When Katrina’s music stops – the player without a chair

Other than the add-on that keeps bright blue text below the surface (usually), SLABBED is pretty much a “standard package” with the capacity to collect data on a fairly basic set indicators.

Our data come without the context needed for us to know much more than someone is reading; and, as long as we know that, we are content taken’ it as it comes.  However, I do confess to having occasional thoughts about those who come at times and from places where most are sleeping, most often wondering if they’re burdened but fearful.

I’ve thought more about those with sleepless nights since reading the Insurance Adjuster’s Dilemma: Tell the Truth and Face the Consequences by Raising Claim Practice Misconduct

The classic example is the civil prosecution of the Rigsby sisters. They told a story of a State Farm adjuster holding numerous reports which were not being sent to policyholders but were “revised.” The revised reports were always worse for the policyholders because they allowed for State Farm to deny claims. Had their story stopped there, they would have been terminated. But their actions went further with Dickie Scruggs, and the rest has been fodder for demeaning posts by the insurance industry.

When Katrina’s music stops playing this song, there will be a player without a chair – and, who that might be is something I’ve thought more about since reading about the arrangement between the WYO companies and FEMA. Continue reading “When Katrina’s music stops – the player without a chair”

Speaking of lobbying – NFIP pays insurance company legal fees in flood claims disputes!

We are pleased to transmit to you the Federal Insurance Administration’s (“FIA”) new Guide for Write Your Own Counsel. This Guide provides important information on the policies and procedures to be followed by Write Your Own Companies (“WYO Companies”) and their counsel in litigation involving the National Flood Insurance Program (“NFIP”)…

Since the inception of the WYO Program in October 1983, defense of lawsuits based on the SFIP has generally been handled smoothly and effectively. We stand ready to continue to offer support to WYO Companies in all litigation matters concerning the NFIP in our ongoing spirit of partnership.

Can you believe it? I can not – but google search results for “NFIP litigation” offered a copy.

This Guide for Write Your Own Counsel (“Guide”) has been developed by the Federal Insurance Administration (“FIA”) and the Federal Emergency Management Agency (“FEMA”) Office of General Counsel (“OGC”) to assist Write Your Own (“WYO”) Companies and their counsel defending National Flood Insurance Program (“NFIP”) litigation.

So much for thinking it is the deep pockets of the insurance industry that put most NFIP policyholder-plaintiffs at a financial disadvantage in litigation – those deep pockets are in Uncle Sam’s pants!

The FIA and WYO Company share a unique and common interest in the defense of cases related to the NFIP. Among other factors that give rise to this shared interest are the fiduciary responsibilities of the Company, the statutory and regulatory basis for the NFIP, the Federal government’s administrative and oversight responsibilities for the program, the need to share privileged information, and the fact that Federal funds are at risk. Accordingly, through the Arrangement, the FIA and the WYO Company have entered into a joint defense agreement to implement FEMA’s oversight responsibilities for the purpose of any litigation related to or arising under the NFIP to enable the free flow of information between the FIA, FEMA OGC, the WYO Company, and its legal counsel.

“Unique” is not exactly what I’d call the the government’s “common interest” with the insurer defendants in Katrina litigation.  I wonder if Judge Senter had a better word in mind in the “opinion” he would not “venture” in his December 12, 2008 Order in Gagne v State Farm. Continue reading “Speaking of lobbying – NFIP pays insurance company legal fees in flood claims disputes!”

Breaking News – Gagne v State Farm settled today!

After lengthy negotiations, case settled at the conference. Judge Senter will enter the closing order.

As the minute entry on PACER suggests, with the requested specificity in hand, Judge Walker hosted a rousing settlement conference today!

The settlement leaves some important questions unanswered but still on the table Continue reading “Breaking News – Gagne v State Farm settled today!”

Gagne identifies State Farm documents with specificity & fills Judge Walker’s order by deadline

judge-walker-obamicon…the Court directs Plaintiff to identify which documents he would like for the undersigned to consider for in camera inspection. In so doing, Plaintiff should identify with as much specificity as possible those documents to which he feels he is entitled but which are being withheld by Defendant…Plaintiff shall submit to the Court and counsel opposite a list of documents for which he seeks in camera review. This list shall be submitted on or before January 20, 2009, at noon.

Gagne’s response is a straightforward listing of the documents that were the subject of the motion to compel and related motion for review of Walker’s initial denial.  Frankly, I can’t imagine Judge Walker not wanting to see these same documents himself.

Readers following Gagne v State Farm may recall the motion to compel was limited to two categories of documents known to be in the possession of State Farm.

1. The contemporaneous meeting notes taken by the Team Manager (Steve Burke) assigned to Robert Gagné’s homeowners (HO) claim that relate to how to typically handle a slab claim. Continue reading “Gagne identifies State Farm documents with specificity & fills Judge Walker’s order by deadline”

Judge Walker picks up the drum and issues new marching order in Gagne v State Farm

Yesterday, Judge Walker issued an Order passing on Judge Senter’s marching order to Gagne as Judge Senter intended.  Walker indicated he would consider the need for a similar pass along to State Farm once he reviewed Gagne’s response.

…In the Order, the Court directed the undersigned to reconsider Plaintiff’s request for certain documents and information. The Court further suggested that an in camera review of documents might serve to resolve the issues surrounding the underlying…Motion to Compel and…Motion for Review.

To this end, the Court directs Plaintiff to identify which documents he would like for the undersigned to consider for in camera inspection. In so doing, Plaintiff should identify with as much specificity as possible those documents to which he feels he is entitled but which are being withheld by Defendant.

The Court will then consider which, if any, of these requested documents should be produced byDefendant for in camera inspection. Continue reading “Judge Walker picks up the drum and issues new marching order in Gagne v State Farm”

Judge Senter issues marching Order in Gagne v State Farm

In Gagne has the goods on State Farm, Wants More (January 8, 2009),  I posted Gagne’s  Motion for Review of Magistrate’s Order

In what has to be some sort of record-setting rapid response, Judge Senter considered Gagne’s motion and issued what can best be described as a related marching order:

This matter is referred to the United States Magistrate Judge for proceedings consistent herewith.

An overly simple description of what those consistent herewith proceedings might be is that it’s put up or shut up time. Continue reading “Judge Senter issues marching Order in Gagne v State Farm”

Grilletta, Gagne, Aiken – just a few thoughts and a little more

As this eventful week heads into the weekend, we have a lot to think about – and not a lot of time for reflection as the replys on the various motions in Gagne v State Farm are due tomorrow!  There were two motions that I’ve yet to cover that I’ll try to pick up at some point: Gagne’s Response to State Farm’s motion for partial summary judgment and Gagne’s Response to Exponent’s motion for summary judgment

Before I checked into the Aiken appeal, I would have guessed Exponent had a shot at some point.  However, Aiken is appealing what Sop called and objected to at the time –  the free pass given Rimkus.  Aiken obviously objected, too, and must have been loaded with information as USAA was able to get a significant reduction in their Bill of Costs after costs attributable to Rimkus were disallowed per this Order from Judge Senter. Revisit Sop’s post when you have time, it’s interesting and so are the comments from an engineer who had a good bit to say about the decision. Continue reading “Grilletta, Gagne, Aiken – just a few thoughts and a little more”

Gagne’s got the goods on State Farm, wants more

Don’t be surprised if this post end with a chorus singing Proximo’s song, I WANNA KNOW.  It begins, however, with Judge Walker’s denial of a Motion to Compel filed by Gagne found in the Gagne v State Farm update posted a few days before Christmas.

As an initial matter, the Court finds that the motion to compel is untimely and should be denied on this ground alone. See Local Rule 7.2(B)(2)…In the instant motion, Plaintiff argues partly by inferring from the evidence, but primarily through speculation, that State Farm has conspired to modify or alter draft engineering reports and to deny all slab claims without conducting an investigation. Plaintiff fails, however, to demonstrate with any degree of probability that State Farm is withholding information or documents specific to the Plaintiff’s claim. Thus, there is no basis for granting this untimely motion to compel.

Gagne is back with what the docket lists as a Motion for Review of Magistrate’s Order and 18 exhibits as evidence, leaving little, if anything to speculation other than the court’s response.

Plaintiff, ROBERT R. GAGNÉ, through the undersigned attorney, hereby respectfully files this Motion asking the Court to reverse, in part, Judge Walker’s Order…Plaintiff respectfully suggests that the Magistrate’s ultimate conclusion – that the draft reports are not related to Plaintiff’s claim is a mistake of fact. It is Plaintiff’s position that certain parts of the original Motion to Compel touch on evidence of such a probative and relevant nature to the case at bar that the interests of justice require these documents be exempted from the Magistrate’s ruling and produced to the Plaintiff.

Gagne has limited this request to two sets of documents and I’ll cover the first in total before bringing up the second. Continue reading “Gagne’s got the goods on State Farm, wants more”

treading water – Gagne asks court to reconsider effect of payment for flood damage

If you read my last post on Gagne v State Farm, you may recall it ended with with the discussion of a motion that referenced  Gagne’s motion to reconsider rulings in prior cases on the effect of an insured’s cashing checks offered by State Farm drawn on Federal Flood Insurance funds.

In some recent Hurricane Katrina insurance cases, this court has made statements and rulings indicating that where plaintiffs have been paid flood insurance benefits, they may be estopped from denying that their insured property was damaged by storm surge to the extent of the amount of the flood benefits paid. This court has said this estoppel is based on the fact that receipt of flood insurance benefits constitutes an admission that some damage was caused to their homes by flooding.

Since it’s not an everyday word for most of us, let’s stop and define estoppel.

estoppel: A legal principle that prevents a person from asserting or denying something in court that contradicts what has already been established as the truth.

The motion continues; but, cleverly shifts the responsibility from the court to those bringing similar cases before the court.

Gagné does not believe that the plaintiffs in the cases involving the prior rulings on this point have brought to the court’s attention the appropriate law regarding the prerequisites for either precluding a party from taking a particular position or offering evidence in support of that position under the law concerning either judicial admissions or judicial estoppel nor have they had such compelling factual testimony including an admission by State Farm’s flood adjuster.

Gagne’s opinion of the appropriate law for the court to consider is found in the Memorandum in Support of the motion for reconsideration.

This court has said this estoppel is based on the fact that receipt of flood insurance benefits constitutes an admission that some damage was caused to their homes by flooding….

This court’s prior decisions which state that an insured is estopped from denying that their insured property was damaged by storm surge to the extent of the amount of the flood benefits paid based on the fact that receipt of flood insurance benefits constitutes an admission that some damage was caused to their homes by flooding fails to satisfy several of the requirements for judicially estopping a party from taking a position or presenting evidence inconsistent with prior action.(emphasis added) Continue reading “treading water – Gagne asks court to reconsider effect of payment for flood damage”

“We don’t see things as they are, we see them as we are” – the “expert witnesses” of Gagne v State Farm

There is seldom such a thing as an absolute truth.  Everything we see and hear causes us to come to a conclusion about what we have seen or heard based upon our own experiences up to that point.

I thought I’d start the day by cutting my “to-post” list in half by grouping  the various responses on motions related to the testimony of and reports from expert witnesses in Gagne v State Farm – and introduced the subject with a quote that offers my I’m-not-a-lawyer understanding of what an expert opinion provides.

Each of these Responses, however, relies in some fashion on the understanding of the requirements established under and/or expanded from Daubert, quoted here from Gagne’s response re: Wiggins:

Experts are not required to establish scientific certainty or any particular level of certainty for their opinions to be admissible under Daubert v. Merrell Dow Pharmaceuticals, Inc…It is only necessary for the opinion be sufficiently reliable to have a tendency to make the existence of any fact of consequence more probable or less probable than it would be without the expert opinion. See Tug Danielle M. Bouchard v. Oryx Energy Co…

Defendant State Farm wants the Court to exclude the testimony and/or reports produced in support of Gagne by Jerry Wiggins, Richard Henning, Michael Dombrowski, Donald Dinsmore, and E. J. Dennis – five total – oops, make that six – and last but by no means least, Neil Hall.

Plaintiff Gagne, on the other hand, wants the Court to exclude the testimony and opinions not fully disclosed of State Farm’s expert Dr. Robert Dean.

In other words, pour yourself another cup of coffee and settle in for what can not be a quick read.

Let’s start with the one that just blew me away – Gagne’s Response to State Farm’s motion to exclude the testimony and report of replacement cost expert Jerry Wiggins – and what blew me away.  Wiggins used Xactimate to calculate replacement cost –  creating what Times-Picayune reporter Rebecca Mowbray might call  same house, same software, different result and what I call evidence of the Scheme. Continue reading ““We don’t see things as they are, we see them as we are” – the “expert witnesses” of Gagne v State Farm”