Tag: Fifth Circuit

“Will the April 25th hearing become the trial that never happened”?

Bullseye! Patsy Brumfield hit dead center with Zach Scruggs hearing could unveil additional information for NEMS360.com. A look at the transcript of Zach’s plea hearing indicates Zach’s Motion to Vacate, like Brumfield’s take on the case,  is right on target.

I didn’ t conspire to bribe Judge Lackey in connection with an arbitration order, and I would have stopped it had I known.

However, I did have some knowledge that Tim Balducci had a close personal relationship with Judge Lackey, and that he used that personal relationship to have improper ex parte contacts with the judge regarding the order. Such improper contacts, left unchecked, can – – and in this case did – – deprive the people of the state of Mississippi of fair and honest services.

Nowadays, two significant events make Zach’s “crime” what it was at the time – an ethical violation. The first of these events was Continue reading ““Will the April 25th hearing become the trial that never happened”?”

The Kings of Tort: Did Chapter Four (Paul Minor) provide honest service to the book’s readers? (Part 1 of 2)

For me, on Minor, the different jury instructions given on the same charges doesn’t sit well…

Comment to White Knight takes issue with author of Kings of Tort

The question posed in the title is not rhetorical but, instead, one for readers to decide – preferably after reading the information in this post. As Sop’s comment suggests, the hallmark of Minor’s second trial was same charges with different jury instructions.

The district court required quid pro quo for the same bribery charges in Mr. Minor’s first trial in 2005. As described by the April 17,2008 House Judiciary Committee Majority Staff Report for Chairman Conyers, in the first trial “Mr. Minor was acquitted of most charges while the jury hung on others. On retrial. after the presiding judge revised his evidentiary rulings and relieved the prosecution of the need to prove certain elements of the alleged [bribery] crime, Mr. Minor was convicted of what have been described as ‘vague’ charges based on alleged efforts to obtain an unfair advantage from the two lower court judges, again through loan guarantees, and again despite the fact that Mississippi law allows such guarantees.” Continue reading “The Kings of Tort: Did Chapter Four (Paul Minor) provide honest service to the book’s readers? (Part 1 of 2)”

State Farm strikes out at Fifth Circuit with the bases loaded

Now I understand all the confusion resulting from the Fifth Circuit’s decision to hear Dickerson and Kodrin together.  The consolidated Opinion in Harrington v State Farm reverses and remands three similar cases to District court for rehearing:  Harrington v State Farm, Benit v State Farm, and Arceneaux v State Farm.

Plaintiffs-Appellants (“Appellants”) in these consolidated cases sought recovery under their respective homeowner’s policies for damage to their homes from Hurricane Katrina. The district courts read Appellants’ complaints as seeking damage caused only by flood and dismissed the complaints under FED. R. CIV. P. 12(b)(6). We disagree with the district courts’ interpretation of the complaints and conclude that Appellants also sought recovery for unpaid wind damage. We therefore reverse and remand for further proceedings.

If you read this and don’t wonder how many other Plaintiffs in the Katrina Canal Breaches Litigation were screwed by this State Farm “slight of hand” strategy, you probably are eagerly awaiting the Easter Bunny.  Same goes for anyone who thinks State Farm was unaware legitimate wind claims were clearly stated and unresolved when they filed the 12(b) (6) Motions.

…All three suits sought to recover from Defendant-Appellee State Farm Fire & Casualty Company (“State Farm”) under each plaintiff’s homeowner’s policy for damage to each plaintiff’s home sustained in Hurricane Katrina. The complaints, amended complaints, and motions in all three cases are identical in all relevant respects. Harrington and Benit share nearly identical procedural histories, while Arceneaux differs slightly. Continue reading “State Farm strikes out at Fifth Circuit with the bases loaded”

Allan Kanner can just evermore kiss my *** ex rel

The 5th Circuit has released its long awaited Opinion on the Appeal of the Katrina Qui Tam claim filed by a group of public adjusters as the Branch Consultants – an Opinion that references this year’s award-winning snark –

and the Big Sleazy in the Big Easy Award goes to…

Here, Sop, hold the envelope a minute while I direct readers to the excellent background you posted last March and April; and, take a quick look at the 5th’s Opinion – including a significant error.

We AFFIRM the district court’s dismissal of Branch’s claims against State Farm and Allstate. We REVERSE the dismissal of Branch’s claims against all other Defendants based upon the ground of the first-to-file bar. Rather than address Defendants’ alternative grounds for affirmance, we REMAND the cause so the district court can consider those arguments in the first instance…

The Court’s error is dismissing Allstate in light of the stated intent to dismiss the only Branch Defendants that Rigsby names.

Although Allstate was one of the four insurers named when the Rigsby sisters filed suit in April 2006, they later (March 05, 2008) filed a Consent Motion to dismiss three insurers – Allstate, Nationwide, and USAA.   Judge Senter issued the Order on the 10th and received the needed approval of the Department of Justice a week later.  Consequently, State Farm has been the sole insurer named as a defendant in the Rigsby qui tam for almost a year.

The obvious question is how did the Court make such an error and I have no answer.  However, there are other misrepresentations of fact in the Opinion; and, on several of those I have more than a guess.

The envelope, please, Sop, and Continue reading “Allan Kanner can just evermore kiss my *** ex rel”

Amici, “they said you was high-classed, well that was just a lie…and you ain’t no friend of mine…”

From our growing number of Louisiana readers comes news of an appeal of the 5th’s decision in Dickerson v Lexington (AIG) filed by amici curiae of Lexington (AIG) and the company’s application for a rehearing by the 5th en banc.

You aint nothin but a hound dog

Cryin all the time…

0000uuuuuu, cried the hound dogs, oooouuuuuuu, ..this case needs a rehearing if no one on the court is going to make sure our go-to folks sit on these panels….oooouuuuuuu, we’re going to have to pay under the same terms we sold these policies under if this this decision stands … oooouuuuuu, talk about emotional distress, we’re all going crazy over this decision… oooouuuuuuu, it’s not our fault people weren’t tough enough to do business without taking it personally …oooouuuuuu.

You aint never caught a rabbit and

You aint no friend of mine

What a lucky court!  Not only does it have lots of friends (re: Interested parties, pages 18-28 of the brief), they’re all in the insurance industry and will personally and professional benefit if the Court en banc reverses the panel’s decision in Dickenson v Lexington – none more than the court’s and Lexington’s best friend, the Amicus taking the lead in this case…

Allstate Insurance Company…Liberty Mutual…American Bankers Insurance Company of Florida andAmerican Security Insurance Company…Louisiana Farm Bureau Mutual insurance Company, Louisiana Farm Bureau Casualty Insurance Company and Southern Farm Bureau Insurance Company…Arnica Mutual Insurance Co….The Hanover Insurance Company, The Hanover American Insurance Company, and Massachusetts Bay Insurance Company…Horace Mann Ins. Company, Horace Mann Property & Casualty Insurance Company, and Teachers Insurance Company…The Standard Fire Insurance Company and The Travelers Indemnity Company…Casualty Insurance Company, American National Property andCasualty Company, American National General Insurance Company, and ANPAC Louisiana Insurance Company… Republic Fire and Counsel for Lafayette Insurance Company and United Fire and Casualty Company…Metropolitan Property and Casualty Insurance Company…(list in formation, emphasis added)

The two issues driving the request for an en banc rehearing are burden of proof and emotional distress.

As demonstrated in defendant-appellant’s Petition for Rehearing En Bane, the Panel’s opinion could be read as incorrectly suggesting that the burden of proof remains with the insurer to show which damages are not covered once it becomes clear that a policy exclusion applies, and likewise incorrectly holds that emotional distress penalty damages may be awarded even where the insurance contract protects only pecuniary interests and where there is no proof that the insurer intended to cause emotional injury. Continue reading “Amici, “they said you was high-classed, well that was just a lie…and you ain’t no friend of mine…””