Merlin lived up to his name when, like the magician, he pulled this list of case law out of his hat, so to speak, and posted it on his blog last week – providing the context for an update on several cases we’ve followed on SLABBED. Case law was the focus of Merlin’s presentation at a recent Windpool Conference session for adjusters and the listed cases are those expected to “affect those adjusting claims in Gulf Coast areas outside of Florida”:
- Fonte v. Audubon Ins. Co., 8 So. 3d 161 (Miss. 2009)
- Certain Underwriters at Lloyds London v. Law, 570 F.3d 574 (5th Cir. 2009)
- Guideone Mut. Ins. Co. v. Rock, No. 06-218, 2009 WL 1854452 (N.D. Miss., June 29, 2009)
- Corban v. United Services Automobile Association, 20 So. 3d 601 (Miss. 2009)
- Watson v. Allstate Ins. Co., Slip Copy, No. 07-3462, 2009 WL 1704730 (E.D. La., June 17, 2009)
- Dickerson v. Lexington Ins. Co., 556 F.3d 290 (5th Cir. 2009)
- Campbell v. Shelter Mutual Ins. Co., No. 07-1983, 2009 WL 56003 (E.D. La., Jan. 7, 2009) (Following Dickerson)
- Korbel v. Lexington Ins. Co., 308 Fed. Appx. 800 (5th Cir. 2009)
- Copelin v. State Farm Ins. Co., No. 06-4115, 2009 WL 36188 (E.D. La., February 12, 2009)
- Marketfare Canal, LLC v. United Fire & Cas. Co., 594 F.Supp 2d 724 (E.D. La. 2009)
- Grilletta v. Lexington Ins. Co., 558 F.3d 359 (5th Cir. 2009)
- State Farm Lloyds v. Johnson, 290 S.W. 3d 886, 52 Tex. Sup. Ct. J. 1042 (Tex. 2009)
- Spicewood Summit Office Condominiums Ass’n, Inc. v. America First Lloyd’s Ins. Co., 287 S.W. 3d 461, (Tex. App.-Austin, 2009)
- Temcharoen v. United Fire Lloyds, 293 S.W. 3d 332 (Tex .App.-Eastland 2009)
- Moffett v. Computer Sciences Corp., et al., 647 F.Supp. 2d 517 (D. Md. 2009)
A second listing of related “practical points” followed and included, among others, two of particular interest: Continue reading “Chip Merlin’s Gulf Coast case law update provides context for SLABBED update on recent developments in selected Katrina cases UPDATED”
Back in news on SLABBED is Nationwide’s favorite psychiatrist – Mark Webb, M.D., more tangled than ever in Politz v Nationwide and now tangled in Hillier v USAA, too. Plaintiff’s attorney Tina Nicholson explains just how tangled in a Motion to Exclude the Testimony of Dr. Mark Webb USAA’S Expert.
COMES NOW the Plaintiff, Honora Hillier and moves to exclude the testimony at trial of Mark Webb, a psychiatric expert designated by the Defendant, USAA Casualty Insurance Company (“USAA”). Webb is expected to testify at trial about the extent of Honora Hillier’s emotional distress due to USAA’s failure to properly pay the insurance claim.
Webb’s testimony should be excluded because it is not based on reliable facts or methodology. Webb, a psychiatrist, apparently intends to testify about Honora Hillier’s emotional and/or mental condition although he has neither examined her nor reviewed her medical records. There is absolutely no basis in fact for Webb’s opinions. Moreover, the one relevant opinion that Webb does offer — that Hillier suffered stress as a result of Hurricane Katrina-related events — is not one that requires a medical degree to make.
Webb is a medical doctor and a psychiatrist. His expert report is attached hereto as sealed Exhibit A. Webb’s report states that he was not able to review any of Hillier’s medical records. He requests the opportunity to examine Hillier “to further investigate her psychiatric issues, if any.” However, Webb never examined Hillier.
Webb cannot testify regarding Hillier’s medical condition because he has not reviewed any of her medical records and has never examined Hillier. Continue reading “Oh, what a tangled (Dr.) Webb Nationwide and USAA are weaving – Hillier v USAA; Politz v Nationwide”
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”
It certain seems to be the way to succeed with protective orders – looking as if you’re playing by somebody else’s rules, while quietly playing by your own. Perhaps someone at the Court will soon catch on with so many different plaintiffs’ counsel voicing opposition to the Gomer strategy.
Montet’s counsel, DeborahTrotter, certainly could not have made her opposition plainer in the Sur Reply she filed today refuting defendant State Farm’s Rebuttal in Montet v State Farm:
Plaintiffs’ hereby incorporate their Reply in its entirety and maintain their position that the Defendant has not met its burden to demonstrate the documents and information at issue in its privilege log… should be deemed confidential and protected. Therefore any protective order at this time would be premature, including Defendant’s newly proposed “blanket” protective order, which was attached as Exhibit C to its Rebuttal…
Again Plaintiffs point out that Defendant has listed only 46 documents in “II. Privilege Log” that allegedly qualify for protection as Trade Secrets. However, instead of complying with the Rules of Civil Procedure 26 and the Uniform Local Rule 26.1 by providing the Court and Plaintiffs with a proper privilege log that contains information required to determine whether a qualifying privilege exists, the Defendant opted to again ignore the requirements of seeking and obtaining a protective order by good cause shown and submitted yet another proposed “blanket” protective order for the Court to enter. (emphasis added)
Rule 26 FRCP provides little bend; and, yet, the sheer number of pages makes a page-by-page determination of good cause a formidable task.
However, the Fifth Circuit provides some guidance in a 2002 Order issued in Continue reading “The fastest way to succeed is to look as if you’re playing by somebody else’s rules, while quietly playing by your own – an update on Montet v State Farm and Politz v Nationwide”
But when you’ve worked hard all your life, and you have a spouse that’s done the same, and you’ve got goals that you’re working for and you think you’re covered, then you find out that it’s not happening, you’re not covered, or so to say. The help that you were planning on that you were paying for all those times, it’s not there. It’s very depressing.
The pain is just not mine, wrote CrescentCityRay – and it is not. Listen to the echo as another story of post-Katrina mental health continues.
I became stressed the minute I found out my home was gone. I saw it on the — on TV in Alabama. And they had an up-in-the-air shot, and they went over Long Beach Oaks. And I seen that every house there was gone in that little area. So, I knew mine was gone too. And that was upsetting.
But, you know, we still thought Nationwide was going to take care of us. So, I really didn’t get that depressed over it. It was stuff. It wasn’t our life. I was happy that John and I and my little dog had gotten out okay. But once Nationwide started messing around, I got a suspicion that they were trying to get out of it because of the way I was being treated by them. I asked them when they went out to review it to — when they sent people out, I asked them to let me know in advance, and they never did. They would call me after it was done. It looked like they were avoiding me. And that was upsetting.
But when I got the letter of denial, I went into depression. And my husband, he was worse, and he — I felt terrible, and then I would see him and how he was reacting to it, and it was just very depressing for me for myself.
I didn’t know what we was going to do. I didn’t have the answers. I cried. I had a lot of headaches. I went around crying all the time. I didn’t know what I was going to do. We was living for the moment. We had no future, no plans, no anything. Continue reading “The pain is just not mine – an echo of CresentCityRay”
There is a time disparity is the Court’s treatment of plaintiffs and defendants that has resulted in a situation where expedite is a plaintiff’s turtle to the advantage of insurer defendants making expedite their hare.
Turtles are everywhere in Katrina litigation – often with the information needed to represent the plaintiff shielded in privilege logs that do not comply with applicable rules and law. Discovery is a nightmare. Decisions routinely are based on defendant’s claim discovery has been completed, even when plaintiff’s claim to the contrary. The Court seeming makes no independent inquiry and issues knee-jerk orders with regularity. Plaintiff’s counsel takes his or her life in hand when meeting the ethical responsibility to file a request for reconsideration of a Magistrate’s order – so much so that rumor has it the plaintiff’s bar has purchased purple hearts.
How evident it is to others, I don’t know. How regularly anyone reviews the dockets is something I can’t begin to guess. An attorney I am not; but, one need not be to know that motions related to discovery merit a timely response and it’s just not happening.
Nowhere is the disparity between the Court’s treatment of plaintiffs and defendants more evident than Continue reading “expedite is a plaintiff’s turtle and insurer’s hare”
A “settlement conference” is somewhat a mystery to me. I read about them in scheduling orders and, when a case makes it to that point, I also read the docket entry:
At times I’ve seen a notice on a docket reminding both parties that each is to submit a settlement proposal to the court prior to the meeting. All of this led me to believe these conferences are very proper, formal meetings and nothing I’ve read has suggested more than one is scheduled by the court – or rather nothing I’ve read until last week:
What you see on the Politz docket for 7/28/09 is a TEXT ONLY ORDER issued by Judge Senter setting the Expedited Briefing Schedule Respectfully Requested by Counsel for Mrs. Politz with the Motion for Review of and Objection to the United States Magistrate Judge’s Order denying Mrs. Politz’s motion to designate her own mental health expert.
Counsel for Mrs. Politz also requested a hearing on the Motion; BUT, what you see in the three entries above Judge Senter’s Order is a Notice of Hearing Settlement Conference – and who’s idea was that? Judge Walker’s? Is this cartoon from Nowdy’s newest favorite, LawComix, a more accurate view of a settlement conference than the formal meeting I had in mind? Continue reading “Judge Walker orders ANOTHER settlement conference in Politz v Nationwide”
Sorry but it’s just Nationwide; and, worse yet, the Company is singing way off key.
If you recall Judge Walker’s unfortunate decision granting Nationwide’s Motion for Mental Examination of Plaintiff in Politz v Nationwide, you may also remember Dr. Mark Webb is the psychiatrist Nationwide selected to conduct the examination.
He is also resume-lite.
Consequently, Counsel for Mrs. Politz filed the Notice of Issuance of Subpoena to Produce Documents, Information or Objects seeking additional information on Dr. Webb’s qualifications and related experience. SLABBED reported the Notice in a recent Katrina litigation update.
Yesterday – and apparently without reading Dr. Webb’s resume-lite – Counsel for Nationwide filed a Motion to Quash the Plaintiff’s subpoena.
Nationwide claims the ten year time framed [sic] …is overly broad and burdensome and many of…[the fourteen categories of documents]…have no relevance to the claims or defenses asserted by the parties to this action. Nor do these documents have any probative value on issues of any potential bias by Dr. Webb.
Nationwide is not Patsy Cline but those claims are Crazy:
Events from 1999 to 2009 are totally missing from his resume and only one dated 1999 is listed – overly broad, not!
Try lacks relevance: Continue reading “…and you were expecting Patsy Cline?”
So much happened while I was out last week that the Dan Rather quote makes a good introduction to this update on Katrina litigation reporting the sequence of [selected] events [from last week] in no particular order:
Watson v Nationwide:
Nationwide may not be able to determine the sequencing of the loss until the event is over; but, Judge Senter had no problem determining the sequence, deciding the event was over, and issuing an Order on Nationwide’s Motion for an Extension of Time…to Take Remand-Related Discovery-
Nationwide has asserted that the non-diverse defendants in this action were fraudulently joined to defeat this Court’s diversity jurisdiction. This is an issue upon which Nationwide, as the removing party, has the burden of proof, and an issue on which Nationwide expected to prevail at the time this case was removed. Yet in the ten months that have elapsed since removal, Continue reading “And now the sequence of events in no particular order – a Katrina litigation update”
Since needless repetition can suggest mental health issues, could it be that Nationwide’s handling of the Politz claim has caused the Company emotional distress, too?
Maybe so. Defendant Nationwide’s 18-page Response in Opposition to Plaintiff’s Motion for Review of Magistrate Judge’s Order, of course, has more pages than the 12-page, trimmed-down revised version filed as Defendant’s Response in Opposition to Plaintiff’s Motion for Leave to Designate Mental Health Expert.
With enough similarities in text and exhibits to make a case for stress-related repetition, it takes a while to realize that Nationwide is making the mental health of Mrs. Politz a MacGuffin in the litigation of Politz v Nationwide:
A MacGuffin (sometimes McGuffin) is “a plot element that catches the viewers’ attention or drives the plot of a work of fiction…Commonly, though not always, the MacGuffin is the central focus of the film in the first act, and later declines in importance as the struggles and motivations of characters play out. Sometimes the MacGuffin is all but forgotten by the end of the film.
In making her mental health a MacGuffin, Nationwide employs the classic abuse strategy of blame the victim:
Plaintiff (not Nationwide) had all the relevant information about her treatment and use of antidepressant medications in order to properly retain and disclose a mental-health expert. Moreover, she had all of this information at the time she filed this action and, thus, well in advance of the Court’s original expert deadline.
Opposition to Plaintiff’s Motion to Designate Mental Health Expert
And, then, with this distracting statement in place, Nationwide builds its case with a Continue reading “Nationwide keeps MacGuffin in the plot with Opposition to Politz motions”