Last Friday, this was “breaking news” but with my Christmas tree still up, I had to set priorities and these latest Orders from Judge Senter merit more than just a “pop-up” post. If you need background, check the SLABBED post published November 24, 2010, for Judge Senter’s earlier Orders admitting the testimony and/or report of Rigsby expert witnesses Dave Favre and Brian Ford.
After three years of following Katrina insurance litigation, much of it involving State Farm, I thought I’d reached the point where nothing would surprise me. However, State Farm’s legal eagles (AKA “the buckin fuzzards“) clearly proved me wrong with the Company’s Memorandum in Support of Motion for Reconsideration of the Court’s Opinion and Order re: The Brian Ford Report and Memorandum in Support of Motion for Reconsideration of the Court’s Opinion and Order re: Dave J. Favre, Sr.
However, I wasn’t as surprised by content as I was shocked by the threatening tone – and how it intensified in State Farm’s replies in rebuttal to the Rigsbys’ Response in Opposition to each of the Company’s motions. As I was reading, I began to wonder if Judge Senter felt like Travis Brickle when he took a look at State Farm’s briefs:
“You talkin’ to me? You talkin’ to me? You talkin’ to me? Then who the hell else are you talkin’ to? You talkin’ to me? Well I’m the only one here. Who the fuck do you think you’re talking to?”
For example, inState Farm’s Rebuttal brief asking for [demanding, IMO] reconsideration of Judge Senter’s decision on the admissibility of the Brian Ford report, the Company wrote:
Until now, no federal court has ever held that a document Continue reading “BIG NEWS – Judge Senter denies two State Farm motions despite the Company’s threat of appeal! (a Rigsby qui tam update)”
Let’s jump right in and start with Judge Senter’s Memorandum Opinion and Order on State Farm’s Motion to Exclude from Evidence the Settlement Agreement Between the Relators and Forensic Analysis & Engineering Corporation:
Mr. Robert Kochan (Kochan), on behalf of Forensic, signed the settlement agreement that is the subject of this motion…
State Farm contends that the terms of the settlement agreement and the statements the settlement agreement contains are hearsay and are therefore inadmissible…Relators acknowledge that the settlement agreement and the statements it contains are hearsay, but contend that the statements are still admissible…for purposes of impeaching Kochan, should his testimony at trial be inconsistent with the statements in the settlement agreement.
In the memorandum State Farm submitted in support of its motion, Kochan’s deposition testimony is extensively quoted. I have read these portions of Kochan’s testimony, and it does not appear to me that Kochan has denied the truth of any of the statements contained in the settlement agreement. In response to State Farm’s questions, Kochan has explained his understanding of these statements and the reason each of the statements was made, and he has done so in very precise terms. In the testimony I have read, he has done so without contradicting the statements set out in the settlement agreement…
To a certain extent, this motion asks the Court to make an abstract ruling, a ruling on the admissibility of potential impeachment material, without having the benefit of hearing what the witness will have to say under oath. For this reason, I will not rule the document inadmissible for the purpose of impeaching Kochan’s testimony at this time. I do agree with State Farm’s contention that the Forensic settlement agreement is inadmissible for any purpose other than impeachment of Kochan.
So, what did Judge Senter decide in his Order? Continue reading “Judge Senter issues three Orders in Rigsby qui tam case”
Your guess is as good as mine – the notice on the docket simply said:
RESET STATUS HEARING: Status Hearing RESET for 1/12/2011, 1:00 P.M., in Courtroom 506, Gulfport, Ms, before District Judge L. T. Senter, Jr. ALL Attorneys, who will participate in Trial, to be present.
If I learn more, SLABBED won’t keep you guessing.
With just one day remaining before the December 1st Status Conference, Judge Senter continues to clear motions on the docket of ex rel Rigsby v State Farm. Today he made short work of one – granting the Government’s Motion to Dismiss Forensic (FAEC) Without Prejudice – and moved on to a bigger piece of work, denying Haag Engineering Company’s Motion for Summary Judgment:
For the reasons set out below, this motion will be denied.
Relators have alleged that Haag participated, along with State Farm Fire and Casualty Company (State Farm), in a conspiracy to submit false claims for reimbursement of flood insurance payments made after Hurricane Katrina. The Realtors contend that this conspiracy was intended to maximize flood insurance payments and thereby reduce payments made to settle wind insurance claims.
There is no direct evidence that such a conspiracy existed. Relators rely upon the statements in a report Haag prepared for State Farm and the use to which State Farm put that report. Relators contend that this report contains factual errors concerning the timing and effect of the storm winds and storm surge flooding and that these errors gave State Farm a plausible basis for giving its adjustors instructions that resulted in overpaying a substantial number of flood claims. Continue reading “BREAKING NEWS – Judge Senter denies Haag Engineering’s Motion for Summary Judgment in Rigsby qui tam”
Actually, Judge Senter pulled his knife out at the end of last week and while I was trying to find time to get those two Orders posted, he was sharpening his knife on two more – but what he has in mind is no turkey, it’s the December 1st Status Conference on his schedule:
I have decided to continue the trial of this case from its present setting on December 1, 2010, and to set a status conference on that date to hear from all parties on the merits of the motions that remain undecided at that time.
Two motions pending “at that time” and mentioned in his Order were the Government’s motion to vacate Judge Senter’s Order dismissing defendant Forensic and the Rigsbys’ motion to reconsider the scope of the proceedings.
These motions are fully briefed, and I do not anticipate requiring any additional briefings at this time. After this conference, I will reschedule the trial to accommodate my rulings on the pending motions.
Judge Senter should have known State Farm would consider that an invitation. In that context, today Judge Senter sent “regrets” to Butler Snow – and denied State Farm’s motion to declassify portions of 30(b)(6) deposition of TRG (The Rendon Groups)in support of “the good neighbor’s “motion to dismiss the Rigsby’s case for repeated violations of the seal. In his Order, Senter stated:
After reading the materials submitted in support of this motion, including the Rule30(b)(6) Deposition of the Rendon Group [Document 756, Exhibit 1] and theSupplemental Responses submitted by TRG [Document 756, Exhibit 2], it appears to me that the material in question has only marginal relevance, if any, to the merits of the State Farm motion  to dismiss. Continue reading “Judge Senter sharpens his carving knife on Orders in Rigsby qui tam”
With less than two weeks until the Status Conference in the Rigsby, I wasn’t expecting to find anything on the docket unless it was required by Judge Senter’s Order. Of course, none of us should ever be surprised by anything State Farm does in litigation – particularly now that a lot of law firms are struggling in the post-Katrina economy.
Hardly a week goes by that I don’t hear a rumor about layoffs at a big or medium size firm, get a phone call about a lawyer looking for work or hear a story about a former law grad delivering pizzas.
Even then, I didn’t think things would be going slow for State Farm’s big guns – but, given the ” illusory authority” of the case cited as the “Authority”, I can’t help but believe this comment more than idle gossip. After all, someone has to keep the lights on:
my neighbor who is a partner with Butler, Snow et. al. just wanders around wondering why he has soooo little to do.
It definitely took some wandering and wondering to come up with the money-hungry-looking-Notice of Intervening Authorities on “the Rigsbys’ Repeated and Calculated Violation of this Court’s Seal Order” as it really doesn’t intervene in anything at all except the Court’s time. Continue reading “Business a little slow at Butler Snow? Must be – considering the Notice filed by State Farm in Rigsby qui tam”
Nanny, nanny boo- boo!
“…the Fifth Circuit knew full well that Allstate had been voluntarily dismissed from Rigsby before it ruled…”
You can’t catch me!
Significantly, Branch does not even attempt to address any of the controlling authority cited by Allstate that a voluntary dismissal is not tantamount to a dismissal under Rule 9(b) or for lack of any factual basis, much less a concession that the suit is a sham.
Judge Vance doesn’t strike me as someone with any interest in having her courtroom turned into a playground – much less someone with patience for bullies on any playground. However, along came Pilot to add to the taunt.
Stick you face in doo-doo!
Indeed, unlike any of the ninety-one other insurers not named in Rigsby (or the adjusters for those insurers), Pilot and Crawford were identified in Rigsby as “co-conspirators” that worked on the same “sites” as Allstate and State Farm, the defendant insurers for which they provided adjusting services.
Pilot then steps in deep doo-doo Continue reading “Allstate’s “nanny nanny boo-boo, you can’t catch me” defense of Louisiana qui tam cases”
“…the amount of control that Farmers exerted over the everyday adjusting activities of these workers belied the title of independent contractor”
Judge Senter stopped short of employment law in deciding the question of “retaliatory discharge” in ex rel Rigsby v State Farm. Although there is no such claim in ex rel Sonnier v Allstate, Relator Kermith Sonnier is the adjuster who successfully sued Farmers for wrongfully terminating his employment:
Plaintiff Kermith Sonnier worked as a commercial claims adjuster for Farmers Insurance from 1994 to 1997. His job included evaluating the largest losses sustained by apartment buildings and condominium associations in the Northridge earthquake of 1994.
Sonnier alleged that beginning in 1996, Farmers began to pressure him to groundlessly lower his loss estimates. He refused, and Farmers terminated him, despite a clean work record, on the purported grounds that it was reducing its work force…
Hold those thoughts as I stop to point out that Sonnier’s work for Farmer’s was through his affiliation with Pilot, the firm providing adjusting services for Allstate following Hurricane Katrina and a named defendant in the Branch Consultants qui tam case against Allstate.
Through his attorneys, Stephen C. Ball and Derrick Fisher, Sonnier brought an action against Farmers for wrongful termination in violation of public policy. Sonnier’s counsel state that their biggest challenge was not proving Farmers’ impropriety but establishing the existence of an employer-employee relationship between Farmers and Sonnier. Continue reading “Adjusters “special employees” not “contractors” – Farmers lost $10.4 million “wrongful termination” case filed by you won’t believe who”
And, then there were four – ex rel Rigsby, ex rel Branch Consultants, ex rel Denenea and, now, ex rel Sonnier v Allstate:
ALLSTATE’s price allowed on wind policy estimates of loss in the State of Louisiana for painting damaged areas was between $0.15 and $0.38 per square foot. However, on NFIP flood policy estimates, ALLSTATE allowed $0.56 per square foot, a difference of between $0.18 and $0.41 per square foot. Thus, if the true and correct cost to repaint flood damaged property was between $0.15 and $0.38 per square foot (i.e., the same cost listed by defendant, ALLSTATE, to paint the same unit of drywall covered under the wind policy issued for the same property by defendant, ALLSTATE, and applicable to the same loss event), ALLSTATE caused the federal government to overpay ALLSTATE between $0.15 and $0.41 for every square foot required to be painted in every NFIP flood policy loss estimate adjusted and initially paid by ALLSTATE but subsequently submitted to the federal government for full reimbursement to ALLSTATE.
Kermith Sonnier, “the Relator is a licensed insurance adjuster with 30 years experience…principal shareholder of Sonnier & Fisher Public Adjusters, LLC, a public adjusting firm based in Lake Charles, Louisiana”.
The allegations in Mr. Sonnier’s recently unsealed qui tam Complaint against Allstate are Plus-Size – over a $1,00o,ooo,000 federal dollars fraudulently by manipulating multiple costs in claims submitted to the NFIP from multiple disasters in multiple locations over the six year period prior to filing the Complaint under seal on December 10, 2009. Continue reading “Allstate painted (literally) company in a Billion $ Corner – ex rel Sonnier v: FOURTH qui tam Complaint filed against Allstate”
It’s way too late to do more than link the two responses in oppositions to Allstate’s attempt to dismiss ex rel Branch v Allstate, et al and ex rel Denenea v Allstate and quote the pertinent text from both – sorry, but one thing Rossmiller got exactly right is that “work” really is “the curse of the blogging class”.
ex rel Denenea v Allstate: Relator’s Memorandum in Opposition to Defendant Allstate Insurance Company’s Motion to Dismiss…
The relator intends to consolidate this matter with the Branch relator, which may avoid additional judicial expense as to any potential conflicts on first to file issues between Denenea and Branch. There still exists the issue of first to file as to the present case and Rigsby; however, that issue is either resolved under recent jurisprudence, or should be addressed on a full hearing on the merits of the status of the Rigsby case pertaining to Allstate. The remainder of the motion should be denied for the reasons stated, or that the motion should be converted to a full motion for summary judgment allowing for the full supporting facts to be submitted for this courts consideration. The relator therefore suggests that the motions filed by Allstate be denied.
ex rel Branch Consultants v Allstate, et al Branch Consultants’ Consolidated Opposition to the Motions to Dismiss of Defendants Allstate Insurance Company and Pilot Catastrophe Services, Inc.
Branch notes that Allstate has not taken the position that the later-filed Denenea case has preclusive effect as to this action. Thus, Branch has made no attempt to brief the issue here, and the Court should not entertain any such argument in Allstate’s reply or at oral argument. Branch also notes that, with regard to contents coverage, it does not believe there is overlap between the Denenea allegations and this action because Branch’s claims do not concern that coverage. Branch nonetheless is in favor of consolidating Denenea with this action and anticipates filing a motion to that end.
Definitely, something to think about and, as time permits, write much more about the points made in both opposition briefs.