Let’s jump right in and start with Judge Senter’s Memorandum Opinion and Order on State Farm’s Motion to Exclude from Evidence the Settlement Agreement Between the Relators and Forensic Analysis & Engineering Corporation:
Mr. Robert Kochan (Kochan), on behalf of Forensic, signed the settlement agreement that is the subject of this motion…
State Farm contends that the terms of the settlement agreement and the statements the settlement agreement contains are hearsay and are therefore inadmissible…Relators acknowledge that the settlement agreement and the statements it contains are hearsay, but contend that the statements are still admissible…for purposes of impeaching Kochan, should his testimony at trial be inconsistent with the statements in the settlement agreement.
In the memorandum State Farm submitted in support of its motion, Kochan’s deposition testimony is extensively quoted. I have read these portions of Kochan’s testimony, and it does not appear to me that Kochan has denied the truth of any of the statements contained in the settlement agreement. In response to State Farm’s questions, Kochan has explained his understanding of these statements and the reason each of the statements was made, and he has done so in very precise terms. In the testimony I have read, he has done so without contradicting the statements set out in the settlement agreement…
To a certain extent, this motion asks the Court to make an abstract ruling, a ruling on the admissibility of potential impeachment material, without having the benefit of hearing what the witness will have to say under oath. For this reason, I will not rule the document inadmissible for the purpose of impeaching Kochan’s testimony at this time. I do agree with State Farm’s contention that the Forensic settlement agreement is inadmissible for any purpose other than impeachment of Kochan.
Your guess is as good as mine – the notice on the docket simply said:
RESET STATUS HEARING: Status Hearing RESET for 1/12/2011, 1:00 P.M., in Courtroom 506, Gulfport, Ms, before District Judge L. T. Senter, Jr. ALL Attorneys, who will participate in Trial, to be present.
For the reasons set out below, this motion will be denied.
Relators have alleged that Haag participated, along with State Farm Fire and Casualty Company (State Farm), in a conspiracy to submit false claims for reimbursement of flood insurance payments made after Hurricane Katrina. The Realtors contend that this conspiracy was intended to maximize flood insurance payments and thereby reduce payments made to settle wind insurance claims.
There is no direct evidence that such a conspiracy existed. Relators rely upon the statements in a report Haag prepared for State Farm and the use to which State Farm put that report. Relators contend that this report contains factual errors concerning the timing and effect of the storm winds and storm surge flooding and that these errors gave State Farm a plausible basis for giving its adjustors instructions that resulted in overpaying a substantial number of flood claims. Continue reading “BREAKING NEWS – Judge Senter denies Haag Engineering’s Motion for Summary Judgment in Rigsby qui tam”
Actually, Judge Senter pulled his knife out at the end of last week and while I was trying to find time to get those two Orders posted, he was sharpening his knife on two more – but what he has in mind is no turkey, it’s the December 1st Status Conference on his schedule:
I have decided to continue the trial of this case from its present setting on December 1, 2010, and to set a status conference on that date to hear from all parties on the merits of the motions that remain undecided at that time.
These motions are fully briefed, and I do not anticipate requiring any additional briefings at this time. After this conference, I will reschedule the trial to accommodate my rulings on the pending motions.
After reading the materials submitted in support of this motion, including the Rule30(b)(6) Deposition of the Rendon Group [Document 756, Exhibit 1] and theSupplemental Responses submitted by TRG [Document 756, Exhibit 2], it appears to me that the material in question has only marginal relevance, if any, to the merits of the State Farm motion  to dismiss.Continue reading “Judge Senter sharpens his carving knife on Orders in Rigsby qui tam”
With less than two weeks until the Status Conference in the Rigsby, I wasn’t expecting to find anything on the docket unless it was required by Judge Senter’s Order. Of course, none of us should ever be surprised by anything State Farm does in litigation – particularly now that a lot of law firms are struggling in the post-Katrina economy.
Hardly a week goes by that I don’t hear a rumor about layoffs at a big or medium size firm, get a phone call about a lawyer looking for work or hear a story about a former law grad delivering pizzas.
Even then, I didn’t think things would be going slow for State Farm’s big guns – but, given the ” illusory authority” of the case cited as the “Authority”, I can’t help but believe this comment more than idle gossip. After all, someone has to keep the lights on:
my neighbor who is a partner with Butler, Snow et. al. just wanders around wondering why he has soooo little to do.
Although their shared name is sufficient reason for thinking the two brothers Darryl are one in the same, an examination of available evidence reveals two distinctly different individuals. In this third of an intended four-part series, SLABBED examines the evidence available on the most recently unsealed Katrina qui tam case, ex rel Denenea v Allstate – a distinctly different case from the other also named Allstate, ex rel Branch Consultants v Allstate.
In an attempt to convince the federal courts in Louisiana these two qui tam cases are one in the same and both should be dismissed, Allstate has launched what can best be described as a “wool-over-the-court’s-eye scheme“. A key element of the scheme and the centerpiece of Allstate’s defense is, of all things, the qui tam case filed in Mississippi, ex rel Rigsby v State Farm – perhaps because several years ago Denenea caught the yarn the Company was trying to spin and unraveled their knitting right in front of none other than the federal district judge assigned to Denenae’s qui tam case, Judge Sarah Vance.
In the past I have used a juror questionnaire consisting of a single yes or no question: “Do you or any member of your family have a pending lawsuit for Hurricane Katrina damages, or have you had such a lawsuit in the past?” This questionnaire has worked well in the past as a means of screening jurors who would be subject to dismissal for cause without creating any of the problems outlined above. I will follow this same procedure in this case.
He actually said a bit more about his objections but I need to move quickly to the other order Judge Senter issued today because I, first, have to apologize for leaving a related October 5, 2010 Orderr lingering in my bulging “drafts file”.
I will decline at this time to vacate my order of dismissal until I reach the merits of the USA’s objection to this settlement…negotiated between Relators and Forensic Analysis and Engineering, Inc. (Forensic)…the United States of America shall have a period of twenty days within which to make known any objection it may have to the terms of the settlement at issue by the filing of appropriate pleadings; and Since the United States of America is not a party to this action, I will allow the Relators and the other parties a period of ten days from the date the United States files its pleadings to respond through pleadings addressing the issues raised by the United States. (emphasis added)
In my most recent post on the three Katrina qui tam cases, I compared Allstate to Larry, the character on the old Newhart show who spoke for his two mute brothers – “my brother Darryl and my other brother Darryl”. This update on the Branch Consultants’ qui tam case is the first of three follow-up posts, each focusing on a single case. While Louisiana federal district Judge Sarah Vance is not only more attractive than Larry’s “other brother Darryl”, pictured center in photo on the right, one might think she, too, mute given Allstate’s attempt to put words in her mouth.
Allstate certainly has good reason to be concerned. The Company has the distinction of being a named defendant in all the Katrina qui tam cases. Allstate argues it is a distinction without a difference and that, on that basis, Judge Vance lacks jurisdiction under the “first to file” requirement of the FCA (False Claims Act). A related SLABBED post, Allstate files Answer in Branch – and this I couldn’t make up!, introduced Allstate’s position; i.e., the Rigsby sisters were the first to file.
Despite having once invited Branch counsel Allen Kanner to “kiss my***ex rel“, I do not believe Judge Vance can determine jurisdiction until discovery has been completed in Branch, the recently unsealed ex rel Denenea v Allstate and Rigsby with the scope of expanded. Allstate represents the FCA restriction on similar claims too narrowly, IMO, but more importantly, there is currently no way to know for certain.
My position, however, is contrary to the strategy of the “wool-over-court’s-eye” scheme concocted, or so I believe, by Allstate and other insurers as an element in the overall scheme of fraudulent claims handling that followed Hurricane Katrina – and it is the context of that wet-dog smelling scheme unraveling before Judge Vance that we examined the current status of the Branch Consultants’ qui tam case.
One strategy insurance companies use to avoid bad faith liability is claiming that they reasonably relied on their experts’ reports to deny a claim. Texas law on bad faith states that an insurer breaches its duty of good faith when: (1) denies or delays payment of a claim for which liability is reasonably clear, and (2) the insurer knew or should have known that liability was reasonably clear. Therefore, insurance companies often argue that because their retained experts concluded that there was no valid insurance claim, liability was not reasonably clear and they should not be found liable for bad faith. Courts typically side with insurance companies on this issue, but sometimes the facts of a case require courts to doubt this argument, just as the Texas Supreme Court did in State Farm Lloyds v. Nicolau, 951 S.W.2d 444 (Tex. 1997).
It will take me all weekend to do an update on the three Katrina qui tam cases – ex rel Rigsby v State Farm, ex rel Denenea v Allstate, and ex rel Branch Consultants v Allstate et al – but with so much serious discussion taking place on SLABBED, I thought it was time to lighten up and, since State Farm’s proposed “Supplemental Jury Questionnaire (“SJQ”)’ had me ROFLMAO, I thought it might tickle your funny bone.
As a warm up, I’ll quote from State Farm’s Motion:
Numerous Courts, including the Southern District of Mississippi, have used an SJQ to help screen potential jurors, thereby reducing the amount of time needed for live questioning of the jury venire. Here, the use of a short but pointed case-specific questionnaire would expedite the voir dire process and save valuable court time…The Court and the parties can review the prospective jurors’ written questionnaire and identify by stipulation those responding with answers requiring automatic dismissal for cause…The Rigsbys oppose the SJQ for reasons they have not shared with counsel for State Farm.
Imagine that! Anyone reading the proposed Juror Questionnaire would find the reasons the Rigsbys would oppose State Farm’s SJQ so obvious there wouldn’t be a need to share.
Question 22, for example, asks prospective jurors, “How well did FEMA handle the claims of Hurricane Katrina victims in this area?” – as if there is anyone in America (other than our President who thought “Brownie” was “doing a heck of a job”) who doesn’t know FEMA was a bigger disaster than Katrina!