State Farm proves dispute of material fact for the Rigsbys but slabs competence of MSU faculty
Do the Rigsbys send a thank you note? I doubt Mississippi State University will. After being blown away (no pun intended) by the motions State Farm filed in the Rigsby qui tam, I had to double check the meaning of “material fact” but found no change – to preclude summary judgment, the dispute about a material fact must also be “genuine” such that a reasonable jury could find in favor of the non-moving party.
On the surface, State Farm’s motions to exclude all testimony of every expert witness for the Rigsbys looked like the Farm’s usual “gut the case” strategy – not even MSU’s Sinno and Fitzpatrick are good enough for the Farm.
The Rigsbys proffer the expert testimony of Dr. Sinno, an engineer, in a misguided attempt to create a genuine question of material fact in response to State Farm’s dispositive motions. Yet Dr. Sinno’s opinion is incapable of doing so because it is irrelevant, inadmissible, and immaterial. “Rule 56 states that a court may consider only admissible evidence in ruling on a summary judgment motion…Thus, to screen out incompetent summary judgment evidence, the Court must determine the admissibility of the expert’s opinion “before reaching the question whether a fact issue exists.
The Rigsbys proffer the expert testimony of Dr. Fitzpatrick, a meteorologist, in a misguided attempt to create a genuine question of material fact in response to State Farm’s dispositive motions. Yet Dr. Fitzpatrick’s opinion is incapable of doing so because it is irrelevant, inadmissible, and immaterial…Thus, to screen out incompetent summary judgment evidence, the Court must determine the admissibility of the expert’s opinion “before reaching the question whether a fact issue exists.
These are cookie cutter motions – each virtually identical with the personalize slab inserted – but no smart cookie came up with this Eddie-Haskell-strategy of insulting Mississippi State University’s faculty and that of the University of South Alabama, too. USA’s Blackwell and the final Rigsby expert witness, Mr. Favre, have their competence slabbed by State Farm as well.
MSU Bulldogs take justifiable pride in the School of Engineering and the University’s research institute at the Stennis Space Center.
Speaking of Fitzpatrick – whose work is used by the rocket scientists at Stennis! – State Farm claims, “Dr. Fitzpatrick’s relatively insubstantial wind speeds may have been artificially inflated based on his belief of what the data should reflect. And the data Dr. Fitzpatrick did not inflate are laden with multiple and compounding rates of error. Dr. Fitzpatrick’s opinion is unreliable, irrelevant, and immaterial.
State Farm similarly dismisses John Sinno, professor of engineering on MSU’s Starkville Campus.
Dr. Sinno’s opinions are wrought with speculation and his methods are unreliable… He routinely fails to meaningfully consider that the severe damage to the McIntosh property was caused by storm surge flooding. To support his unfounded opinion, he adopts his own private and idiosyncratic definitions of words such as “damage,” “severe,” and “large.” Dr. Sinno… purports to rely on calculations of wind forces, but fails to furnish them. For multiple reasons, his opinion is unreliable, inadmissible, and immaterial.
If there was any doubt these were motions of desperation, a fifth document filed in the Farm’s Eddie Haskell strategy removes it. After the Rigsbys’ attorneys deposed Lecky King and Jack Kelly, they determined there was no need for them to take the deposition of Brian Ford and notified all parties.
State Farm, then, took it upon themselves to file a Notice of the Rigsbys’ Unilateral Cancellation of Previously Noticed Deposition of Non-Party Brian Ford – obviously hoping to imply the information obtained from King and Kelly was compelling and unfavorable.
Eddie Haskell…has become a cultural reference, recognized as an archetype for insincere sycophants..his neat grooming—hiding his shallow and sneaky character..A weaselly wise guy, Eddie could be relied upon to connive and instigate schemes with his friends—schemes for which they would be in the position of blame…
State Farm’s Haskell strategy worked at first; but, almost four years after the storm, most everyone has caught on – even to the fact that State Farm Mutual is not “improperly dominated” but instead improperly dominates this and every claim.
To All, but Particularly to SOP: The Rigsby Sisters and their allegations that the domestic insurance industry, and particularly State Farm, had “scammed” the Federal Government’s Flood Insurance Program by paying “flood losses” rather than “wind losses” had enough “credibility” for me to give credence to the scam. Now it looks like the Rigsby Sisters have been totally discredited, and their allegations have gone up in smoke (not covered under “fire” policies. Can someone please tell me how the late, great Dicky Scruggs (and others) could have been “scammed” by this “smoke and mirriors” story, and precisely “who” scammed “whom”? Is the Federal Government the scammer? Who precisely did they scam and why. And what is the “penalty” for being taken in by the scam. Remember, this is the United States of America: The innocent will be punished, and the guilty will be rewarded.
Ashton R. O'Dwyer, Jr.
May 10, 2009 at 10:50 am
Whatever makes you think they’ve been discredited – or is it that women have no credibility with you?
nowdoucit
May 10, 2009 at 11:28 am
To nowducit: I’ll stipulate that I’m a MCP (people who know me know that’s not true). I obviously do not know all of the ramifications of the Rigsby Sisters’ “information”, but my reaction to what I have been reading about them on the internet is that their information is not what it initially appeared to be. Feel free to “enlighten” me. I need all the help I can get! Thanks, and “HAPPY MOTHER’s DAY!” ya mutha!
Ashton R. O'Dwyer, Jr.
May 10, 2009 at 11:44 am
The sisters claimed that State Farm trained and instructed adjusters to pay flood policy limits immediately and deny wind coverage at any property that had suffered both wind and flood damage. Every examination of the facts and dozens of depositions have verified that to be absolutely true, but those facts have not been allowed in court.
The sisters provided specific evidence that State Farm coerced/threatened/bribed engineering firms to produce reports that blamed all the loss on flooding, and that engineers who tried to divide the loss between wind and flood or assign most of the loss to wind were fired and other engineers were sent to redo their reports. That also has been proven to be absolutely true but has still not been addressed by a court.
The problem with the Rigsby case is that after their whistle-blowing was known and they were unemployed, Scruggs hired them as consultants for his policyholder cases. This compromised them as witnesses and gave State Farm a year or two’s worth of motions to limit evidence and disqualify lawyers and testimony. None of that discredited their claims in the qui tam case in the slightest. What they said is still true.
If you read any of the official reports that say they found no proof of fraud against NFIP, there are pages and pages of very clear cut evidence of fraud followed by a conclusion that does not fit the facts.
Even the Mississippi Dept. of Insurance market conduct report that goes out of its way to excuse State Farm’s conduct has dozens of specific examples of fraud including adjusters saying that they were instructed that if water touched the house, State Farm did not owe anything, regardless of the timing and severity of the winds.
Brian Martin
May 10, 2009 at 3:35 pm
correction to the above: Those facts have NOT been allowed in court.
Brian Martin
May 10, 2009 at 3:36 pm
Connection made, Brian, thanks for providing Ashton with requested enlightenment.
As your comment suggested, State Farm’s “success” to date has been to keep evidence out of court. In this latest attempt, as you likely noticed, they are attempting to disqualify 100% of the Rigsbys’ expert witnesses as any one of the four proves there is a dispute of “material fact”.
nowdoucit
May 10, 2009 at 5:10 pm
Look, Ya’all; I’m a “black and white” kind of guy. Why hasn’t anyone been arrested or indicted? Just what the %$#@ are the FEDs waiting for? If they’re not the solution to the problem, then then they’re part of the problem. The crimes are called “accessory -after-the -fact” and “misprison-of-a-felony”. I just don’t understand any of this CORRUPTION or why no one has been arrested or indicted! This is BULLSHIT!
Ashton R. O'Dwyer, Jr.
May 10, 2009 at 5:34 pm
And I forgot: Conspiracy to commit same. If the @%$&*#$ Federal Government ain’t the solution to the problem, then they’re PART of the #@%^&$#@ problem! And I really mean that!
Ashton R. O'Dwyer, Jr.
May 10, 2009 at 5:50 pm
Mr. O’Dwyer you need to read other posts from people on this site, myself included, who have watched in amazement at the US Attorney’s Office’s unwillingness to step in and help private lawyers with these cases.
I could take up a bookshelf in a libarary with the deposition transcripts I have secured on State Farm adjusters who initially testified that if flood water touched any part of the home, then all damage that occurred before the flood waters came was excluded.
The problem is that our federal courts don’t care and many times, the legal nuances involving “all risks” policies gets lost on judges, who don’t know squat about the law as it applies to all risks policies.
No doubt, State Farm’s flood dumping scheme has been exposed many times over, but with limited success.
NRB
May 10, 2009 at 10:55 pm
To Mr. Martin: Thank you for your very lucid account of “the facts of life” regarding the Rigsby Sisters, their evidence and the fraud they reported. Now I understand, although I’m having trouble understanding why “the facts have not been allowed in Court”, and why people and juridical “persons” have not been indicted by the Feds, when people like “the Mayor of Gulfport” and his wife have been (for FEMA fraud).
Ashton R. O'Dwyer, Jr.
May 11, 2009 at 8:26 am
The US Attorneys in Mississippi and Louisiana had neither the will nor the expertise to take the case. It needed the efforts of Main Justice.
During the Bush Administration, the Justice Department let thousands of whistleblower cases pile up. My sense is that to the extent that there were people in Justice actively working this backlog, they were overwhelmed, understaffed, and focused on the basic contractor fraud and Medicare fraud cases that they knew how to handle. One thing that became apparent immediately after Katrina was that no one in the federal government has any expertise in insurance litigation. The other major impediment was that NFIP still has made no attempt to represent the interests of taxpayers. Rather, they have been the enablers and defenders of the insurance companies.
State Farm’s lawyers are very good at filing motions to delay cases, limit evidence, etc. to wear down the policyholders. The company settled the individual cases that had duplicate engineering reports or other solid evidence against them, so the courts have not had a full airing of the evidence of the overall scheme.
Plus the 5th Circuit gave State Farm a gift by overturning the directed verdict and the punitive damage award in Broussard. The 5th Circuit ruled that even if State Farm denied coverage without making any attempt to prove that all of the loss was caused by flooding, it had not acted in bad faith.
Brian Martin
May 11, 2009 at 10:54 am
Thanks, again, Mr. Martin. I’ve got to go back and re-read Broussard. I didn’t pay attention, because I filed no insurance cases. (People KNEW their homeowners’ policies excluded flood, and they made a conscious decision not to purchase flood insurance, and thus “save a few bucks”. Yeah, right!).
Ashton R. O'Dwyer, Jr.
May 11, 2009 at 12:34 pm
To Mr. Martin: I just finished reading a very lucid account of the Broussard oral argument on 12/07/07, by Chip Merlin of the Merlin Law Group, who apparently routinely represents plaintiffs in insurance coverage litigation in Mississippi. His ‘take” on the briefs and the oral argument , and what was not said in either, is very revealing. Too bad the points he made were not adequately addressed in the opinion, either, which was written by Joy Brown Clement, who is a former Jones Walker maritime lawyer and a contemporrary of mine.
Ashton R. O'Dwyer, Jr.
May 11, 2009 at 1:20 pm
Ashton I just posted some case docs from O’Keefe v State Farm you’ll find interesting.
Broussard was another one of those very curious opinions out of the 5th circuit (that goes against hundreds of years of case law) to the point where you wonder if these so called conservative jurists aren’t in reality right wing judicial activists. They were able to do it because the trial record was incomplete as to established State Farm claims practices. I do not think O’Keefe will experience a similar problem that way.
We’ve profiled all these cases in previous posts contained in our archives. Our seach box is on the top right.
sop
sop81_1
May 11, 2009 at 2:36 pm
Broussard was 100% on the mark at the trial court level. The most overlooked aspect of State Farm’s bad faith handling practices during Katrina was the “discernible” wind damage mantra. Senter understood this was in and of itself bad faith and properly awarded penalties on that fact alone. Of course, the 5th Circuit reversed.
Now, in La. we have a statute that makes the discernible wind damage mantra and use of water lines per se bad faith subject to penalties under 22:1973 formerly 22:1220.
Also, an issue is the media covering the legal issues. You won’t find any stories on “all risks” policies and what they entail anywhere.
IMO, somebody is going to have to write a book that compiles all of the documents uncovered and shame the US Justice Department into action.
NRB
May 11, 2009 at 4:15 pm
I still think the Broussard case is the best lawyering in Katrina cases because it got straight to the point: The insurer has the burden to prove what portion of the loss was caused by the excluded peril. Every wind/water case is, in the end, about the burden of proof.
Senter got it right in Broussard and had that decision been upheld, we would have had a bright-line ruling that would have governed other cases. Merlin and other lawyers helped dig up damning evidence and ended up with nice settlements, but here we are almost four years after Katrina and we still don’t have clear rulings about the insurers’ burden of proof or about the correct application of anticoncurrent causation (also fundamentally about the burden of proof.)
I don’t think a different lawyer or argument would have persuaded the 5th Circuit. They assmed that most of the damage probably had been caused by flooding and were not going to make State Farm pay limits and punitive damages for failing to prove that the loss was 100% from flooding.
Brian Martin
May 11, 2009 at 6:26 pm