood Insurance Payment Must be Offset Against any Recovery Under Plaintiff’s Homeowners Insurance–by separate order.

The “separate order” wasn’t on the docket last night but as soon as it is and I’m where I can post, I’ll get it up.   See if you can guess what about his Order will keep me smiling wherever I am!

State Farm’s [99] Motion to Exclude Evidence, Testimony, or Argument Relating to Mississippi Department of Insurance Bulletins and Related Correspondence is GRANTED, subject to the above comments;

State Farm’s [100] Motion to Preclude Plaintiff from Introducing Testimony that Waiver or Estoppel Create or Modify Coverage is GRANTED;

State Farm’s [101] Motion to Exclude any and all Testimony, Evidence, and Argument Regarding any Grand Jury or Government Investigation of the Insurance Industry’s Response to Hurricane Katrina is GRANTED;

State Farm’s [102] Motion to Exclude any and all Testimony, Evidence, and Argument Regarding Claims Handling for Properties Other than Plaintiff’s is DENIED, subject to the above comments;

State Farm’s [103] Motion to Exclude Testimony, Evidence, and Argument Relating to Interpretation of Insurance Policy Provisions or Principles of Mississippi Law and to Exclude the Wind/Water Claim Handling Protocol is GRANTED IN PART (as to interpretation of the policy and law) and DENIED IN PART (as to the wind/water protocol); Continue reading “some for you, some for you, some to share – Judge Senter plays Santa in limine”

Dr. Payment “thows a shoe” at State Farm’s arguments

State Farm can’t duck the points Dr. Payment’s attorneys made in response to the dozen motions in limime the company filed in Payment v State Farm – and, at this point, it appears the Company won’t be able to duck a trial either.

Where to start? How about with what Payment’s attorneys had to say about the motion to exclude the results of MID’s Market Conduct Exam of State Farm’s claims handling?

Contrary to Defendant’s characterization, the Market Conduct Report is relevant to this case, and particularly the issue of Defendant’s motivation for conducting a reevaluation of Dr. Payment’s claim as well as the timing and scope of the reevaluation and delayed tender of uncontested benefits.

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” FED. R. EVID. 401.

Defendant takes the initial position that, through no fault of its own, its adjuster, Howard Crosby, did not inspect the correct property. Defendant did, however, proceed to deny Dr. Payment’s claim in its entirety on the basis of flood with knowledge that it had not inspected Dr.Payment’s property…Defendant thereafter persisted in its denial of Dr. Payment’s claim on the basis of flood. Defendant later paid on this property (property of Dr. Payment’s uncle, adjacent to Dr. Payment’s property…) Further, this payment was made after Defendant had obviously confirmed that the dwelling had no flood coverage.

As set forth in Defendant’s claim file, following each inquiry or submission of information by Dr. Payment, Defendant closed its file. Prior to filing suit, Dr. Payment requested a review of his claim pursuant to Commissioner Dale’s resolution with Defendant. Despite agreeing to wind damage in excess of $240,000 and uncontested coverage of $25,742 (see Re-Evaluation Re-Cap Worksheet, attached as Exhibit E), Defendant did not advise Dr. Payment that it agreed that wind was a causative factor or tender uncontested sums until April 2008, eight months after litigation was commenced.

It is expected that Defendant will urge mistake, inadvertence, or simple oversight as explanation for its handling of Dr. Payment’s claim. Continue reading “Dr. Payment “thows a shoe” at State Farm’s arguments”

State Farm launches Mac-attack on Payment case with missiles, ground fire and bomb to keep MID market conduct exam from jury

Will Dr. Payment fold like McIntosh under this pressure?

Payment v State Farm, introduced here in a post that published on the 5th of December, became the target for a Mac-attack that same day.  Before the attack ended a day later., State Farm attorney John Banahan had launched a dozen wind-to-water missiles of motions in limine, including three with memorandum in support.

Six docket entries that followed were ground fire for the bomb to come.

  • Supplemental NOTICE of Service of Disclosure by Michael Payment
  • Supplemental Designation of Experts by State Farm Fire and Casualty Company
  • NOTICE of Service of Response to Interrogatories by State Farm Fire and Casualty Company
  • NOTICE of Service of Disclosure by State Farm Fire and Casualty Company
  • NOTICE of Service of Supplemental Opinions of Defendant’s Experts in Response to Supplemental Opinion of Neil B. Hall, Ph.D. by State Farm Fire and Casualty Company re Designation of Experts
  • RESET HEARING: Final Pretrial Conference RESET for 12/22/2008, 1:30 P.M., before District Judge L. T. Senter Jr

Then, today, State Farm dropped a bomb  – NOTICE of Offer of Judgment by State Farm Fire and Casualty Company. Continue reading “State Farm launches Mac-attack on Payment case with missiles, ground fire and bomb to keep MID market conduct exam from jury”

The Scheme – fingerlickin chickinpickin meat city Mind Games (Chapter 3 Qui Tam)

Mind gamesI’ve been to meat city to see for myself…mind games fuck a pig mind games…fingerlickin chickinpickin meat city shookdown u.s.a…mind games

Anything can become a weapon. In mind games, words become missiles – hope killing daggers to the heart of an issue hidden among other words and as difficult to detect as a needle hidden in a haystack of needles.

Lennon wrote Mind Games during a period of separation from Ono that led to his involvement in a triangle with Ono and another woman. Sped up and backward tracked, his favorite expression fuck a pig is hidden in the song Meat City.

In the mind games insurers have played since Hurricane Katrina, fuck a pig translates to anti-concurrent causation played at any speed, tracked forward or backward, during the period of separation of damage from coverage – a period when words are mind games played with hope killing daggers to the already broken hearts of policyholders. Continue reading “The Scheme – fingerlickin chickinpickin meat city Mind Games (Chapter 3 Qui Tam)”

Chaney gets a tube of his own compliments of SLABBED – and it’s his favorite color “State Farm Red”

Sop correctly gave MID a two thumbs up rating on the methodology of the State Farm Market Conduct Exam – and, if the report had ended on page 32, I’d give Commissioner Chaney two thumbs up, too.

However, the report doesn’t end for another 21 pages – all spent wiping the lipstick off the wrong pig – earning Chaney a tube of State Farm Red all his own for content exceeding the stated Purpose and Scope of the examination:

This examination pursuant to its authority focused on whether the Company treated its policyholders  fairly, honored the terms and conditions of its policies, and complied with Mississippi insurance law and regulations, as well as Department of Insurance Bulletins.

The scope of this examination did not encompass an investigation of specifically relating to fraudulent or criminal activity per se and no conclusions have been drawn as to the presence or absence of fraud. It should be noted, MID is not a law enforcement entity…

While the portion of the examination that is clearly pursuant to its authority provides data supporting the Rigsby qui tam claim, the narrative beginning on page 32 wanders through poorly supported conclusions Continue reading “Chaney gets a tube of his own compliments of SLABBED – and it’s his favorite color “State Farm Red””