In my most recent post on the three Katrina qui tam cases, I compared Allstate to Larry, the character on the old Newhart show who spoke for his two mute brothers – “my brother Darryl and my other brother Darryl”. This update on the Branch Consultants’ qui tam case is the first of three follow-up posts, each focusing on a single case. While Louisiana federal district Judge Sarah Vance is not only more attractive than Larry’s “other brother Darryl”, pictured center in photo on the right, one might think she, too, mute given Allstate’s attempt to put words in her mouth.
Allstate certainly has good reason to be concerned. The Company has the distinction of being a named defendant in all the Katrina qui tam cases. Allstate argues it is a distinction without a difference and that, on that basis, Judge Vance lacks jurisdiction under the “first to file” requirement of the FCA (False Claims Act). A related SLABBED post, Allstate files Answer in Branch – and this I couldn’t make up!, introduced Allstate’s position; i.e., the Rigsby sisters were the first to file.
Despite having once invited Branch counsel Allen Kanner to “kiss my***ex rel“, I do not believe Judge Vance can determine jurisdiction until discovery has been completed in Branch, the recently unsealed ex rel Denenea v Allstate and Rigsby with the scope of expanded. Allstate represents the FCA restriction on similar claims too narrowly, IMO, but more importantly, there is currently no way to know for certain.
My position, however, is contrary to the strategy of the “wool-over-court’s-eye” scheme concocted, or so I believe, by Allstate and other insurers as an element in the overall scheme of fraudulent claims handling that followed Hurricane Katrina – and it is the context of that wet-dog smelling scheme unraveling before Judge Vance that we examined the current status of the Branch Consultants’ qui tam case.
“The Court has issued a number of decisions in this matter, and knowledge of the relevant background will be presumed.”
Either Judge Vance has a dry wit or I’ve gone as slap-happy as the Three Stooges trying to clear my “drafts file” of posts. Whatever. Strike up the band provided SLABBED readers with “knowledge of the relevant background” presumed – and, that said, we take a look at the series of Orders recently added to the Branch qui tam docket:
The Court has issued a number of decisions in this matter, and knowledge of the relevant background will be presumed…
The question now before the Court is simply whether Branch may obtain discovery as to properties for which an ANPAC subsidiary, rather than ANPAC itself, wrote the insurance policy. Contrary to ANPAC’s assertions, this question is not jurisdictional.
ANPAC also objects to the Magistrate Judge’s order granting a protective order to Branch as to certain tax and payment records.
The best place to hide a needle is in a haystack of needles– and, at the moment, there’s no bigger haystack of needles than the docket of the Branch Consultants qui tam case The Branch defendant insurers file a single motion as a group and, then, some or all file essentially the same motion separately. The result is the eye-crossing, mind-boggling docket that confused Magistrate Shushan to the point she thought she’d developed an enlightened perspective on the USSC Rockwell decision.
Rather than similarly embarrass myself, it seemed better to hold motions until all parties had filed – but that was before a thoughtful reader sent me the link to Liberty Mutual’s “Responsibility Project” website and I clicked on the Company’s list entitled “How Liberty Mutual is Responsible” and found the most incredible statement – “Liberty Mutual is all about doing the right thing. First and foremost for our policyholders, but also for our employees and our communities as well”.
Memes, of course, are contagious and those about Katrina litigation tend to spread like wildfire. In that regard, Judge Vance, who appears to be up-to-date on her shots and fully immunized, might want to suggest others get booster shots before decisions are made on Branch’s Motion to Compel. Defendants’ response to the Branch motion is an aggregate of aggregation of epidemic proportion.
The schemata employed by the defendants are designed to weaken Branch to the point the case is dismissed as quickly as possible by limiting Branch discovery. The associated attack of the aggregated aggravators, a variation of hide and go-seek, targets Interrogatory No. 4 from the Branch Motion to Compel. Interrogatory No.4 requests aggregate data on each insurer’s Katrina reserves, “the amount of money…[an]… insurance company sets aside on its books to ensure the ability to pay…[claims]”:
As noted in Nicholas v. Bituminous Casualty Corp.:
Setting reserves is a method of managing litigation in which attorneys, claims adjusters and/or line personnel compile their mental impressions and opinions concerning the substance of the litigation as well as the cost of litigation. Specifically, when setting a reserve, attorneys and claims personnel not only assess the value of the claim based on the available evidence and the strengths and weaknesses of the claim, but also take into consideration the probability of an adverse judgment, the jurisdiction, and the fees and expenses that may be incurred in defense of the claim.