Tuesday came with some drier & calmer weather in the early afternoon. We found this tree down in the upper pasture that morning. We removed several other trees this last summer for this exact reason. They were dead and we were afraid that they would come down on the new barn. Better safe than sorry. We just hadn’t gotten to this one yet. The goats found this tree to be particularly tasty and ate all the bark off and killed the poor thing. We wrap the trees we want to save in either chain link or chicken wire layers. We do have to re-adjust the wrappings every so often, but it keeps the trees alive.

This is the glamorous 4 foot hole that the county inspector came to check out on Tuesday. He was here and gone in the amount of time it took me to run to the pre-school and back. 15 to 20 minutes tops. You would think they could coordinate that so some work could get done on that day, but I guess not. I did call to let the builder know we had approval on the holes.

Wednesday morning dawned with actual sun shining for the first time in about a week. Mike from Chinook Lumber was knocking on my door at about 8AM or so to figure out where he was supposed to deliver the wood and roof trusses. I explained to him which gate he needed to go through and then met him outside with the camera.

He had one of those snazzy little forklift things attached to the back of the truck for unloading the supplies. The wheels of that thing move in all directions. I can only imagine the skill it takes to maneuver one of those around. He unloaded the truck with amazing agility and precision. Now I have support poles, roof trusses, and framing lumber. Oh my!

While he was unloading the truck the little miss and I chucked rocks into the holes from on top of the retaining wall.

She had to go down the stairs that Daddy built and check out where the rocks went, and why they made such a funny sound when the went in the hole. To her delight, there was about 2 feet of water in some of the holes. The splash and plunking sound were a real thrill. No, she was not allowed to play near them unsupervised, and was strictly forbidden to go near them without Mommy or Daddy holding her hand. But, it was a hole of unusual size and had to be checked out.

The goats are eagerly awaiting their new digs as this set is rapidly getting too small for the number we have in the pen with the onset of the rainy season.

Now, since it was mostly sunny with only a few banks of clouds rolling over and only a light sprinkle. This day would have been my choice for setting poles in concrete. I would think most of this work could have been achieved in dryness and been completed fairly quickly. Alack and alas, I must think differently than the construction crew. I saw neither hide nor hair of them on Wednesday. I did not receive a call or a reply to my e-mail explaining their absence. We shall see what Thursday brings. I had been informed that I should have a barn within a week from the time they stared construction to the time it was finished. I seriously doubt that will be the case.

TWIA (Texas Windstorm Insurance Association) appears to be convinced ignorance can be a defense; but, what they’ve done to policyholders slabbed by Hurricane Ike is indefensible. Chip Merlin reported on the 11.2% hoax in a recent post, Slabbers Finally Learn How They All Have Exactly 11.2% Damage:

The Bolivar Peninsula TWIA policyholders have had the most frustrating insurance claim experience of any group in recent memory. While we have been having success with other Hurricane Ike claims, the Slabbers claims resolutions have proven difficult. They have not just back and taken this abuse either as I noted in Texas Windstorm “Slabbers” and Policyholders March on Austin.

One even made a joke about how, according to TWIA, they each have exactly 11.2% of building value damage, reflected in The Parable of Hurricane Ike Insurance Claims…

…from what we have reviewed regarding the accuracy and low-balling of the TWIA estimates of partial damage, the entire population will have to be revised

As a result of Javier Delagado following up on evidence produced in an administrative trial, Slabbers finally have the answer of how TWIA performed the calculations that everybody has exactly the same damage. The person making the calculation for TWIA was University of Texas Professor William Spelman. The TWIA attorneys introduced his testimony via a previous administrative hearing to avoid expense—so much for the ability to confront and cross examine a witness. The TWIA pleading was very telling:

Dr. William Spelman provided sworn testimony in a previous contested case hearing involving a “slab” claim (see SOAH docket No. 454-09-3158.E). He has not been retained by T.W.I.A. to specifically evaluate any particular claim, but rather he was reetained to perform a statistical analysis from which all slab claims were evaluated by T.W.I.A. His sworn testimony offered in the previous contested case hearing explained the process by which he performed his statistical analysis, and another witness explained how that statistical analysis was applied to the particular slab claim.

Spelman’s transcript revealed that he has no insurance claim experience. Instead, his education is political science, economics, and public policy. He is not a contractor, estimator, meteorologist, or engineer. He teaches applied math and statistics at the University of Texas-Austin School of Public Affairs.

The “Reader’s Digest” version of what he did to calculate how each of the Bolivar Slabbers would be entitled to 11.2% was to perform a statistical regression analysis where three main variables were considered to provide a statistical expectancy that 95% of all residential Slabbers would fully be indemnified for wind only damage if TWIA paid 11.2% of the insured value of the structure. He was provided information and variables from 387 TWIA estimated claims of partial damage. After consultation with TWIA retained engineers, he considered 18 different variables from those claims, but found that only three of them had a significant impact upon the wind damage. Those three variables were:

1. Whether the building use was residential or commercial.
2. Whether the building was constructed before 2004.
3. Whether the roof was placed on the structure before 1989.

He determined a “loss ratio” which he defined as the Actual Cash Value payment by TWIA on the partial damage buildings divided by the Insured Value. The average residential payment loss ratio was 9.8%. But, if TWIA paid 11.2%, he calculated that 95% of all Slabbers would statistically have their full indemnity on an actual cash value basis.

There is much to criticize with this work. Indeed, from what we have reviewed regarding the accuracy and low-balling of the TWIA estimates of partial damage, the entire population will have to be revised. We will provide more on the extent TWIA underpays wind damage claims on partial losses.

Still, I felt that Slabbers are entitled to know the person and how the amount was arrived at. Here is the pleading and testimony for everybody’s review.

The folks at TWIA have certainly made a mess in Texas!

As I’ve said in prior posts, I firmly believe Americans can no longer claim we’re “a government of laws not of men” as John Adams, our 2^nd US President once pronounced. Adams’ words came to epitomize the venerable “rule of law” in America. In his era, the critical debate was “rule of law” vs. “rule of man.” The prospect that America might become “a government of men not of laws,” is exactly what Adams and our founders feared most, and warned us to stay away from. In their day, “rule of man” referred to the British King George III, who . . . well, just take a look for yourself:

In 1776, the year of our Declaration of Independence, Thomas Paine anonymously wrote a pamphlet titled Common Sense which stated: “in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.” Adams, a contemporary of Paine, expounded on Paine’s Common Sense, and made sure the Massachusetts Constitution of 1780 included the words “a government of laws not of men.”

In Adams’ and Paine’s day, the King was law, and he served no one except himself. Today, billionaire monopolies are the “King makers.” By purchasing our legislatures, individual judges and elected officials, they bastardize “the rule of law.” Their aim is make America a government of men, not law. This is what happens every day in Latin America, and why we call them “third world.” If we acquiesce, and accept their bastardization of America’s founding premise, we’re right back where we started in 1776. Put another way:

we cannot let this ↓ become this ↓

A couple of days ago Mississippi ruled that the 5^th Circuit’s blanket validation of the ACC clause in Leonard v. Nationwide was erroneous, and not the law in Mississippi. (Corban v. USAA) The ruling came one thousand five hundred (1,500) days after Katrina hit on August 29, 2005. The 1,500 day journey to get an ACC ruling traveled this 4 year timeline:

• August 2005 – Katrina
• August 2006 – Leonard trial (District Court)
• August 2007 – Leonard opinion (5^th Circuit)
• October 2009 – Corban opinion (Ms Sup Ct)

In the first 13 months, Katrina claims in three beachfront counties alone totaled $4,831,869,515.00. That works out to $400,273,214.00 in claims per month, or $13,254,079.00 per day, just in those three counties. So, until Corban, decided October 8, 2009, State Farm, Allstate, Nationwide applied the ACC as a take-it-or-leave-it settlement tool. During this entire period there was no legal opinion invalidating the “in any sequence” language of the ACC. Nor did any legal opinion make it clear that the ACC was solely applicable in one narrow situation: where “indivisible, contemporaneously converging” wind and water caused the loss, which the insurer had the burden to prove.

There’s really no accurate way to calculate how many millions of dollars in claims were falsely underpaid, and fraudulently settled during this time. Then, in 2007 when Edith Jones decreed that water effectively washed out accrued wind loss, no matter when it arrived, the insurance monopolies figured “game, set, match.” It took another 2 years before Corban reached the Mississippi Supreme Court, and the hideous Jones opinion was overturned.

All this time, every $13 million day, there was a simple way to get the ACC question up to the court it belonged in – the Mississippi Supreme Court. It’s called “certifying.” For decades, federal courts have deferred purely state law questions to state supreme courts. Mississippi has had a certification rule as far back as 1983. In pertinent part, the rule says: “When . . . there are no clear controlling precedents in the decisions of the Mississippi Supreme Court . . . the federal court may certify such questions or propositions . . . to the Mississippi Supreme Court for rendition of a written opinion . . . .” (MRAP, Rule 20). This is a lot of fancy rhetoric effectively saying “when in doubt, go ask the experts,” but the idea is to keep federal courts – the playgrounds of predator corporations – from freelancing into state law.

So why didn’t this happen with Katrina? Why didn’t the 5^th Circuit “certify” the ACC question to the Mississippi Supreme Court, instead of flippantly condemning a third of Mississippi’s citizens to utter financial ruin? Did Sheila Birnbaum know something about the 5^th Circuit we didn’t? What’s behind her remark in a recent speech: “I think we always knew that we had to get the cases up to the Fifth Circuit . . . .”

Curious, I checked into the 5^th Circuit’s history on certification. Here’s what the Mother Court (US Sup Ct) said about the 5^th Circuit as far back as 1974: “The Fifth Circuit’s willingness to certify is in part a product of frequent state court repudiation of its interpretations of state law. See the cases summarized in United Services Life Ins. Co. v. Delaney, 328 F.2d 483, 486-487 (CA5 1964) (Brown, C.J., concurring).” See Lehman Brothers v. Schein, 416 U.S. 386 (1974). So as long ago as 1974 the 5^th Circuit’s reputation for state law interpretation was one of “frequent repudiation.” This makes it even more egregious that the ACC wasn’t timely certified to our Supreme Court. I’d sure like to know the cumulative salary we taxpayers are paying these judges who thought nothing of destroying people’s entire life savings, and economically condemning one third of our state just so some racketeering monopoly could preserve its record profits. The 5^th Circuit currently has 21 judges on its payroll. You do the math, if the value of their annual pay packages, considering vested health insurance, pension benefits, etc. totals out to even $300,000 a year, conservatively estimated, that’s $6,300,000.00 a year we’re paying these people to dispense impartial justice.

It’s time to put a stop to endemic corruption. I advocate that we pressure Congress to apply the honest services doctrine to every federal judge and court staff member. Is there any good reason why we the people – the ones funding these sworn government servants – shouldn’t be entitled to honest services from them? The alternative is simply unacceptable – scrap the rule of law, and acquiesce that our government is now third world. The definition of honest services as it’s used in the federal mail fraud statute, 18 USC 1346 reads: “the term ’scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.”

Senator Patrick Leahy has repeatedly tried to get an honest services bill which would apply to members of Congress. Why not do the same thing with our judicial system? How else are we going to stop the corruption and save the rule of law?

1. Water Damage (over $3,000 on average per claim)

2. Lightening (over $2,500)

3. Wind Damage (over $2,500)

4. Physical Damage – all other (over $5,000)

5. Theft/Burglery (almost $2,000)

Are you covered?  Visit Paradiso Insurance for a free quote.

Water Damage

Lightening

Wind Damage

Physical Damage

Burglary/Theft

Jackie from the Paradiso Insurance Team

*information obtained from the Allstate Common and Costly Claim website

The other morning on Sprocket’s walk, we came across this sad circumstance. Not quite sure if if it was caused by lightning or the wind. I looked for some sign of charring as is customary with a bolt strike, but could not detect any… so it most likely was caused by the wind. A tragic ending for this lovely oak, for they chose to remove it…

Comments

(CFD.net.au – Contract for Difference, Share, Forex, ETFs, Commodities Traders) – Yesterday’s dust storm is estimated to have cost New South Wales tens of millions of dollars.

Sydney and Brisbane woke up to clear skies this morning after choking under an orange Glare yesterday as the intense dust storm swept up the east coast.<span style="border-collapse: separate; color: rgb(0, 0, 0); font-family: Verdana,'Lucida Grande’,'Bitstream Vera Sans’,Helvetica,Arial,sans-serif; font-size: 16px; font-style: normal; font-variant: normal; font-weight: normal; letter-spacing: normal; line-height: normal; orphans: 2; text-indent: 0px; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px;” class=”Apple-style-span”>
<p style="margin: 0px 0px 0.8em; font-family: Verdana,'Lucida Grande’,'Bitstream Vera Sans’,Helvetica,Arial,sans-serif; font-size: 12px; line-height: 18px;”>This morning health experts said the danger from particle pollution had passed but New South Wales is expected to be counting the cost of lost productivity for weeks.

“When the environment is such that it’s not healthy to work outside, that causes a lot of disruption,” Mark Goodsell from the Australian Industry Group said.

“The other major area was just the flow-on effect from having something like the airport shut down.

“People expect to be able to hop on a plane in Melbourne, land in Sydney and be at a meeting by 9 or 10 o’clock. And that didn’t happen yesterday so there was a lot of flow-on disruption.”

He also pointed to the loss of hundreds of thousands of tonnes of topsoil in the state’s west.

“That’s the real story of yesterday, what kind of damage is being done permanently to the rural landscape,” he said.

The weather bureau says winds could whip up a smaller dust storm over the weekend.

Meanwhile, SES volunteers are still hard at work, responding to 200 outstanding calls about wind damage.

They received more than 850 calls in total, just over half of them in Sydney.

Emergency Service Minister Steve Whan has applauded the volunteers‘ hard work.

“The dust was quite spectacular, but didn’t in itself cause a lot of damage,” he said. “The wind, though, caused damage to over 400 trees and about 266 roof damage calls.

“So the SES was kept very busy with that and they’ve still got about 200 remaining to be done, because in many cases they couldn’t get onto roofs yesterday because the wind was just too strong.”

Source: Dust storm cost NSW millions

Storms may cause the roof to be replaced before the normal life of the roof is reached. High winds can blow shingles completely off the roof or hail storms can damage the toughest of shingles.  Hail loosens the granules on the shingles creating dark spots on these shingles. The result is a shortened life span of the shingle. The loss of granules will allow the moisture to penetrate the core of the shingle accelerating the decomposition of the shingle.

 Animal damage, though limited to a specific area, is an indication that the roofing material or wood substructure has deteriorated to the point that animals can more easily remove the shingles, siding, or roof deck to get to the attic for shelter. This may require only a repair, but it is a good time to inspect the remainder of the roof to determine the overall condition of the roof.

Blown Off Shingles

Animal Damage

A dispute of material fact ~ Rigsby qui tam.

Part 1 – The Setup Segment

Part 2 – Eye wall Replacement / Double Eye wall

Part 3 – Collapsing Cores (Plough Winds / Tornadoes)

Judge Senter’s Opinion covered a lot of ground and left only one issue outstanding:

The next four State Farm motions seek the exclusion of the Relators’ four expert witnesses: Patrick J. Fitzpatrick, Ph.D. [294]; Keith G. Blackwell, Ph.D. [296]; R. Ralph Sinno, Ph.D. [298]; and David J. Favre [300]. I will address the motions [294] [296] [298] [300] challenging the qualifications of the Relators’ expert witnesses in a separate opinion.

SLABBED has given these four motions little more than passing mention although we’ve covered State Farm’s backdoor approach attacking the credibility of these same witnesses in other cases.

Frankly, State Farm’s use of “demonstrative evidence” at the hearing made their motions “moo” to me (as in “bull$%&t”) and, instead, SLABBED posted State Farm plays video game at Rigsby qui tam hearing after noticing items on State Farm’s evidence list were contrary to an earlier Order that read in part:

Defendant will not be allowed to introduce “demonstrative evidence” under the guise of calling it a “supplement,” especially when it appears that the sole purpose for offering the “supplement” is not to fulfill a duty under the Federal or Local rules, but to avoid the Court’s prior ruling on a similar issue. Furthermore, placing the burden on Plaintiff at this late date to counter this material is unduly prejudicial.

That same thinking should apply to State Farm’s effort to disqualify experts who have testified in countless other cases.  However, in pulling the post to add the link to this one, I noticed something interesting related to what’s hot in Judge Senter’s Order

so I may know the outer limits of the potential claims involved in this
action, I will require State Farm to submit, in camera, a list containing the name of the insured, the address of the property, and the amount of flood insurance paid, for all SFIP claims that meet the following criteria…

We’ll get to the criteria after looking at these maps:

Location of video evidence State Farm presented in the qui tam hearing relative to the McIntosh property.

Location of property in Mills v State Farm relative to McIntosh property.

Location of property in Bossier v State Farm relative to McIntosh property.

(A) The insured property did not fall within any of the three categories of storm damage for which FEMA approved payment of SFIP limits, i.e. insured dwellings that were not left as slabs, pilings, or empty shells; and

B) For which SFIP limits were paid on the grounds the property was a constructive
total loss; and

C) For which no “stick built” or Exactimate estimation of the flood damage was made before the SFIP limits were paid.

Judge Senter is on the right track with the criteria he set for comparable cases.  However, he falls short of the mark needed to know the outer limits of cases that would fall under the qui tam claim filed by the Rigsby sisters – and he is assuming the FEMA directive was legal when clearly it was not.

What’s not hot? Printing presses that ran out of ink. Blogs that had no comments. Granted, Judge Senter’s Order only allows a jury to hear the case and limits the scope to the McIntosh claim; but, that is big news and ignored by the media that ran endless stories discrediting the Rigsby sisters and their claim filed under the False Claims Act.

So, what’s up? A telephone status conference with Judge Walker on the 20th is up on the docket.  If either party is planning an Appeal, work is underway.  Otherwise, I would expect both parties to be weighing options and fine tuning a strategy.  Non parties may be doing likewise – but on that I’m just guessing that State Farm policyholders paid little or nothing on wind damage and maxed out on flood are taking a close look at Judge Senter’s criteria.

SLABBED will continue coverage – examining Judge Senter’s Order in greater detail and monitoring the docket and reporting entries as the case moves toward trial.  Stay tuned.

Even though you have checked out the property yourself a Pre-purchase building inspection is a must.

Pre-purchase inspections will cost an average of $195-$355 and can vary from state to state area to area but I personally think this is money well spent.

Here are just a few of the items that your  READ MORE

.

Anthony property: Pre-Katrina photograph documenting elevation before renovation/addition .

Once again, Marshall “Rocky” Eleuterius appears to be a super salesman and named defendant in Katrina litigation – first in O’Keefe and now in Anthony v State Farm.

According to the Complaint, the State Farm policy covered the Anthonys property located in close proximity to the Bay of St. Louis on the Gulf of Mexico.

State Farm and its agent Eleuterius expressly represented to the Plaintiffs that they would have full and comprehensive coverage for any and all hurricane damage to the insured residence, including any and all damage proximately, efficiently and typically caused by hurricane wind and “storm surge” proximately caused by hurricanes.

A particularly interesting section of the Complaint addresses “storm surge”.

…regardless of whether the total damage to Plaintiffs’ insured property was caused by hurricane wind, storm surge proximately caused by hurricane wind, or both, the so-called “flood” exclusion, which State Farm defines in the subject policy and in its denial letter as “flood, surface water, waves, tidal water, tsunami, seiche, or overflow  body of water, or spray from any of these, all whether or not driven by wind,” is not applicable here.

Although the subject policy does not define “flood” or any of these other listed perils, none of them, as they are commonly understood and defined in the English language, occurred during Hurricane Katrina or caused the damage to Plaintiffs’ property.  The Gulf  of Mexico does not “flood” or “overflow.”

Waves” or “tidal waters,” as those terms are commonly used, likewise did not occur during Hurricane Katrina. Hurricane Katrina was not a “tsunami” or “seiche.” Plaintiffs’ insured residence was damaged by “hurricane wind” and/or “storm surge” proximately caused by Hurricane Katrina. “Storm surge” is a meteorological phenomenon caused by major hurricanes like Katrina. Indeed, a number of resources and experts in meteorology, including NOAA, the National Weather Service, and the National Hurricane Center note that “storm surge” is part and parcel of a hurricane and is distinguishable from “flood” damage.

Plaintiffs’ complaint provides the history of their claim and includes an engineer’s report of wind damage among the supporting exhibits:

Prior to August 29, 2005, the Plaintiffs purchased an insurance policy from the Defendant

State Farm. Said policy was purchased through Agent Eleuterius. Said policy was bound, effective and kept current through August 29, 2005, as evidenced by the declaration page attached hereto as Exhibit “A”,

Plaintiffs also purchased a flood policy to insure they were covered for all contingencies…

Based on the representations of hurricane coverage made by State Farm and Defendant Rocky Eleuterius and the express policy provisions, the Plaintiffs had the reasonable expectation that the subject policy, in conjunction with their flood policy, would provide full and comprehensive coverage for all hurricane damage to the insured residence and relied entirely on Defendants’ representations made as to the contract for insurance. The Plaintiffs relied upon these representations when the subject policy was purchased, issued and delivered by Defendant State Farm and Defendant Agent Eleuterius.

On August 29, 200S, within the policy coverage period of the subject policy, Hurricane Katrina resulted in severe damage the Plaintiffs’ home.

On or about November 4,2005, Plaintiffs were paid $158,600.00 from benefits under their flood policy. This amount represented policy limits of$124,100.00 under their dwelling coverage and $34,500.00 under their contents coverage. See Exhibit “B”.

Plaintiffs accepted said payment but were in no way made whole. Plaintiffs then turned to their homeowners’ policy as it was their firm belief that their home had also received severe damage to wind.

Subsequently, the Plaintiffs were informed that their claim had been assigned to an Adjuster ostensibly to investigate Plaintiffs’ claims. However, Plaintiffs never met with the adjuster and were not present at the alleged inspection oftheir property site.

On November, 20, 2005, State Farm sent Plaintiffs a letter denying their claim, stating: based on our discussions, site inspection, and investigation, it was determined the damage to your home was caused by flood waters. Damage resulting from this cause is not covered by your policy.

State Farm issued a check in the amount of $8,710.01 on or about April 28, 2006, for settlement of the Plaintiffs’ claim under their homeowners’ policy resulting from wind /hail damage.

Anthony home after renovation/addition

Plaintiffs retained Compton Engineering to aide in determining the cause of their loss. The Compton report, dated May 10, 2006, and attached hereto as Exhibit “C”, concluded the following:

• Rising water and wave action was responsible for much of the exterior wall structural damage observed on the ground and second floor.

Anthony home after Katrina

• All the roofdamage including the missing metal roof, failed roofdeck, missing vinyl trim on the soffit and fascia board and the fractured wood members seen at the top of the roof ridge line is believed to have been caused by the wind.

• A case can be made for a high wind event (tornado or wind shear) occurring during the storm on the east side of the structure. The factors supporting this belief are as follows:

1. The three large trees that had been located on the northeast comer of the structure.  Two had their trunks twisted off several feet above the ground and the one dead one still standing had all the bark removed from its trunk.
2. The failure of  the northeast comer foundation post (snapped in two approximately ten feet above grade). The way the house floor frame and roof had been connected to the perimeter supporting post had provided excellent lateral bracing in the east/west and the north/south orientation. It is difficult to understand how this support post failed from just storm surge yet none of the other posts (some of which were longer) show any signs of structural damage.
3. The east bearing wall on the second floor failed at the top (not the bottom which is common for water pressure), the bottom still being connected to the floor.
4. The structural roof wood members that fractured were on the east side of the structure. Most of these failures were on the north side of the ridge line.

Upon receipt of the report, Plaintiffs forwarded a copy of the report to State Farm.

To the best of Plaintiffs knowledge, no structural engineer was ever retained by State Farm,either before or after the Compton report, to inspect the subject property and determine the cause of damages.

On or about August 8, 2006, State Farm sent Plaintiffs another letter indicating that, despite the information obtained from Compton Engineering, Inc.’ s report, their position remained unchanged. (See Exhibit “D”)

The exclusion relied upon by Defendants does not exclude “storm surge” from coverage. Defendants’ reliance on the so-called exclusion is misplaced. Alternatively and/or additionally, the policy is ambiguous and must be construed to bind coverage in favor ofthe insured. Still further, the alleged exclusion does not apply. The Plaintiffs, having spoken with eyewitnesses and having reviewed the weather bulletins from August 29,2005, contend that there were numerous tornados known to have touched down in the area oftheir home. Plaintiffs’ home sustained severe damage due to the hurricane winds and tornado activity prior to the arrival of the surge waters.

In addition to the report from Compton, Plaintiffs had an expert report from Neil Hall incorporating a Dr. Pat Fitzpatrick report specific to the property and an additional report that is a peer review of the Hall/Fitzpatrick report:

The house was constructed in the 1970s with 6’ piles and tie-beams attached at grade level between the base of the piles. The front gable-end of the house faced SE towards Riverview Road. After the house was constructed, the exterior cladding (the photos show rigid mineral shingles, possibly with asbestos containing material) was covered with blueboard insulation and vinyl or aluminum siding. (The siding on the remaining timber piles is aluminum siding; this report assumes that aluminum siding was used on the elevated portion of the house, as well..

Exterior walls were constructed under the elevated portion of the house so that the vinyl siding was uniformly applied from the eave to the ground level…About 2002, an addition was made to the rear of the house at which time the siding and metal roof were extended towards the waterfront. The addition was a screened-in patio.

Mr. Hall and Dr. Fitzpatrick are familiar names to those who follow Katrina litigation.  State Farm, however, goes beyond its usual attempt to exclude a Plaintiff’s expert witness with a 22-page motion to exclude Neil Hall.

Plaintiffs proffer Mr. Hall, an architect, to testify that wind, rather than water, destroyed the roof and elevated level of their house. Mr. Hall is a self-described “professional expert witness” with no degree in engineering and no expertise in meteorology or hydrology. Mr. Hall’s report offers no calculations or physical evidence of any kind to show that wind, rather than water, destroyed Plaintiffs’ house. Instead, Mr. Hall’s methodology depends entirely on a chronology of wind speeds and storm surge levels prepared for litigation by Plaintiffs’ meteorologist Dr. Patrick Fitzpatrick. Relying on this purported chronology and an erroneous application of the Enhanced Fujita Scale (the “EF Scale”), a scale designed to deduce wind speeds from tornadoes, Mr. Hall concludes in wholly conclusory terms that winds destroyed Plaintiffs’ house prior to the arrival of peak storm surge levels. For multiple reasons, Mr. Hall’s opinion is unreliable and inadmissible. Plaintiffs cannot meet their burden to show otherwise.

Why State Farm selected Anthony to hit hard on Hall’s use of the Enhanced Fujita Scale is anyone’s guess.   Rocco Calaci’s guest post on Merlin’s blog is an excellent introduction to the issue for anyone unfamiliar with the Enhanced Fujita Scale.

However, Plaintiff’s Counsel came back with a knock-out Response in Opposition to Defendant’s Motion to Exclude Expert Testimony of Neil B. Hall.   So thorough that I’m not certain it could have been done any better, it has two particularly interesting exhibits:

Dr. Hall has also published in the area of which he is testifying, thereby subjecting himself to peer review of the methodology he invoked to analyze the damage to property such as the Plaintiffs’. See his article, “Differentiating Between Wind and Flood Damage in Hurricane Katrina,” attached as Exhibit “C”. This article specifically presented and explained Hall’s use of the Enhanced Fujita scale to identify damage causation subsequent to a hurricane. See Exhibit “C” at page 10.

Dr. Hall’s expertise has also been recognized by Defendant State Farm – who now seeks to exclude Dr. Hall’s testimony. Dr. Hall has been retained three to four hundred times to give a building damage assessment for State Farm.  See Deposition of Neil Hall in Remel v. State Farm, attached as Exhibit “D”.

Anthony v State Farm is definitely a case to watch.  Stay tuned!

Judge Randolph’s question was the first thing that came to mind after reading Did insurers testimony show guilt? h/t Y’all Politics

Recent arguments in a Mississippi Supreme Court case offer proof that private insurers are improperly pushing storm damage claims from their books to the government-backed flood insurance program, Rep. Gene Taylor, D-Bay St. Louis, said in a telephone interview.

“It confirmed, under oath, what we have been saying all along: that the taxpayers got stuck with paying bills that the insurance industry should have paid,” said Taylor, who has long maintained that it’s a conflict of interest for insurers to be responsible for handling homeowner policies and flood policies for the same property…

With Nationwide’s startling admission, too little has been made of the testimony given by USAA attorney Charles Copeland, AKA the King of Flip-Flops.

Charles Copeland, a lawyer for USAA, a Texas-based financial services company and insurer, did not go as far as Landau but said that a policyholder would not be entitled to collect if the storm damage were due to “the combined concurrent force of wind and water.”

In a June 18 letter to Taylor, Copeland said that USAA does not shift coverage for wind damage to the flood insurance program.

“Shift” is the key word here – USAA does not “shift” because, according to Copeland’s testimony, Congress intended for the flood insurance program to pay for more than “flood only” damage.

Mr. COPELAND:   …What is the jury to do when they go back in the jury  room, and they say, Well, maybe it was caused by both at  the same time?’ They need direction. They need direction. The policy sets that direction. That, by what Ms. Guice said, was the purpose of this clause. It put that middle concurrent or synergistic or contributing cause but for; it put that one little piece of loss outside this policy because it went into it…

This coverage was allocated to the National Flood  Insurance policy. That’s where you find that coverage for… — flood or the combination…

The issue of billing the NFIP for combined wind and flood came up again in the testimony given by Copeland after the break.

JUSTICE CHANDLER:  But now as I understood the Plaintiff, the Plaintiff is going to argue that, if there are combined forces, then they are entitled to payment  because the per square inch of force from water alone is insufficient to cause the damage.

MR. COPELAND: Yes, sir.

JUSTICE CHANDLER: That’s really the disagreement between the two sides that matters; is that correct?

MR. COPELAND: Yes, sir. And that’s what this second sentence in this policy addresses.

JUSTICE CHANDLER: I’m looking at it.

MR. COPELAND: And it was — it had to go somewhere.

It did not go in the homeowner’s policy. It went in the National Flood Insurance. That’s what Congress did.

We all subsidize that by 25 percent. It benefits from the spread of risk because it’s a nationwide spread of  risk.

What you’re simply saying, if you force flood insurance for that combined flood insurance into this policy, you’re double covering it with the National Flood Insurance Program. And what you’re doing is you’re double covering it at a much higher premium…

The article in the Mississippi press concludes with a clarification of the issue from Corban v USAA currently before the Mississippi Supreme Court :

The issue for the state’s high court, which has not yet ruled, involves the interpretation and application of “anti-concurrent causation,” a policy clause that generally allows insurers to avoid paying a claim if they can show that at least some of the loss resulted from a factor not covered by the policy.

Justice Dickinson had a different take:

JUSTICE DICKINSON: I think what we’re concerned  about is that, in a hurricane, you’ve got wind, and you’ve got water.

MR. COPELAND: Yes.

JUSTICE DICKINSON: And for an insurance company to just walk in and say, ‘Well, there was wind, ‘ or, ‘There was water, so we don’t cover anything,  doesn’t address the problem.

According to Justice Randolph, “the problem” is “once the property is lost, then how do I regain it to lose it again with water?”

He  certainly can’t pose that problem to the members of the 5th Circuit; but, Congressman Taylor has known the answer all along – and offered the only real solution.  Property owners need multi-peril coverage for multi-peril events.

Honesty is the best policy – and, a hurricane policy written to exclude damage from a hurricane is honestly not the best policy.

Consequently, Counsel for O’Bannon filed a Motion to Stay O’Bannon v Nationwide pending the Mississippi Supreme Court’s decision in Corban v USAA claiming, Nationwide further showed its “true intention” of unfair and unconscionable application of the ACC to exclude coverage to its insured during questioning from Chief Justice William L. Waller, Jr.:

JUSTICE WALLER: Do you agree – Nationwide was a  party to the Dickinson case. Do you agree with Judge Senter’s ruling in that?

MR. LANDAU: No, Your Honor. We respectfully do not. We think its inconsistent with Leonard case and the Bilby case and the Tuepker case from the Fifth Circuit.

JUSTICE WALLER: Would your company have paid the  same losses that USAA has voluntarily paid in the Corban  case?

MR. LANDAU: Our company [Nationwide] has –

JUSTICE WALLER: On wind damage? On wind damage?

MR. LANDAU: Your Honor, our company would not  feel compelled by the clause by the plain language to pay.

JUSTICE WALLER: So you wouldn’t?

MR. LANDAU: Our position is that we are not  required to pay those losses. Sometime, where we believe that you can really show that these pure wind losses  covered, then we’ll pay wind losses.

But we certainly don’t believe that the Plaintiffs can  be free to go out and get whatever expert they want and  get to a jury on these kind of issues, where we carry our burden of showing that, regardless of the sequencing, the water was sufficient to cause the loss. Because we believe that that’s why these clauses — that’s the whole  point of the clause.

And, that’s the “whole point” of O’Bannon’s motion:

The “ACC” clause in Nationwide’s policy of insurance is virtually identical to the one being reviewed by the Mississippi Supreme Court in the Corban case. Because the issue of whether the “ACC” clause is applicable to and/or excludes coverage for Plaintiffs’ losses constitutes Nationwides’ defenses as to why it failed to pay Plaintiffs’ claim, the Mississippi Supreme Court’s decision on this issue is vital to the proper adjudication of this action; and staying this action until that adjudication is made is in the interest of justice to all parties, and free of prejudice…

What is clear from Nationwide’s position before the Mississippi Supreme Court is that Nationwide is using the so-called conflicts between of this Court’s decision in the Dickinson v. Nationwide; the Fifth Circuit’s decisions in Leonard, Bilby and Tuepker; and Nationwide’s own amorphous and ever-changing reasons for denial to continue to unfairly deny the claims of these Plaintiffs and other insureds.

What is additionally clear is that regardless of the previous rulings from this Court and the laws of the State of Mississippi, Nationwide continues to attempt to improperly place the burden to prove coverage on the insured, rather than accepting its burden to prove exclusion from coverage…

These positions taken by Nationwide demonstrate that the Plaintiffs would suffer hardship and inequity in being required to move forward with this litigation when the Mississippi Supreme Court will soon remove the “guesswork” regarding the validity, enforceability and application of the ACC clause to deny claims of its insureds. Plaintiffs respectfully request this Court stay this cause pending ruling from the Mississippi Supreme Court…

Notwithstanding the Plaintiffs’ request for a stay of this proceeding, the court ordered mediation in this matter is scheduled for July 8, 2009. Plaintiffs would request that any stay not effect this scheduled mediation, so that Plaintiff and Defendants may attempt to resolve this cause.

Readers may recall a similar motion was filed – and denied – in Politiz v Nationwide.  However, that was before the Corban arguments and before Nationwide’s delaying tactics were pointed out in Watson.  Hopefully, O’Bannon will prevail and Mrs. Politz will find some comfort knowing Nationwide’s claims handling practices appeared to cause  members of the Supreme Count significant distress!

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, none of the non-diverse defendants has sought a ruling on the merits of the plaintiffs’ claims against them. Nor have the defendants taken the discovery they now contend is crucial to establishing this Court’s diversity jurisdiction.

In these circumstances…I do not believe it is necessary to delay a decision on the plaintiffs’ motion for an additional forty-five days, as Nationwide requests. I will therefore deny Nationwide’s motion.

SLABBED reported the Watson’s Motion to Remand and For Sanctions in On the other side – policyholders v Nationwide.

Hasbrouck v Nationwide:

Also filed in Jackson County Chancery Court and removed by Nationwide, Hasbrouck v Nationwide provided one of  last week’s most unusual events in Nationwide litigation- an Order granting a Motion for Protective Order filed by State Farm!

In its motion, State Farm requests that the Court enter an order prohibiting the disclosure of the Absolute Release with Covenants entered into between State Farm and Della D. and Edward C. Lanier. The Laniers have joined in support of this motion. The Laniers settled their lawsuit with State Farm in Civil Action No. 1:06cv563. As part of the settlement, the parties executed a document entitled “Absolute Release with Covenants”, which contained the terms of  he settlement, including the requirement that the settlement be confidential. On May 20, 2009,
Defendant Nationwide served the Laniers with a subpoena duces tecum commanding the Laniers to produce all documents related to their insurance claim resulting from Hurricane Katrina. State Farm filed the instant motion in response to the subpoena duces tecum.

In their response, Defendants state that the Laniers were identified by P Plaintiffs as witnesses with discoverable knowledge. The subpoena, according to Defendants, seeks only non-privileged, non-confidential documents. As such, Defendants represent that they do not seek confidential documents connected to the Laniers settlement with State Farm, including the Absolute Release and Covenants. Thus, Defendants do not object to a protective order…

Judge Walker did earlier rule in Plaintiff’s favor when he denied Nationwide’s motion to strike one of Hasbrouck’s expert witnesses.  Nonetheless, his protective order did not consider the related claim in Hasbrouck’s complaint:

Plaintiff’s insured property was completely destroyed by Hurricane Katrina and
was rendered a total loss. The overwhelming meteorological and physical evidence at the site of the insured property, surrounding area, and eyewitnesses established that insured property was proximately and efficiently destroyed by hurricane wind, tornadoes, microbursts, mesocyclone activity in the absence of and prior to the arrival and inundation of any storm surge.

Walker did not conduct an in camera review of the Absolute Releanse and Covenant before issuing the Order.  Hopefully, he has not gutted another policyholder’s case.

O’Keefe v State Farm:

O’Keefe v State Farm keeps on tickin’ and O’Keefe keeps on kickin’ with this Reply to State Farm’s Response to Plaintiffs’ Supplemental Evidence in Support of Plaintiffs’ Supplemental Evidence in Support of Plaintiffs’ Motion for Declaratory Judgment /Partial Summary Judgment re: Inflation Index.

State Farm’s Reply avoids responding to the issue actually raised by Plaintiffs in their Supplemental Evidence. Rather, State Farm’s  Reply seeks to offer further argument in support of State Farm’s incorrect contention that the inflation coverage provisions of the subject policy are “not relevant” to the current litigation. As shown in Plaintiffs’ Motion, the inflation coverage provisions of the subject policy are relevant to Plaintiffs’ claims because Plaintiffs allege State Farm is actively misrepresenting the amount of available coverage under the subject policy to its insureds…

The point raised by Plaintiffs’ Supplemental Evidence is that, contrary to State Farm’s inaccurate suggestion to this Honorable Court in its Response to Plaintiffs’ Motion, there is no such animal as the “Inflation Coverage Index”…Those words in the State Farm policy merely refer to an inflation index, the source of which is not identified in the subject policy of insurance.

State Farm further tries to confuse the issues by suggesting in its Response that Plaintiffs have somehow offered a “new argument” in their Supplemental Evidence. Such is not the case. Plaintiffs’ argument today is the same as it was when they filed their motion:  There are two numbers that must be utilized to calculate inflation coverage under the policy, a numerator and a denominator. The denominator for the formula is easy – it is a distinct figure set forth on the Dec Page of the subject policy. The question that is not as easy to resolve, because State Farm’s policy fails to identify which source of inflation rate indexes is to be utilized for calculating inflation coverage – it merely refers to an inflation index, is what the numerator should be.

Politz v Nationwide

Counsel for Mrs. Politz  filed a Notice of Issuance of Subpoena to Produce Documents, Information or Objects seeking additional information on Dr. Webb’s qualifications and related experience, for example:

A copy of any “learned treatise” (as per Federal Rule of Evidence 803(18)), any medical article, textbook, journal or other authoritative source referenced in any report which you have given in the above-captioned case, or upon which you have relied, or may reasonably expect to rely, in offering opinions in the above-captioned case (include a copy of the title page, table of contents, and all relevant sections of said document).

A copy of your prior testimony list for the last four (4) years.

A copy of any transcripts from any depositions you have ever given (whether as an
expert, party, or other witness).

Mrs. Politz is the poster child for the sequence described by Nationwide at the Corban Oral Arguments before the Mississippi Supreme Court:

MR. LANDAU: If – again, we wouldn’t pay a dime for things where we can carry our burden, which is right there in the policy, of showing that the loss was caused concurrently –

JUSTICE PIERCE: I’m giving you — the example is 95 percent of the home is destroyed, the flood comes in and gets the other five percent, and you know that.

Does your interpretation of the word “sequence” mean you pay zero?

MR. LANDAU: Yes, your Honor.

SLABBED reader CLS posted a related comment on the Allstate Finance Board:

“Court documents and testimony show that Dell employees KNEW that they were NOT ALLOWED to sell cameras UNDER the CONTRACT that COVERED Dell’s GOVERNMENT SALES.

E-mail messages show Dell officials noting the PROHIBITION and trying to come up with NAMES other than “CAMERAS” to DESCRIBE the equipment they wanted to sell to New Orleans, Baton Rouge and others. They came up with “SURVEILLANCE MODULE” and “EYEBALL.”

Emphasis added – change a few WORDS and the story is the same. nowdoucit?

Do you see it?

Dell State Farm, Nationwide, Allstate, USAA, and employees KNEW that they were NOT ALLOWED to sell cameras bill wind damge to the National Flood Insurance Program UNDER the [WYO] CONTRACT that COVERED Dell’s the Company’s sales and claims handling of the GOVERNMENT SALES Flood Insurance Program…

Great catch, CLS!

One justice asked Nationwide whether ACC would exclude coverage in a case where a home was 95% destroyed by wind before any flooding…According to…[Nationwide]…it does not matter what actually caused the damage.  If the subsequent flooding would have caused it, the damage is covered by NFIP and not Nationwide.

Nationwide’s unabashed admission of claims dumping, linked here, could not have been a surprise to policyholders on the Coast who found the Company was not on their side after Hurricane Katrina.

A review of five policyholder cases currently in litigation is telling of the other side of Nationwide.  Corban, Gunn, & Van Cleave represents plaintiffs O’Bannon, Hartman, and Drake; Chuck McRea, former Presiding Judge of the Mississippi Supreme Court is counsel for Watson; and Nilson plaintiffs are represented by the Bay St. Louis firm Hawkins, Stracener & Gibson.

SLABBED first reviews the O’Bannon v Nationwide Complaint as it provides the most detailed description of the events behind the Company’s admitted billing of wind damage to the NFIP – a description that supports a larger conspiracy of fraud than either Nationwide or State Farm alone as claimed in the first Rigsby qui tam complaint. (Nationwide was among the three insurer defendants dismissed without prejudice by the Rigsbys with consent to same from  the Department of Justice on behalf of the United States)

Denial of Plaintiffs’ Claim Was Part of a Top-Down Scheme of Institutional Fraud

After assessing the magnitude of the Nationwide-insured Katrina losses, the Nationwide Defendants, and each of them, intentionally and deliberately set forth on a course of action, concealed from the Plaintiffs and other homeowners, designed to reduce the companies’ exposure for losses by abandoning Nationwide’s duty to fully investigate individual Katrina “total destruction claims”, and to shift the financial burden of responding to the Hurricane to the Federal Government.

Unbeknownst to the Plaintiffs, and concealed from the Plaintiffs and other Nationwide insureds, Nationwide Fire and Nationwide Mutual embarked during the period of August 29, 2005 and thereafter, on a calculated course of corporate conduct designed to deny Plaintiffs’ claim, and the claims of all Mississippi Gulf Coast homeowners like them whose Nationwide-insured homes had been destroyed down to the slab or foundation.

Manipulation of NFIP Claims Handling Guidelines

The insurance industry drafted “amended”, “streamlined” claims handling procedures for handling Hurricane Katrina NFIP claims, and urged the Federal Government to accept and implement these guidelines. Upon information and belief, these amended guidelines were written and proposed by State Farm Fire and Casualty Company and/or State Farm Mutual Automobile Insurance Company, with the advice and assistance of other insurance companies doing business in Mississippi, including but not limited to Nationwide…

Upon information and belief, the insurance industry’s goals associated with the proposal of amended NFIP Guidelines were two-fold. As WYO insurance company, participating companies receive a percentage of every dollar paid out on an NFIP claim serviced by those companies as compensation for alleged “administration” fees…

As a result of the adoption of the amended guidelines, Nationwide and other participating companies were able to obtain substantial compensation from the Federal Government for doing considerably less work than was contemplated in setting the percentage of payouts that would be paid to WYO companies in the form of administrative fees…

The standard NFIP policy, as written, only provides coverage for damage caused by flood, and contains an exclusion for damage caused by wind…

The second prong of the insurance industry’s, including Nationwide’s strategy with regard to utilization of amended NFIP Guidelines has played itself out through litigation of Hurricane Katrina cases in Mississippi Courts.

When insureds, such as the Plaintiffs, pursue litigation against their insurance carrier for bad faith failure to pay proceeds due under the homeowner’s insurance policies, the insurance company alleges the insureds are not entitled to proceeds or some percentage there of under their homeowners’ insurance policy, because, the insurance company alleges, the insureds admitted “flood damage” by virtue of accepting benefits under their NFIP policies…

This last paragraph makes a particularly interesting point given Nationwide’s admission of paying wind damage from NFIP funds – a point with implications for McIntosh v State Farm – but save that thought and read on:

Nationwide Devised and Employed Fraudulent Claims Handling Guidelines

Upon information and belief, Nationwide Mutual drafted; and Nationwide Fire…  adopted; new claims handling procedures after the hurricane to be “used for determination of coverage” in Mississippi Katrina claims where insured property was substantially damaged, and was contacted by hurricane driven storm surge…

Nationwide created a claims handling protocol for substantial damage claims, including the Plaintiffs’, which was unique to Hurricane Katrina. Nationwide created a “Claims Coverage Committee”, which committee was originally represented to consist of numerous levels of claims employees, so that the coverage decision on substantial damage claims would not be made by anyone individual on anyone claim.

Nationwide ultimately abandoned this process, however, and relegated the coverage decision on substantial damage claims, including the Plaintiffs, to one individual – an in house lawyer from Nationwide’s legal department…

Upon information and belief, representative(s) of the “claims committee” that made the decision to deny the Plaintiffs’ claims were sent a memo from in house lawyer Roger Woods, dated September 3, 2005; and were sent numerous edited revisions of document(s) titled “Hurricane Katrina Personal Lines Questions & Answers for Claims Associates and Independent Adjusters for Alabama and Mississippi”; and/or “Katrina Q&A”; which documents set forth fraudulent and improper interpretations and applications of the subject policy of insurance, which were used to wrongfully deny the claims of the Plaintiffs…

The procedures were intentionally designed to result, and did result, in denials of legitimate claims, including the Plaintiffs’, and to save Nationwide from the magnitude of payments that were rightfully due Plaintiffs and others under the form of policy issued to the Plaintiffs, and hundreds of other Mississippi insureds…

In accordance with a top-down policy, adopted by Nationwide post-Katrina, after deliberation and calculation; and fraudulently concealed from the Plaintiffs and other insured homeowners, Nationwide: changed its claims handling procedures for losses contacted by storm surge; failed to timely obtain engineer reports; ignored engineer reports and other evidence, including eyewitness testimony, that proved homes in the community were destroyed by hurricane force winds before the storm surge arrived; ignored findings in engineer reports that demonstrated coverage; adopted requirements for finding coverage that had not been utilized on
pre-Katrina claims, and that were not contained within, nor supported by the subject policy of insurance; and issued across the board denials of coverage to policyholders whose homes were substantially and/or completely destroyed by the hurricane, including the Plaintiffs…

Defendants’ actions resulted in an intentional and deliberate abandonment of the duty to fully, timely and competently investigate the claims of the Plaintiffs, and other Nationwide insured Katrina “slab cases” and/or “substantial damage” cases; and an intentional and deliberate abandonment of the duty to interpret and apply coverage in line with the terms and conditions of the subject policy of insurance, and Mississippi law…

Based on the above conspired actions, and contrary to the express and implicit representations of Nationwide and its agents that the Plaintiffs were purchasing coverage for losses and damages caused by hurricanes, and contrary to the express and implicit policy provisions, Nationwide refused to pay for all the losses and damages the Plaintiffs suffered at their home, which losses were all caused by Hurricane Katrina – a windstorm.

The acts and omissions of the Defendants with regard to “investigation” of the cause of the loss incurred by the Plaintiffs, and Defendant’s outright denial of coverage, constitute intentional, deliberate conduct accompanied by fraud or deceit as alleged specifically herein.

The complaints of plaintiffs Hartman and Drake contain similar allegations – and a similarity in Nationwide’s conduct evidencing the alleged calculated course of corporate conduct designed to deny [O'Brannon] Plaintiffs’ claim, and the claims of all Mississippi Gulf Coast homeowners like them…

I always loved being a lawyer…

Reflections, Chuck McRea

In Watson v Nationwide, Plaintiffs claim, The actions of Nationwide and the defendants in denying the Plaintiffs’ claims were part of a fraudulent and deceptive scheme, deliberately devised, and intentionally implemented by Nationwide after Hurricane Katrina at the expense of the Plaintiffs and similarly situated insureds. Said actions constitute an intentional, wrongful, and tortuous act.

Said actions by Nationwide constitute fraud, fraudulent concealment, and fraudulent inducement, as well as bad faith claims handling on an institutional basis in the handling by Nationwide of Katrina claims. The actions by Nationwide were intended to, and did, result in the intentional and fraudulent denial of the claims of the Plaintiffs and others whose homes were completely destroyed by Hurricane Katrina…

Nationwide’s acts and omissions, as set forth in all the preceding paragraphs, were contrary to the representations on which the Plaintiffs relied in purchasing the policy, and inured to the benefit and financial gain of Nationwide, which still has not paid the Plaintiffs’ legitimate claim, and to the detriment of the Plaintiffs…

Said delay, intended by Nationwide, has exacerbated the extra-contractual damages suffered and incurred by the Plaintiffs, for all of which damages should be awarded in this action.

One distinction between Watson and O’Bannon/ Hartman/Drake is the Watson includes the local Nationwide agents and agency as named defendants in the Complaint.  Accordingly, the case was filed in the Circuit Court of Jackson County.

Nationwide has claimed the Watson Plaintiffs fraudulently enjoined these defendants to keep the case out of federal court.

Watson responds to this allegation with a Motion to Remand and For Sanctions -  its content narrowed  with precision; yet, demonstrating the range and depth of knowledge one would expect from a former Supreme Court judge.

There is an abundance of case law in support of this motion to remand with a large amount of those cases involving Nationwide’s wrongful removal of Katrina state court cases for the purposes of delay to this Court. Nationwide will later take the position that pre-judgment interest should not be allowed, thus saving thousands of dollars. One of the latest remand cases is West v Nationwide, 543F Supp. 2nd 587 (Feb.22, 2009) in which this Court granted the remand on the very same issues presented in this case. (See Exhibit “1” attached hereto).

Some other examples where Nationwide has wrongfully removed cases to this Court are Tuepker v. Nationwide Fire and Casualty, Civ. Action No. 1:05-cv-559 (S.D. Miss., May 24, 2006); Dastugue v. Nationwide Fire and Cas. Co. and Felecia Craft-Robinson, Civ. Action No. 1:05-cv-687(S.D.Miss. July 26, 2006); Gurrisi v. Nationwide Fire & Cas. Co. 440 F.Supp.2d 534, 536 (S.D.Miss.,2006); and Mangano v. Nationwide Fire & Cas. Co., Civ. Action No. 1:06-cv-724 (S.D.Miss. Nov. 30, 2006).

To this end, it is clear that the Defendants have removed this action for the sole purpose of delay. The Defendants are well aware of the rule of law on removal, but more specifically the rule of law as it applies to them under these exact circumstances…

No attempt to summarize this motion with selected text could possibly be successful without  quoting the motion in its entirety.  Consequently, the following selection addresses a point of personal interest.

Mississippi law has held that, “an individual may be held jointly liable with a corporation for a tort he commits as an agent of the corporation.” American Fire Protection, Inc. v. Lewis, 653 So.2d 1387, 1391 (Miss.,1995). Applying these principles, the federal courts have long held that:

Under Mississippi law, the negligence of an employee is imputed to the employer if such acts occur within the scope of employment, but the fact that a judgment may be entered against an employer does not absolve the employee of liability for his acts; but rather, the doctrine of respondent superior operates to establish a joint and several liability between both employer and employee. Wheeler v. Frito-Lay, Inc., 743 F.Supp. 483,486 S.D.Miss.,1990).

The federal courts in Mississippi, in applying Mississippi law have held that, “The officer or agent may be held personally liable when he directly participates in or authorizes the commission of a tort.” Christmon v. Allstate Ins. Co., 57 F.Supp.2d 380, 382 (S.D.Miss.,1999)(citing Mississippi Printing Co., Inc. v. Maris, West & Baker, Inc., 492 So.2d 977, 978 (Miss.1986))…

Nevertheless, the Defendants insist on seeking removal despite having actual knowledge of the law. Therefore, to the extent that the Defendants seek removal based on federal questions, the Plaintiff seeks cost associated with this Motion to Remand under 28 U.S.C. ‘ 1447. The defendants have established a pattern of Katrina cases where they intentionally charge wrongful joinder, remove it to this Court and after much delay this Court has to remand it back to the state court.

The defendant has a duty to reevaluate its position and where the circumstances require it to change it position, it must do so in a timely fashion. This Court has time and again ruled for remand in cases similar to this one. Yet the defendants continue to refuse remand the case voluntary. It has been over sixteen months since the West decision, and still they have not re-assessed their position or chosen to have this case remanded. Sanctions should be imposed for the wrongful removal and their failure to re-assess their position under Rule 37 FRCP and Statute…

Nilson v Nationwide , the final case selected for this review, settled today after what the docket entry described as a lengthy settlement conference.

Like Watson, Nilson included a local Nationwide agent/agency as a named defendant.  However, Nilson plaintiffs also claimed emotional distress; and, once again Nationwide, well aware of the rule of law, subjected a plaintiff to the risk of increased emotional distress just as it has done Mrs. Politz.

In the Watson complaint, former Justice McRae identified the emotional distress resulting from Nationwide’s conduct by what proved to be a legal term and not a personal perspective:

Tort of Outrage

An outrage it was, is, and always will be, tort or not.

Credit the New Orleans firm Capitelli and Wicker with the grit to win a $3.5 million jury award for Ferrara’s Supermarket.  The grocer had been in business 99 years before the Elysian Fields location was destroyed by Hurricane Katrina.

Attorneys Carey Wicker and James Watkins brought home the bacon for the Plaintiffs with evidence  Lafayette’s engineer was not licensed to practice in Louisiana or supervised by a Louisiana licensed engineer as the law requires “direct control and personal supervision”.

While the engineer’s qualifications were clearly a significant issue, the Plaintiffs had a strong case against Lafayette.  A reader from New Orleans provided SLABBED with a summary of the case tried in State court:

During Hurricane Katrina, wind and driving rain opened spaces in the roof, walls, doors and windows of the supermarket, and water and moisture entered the premises causing extensive damage.

Additionally, uplift forces on the flat roof (wind blowing over parapet) caused structural damage to the north-facing wall of the building as well as roof framing members’ connection to that wall. That structural damage, solely caused by wind forces, rendered the building a total loss because of the cost and time associated with repair compared to demolition and rebuild.

After inspecting the building, an Adjuster retained by Lafayette recommended a total loss, due to wind, and payment of policy limits on the building ($592,700), $111,000 in business personal property (contents), and an initial payment on the business income loss of $75,576.00 through 11/30/05.  The adjuster then recommended depreciation of -$296,350.00 on the structure, -$33,300.00 on the contents and subtracted a deductible of $10,000.00 for a suggested payment of $439,626.00.  Lafayette did not accept this adjustment.

Instead, Lafayette sent its own adjusters, including an “expert” who would testify at trial, to “re-adjust” the claim and hired an engineer who found the building damage was caused by flood waters.  Lafayette adjusters concurred with this assessment, and Lafayette accepted this adjustment and paid $15,494.44 (less $10,000 deductible) for the building, $0.00 for the contents and $4,047 for one week of business income loss/continuing expense.  With application of co-insurance: this amounts to a difference of $420,000 from the initial estimate.  It should be noted that the engineer retained by Lafayette and and all of the Company’s own adjusters reported interior damage (assessed at approximately $10,000.00) that was never paid.

Ferrara, Inc. hired their own engineer who confirmed the earlier assessment of the general contractor: the building had suffered structural damage as a result of uplift forces in the roof of the building rendering the building a total loss caused by wind.

The insurance industry heavily promoted the image of the “New Orleans Flood” in an attempt to shift responsibility for covered wind damage to the excluded damage from flood.

SLABBED congratulates Carey Wicker and James Watkins and wonders just how many property owners in New Orleans have similarly been denied the coverage they purchased.

Ferrara, Inc. paid $258,372.40 to Lafayette in premiums over the period 1999 – 2005.

Wind comes before water in a hurricane!

Another old classmate is back from his last teaching/research gig in Europe and seeing him recently reminded me to google for the old CBS news story that featured him and the video he shot during Katrina. The footage also conveys a flavor for my own personal experience.

The question the video begs is who should have paid Charles Grey the man whose roof we see flying down the street well in advance of the surge? His wind insurer or his flood insurer? By now we all should know which check he got first.

sop

Anyone who still doesn’t believe hurricane surge washes away what the wind destroys need look no further Galveston Island’s Beachtown after Hurricane Ike for evidence.

"After Ike" photograph of home in Galveston Island's Beachtown

Hurricane Ike hit Galveston Island in the early morning hours of September 13th, 2008. The sheer size of the hurricane impacted a majority of the Texas Gulf Coast, in addition to the SW Gulf Coast of Louisiana.

At the East End of Galveston Island, the hurricane delivered its fiercest winds as well as a storm surge not experienced since the devastating hurricane of 1900. Beachtown found itself in the unenviable position of receiving the dirty side of the hurricane and Ike’s relentless punches delivered from the Northeast…

Galveston Island was inundated with hurricane debris, including boats lying in the streets and esplanades….a devastating blow to Galveston Island. There were clear signs of Ike’s presence at Beachtown, as many of the streets and lawns were covered by a layer of sand brought by the storm surge.

However,most compelling was the condition in which the residences and other structures lay… largely unscathed. Signs of hurricane Ike’s impact were limited to the breakaway sections of the structures. The buildings’ structures performed outstandingly. The habitable floors remained undamaged despite the horrific forces of Ike.

FEMA and the City of Galveston require the enclosed portion of structures located below Base Flood Elevation (as is the case for coastal communities and beachfront homes) be designed to break-away with the impact of a hurricane force, leaving the main structure intact. Ground Floor breakaway materials, such as louver panel assemblies and garage doors, separated as designed.

The acres of slabs along the Coast are a painful reminder of what was lost and it can be difficult to imagine the possibilities.  We often compare Katrina’s destruction to that of Hurricane Camille.  In Texas, the benchmark event prior to Ike was the hurricane that struck Galveston in 1900.

The Hurricane of 1900 made landfall on the city of Galveston, Texas on September 8, 1900. It had estimated winds of 135 miles per hour (217 km/h) at landfall, making it a Category 4 storm on the Saffir-Simpson Hurricane Scale.

The hurricane caused great loss of life with the estimated death toll between 6,000 and 12,000 individuals;^[2] the number most cited in official reports is 8,000, giving the storm the third-highest number of casualties of any Atlantic hurricane, after the Great Hurricane of 1780 and 1998’s Hurricane Mitch. The Galveston Hurricane of 1900 is to date the deadliest natural disaster ever to strike the United States. By contrast, the second-deadliest storm to strike the United States, the 1928 Okeechobee Hurricane, caused approximately 2,500 deaths, and the deadliest storm of recent times, Hurricane Katrina, claimed the lives of approximately 1,800 people.

A seawall built after the hurricane has provided protection for Galveston for over a century.

After the storm cleared, the city decided to shore up its defenses against future storms: a permanent concrete seawall was built along a large portion of the beach front  and the entire grade of the city was raised some 17 feet (5 m) behind the wall to a few feet near the Bay

Construction began in September, 1902, and the initial segment was completed on July 29, 1904. From 1904 to 1963, the seawall was extended from 3.3 miles (5.3 km) to over 10 miles (16 km) long. Reporting in the aftermath of the 1983 Hurricane Alicia, the Corps of Engineers estimated that $100 million in damage was avoided because of the seawall. On September 12, 2008 Hurricane Ike forced waves to go over the top of the seawall…The seawall is presently 10 miles (16 km) long. It is approximately 17 feet (5.2 m) high, and 16 feet (4.9 m) thick at its base. The seawall was listed in the National Register of Historic Places in 1977 and designated a National Civil Engineering Landmark by the American Society of Civil Engineers (ASCE) in 2001.

While the seawall protected life and property,  the storm stalled economic development and the city of Houston grew into the region’s principal metropolis.

Despite attempts to draw new investment to the city after the hurricane, Galveston never fully returned to its previous levels of national importance or prosperity. Development was also hindered by the construction of the Houston Ship Channel, which brought the Port of Houston into direct competition with the natural harbor of the Port of Galveston for sea traffic…

The seawall could not protect Galveston from Houston because time does not stand still for rebuilding.  We know that all too well.

Beachtown, however, provides an example of the possibilities – a place where hope for safe coastal living is not a plan but a reality.

One would think the compelling evidence of Ike the windstorm provided by the fortified construction of Beachtown would have made easy work of settling TWIA and other insurance claims; but, that does not appear to be the case.

Because surge and other flooding followed, anything the wind made vulnerable was subject to distinctly separate water damage – translated into the language of insurance litigation this means wind pays full coverage.

It also translates one of the more common threats as total bull#%!&.  Policy holders can claim property was 100% destroyed by wind and still accept payment for the water damage that follows.  Fraud that is not – fraud is billing wind damage to the NFIP and claiming it is reasonable.

Today’s version of a seawall is fortified construction and affordable insurance. Working cooperatively and honestly,  we can build the economy of coastal Mississippi and, as Governor Barbour has encouraged, build back better than ever.

Think again Buttercup. Pearl River Community College. located around 40 miles away from the coast in Poplarville is still figthting their private insurer Zurich to cover Katrina losses under their wind policy. Here is a hint for Dr Lewis, you’re wasting your time with endless arbitrations. If the institutions policy has an appraisal provision use it.

sop

I’m sure everyone has heard by now that Venango had some insane damage done to its town yesterday due to wind.  I’m not sure how strong the wind or how fast it was blowing but it uprooted trees that were over 100 years old.

These trees are huge and just like that are gone.  I have more photos of the damage done on Flickr. Most of these photos were taken at the Venango Valley Golf Course.

I have tons of photos on Flickr. ;  )

Based on the evidence I heard from the stand, particularly Kerri Rigsby’s own testimony, it appears to me there is sufficient evidence to support the conclusion that she does indeed possess direct and independent knowledge of the facts she has alleged in support of the allegations in the Amended Complaint. This evidence is also sufficient to create a genuine issue of material fact on the merits of the Relators’ substantive allegations.

Sop probably thought I’d want to start this post with, I told you so.  As tempting as that is, I chose to preface Judge Senter’s Memorandum Opinion with a tip of my hat to Pat Labrano, Cori and Kerri’s mother.  Known to the unwashed in the blogosphere as “Ma,”  I had the unexpected opportunity – and pleasure – to meet both Pat and Kerri several months ago when my search for Sushi landed us in the same Ocean Springs restaurant.

Kerri was, as Chip Merlin described her, the type you want to call your friend.  So was her mother and, clearly, the two of them were also friends.  I might add, they were also beautiful and gracious women.

With that truth told, I yield to Judge Senter to tell another – the story of the McIntosh claim, constructed in large part from Kerri’s testimony but clearly verified in other documents available to him.

I  have also included in total the section he titled, Scope of Further Proceedings and, in a separate post, I’ll cover the Summary Judgment awarded State Farm on the Risgby’s claim of retaliation.

Kerri Rigsby is an experienced insurance adjustor who had been working for Renfroe for approximately ten years at the time of Hurricane Katrina. She testified that within a few daysafter the storm, when State Farm was just beginning to adjust the losses under the SFIP policiesand under its homeowners policies, she attended a meeting convened by State Farm. Kerri Rigsby testified that during this meeting the person giving instructions for adjustors and their supervisors to follow told his audience Hurricane Katrina was a “water storm” and the adjustors should go out and “hit the limits” of flood insurance policies. Defendants deny these allegations.

Kerri Rigsby also testified State Farm representatives told her Haag had performed an analysis of the forces generated during Hurricane Katrina and this analysis determined the storm surge flooding preceded the highest storm winds by a considerable time, making it highly likely the insured properties had not been extensively damaged by the storm winds prior to their being damaged by storm surge flooding. Kerri Rigsby testified she accepted these instructions and assumed the Haag report was truthful and accurate, only to find out later this was not the case.

The defendants also deny the substance of these allegations. In mid-September, Kerri Rigsby accompanied the adjustor, Cody Perry (Perry), who first assessed the flood damage at the McIntosh property. She participated in the adjustment process by observing the adjustor’s work, and she assisted in compiling notes of the room measurements the adjustor made as he moved through the first floor of the McIntosh home assessing the flood damage. The State Farm flood claim file for the McIntosh claim contained a detailed diagram of the McIntosh residence with measurements of the dimensions of all the first floor rooms. The flood file also contained a plethora of photographs of the damaged property.

By the time Cody Perry and Kerri Rigsby visited the McIntosh property, the McIntoshes were taking remedial measures to minimize their damages as is required under their State Farm homeowners policy. The McIntoshes had removed much of the damaged dry wall on the first floor and most of the debris from their home by the time Cody Perry and Kerri Rigsby arrived to inspect the property. The notes prepared during or just after the on-site inspection indicate Perry found evidence to support the conclusion the property was flooded to a depth of approximately five feet above the ground floor.

Based on the Perry’s report and evaluation, State Farm paid the policy limits ($250,000 dwelling and $100,000 contents) to settle the McIntoshes flood damage claim and closed its file for the flood policy. Neither Perry, Kerri Rigsby, nor any other representative of State Farm or Renfroe made an item-by-item assessment of the damage to the McIntosh property. This type of  item-by-item assessment is informally called a “stick built” estimate, and State Farm uses a software program called Exactimate to assist in calculating the damage when this type of evaluation is done. In evaluating the damage to the McIntosh property, State Farm relied upon a different software program called Exactotal.

Exactotal does not yield a “stick built” or item-byitem estimate of damage. Rather, Exactotal makes an estimate of the damage when a property is a total loss (either actual or constructive). Based upon its Exactotal estimate, State Farm paid the limits of coverage under the McIntosh SFIP and closed its flood adjustment file for the McIntosh property. State Farm’s wind damage file for the McIntosh property remained open. In due course State Farm submitted a claim for reimbursement to the United States, and the United States honored that claim.

Kerri Rigsby testified that on or about October 12, 2005 (approximately two weeks afterthe inspection of the McIntosh property), Perry handed her an engineering report concerning the damage to the McIntosh property. The report was prepared by Brian Ford (Ford), an engineer employed by Forensic Analysis Engineering Corporation (Forensic), on October 10, 2005. Kerri Rigsby testified there was a Post-it note on the front page of the report indicating the report should not be put into the wind damage file, where engineering reports normally went, and the note also stated the report should not be discussed. Kerri Rigsby testified she had never before seen instructions similar to those she found on the Post-it note. She gathered from her conversation with Cody that he was asking her to take physical possession of the report and see it was handled properly.

Kerri Rigsby pulled the McIntosh wind damage file for the purpose of putting the Ford report into that file. Upon examining the contents of the wind damage file, she found a different engineering report, one prepared by John B. Kelly (Kelly), another Forensic employee. Kelly inspected the McIntosh property on October 18, 2005, and signed his report on October 20, 2005.

In her experience it was unprecedented to have two engineering reports on a single property, and it was also very unusual to see an engineering report prepared just two days after the engineer, Kelly, inspected the property. Kerri Rigsby testified it usually required weeks after an engineer’s on-site inspection to prepare and finalize an engineering report. Kerri Rigsby also testified shewas surprised to find only ten days elapsed between the date the Ford report was signed and the date the Kelly report was submitted.

Once she had the two reports in hand, Kerri Rigsby testified she had a conversation with Alexis King (King), the State Farm supervisor in charge of the McIntosh claim. Kerri Rigsbytestified King acknowledged she (Rigsby) was not supposed to have seen these two engineering reports. The two reports are very similar except for the conclusions drawn by the two engineers.

Ford’s report does not identify or discuss any substantial flood damage at the McIntosh property, and Ford reached the conclusion the damage to the property was caused by wind. Kelly’s report agreed with Ford’s conclusion there was considerable wind damage, but Kelly also reports he observed extensive damage from storm surge flooding.

Ultimately, these circumstances led Kerri Rigsby to conclude State Farm was wrongfully attempting to maximize its policyholders’ flood damage claims (which are ultimately paid by the United States) in order to minimize the policyholders’ wind damage claims (which are paid by State Farm). She also concluded the Haag report concerning the timing of the peak winds and the arrival of storm surge floodinwas false and the report was done in furtherance of State Farm’s plan to dishonestly identify wind damage as flood damage.

The defendants sharply contest the truth of Kerri Rigsby’s allegations and of the
conclusions she reached after seeing the two reports. The defendants’ evidence established Katrina was a massive storm that devastated the Mississippi Gulf Coast and left many homes as 1) only foundations (“slabs”), 2) only pilings (“popsicle sticks”), or 3) empty shells (“cabanas”). The McIntosh dwelling did not come within any of these three categories. Although the McIntosh dwelling was extensively damaged by storm surge flooding, its exterior walls, roof, and interiorwalls were still standing.

State Farm’s witness Michael Farrier (Farrier), who was above both Kerri Rigsby and King in the State Farm chain of command, testified all State Farm’s flood insurance adjusting practices, including the adjusting practices Perry followed in evaluating the flood damage at the McIntosh property, were consistent with applicable Federal Emergency Management Agency (FEMA) guidelines and instructions. Apparently, not all of the FEMA guidelines for adjusting
SFIP losses were reduced to writing. State Farm asserts FEMA gave its blanket approval for the payment of flood policy limits for catastrophically damaged covered properties, where only foundations, pilings, or empty shells remained.

According to Farrier, FEMA also granted State Farm (and other write-your-own carriers) the authority, on a case-by-case basis, to pay SFIP limits of coverage for homes that were catastrophically damaged yet did not fit within the three categories designated as total losses, i.e. when the damage was sufficient to render the property a constructive total loss. Farrier testified that– in the case of a constructive total loss– FEMA’s guidelines allowed State Farm to evaluate the flood damage without making an item by item, “stick built” estimate of the flood damage.

According to Farrier, this was precisely the situation of the McIntosh residence, i.e. while the McIntosh property did not come within the three categories (slabs, pilings only, or empty shells) that were uniformly considered total losses, the flood damage to the McIntosh property was so extensive it justified State Farm’s decision to consider the home a constructive total loss and pay the SFIP coverage limits without making a detailed estimate on an item-by-item basis.
State Farm asserts King, the individual who ordered the second engineering report on the McIntosh property, was fully justified in sending out a second engineer to evaluate the storm damage at the McIntosh property.

King’s deposition testimony was that the first report, the one Ford prepared, was inaccurate and incomplete in that it did not take note of the flood damage documented by Perry’s inspection notes and the photographs in the flood file. King found the Ford report unacceptable, and she took steps to disqualify Ford’s employer, Forensic, from further participation in adjusting State Farm claims. King relented in her initial decision to terminate State Farm’s relationship with Forensic when Forensic agreed to send a different engineer (Kelly) to inspect the McIntosh property and evaluate the damage to the dwelling. Kelly testified his employer, Forensic, instructed him not to estimate the quantity of damage caused by wind or water, but only to determine the predominant cause of the damage to the McIntosh dwelling. Pursuant to these instructions, Kelly did not attempt to segregate and compare these different types of damage, and Kelly ventured no opinion on the dollar amount of flood damage he observed.

Based on the evidence I heard from the stand, particularly Kerri Rigsby’s own testimony, it appears to me there is sufficient evidence to support the conclusion that she does indeed possess direct and independent knowledge of the facts she has alleged in support of the allegations in the Amended Complaint. This evidence is also sufficient to create a genuine issue of material fact on the merits of the Relators’ substantive allegations.

Scope of Further Proceedings

Rockwell, 549 U.S. at 476, indicates any relator in an FCA case is limited to pursuing claims of which he has first hand knowledge, and each claim must be considered on its own merits: Section 3730(e)(4) [of the FCA] does not permit jurisdiction in gross just because a relator is an original source with respect to some claim. We, along with every court to have addressed the question, conclude that §3730(e)(4) does not permit such claim smuggling.

In their original complaint, the Relators alleged a vast conspiracy among several insurers to accomplish the same ends they allege State Farm sought to bring about. The amended complaint was also very broad, alleging misconduct by firms and individuals who have since been voluntarily dismissed. State Farm is the only defendant now charged with having presented a false claim, and the allegations of the Amended Complaint identify only one specific instance of misconduct: the McIntosh claim.

The McIntosh claim is the only instance of State Farm’s having submitted an allegedly false claim of which the Relator Kerri Rigsby has first hand knowledge, i.e. direct and independent knowledge sufficient to support the Court’s subject matter jurisdiction, in light of the decision of the United States not to intervene. Yet the Relators’ complaint alleges McIntosh was just one among many similar false claims State Farm and the other defendants conspired to submit. In order to protect the interests of both parties, I must strike a balance between the Relators’ interest in identifying these other allegedly false claims and the defendants’ interest in
preventing a far ranging and expensive discovery process that relates only to claims that are not, for now, specifically identified.

Accordingly, I will limit the presentation of evidence in this action to facts relevant to the McIntosh claim. In light of the extensive discovery that has already been conducted with respect to this claim, I do not believe there will be much in the way of additional preparation necessary to bring this case to trial. I will therefore refer this action to United States Magistrate Judge Walker to establish a pre-trial schedule so any additional discovery can be completed before the end of this calendar year. In the event the Relators prevail on the merits of their allegations concerning the McIntosh claim, I will then consider whether additional discovery and further proceedings are warranted.

In the meanwhile, so I may know the outer limits of the potential claims involved in this action, I will require State Farm to submit, in camera, a list containing the name of the insured, the address of the property, and the amount of flood insurance paid, for all SFIP claims that meet the following criteria:

A) The insured property did not fall within any of the three categories of storm damage for which FEMA approved payment of SFIP limits, i.e. insured dwellings that were not left as slabs, pilings, or empty shells; and B) For which SFIP limits were paid on the grounds the property was a constructive total loss; and

C) For which no “stick built” or Exactimate estimation of the flood damage was made before the SFIP limits were paid.  An appropriate order will be entered.

Just a few days short of the fourth anniversary of Hurricane Katrina, our journey for justice begins.  SLABBED takes to the road mindful there will be bumps and that it is a very long way to the end.

I was honored a few weeks ago to have the good folks at Bill Hudson and Associates send us a complimentary copy of the Winds of Katrina, a presentation of the Coastal Weather Research Center of the University of South Alabama. After watching the 20 minute documentary I immediately inquired  if it was or could be embedded on YouTube as the scientific treatment of what made Katrina’s winds special (for lack of a better term) is simply excellent. Dr Bill Williams and Dr Keith Blackwell provide a Joe Friday like narration laying out what I had the misfortune of experiencing first hand; the destructive power of the violent winds that buffeted the Mississippi Coast for hours before the storm surge arrived.

Below the fold it is my pleasure to present the cyber premiere of this excellent documentary. Now for the curtain.

Part 1 – The Setup Segment

Part 2 – Eye wall Replacement / Double Eye wall

Part 3 – Collapsing Cores (Plough Winds / Tornadoes)

TGIF!  End to a full, long, interesting week.  One thing I really love about my job is the variety it affords me.  I never really know what will come my way each day.  Since this is the last day for documenting I thought I’d try something a little bit different.

Day 5

• Pulled into the parking lot and entered the building. Annotated video on YouTube
• Unforward phones, swap out tapes in the server room, checked Twitter, email and Staff Intranet. Annotated video on YouTube
• Went to get ice for my green tea, turned on lights for the building, checked reserves and visited my book display on 40th Anniversary of the Moon Landing. Annotated video on YouTube
• Back to the office to get down to business. Annotated video on YouTube
• Uploaded the aforementioned videos to YouTube since they were too long to use on Flickr
• Consulted with co-worker who was doing the morning duties.  She was getting bounced back to beginning page of her account in HIP.  Tried recreating it on my machine and she showed me on the Day End machine – still wasn’t able to recreate it.  Chalk it up to computer gremlins.
• Typed up my blog for yesterday – Day 4
• Got a phone call from the Glenwood branch manager regarding the email I had sent out asking them to cleanup the branch notices on Staff Intranet.
• Since my boss was out on vacation, I assigned the IT staff to their day at our Admin office for next week and posted the notice on our Staff Intranet.
• Uploaded my photos of my 40th Anniversary of the Moon Landing display to Flickr
• Deleted notices for Glenwood branch manager per email she sent me (after phone conversation)
• Worked on bounceback email notices – since this is such a tedious mind numbing job I decided to blip some Robert Palmer songs on blip.fm while I did this.  Having great music to listen to helps!
• Bounce backs make me hungry so I went and popped some 94% fat-free popcorn
• Checked the helpdesk tickets and assigned on to fellow IT-er
• Downloaded Adobe Flash CS3 Professional to my Windows machine
• Got a call from our Network Administrator who is on vacation in England (visiting his wife’s family) – just checking in with us to make sure things are okay
• Installed Adobe Flash CS3 Professional on my Windows machine
• Emailed staff member who submitted a helpdesk ticket.  Needed more information so I could solve her issue.  Consulted with web programmer to see if he had any suggestions but agreed we needed more info before we could proceed.
• Children’s librarian came to my desk asking questions about burning music to a CD for children’s classes.  I pointed her to the FAQ on our Staff Intranet with great instructions and screen shots.
• Got a call from HR dept. regarding publishing an announcement on our Staff Intranet.
• Wrote another post for my blog – not related to Library Day in the Life
• LUNCH finally seems I’ve been eating later and later this week
• Children’s librarian came back up for some assistance with burning cd – went down and showed her how to add songs, delete ones you don’t want and move them so you get the order you want.
• Analyzed current navigation and started documenting what different departments use on Staff Intranet in hopes that this will help us set up better navigation for the new version.
• Got a follow up email from the staff member in regards to her helpdesk ticket.  Solution was a simple one – she needed to log in with username/password to access forms list.  Emailed her back and closed helpdesk ticket
• Saw a Tweet from @julie and realized I had missed T is for Training podcast.  Logged into the chat area for the last 15 mins or so of the show.
• Got a call from hubby that severe storm had blown down 2 trees (turned out to be just very large limbs not the whole tree) onto our garage which houses his precious baby, a 1960 MGA.
• Took personal leave to go home and document damage for any insurance claims.