This is breaking news folks and I will have more but for now click below to get the full 13 page decision, hot of the press. Its accountability time for State Farm and that is gonna cost the Rust family some big money:
The bottom line is “Trailer lawyers” > than State Farm’s lawyers.
State Farm began their defense in the Rigsby whistleblower lawsuit involving allegations they and other insurers defrauded the National Flood Insurance Program after Hurricane Katrina early this week and I immediately noticed a foul odor that seemed to emanate from the Federal Courthouse in Gulfport when former NFIP Director Dave Maurstad took the stand for State Farm. To understand Maurstad and the concept of the revolving door, you gotta understand these guys circle from private sector insurance related jobs to government regulatory positions and back each time collecting more career enhancing favors. With this bunch it is always about the next job so the insurance industry could not have had a better water boy in place when Katrina hit than Dave Maurstad.
But once upon a time ol’ Dave was not so keen to testify about the NFIP handling of Hurricane Katrina claims no siree. In Bolden v FEMA for instance Dave had to be compelled to show up at the Federal Courthouse to testify about the expedited claims process he and Lecky King came up with after Katrina. Worth noting is rather than let Maurstad testify FEMA opted to settle Bolden immediately. The bottom line is most people I listen to think Maurstad is a self serving hack under whose watch the NFIP sank into technical insolvency.
But it got deeper yesterday folks as State Farm retiree Lecky King took the stand with the sound of miniature violins playing in the background as Anita Lee explains in her latest dispatch from the Courthouse (I hope McClatchy sent a gas mask with her and is considering hazardous duty pay):
Career almost destroyed
Lecky King, on the other hand, said State Farm attorneys prepared her for her testimony. She spent her last few years at the company working on policyholder lawsuits filed after Katrina and on the case against her, which at one time was part of a criminal investigation that never resulted in charges.
With due respect to Anita Lee I’ll let my former partner in blog go first:
Checked PACER to see if anything came up as the Rigsby’s rested their case…Sure nuf’ SF filed a motion for judgment as a matter of law under Rule 50 – just a docket entry…said the Court heard arguments and took the matter under advisement…did not say what the law was…
(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.
(2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment.
I do not see Judge Ozerden tossing this suit mid trial and this rule 50 motion seems like a standard defense tactic. Turns out Cori Rigsby did not take the stand yesterday so the Plaintiffs rested their case and State Farm took the floor with a Woody:
Less satisfied with her insurance coverage is homeowner Jeanna Weber, a 25-year resident of Fortescue.Weber says she’s frustrated, tired of calling her insurance company without any response. She has been calling since October, she said, but to no avail.
And under the new NFIP rules once the insurance company gives the storm damaged homeowner (and the taxpayers) the shaft, they stick ’em with the bill for it. Multiply the above many times over and you get the picture of what the insurance companies did down here after Hurricane Katrina.
And this time it isn’t Rossie at the Insurance coverage (denied) blog as Lecky King testified yesterday that Hurricane Katrina was a special type of Hurricane: the windless variety. And per Anita Lee’s latest update to the trial, Lecky King again overstated the amount of flooding at the McIntosh residence saying it had 5 and a half feet of water, around 3 feet more than official measurements indicated. She also admitted she substituted her judgment of damage from the Ivory Tower for the engineers and adjusters State Farm actually had on the ground.
Fact of the matter is State Farm and the rest of the insurers adjusted their post Katrina claims a curious way here after the storm by maxing out taxpayer paid flood coverage with a promise to later adjust the related wind claim, such promise later broken. The effect was the insurers dumped their contractual obligations to pay for wind damage on the National Flood Insurance Program, whose use of private insurers as flood adjusters results in an “inherent conflict of interest“.
Ozerden may prove to be as smart as people claimed when he was appointed…but…then again, maybe I’m just “cold” since this case is so old…
I don’t recall ever seeing a pre-trial Order a whopping 500 pages – size alone is impressive – so is the detail…although I’ve just glanced over. Seems to be tight ship.
More impressive is the way he’s dealing with SF…makes me wonder if/how much impact (1) Hurricane Sandy claims handling has had on his thinking about insurance companies and (2) the incredible “reserves”/”profits” SF reported recently (don’t recall the exact amount but I’m thinking it might have been $7billion!
Anyway, he ruled on the SF motion to substitute expert “denied in part and “granted” in part – but the part he “denied” was the substitution SF requested and the pared he “granted” was the use of previous deposition as Rigsby’s suggested – but not necessarily all of it!
Every time he appears to be “giving in” – as we’ve seen with virtually every judge in the past, he’s not giving in at all…and…the detail in this Order (maybe others too) makes me think he’s taking extra care to make them “bullet proof” in terms of appeal.
Don’t miss it – the Order is easy read – will be interested to see how it plays out.
“It has come to my attention that my Memorandum Opinion Concerning State Farm Fire and Casualty Company’s Motion To Dismiss For Relators’ Violation Of Seal Order, Docket Number 871, contains a factual error stated at the top of page 11 and repeated near the bottom of page 13. The opinion states that the Relators have previously been represented by the Scruggs Katrina Group, and this is not the case. Relators were previously represented by The Scruggs Law Firm, LLC, and not by the Scruggs Katrina Group. By this order, I am amending this Memorandum Opinion to correct this error.”
The Order makes no mention of how this matter came to his attention. My guess is from his exceedingly careful reading of documents he’s reviewing before deciding matters currently before the Court. Not that he wouldn’t otherwise, but Don Barrett’s recently filed Motion for Fees pointing out “defense lawyers have been banking their money for years” from Katrina litigation and piling on more work for an already overworked court staff in the process.
In that regard, I suspect – actually I hope – Judge Senter will do as he’s done in the past and allow a document to be filed once and referenced in all briefs thereafter. My experience reading briefs in ex rel Rigsby is like reading the first chapter of a newly purchased Agatha Christi and realizing you paid for a new cover and title to a book you’d already read!
Judge Senter’s Order denying State Farm’s Motion to Dismiss the Rigsby qui tam case was Breaking News on the 24th of January. In a different sense, it was also breaking news at State Farm – news that broke the Company’s front line defense.
Shortly thereafter State Farm filed a Motion asking the Court to allow the Company to throw the allegations at a different wall – a motion to certify the seal to the Fifth Circus claiming the Court’s “denial of State Farm’s motion to dismiss due to the Rigsbys’ violations of the seal order presents a controlling question of law, that an immediate appeal would materially advance the ultimate termination of the litigation, and that there are substantial grounds for a difference of opinion as to this question”.
The Rigsbys recently filed a Response. However, before taking a look at the State Farm Memorandum and Rigsby Response in Opposition, a little stroll down memory lane is in order. In his Opinion Memorandum, Judge Senter recognized the significance of the partial lifting of the seal that took place on “January 1, 2007, to allow the Relators to make certain disclosures in judicial proceedings in related but independent litigation in Alabama”:
The order partially lifting the seal does not specify that the judicial disclosures themselves be made under seal, and this order could therefore be reasonably interpreted to authorize these judicial disclosures in pleadings and other documents distributed to the litigants and their attorneys in the Alabama litigation. This type of disclosure would effectively make the original seal of the qui tam case moot. In these circumstances, I consider the relevant period of the seal to be from April 26, 2006, (the filing of the original FCA complaint) through January1, 2007 (the partial lifting of the seal)…and the stay was fully lifted on August 1, 2007.
In light of the significance of the Branch Opinion – a significance acknowledged by both sides to this litigation – State Farm believes it would assist the Court to have a response from State Farm to the matters briefed by the Rigsbys in their Notice.
On January 14, 2011, more than a year after responses to Relators’ first document requests were due and more than six months after the close of discovery, State Farm disclosed the existence of another 8,000 pages of documents in three boxes labeled “McIntosh Zone Litigation File.” These Documents had been “discovered” in the office of Terry Blaylock, State Farm’s 30(b)(6) witness who was designated specifically to testify on matters related to State Farm’s document production and document retention practices.
State Farm acknowledges that the Documents were “brought . . . to the attention of the State Farm corporate legal department in December 2010” but the existence of the Documents was not disclosed to Relators at that time. Despite the fact that a hearing related to dispositive motions and trial scheduling was to occur on January 12, 2011 and despite the fact that State Farm was taking depositions in this case during the last week of December and the first week of January, State Farm chose not to disclose these Documents to the Relators or this Court. Instead, on January 14, 2011, two days after oral argument, State Farm gave Relators a three-line privilege log that identified these 8,000 pages of Documents simply as “Zone litigation file for
The January 14 “privilege log” in its entirety provides as follows: