Although I’d learned enough about “Who Dat” Judge Martin Feldman… to write the post, I’d found nothing to adequately explain how such an obviously bright man would embarrass himself with the errors he made in deciding Versai. Credit for my increased understanding goes to the SLABBED reader who sent a link to reporter Kim Quillen’s August 27, 2008, story Insurers use federal cash to help pay claims that included this additional background on Judge Feldman:
Judge Martin Feldman, who took the lead developing procedures to streamline the flow of cases in federal court, said the pace of settlement has been uneven. He signed 50 dismissal orders last week, for example, but said his efforts to resolve several hundred State Farm and Allstate cases swiftly have not paid off…
But Feldman said once the major questions of law created by the storm have been settled, cases should not go to trial.
“No great principle, other than ‘I bought insurance and I want my money,’ are at stake, and those tend to settle,” Feldman said. “They basically only involve issues of money and not issues of deep social and moral principle. Cases of deep social principle should go to trial. Cases of money should settle.”
“Who Dat” elitist?
Judge Martin Feldman showed his colors in Versai – a true blue outcome-oriented judicial activist who led the law where he wanted it to go. Otherwise, were he to allow the law to lead, his decisions would not be consistent with his perspective on Katrina litigation or his “procedures to streamline” the litigation process. Continue reading “streamlined or steamrolled – Judge Martin Feldman’s influence on Katrina litigation”
…the State Farm submission for NFIP payment does not properly support a payment of $250,000, and the report contains numerous line item entries not consistent with flood damage if one accepts the adjustor’s apparent method of analysis.
The expert testimony of Joe Gregg, “a FEMA-certified flood adjuster with more than a decade of experience in evaluating and adjusting flood claims under the National Flood Insurance Program”, is based on an item-by-item analysis of the McIntosh claim that State Farm submitted to the NFIP McIntosh property the most detailed analysis of the (“NFIP”)”.
Mr. Gregg’s report evidences State Farm’s use of XACT Total program as a key element of the fraudulent scheme detailed in the Rigsbys’ qui tam Complaint. The expert report of Risk Management Consultant Louis G. Fey adds to the discussion:
The adjuster used Xacttotal to create an estimate of flood damage that deemed the house a total loss from flood…The use of Xacttotal for the flood claim and Xactimate for the wind claim is another example of SF placing their own interests in front of the interests of NFIP / FEMA’s and their own insured’s…
By way of background, Xacttotal is a program developed by XactWare specifically for SF. This software is not sold to the industry for broad use. The limitation of Xacttotal is that the resulting estimate is not an accurate depiction of the actual structure being estimated. It is more of an average estimate of the value of the house based on square footage and the quality of construction. Particular characteristics of the house are not considered and those unique qualities of the property can easily affect the value of the house. The scope generated by the program is basically useless as it is inaccurate and merely a generalization of the house. Additional information from the homeowner or photos taken prior to the loss with regard to the layout and number of rooms and the unique characteristics of the house in question must be considered and either additions or subtractions would need to be made to the estimate. This is why it is inappropriate to use Xacttotal when the house can be accessed and accurately scoped.
State Farm’s “inappropriate” use of Xacttotal inflated the amount of flood damage to the McIntosh property. Mr. Gregg’s report contains compelling examples of the inflated cost: Continue reading “Rigsby sisters designate experts and disclose expert testimony – Part 1: Evidence of fraud resulting from State Farm’s use of XACT-Total”
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”
The “drafts file” is overflowing (again) and time is short (again) – nothing to do but pull a handful of things I think worth a mention and go for what Sop has called a “round-up” post.
First up is an update on Young v Scruggs – brief because the case is stuck on proper service of the summons issued to Dick Scruggs, a discussion I passed on recenty when reporting Defendant’s Rebuttal. What’s happened since the, however, is more interesting. First, the defendants fied a Motion to Strike Purported Summons that basically restated the argument Scruggs was not lawfully served and there was a pending motion to dismiss on that basis. Next, plaintiffs pop up and file Notice the summons has been reissued – and on that same day, according to the docket, defendants filed anAmended Motion to Strike that cites and attaches a recent Mississippi Supreme Court ruling on the subject that’s worth a look.
The latest news on USA v Minor (Whitfield and Teel) makes for interesting reading – so did the recently filed Motion for Rehearing that was sitting in drafts when most media had the story up. Here’s the Motion and here’s the latest:
Pursuant to Federal Rule of Appellate Procedure 28(j), Paul Minor notifies the Court of the Supreme Court’s recent decision in Citizens United v. FEC, No. 08-205 (Jan. 21, 2010). That decision clarifies that the jury instructions in this case, which allowed the jury to convict the defendants of honest services fraud for campaign contributions made with only an intent to influence and without any quid pro quo, violate the First Amendment. h/t Legal Schnauzer (entire letter posted there)
Now, news on the “odds” – the first “odd” appears to be Gerald Nielsen or, more accurately, Mr. Nielsen appears to be odd – long on ego but short on memory. Continue reading “Scruggs, Minor, and some legal odds and ends (pun intended) – Nielsen, Wilson, Robie and Tort Reform”
Of controlling significance is the fact that in every such case, without exception, the respective courts interpreted concurrent cause exclusions as they appeared in the insurers’ basic policies, determining only whether a cause of loss otherwise covered by the basic policy was excluded from coverage when it occurred concurrently with a cause of loss excluded in the basic policy. None of those cases addresses the modifying language of an extra-cost endorsement on the language of the basic policy, the ambiguity that it created or the reasonable expectations of an insured in light of that ambiguity. Thus, those courts did not confront the linguistic interplay we address here. Consequently, they were able to find the language of the concurrent cause exclusion unambiguous as it applied to claims made under the basic policy. Given the language they considered and the circumstances to which they applied it, we might well have reached the same conclusions. Nevertheless, those scenarios are not before us. Accordingly, we do not find these cases Penn National cites apposite to our disposition.
At last, a ruling on policy endorsements that makes sense – and just as I was struggling (for the umpteenth time) to understand why a hurricane endorsement cost more and bought nothing! h/t Property Insurance Coverage Law Blog! Continue reading “Merlin: Endorsement Trumps Exclusion – Hurricane Anticoncurrent Causation Case and Policyholder Wins!”
The subject policy contains language commonly referred to as the “Anti-Concurrent Causation Provision” or “Weather Conditions” exclusion which State Farm has characterized as preventing any recovery for wind damage when the insured property also sustains damage caused by another weather condition… The Mississippi Supreme Court has rejected the argument that the anti-concurrent clause is not ambiguous or not enforceable. The Mississippi Supreme Court held, in Corban v. United Services Automobile Assn., 20 So.3d at ,-r,-r 32, 40-41, that the anti-concurrent clause was ambiguous and unenforceable to the extent that it purported to exclude any wind loss if it occurred separately from and in any sequence to excluded water loss.
State Farm has already argued this exact issue before the United States District Court for the Southern District of Mississippi in another identical Hurricane Katrina related case this month. (See Memorandum Opinion in Charles Spansel and Janet Spansel v. State Farm Fire and Casualty Company…) In Spansel, the District Court found that “State Farm has not shown it is entitled to summary judgment on this portion (anti-concurrent clause) of the declaratory judgment claim”. In light of this ruling and others like it, the doctrine of collateral estoppels prohibits State Farm from contending here that the contract for insurance is not ambiguous as to any perceived anti-concurrent clause.
Plaintiffs’ Motion for Declaratory Judgment, one of five motions the Robohms filed on the 19th of January, was followed on the docket by State Farm’s Motion for Summary Judgment or in the alternative Partial Summary Judgment and supporting Memorandum:
Plaintiffs’ claim for declaratory judgment fails because…it is at odds with Mississippi Supreme Court precedent establishing that the water damage exclusion in the applicable policy unambiguously excludes damage from storm surge and that the anti-concurrent causation clause excludes damage caused by wind and flood acting concurrently. See Corban v. United Servs. Auto. Ass’n, 20 So. 3d 601,614-15 (Miss. 2009).
Buckle up, folks. We’re going to the other end of the Coast – 423 East Beach Drive, Ocean Springs – and way back to see what this case is about before discussing the other motions filed yesterday. Continue reading “Robohms issue reality check in motions filed today! Robohm v State Farm”
…This evidence, viewed in the light most favorable to the Spansels, tends to show their claim was denied on October 19, before an adjustor had set foot on their property, reviewed photographs of the loss, or received any data other than the property’s location along Bay St. Louis. State Farm management affirmed this denial based solely on the property’s proximity to the Gulf of Mexico. This creates question for the jury as to whether State Farm lacked a legitimate arguable reason for denial of wind coverage under the homeowner’s policy…State Farm is not entitled to judgment as a matter of law on whether it lacked an arguable, legitimate reason for denial.
Because there is evidence that State Farm denied the claim without any adjustment or investigation, a question of fact exists as to whether State Farm acted at least in reckless disregard of the Spansels’ rights under the policy. Therefore, State Farm is not entitled to judgment as a matter of law on this portion of the bad faith claim either.
Next, the Spansels seek a declaratory judgment that the anti-concurrent clause is ambiguous and unenforceable. The anti-concurrent clause is cited in the previous section. State Farm argues that this clause has been held unambiguous and enforceable by the Fifth Circuit. Since that time, the Mississippi Supreme Court has rejected this contention. Corban, 20 So. 3d at ¶48. Corban held that the anti-concurrent clause was ambiguous and unenforceable to the extent that it purported to exclude any wind loss if it occurred separately from and in any sequence to excluded water loss. Id. at ¶¶32, 40-41. State Farm has not shown it is entitled to summary judgment on this portion of the declaratory judgment claim.
Although Judge Guirola granted most of State Farm’s motion, his reliance of decisions made by other members of the court and/or other courts makes his Memorandum Opinion and Order Granting in Part and Denying in Part Partial Summary Judgment extremely interesting reading. However, before looking further at his Opinion – Order, his Order Denying State Farm’s Motion in Limine to Exclude Evidence merits a mention: Continue reading “Welcome to SLABBED Louis Guirola, Jr. United States District Judge – Spansel v State Farm”
TEXT ONLY ORDER finding as moot  Motion to Alter Judgment; finding as moot  Motion for Judgment as a Matter of Law; finding as moot  Motion for New Trial; finding as moot  Motion for Taxation of Costs; finding as moot  Motion to Review; and finding as moot  Motion to Review.
All motions are rendered moot in light of the announcement by counsel for the parties that this cause of action has been fully and finally settled. NO FURTHER WRITTEN ORDER SHALL ISSUE.
Signed by District Judge L. T. Senter, Jr., on January 12, 2010.
That’s the ballgame! No details available.
Defendants contend that a specific question of law controls this matter: “whether a ‘sleuth’ like Branch, without first-hand involvement in an alleged fraud, can qualify as an ‘original source’ by providing additional examples of a publicly disclosed, alleged fraudulent scheme.”
…The Court need not resolve this question because district courts do not certify “questions” for the court of appeals upon the grant of a § 1292(b) motion.
The eleven-page Order and Reasons s is classic Vance – another pick ’em up, put ’em down tutorial on qui tam law!
Defendants’ primary argument is this: the Supreme Court, in Rockwell International Corp. v. United States, 549 U.S. 457, 470- 71 (2007), abrogated the Fifth Circuit’s “original source”decision in United States ex rel. Laird v. Lockheed Martin Eng’g & Sci. Servs. Co., 336 F.3d 346, 356 (5th Cir. 2003)…Defendants contend that the Court’s Order “diverges from Fried based on pre-Rockwell, out-of-circuit decisions,” R. Doc. 237 at 1, and that there is substantial ground for difference of opinion as to whether a relator who initiates an investigation after an alleged fraud can be considered an original source…
Initially, although defendants make repeated use of the term “pre-Rockwell,” they point to nothing in Rockwell itself that makes it a watershed decision as to the specific issue they identify. Continue reading “Judge Vance denies Defendants Motion for Interlocutory Appeal and Branch qui tam rings in the new with Motion to amend complaint adding Allstate and Pilot Catastrophe Service”