Rather than write about all the bs that interfered with my writing a post for today, I borrowed this from the American Zombie.
So, what’s up besides the Saints? Well, for starters there’s the trial of Bossier v State Farm that got underway yesterday after the jury was seated mid-afternoon. The grapevine reported there was time for opening statements (with no personal commentary re: Bossier’s motion in limine) and one witness before Court ended for the day. The second day began at 10am and hopefully I’ll get another grapevine report or there will be something in the Sun Herald.
State Farm filed an an 11th hour trial brief, but an interesting one nonetheless, that sets forth the Company’s position on the meaning of the Corban decision:
State Farm anticipates that Plaintiff at trial may attempt to satisfy his burden of proof merely by pointing to the totality of damage to his house at the conclusion of Hurricane Katrina. Continue reading “What’s the score? No, not the Saints game, I know they won – I’m talkin’ Katrina litigation and then some”
Thirty days hath September; but, this September it would take 60 to get everything done – and I’m not the only one wondering if the season is called “fall” because those who don’t fall behind are about to fall over. Sop sends me text messages as he and little Sop make their way from football practice to a soccer game; and, I text back as soon as I find a place to pull over. Since we can’t begin October without September done, I’ve grabbed a handful of incomplete posts and tossed the basic information into this update.
Rigsby v State Farm:
NOTICE of Hearing: Telephonic Status Conference set for 10/13/2009 01:30 PM before Magistrate Judge Robert H. Walker to establish a scheduling order for the discovery and trial of the Relators claim. One week prior to the conference, counsel are to submit, via email, a confidential memo in PDF format, detailing anticipated discovery by each party (including the number and names of deponents) and a requested time frame for discovery.
Bossier v State Farm
Several interesting developments here including this surprising one – Judge Walker issued an Order denying (yes, denying) a State Farm motion!
The evidence presented to the Court is uncontested that Fountain prepared the affidavit; that the affidavit included only part of what Ziz told Fountain; and that it omitted information about the rapid rise of flood waters from the Bay of Biloxi. This Court finds such evidence insufficient to warrant disqualification of counsel. It is therefore, ORDERED that the motion to disqualify Attorney Stanton J. Fountain , Jr. as counsel for Plaintiff is denied.
Bossier’s counsel, coast attorney Judy Guice aka Seabiscuit (Judybisquit) withdrew the motion to expedit a hearing on sanctions against State Farm for violation of the court’s September 3 order pending review of the documents belatedly provided by State Farm. (emphasis added)
On September 24, 2009, at approximately noon, counsel for Plaintiff received four discs represented to contain claims files ordered by this Honorable Court on September 3, 2009. Said discs appear to contain documents relating to approximately 150 claims files. (emphasis on 150 added!)
The road leads back
It always leads back to you
Judges, not Georgia, have been on my mind. In fact, I’m Keeping Score – but you know that if you read Who has the balls and Who’s calling the game. Sop reported a different score and attracted comment from Chip Merlin.
As an attorney in the trenches with human clients, I have to somehow communicate what the reasons for rulings may be…God help us if…the only…logical reason is that the judge was appointed by a politician with a result oriented bias which has to be followed rather than fair logic and justice.
Reader NRB agreed with Chip and added:
Over the past four years I have had to explain rulings to clients that I not only disagree with, but cannot for the life of me figure out how the judge(s) arrived at their conclusions. Decisions completely void of any analysis of La. law that were basically made up out of “whole cloth.”
God help us, Chip,the Sun Herald has the story:
King said he agreed to be a Republican when Republican Gov. Fob James appointed him to a vacant judgeship in Bessemer in 1997. He said he came from a long line of Democrats and finally decided to make the switch because his philosophy was more in keeping with the Democratic Party.
“I like everyone to come into court on equal footing and have a fair chance,” King said.
“Sometimes I felt like there was a business pressure when I was a Republican.”
A case I’ve been following in Louisiana reveals another possible reason for otherwise inexplicable orders and opinions – dumb lawyers. Two legal eagles there screwed their clients, their colleagues and Lady Justice by settling a case when the judge was ruling in their favor – and made themselves the laughing stock of Katrina litigation in the process.
The road leads back but no one will be there.
With xxx, pro se v Lexington on my mind, I remembered this post from Insurance Law Hawaii. Mississippi law falls short of the protection Louisiana law provides; however, it is my understanding that insurers here have an obligation similar to Washington State’s “respond promptly”.
the Washington Supreme Court recently held the insured could pursue bad faith claims for delay in processing the claim even when there is no coverage under the policy. See St. Paul Fire and Marine Ins. Co. v. Onvia, Inc., 2008 Wash. LEXIS 1055 (Wash. Nov. 26, 2008).
….the issue was whether the insured could pursue common law bad faith and claims under the Consumer Protection Act based on St. Paul’s delay in handling the claim…
It took nine months for St. Paul to deny coverage…
The suit for declaratory relief alleged St. Paul violated a number of insurance Continue reading “Delay declared “Bad faith” action on uncovered claim”
Short and sweet as, like Sop, I’m pressed for time this morning – but not so short that I can’t post what has been all too rare – good news from a court to the Plaintiff in a Katrina insurance case.
A couple awarded more than $900,000 last year in Jackson County’s first Hurricane Katrina insurance trial was granted $500,000 this month to compensate for legal costs and fees associated with the case, according to court documents.
At the final judgment hearing, special Judge Billy Bridges decided that Adm. James and Gladys Kemp Lisanby should receive an additional $302,920.44 for lawyers’ fees and $211,069.41 in litigation expenses.
That brought to about $1.42 million their total award from their insurance company, United States Automobile Association.
For readers interested in background information, Slabbed has a number of posts on the case as this site search indicates. Now, for the rest of the story: Continue reading “Aye, Aye Admiral – Judge Bridges awards additional $500K in Lisanby v USAA”
Perhaps Rankin County Judge John Grant really knows how to spell judgment and wasn’t violating Section 7-5-301-5 with his opinion dismissing the Attorney General’s lawsuit against the insurance industry filed in Hinds County Chancery Court. I’ll leave that to the folks at Y’all to figure out as I picked this decision up reading there.
Therefore, the Court finds that the Attorney General has no standing to assert claims on behalf of Nationwide’s or Allstate’s policyholders with regard to the subject policies, including flood exclusions. Judgement (sic) on the pleadings in regard to Defendant’s argument that the Attorney General lacks standing to challenge the private insurance contracts at issue should be granted to Defendants.
The standing of the Attorney General I found in the State Code. Note the Attorney General has had this authority since 1998 and the date of the last amendment to this section was prior to Katrina.
7-5-301. Insurance Integrity Enforcement Bureau; creation; purpose.
There is created within the Office of the Attorney General an Insurance Integrity Enforcement Bureau. The duty of the bureau is to investigate and prosecute claims of insurance abuses and crimes involving insurance. The Attorney General may employ the necessary personnel to carry out the provisions of Sections 7-5-301 through 7-5-311. Continue reading “No standing? Mississippi insurance law gives AG Hood standing”
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”
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”
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”