To those of you in New York without power rationing gasoline that may happen to read this

Slabbed’s old Katrina wind-water insurance posts are getting a nice workout lately courtesy of google. As the name of this place implies we, as a cyber community, have a wee bit of knowledge on the subject thus these musing are born of personal experience.  I have a Sandy insurance post coming and I am noticing the insurance media and their plants are busy trying to dumb down everyone with the meme insurers do not know how to legally interpret one of their own policy clauses in anti concurrent causation. This post deals with the immediate present for you folks that do not have power and are faced with very limited gasoline supplies.

I’m not sure what’s worse, not having gasoline or power in the late summer heat for which the deep south is famous or in late autumn cold in the northeast but what I do know is it sucks. Bad.  Builds character too.  😉

Stay tuned.

Mississippi Law Journal publishes “…Rendered far too late” – Chip Merlin on Corban v USAA

To understand the significance of the Mississippi Supreme Court’s decision in Corban v. USAA, it is necessary to consider the financial devastation and unnecessary insurance coverage litigation caused by the absence of it during the four years from the date Hurricane Katrina hit Mississippi’s gulf coast.

Merlin’s lead grabbed my attention as did his page one footnote referencing SLABBED:

The obliterated structures have been termed by those in Mississippi’s gulf coast “slabbed,” as there was literally nothing but a slab left where homes and businesses once stood. Slabbed is also the name of a blog that has chronicled the reconstruction efforts and struggles with the insurance industry along the way. For more on this topic and stories behind the Katrina litigation, see

Since Merlin’s blog provides what he calls the “Reader’s Digest version” of his article for the Mississippi Law Journal, SLABBED moves from his lead to the references to Bossier v State Farm and Robohm v State Farm in his Conclusion: (emphasis added)

While the Corban decision made it clear that insurers cannot use the ACC and wind/water protocol to evade their burdens under an all-risk policy, State Farm’s trial motions show that it is still using both to deny claims. One month after Corban was released, State Farm tried to shirk its obligations with a tortured interpretation of Continue reading “Mississippi Law Journal publishes “…Rendered far too late” – Chip Merlin on Corban v USAA”

Corban v USAA – counting by the calendar

It was not as if I had forgotten about Corban; but Bam – a virus called anti-concurrent cause – Bam – the ACC virus continued – and I’m thinking Corban every day and not just on hand-down Thursday. FireShot capture #042 - 'June 2009 Calendar – United States' - www_timeanddate_com_calendar_monthly_html_year=2009&month=6&country=1

You’d think after Nationwide spilled the beans, the Supremes would be in a hurry to protect policyholders with cases still in litigation; but, then again, maybe they think with all the beans on the table, it’s such a no-brainer they can take their time.

One justice asked Nationwide whether ACC would exclude coverage in a case where a home was 95% destroyed by wind before any flooding…According to…[Nationwide]…it does not matter what actually caused the damage.  If the subsequent flooding would have caused it, the damage is covered by NFIP and not Nationwide. FireShot capture #043 - 'July 2009 Calendar – United States' - www_timeanddate_com_calendar_monthly_html_year=2009&month=7&country=1

On the other hand,  the Supremes may be like Nationwide’s policyholders – in a state of shock after learning Nationwide is on Nationwide’s side. Continue reading “Corban v USAA – counting by the calendar”

Once the property is lost, then how do I regain it to lose it again with water?

Judge Randolph’s question was the first thing that came to mind after reading Did insurers testimony show guilt? h/t Y’all Politics

Recent arguments in a Mississippi Supreme Court case offer proof that private insurers are improperly pushing storm damage claims from their books to the government-backed flood insurance program, Rep. Gene Taylor, D-Bay St. Louis, said in a telephone interview.

“It confirmed, under oath, what we have been saying all along: that the taxpayers got stuck with paying bills that the insurance industry should have paid,” said Taylor, who has long maintained that it’s a conflict of interest for insurers to be responsible for handling homeowner policies and flood policies for the same property…

With Nationwide’s startling admission, too little has been made of the testimony given by USAA attorney Charles Copeland, AKA the King of Flip-Flops.

Charles Copeland, a lawyer for USAA, a Texas-based financial services company and insurer, did not go as far as Landau but said that a policyholder would not be entitled to collect if the storm damage were due to “the combined concurrent force of wind and water.”

In a June 18 letter to Taylor, Copeland said that USAA does not shift coverage for wind damage to the flood insurance program.

“Shift” is the key word here – USAA does not “shift” because, according to Copeland’s testimony, Congress intended for the flood insurance program to pay for more than “flood only” damage. Continue reading “Once the property is lost, then how do I regain it to lose it again with water?”

SLABBED Daily – July 2

Congressman Taylor’s letter to Secretary Napolitano and video once again call our attention to the transcript of the oral arguments presented to the Mississippi Supreme Court in Corban v USAA.

A start-to-finish reading of the transcripts makes it clear that many here have spent the four years since Katrina  in an effort comparable to nailing  jello to a tree – and that Corban v USAA has given the members of the Supreme Court a taste of that struggle.

Attorney Danny Cupit, speaking for the Attorney General, provided an equally descriptive example:

…listening to the arguments of Nationwide, I’m reminded of the conversation in the  children’s book by Louis Carroll, “Through the Looking Glass,” when Alice asked Humpty Dumpty if words meandifferent things. And Humpty Dumpty said, “When I use a  word, it means just what I want it to mean; nothing more, nothing less.”

He went on to make the important point that the loss attaches at the time the cause occurs. Continue reading “SLABBED Daily – July 2”

O’Bannon cites Corban transcript in Motion to Stay case against Nationwide

Honesty is the best policy – and, a hurricane policy written to exclude damage from a hurricane is honestly not the best policy.

Consequently, Counsel for O’Bannon filed a Motion to Stay O’Bannon v Nationwide pending the Mississippi Supreme Court’s decision in Corban v USAA claiming, Nationwide further showed its “true intention” of unfair and unconscionable application of the ACC to exclude coverage to its insured during questioning from Chief Justice William L. Waller, Jr.:

JUSTICE WALLER: Do you agree – Nationwide was a  party to the Dickinson case. Do you agree with Judge Senter’s ruling in that?

MR. LANDAU: No, Your Honor. We respectfully do not. We think its inconsistent with Leonard case and the Bilby case and the Tuepker case from the Fifth Circuit.

JUSTICE WALLER: Would your company have paid the  same losses that USAA has voluntarily paid in the Corban  case?

MR. LANDAU: Our company [Nationwide] has –

JUSTICE WALLER: On wind damage? On wind damage?

MR. LANDAU: Your Honor, our company would not  feel compelled by the clause by the plain language to pay.

JUSTICE WALLER: So you wouldn’t?

MR. LANDAU: Our position is that we are not  required to pay those losses. Sometime, where we believe that you can really show that these pure wind losses  covered, then we’ll pay wind losses.

But we certainly don’t believe that the Plaintiffs can  be free to go out and get whatever expert they want and  get to a jury on these kind of issues, where we carry our burden of showing that, regardless of the sequencing, the water was sufficient to cause the loss. Because we believe that that’s why these clauses — that’s the whole  point of the clause.

And, that’s the “whole point” of O’Bannon’s motion: Continue reading “O’Bannon cites Corban transcript in Motion to Stay case against Nationwide”

And now the sequence of events in no particular order – a Katrina litigation update

So much happened while I was out last week that the Dan Rather quote makes a good introduction to this update on Katrina litigation reporting the sequence of [selected] events [from last week] in no particular order:

Watson v Nationwide:

Nationwide may not be able to determine the sequencing of the loss until the event is over; but, Judge Senter had no problem determining the sequence, deciding the event was over, and issuing an Order on Nationwide’s Motion for an Extension of Time…to Take Remand-Related Discovery-

Nationwide has asserted that the non-diverse defendants in this action were fraudulently joined to defeat this Court’s diversity jurisdiction. This is an issue upon which Nationwide, as the removing party, has the burden of proof, and an issue on which Nationwide expected to prevail at the time this case was removed. Yet in the ten months that have elapsed since removal, Continue reading “And now the sequence of events in no particular order – a Katrina litigation update”

Nationwide shows its a$$ in Politz v Nationwide

A bit of  background on Nationwide’s latest assault on Mrs. Politz; but, first an introduction to Mrs. Politz for any new readers:

Mrs. Politz, who is sixty-seven years old, has lost everything she owned, has moved three times since Hurricane Katrina, undergone open-heart surgery, taken care of her terminally ill husband until he ultimately died during this litigation, and has had to come out of retirement and go back to work to make ends meet due to Nationwide’s denial of her claim…

In addition to payment on lost and/or damaged property, Mrs. Politz claims Nationwide’s handling of her claim has caused her physical and emotional distress. However – and this is important – Judge Senter issued an Order limiting this aspect of Mrs. Politz’s claim.

While Mrs. Politz may, in good faith, have the subjective belief that Nationwide’s refusal of her claim for storm damage contributed to her heart condition and to her “depression,” I will not permit her to express that belief in the absence of corroborating medical testimony.

Any discussion of mental or emotional distress will be excluded from evidence during the first phase of this trial when the issue of contract damages alone will be decided…I will limit the evidence that will be admitted in support of the plaintiffs’ claims for emotional distress.

Counsel for Mrs. Politz sought and Judge Senter provided Clarification of the Order with additional detail on the limitations he was placing on related testimony:

While she will not be permitted to testify to any medical diagnosis not established by competent medical evidence, she will be permitted to express the subjective experiences she had as a result of the events at issue. If Politz’s testimony and other evidence submitted in support of her claim for emotional distress and mental anguish meet the two criteria established in University of Southern Mississippi v. Williams…she will be entitled to submit this claim for the consideration of the jury under proper instructions.

First of all, I can’t imagine anyone other than Nationwide looking at the docket documenting the Company’s handling of the Politz claim and expecting a policyholder would not suffer related physical and emotional distress – and, frankly, I expect Nationwide realizes how far they went beyond “reasonable”.

Nonetheless, the Company seems intent on proving just how unreasonable it can be – as if there is some prize awarded for being the bitch of Katrina litigation that drives policyholders to an early grave.

Only the bitch of Katrina litigation would file a Motion for Mental Examination of Plaintiff Pursuant to FRCP35. Continue reading “Nationwide shows its a$$ in Politz v Nationwide”

The Corban Conundrum: The elephant in the room (updated)

Plaintiff respectfully requests the Court to stay these proceedings pending
a ruling from the Mississippi Supreme Court in Corban v. United Services Automobile  Association, et al No. 2008-IA-00645-SCT.

The latest development in Politz v Nationwide is the Motion to Stay filed by Mrs. Politz and Nationwide’s Response in Opposition filed today before the  noon deadline set by Judge Senter who shortly thereafter issued an Order denying the Politz motion.

None the less, Corban has been the “elephant in the room” since the Mississippi Supreme Court agreed to hear the case.  At the end of this post is a linked list of background information, including the summary Overview and update on Corban v USAA.

How do you eat an elephant? One bite at a time! Start with this quote from the Appeal and dig in!

…the lower court concluded “the anticoncurrent causation clause will be applied herein as interpreted by the United States Fifth Circuit Court of Appeals, thereby barring coverage under the homeowner’s policy for any damage caused by water as defined in the policy or caused concurrently or sequentially by wind and water in combination”.

One has to wonder how the Fifth Circuit could come up with such a convoluted decision. InPlainly Ambiguous: Have Plain English Laws Made Insurance Policies Less Ambiguous?, David Rossmiller explains that such results are intended. Continue reading “The Corban Conundrum: The elephant in the room (updated)”

If the definition of insanity is repeating the same mistake over and over expecting a different result

Then you gotta wonder about the thought process involved in pushing Leonard lite to the 5th Circuit.

I don’t know if this case  involves bad wind-water lawyering or an ornery client but you know they didn’t read Slabbed before wasting time rehashing concurrent causation with Edith Jones.