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Tom Toll
Life Member
Moderator
Posts:916
 | | 08/29/2007 6:51 PM |
| This was an honest and legal ruling! NEW ORLEANS - A federal appeals court ruled Wednesday that Louisiana's attorney general can't sue the Army Corps of Engineers on behalf of Hurricane Katrina victims who don't have lawyers. The emergency order by the 5th U.S. Circuit Court of Appeals came on the day of the deadline flood victims had to file suit - the second anniversary of Katrina. The order negates a lawsuit filed by state Attorney General Charles Foti earlier Wednesday. The appeals court said that U.S. District Judge Stanwood Duval acted without proper authority in appointing Foti as guardian for about 350,000 people with claims against the Corps. | |
Success is not final, failure is not fatal: it is the courage to continue that counts. | |
| Steve Beaumont
Founding Member
Adjuster
Homeless Gypsy's-Fulltime RV travelers
Posts:284
| | 08/29/2007 7:57 PM |
| | I agree with the 5th circuit on the ruling in that they say Duval, even though had his heart in the right place, didn't have any legal authority to order the AG to file this lawsuit. This is a different lawsuit then the class action that he filed against all insurance carriers in the state of Louisiana, but I have heard that there is or may be a similiar ruling for that one. Same legal issue to be decided, and if Duval didn't have the authority to order the AG to sue the Corps of Engineers, he wouldn't have had the authority to order the lawsuit against the insurance carriers. The one against the carriers was filed 8-23-07. | | | |
| Steve Beaumont
Founding Member
Adjuster
Homeless Gypsy's-Fulltime RV travelers
Posts:284
| | 08/31/2007 7:31 PM |
| Well the appeals courts are on a roll dealing with the Katrina suits on appeal and another one was decided yesterday which has a big impact on how coverages are intrepreted and paid. The Leonard vs Nationwide case was the 1st MS Katrina case to go to trial and although it was really a victory pretty much for Nationwide (court ordered an additional payment of about $1500 or so) and upheld the flood language in the policy, Judge Senter ruled that the anti concurrent causation language was ambigious. Nationwide appealed that part of the decision and the 5th circuit court of appeals ruled that the language WAS NOT ambigious. This is a decision that could have far reaching implications when it comes to handling hurricane type of losses. The following is a copy of an article out of the National Underwriter that gives some insight of the ruling.
Anti-Concurrent Language Upheld By 5th Circuit
BY Arthur D. Postal
NU Online News Service, Aug. 31, 3:05 p.m. EDT
Nationwide Insurance won strong support for the anti-concurrent language in its Mississippi homeowners’ policies yesterday when a federal appeals court in New Orleans ruled the language “is not ambiguous.”
The anti-concurrent causation clause is used to override a damage claim from a covered cause such as wind when an event such as flood, which is excluded in the policy language, occurs in the same time period.
In its decision in Leonard v. Nationwide Insurance Co., 06-61130, the 5th U.S. Circuit Court of Appeals interpreted Mississippi state law as also backing Nationwide in its arguments that insurance agents cannot orally modify the language in insurance contracts, as the plaintiffs alleged in their lawsuit.
“The district court should never have considered this argument because [the agent’s] statements are irrelevant to interpreting this policy as a matter of Mississippi insurance law,” the panel said.
The appeal arose from a 2006 decision in the case of Paul and Julie Leonard, who sued Nationwide after the company refused to pay for storm surge damage to their home in Pascagoula, Miss. Nationwide argued the home was lost to excluded flood damage rather than wind.
But the fact the decision came out as Congress prepares to reconvene with a flood of bills and hearings on coastal insurance issues on its agenda will just add to the debate.
In a statement issued just hours after the ruling, Brian Martin, policy director for Rep. Gene Taylor, D-Miss., said, “This strengthens our case that wind and flood need to be in the same policy.”
Rep. Taylor is the primary sponsor of H.R. 920, a bill recently passed by the House Financial Services Committee which would allow homeowners to buy wind insurance as well as flood insurance through the National Flood Insurance Program.
The bill could be on the House floor by Oct. 15, although the wind insurance provision faces an unlikely future in the Senate and is also opposed by the Bush administration.
But Robert P. Hartwig, president of the Insurance Information Institute, disagreed. “The decision does not back Mr. Martin,” Mr. Hartwig said. “It contradicts his conclusion and backs the insurance industry’s position that ‘purchase of a flood insurance policy along with a homeowners’ insurance policy will provide complete protection to homeowners in the event of a catastrophic event.’”
Joe Case, a spokesman for Nationwide, responded to the ruling by stating, “While we are studying the implications of the ruling, it does appear the court's ruling fixes the issues Nationwide addressed in its appeal.”
Mr. Case added that this includes upholding Nationwide's anti-concurrent causation provision as clear and legal. “That portion of the ruling aligns with decisions handed down by courts across the country affirming the validity of anti-concurrent causation provisions,” he said.
“Had the district court ruling been allowed to stand, it may have meant that Nationwide's Mississippi homeowner policies could have been forced to cover losses for which premium had never been collected” Mr. Case added.
“We will continue to study the decision and remain committed to resolving all claims fairly and in a timely fashion,” he said.
David P. Rossmiller, a lawyer with Dunn Carney Allen Higgins & Tongue in Portland, Ore., and an expert on insurance issues, said the Leonard case “is of major importance to the insurance industry,” noting that anti-concurrent cause provisions have been a key part of property insurance policies for at least 25 years, and “insurers rely on them to keep judges and juries from sticking them with losses they never contemplated.”
He added that the underlying ruling by District Court Judge L.T. Senter was “somewhat strange, because to decide the case under the facts before him, he did not need to consider the anti-concurrent cause language at all—such language is only operable where multiple causes combine and result in the same damage.”
However, Mr. Rossmiller said the Katrina wind and water acted separately, as separate forces, and caused separate damage to the house. “It would have been best had the Fifth Circuit simply said that, and that the water damage to the house was a single force that was expressly excluded by the terms of the flood exclusion, which includes a definition for waves driven by wind,” he explained.
“The Fifth Circuit’s analysis of the causation issue, like [Judge] Senter’s, was somewhat off-base, but it nevertheless got the right result: the anti-concurrent cause provision is not ambiguous.”
In comments to the Associated Press, Zach Scruggs, an attorney representing dozens of policyholders on the Gulf Coast, called the ruling disappointing.
Mr. Scruggs said the Leonards will appeal the ruling.
In his comments, Mr. Martin said that in its decision, “the appeals court is saying it is okay for a company to sell a policy that is likely to be worthless for a major hurricane if you also have flood risk.”
He added, “If the wind insurance does not cover wind damage, that means it is impossible to buy insurance and know that you are covered.”
“The flood policy is not supposed to pay for wind damage,” Mr. Martin added. “Congress should ban any company with an anti-concurrent causation clause from participating in the flood program. I think this also helps our case that the antitrust exemption has to go and the federal government needs to take over regulation of insurance. Consumer and taxpayers need federal intervention.”
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| Steve Beaumont
Founding Member
Adjuster
Homeless Gypsy's-Fulltime RV travelers
Posts:284
| | 09/13/2007 11:46 AM |
| Here is a copy of the latest on the battle between SF and Trickie Dickie in the MS lawsuit arena. I wouldn't be surprised to see SF appeal this to the 5th circuit court of appeals, as almost everything that has gone there from Katrina has overturned or overuled what the trial court judge had decided in these rulings (at least the ones I have seen by Duval of LA and Senter of MS) I agree with Senter in that SF should have filed their disqualification motion the instant that they found out Scruggs got those documents, but unless there is a time bar to the filing I think the motion has merit. Posted on Thu, Sep. 13, 2007reprint or licenseprint [script removed]
[script removed]
Senter won't bar ScruggsBy MICHAEL KUNZELMAN
THE ASSOCIATED PRESS NEW ORLEANS --
A federal judge refused Wednesday to bar a prominent attorney from representing dozens of Mississippi homeowners who are suing State Farm Fire & Casualty Co. for denying their claims after Hurricane Katrina.
U.S. District Judge L.T. Senter Jr. chided State Farm for waiting more than a year to ask for attorney Richard "Dickie" Scruggs to be disqualified from one of those cases due to alleged ethical violations. Senter, who expressed no opinion on the merits of the alleged ethics violations, said he is "at a loss to understand why State Farm has waited so long" to raise the issue. "A motion to disqualify should be filed at the earliest practical opportunity," Senter wrote in a three-page ruling. "It is not permissible to hold this right to relief in reserve in order to assert the right at a tactically advantageous time and thereby put an opponent at an unfair disadvantage." State Farm accuses Scruggs of improperly using internal State Farm records he obtained from Cori and Kerri Rigsby, sisters who'd helped the Bloomington, Ill.-based insurer adjust Katrina claims on the Coast. The Rigsbys, former employees of a company that contracts with State Farm, turned over reams of State Farm claims records to Scruggs and Mississippi Attorney General Jim Hood while they worked for the company last year. Scruggs contends the documents support his allegation State Farm manipulated engineering reports to fraudulently deny policyholder claims. State Farm, in turn, accuses Scruggs of violating numerous ethical rules for attorneys through his dealings with the Rigsby sisters. Senter noted State Farm knew of Scruggs' contact with the sisters for more than a year before it moved to disqualify him. Barring him from around 170 new cases against State Farm "would put all of these State Farm policyholders back to square one in seeking a resolution of their insurance claims," Senter said. State Farm spokesman Phil Supple said Senter's ruling is apparently based on a "technicality and doesn't appear to consider the merits of our argument that Mr. Scruggs violated several ethical provisions." In Alabama, meanwhile, Richard Scruggs and his firm still face criminal contempt charges stemming from his work with the Rigsby sisters. In June, U.S. District Judge William Acker in Alabama ruled that Scruggs "willfully" violated a court order to return the documents provided to him by the Rigsbys. Acker named two special prosecutors to handle the case after U.S. Attorney Alice Martin declined to prosecute Scruggs and his firm. | | | |
| Steve Beaumont
Founding Member
Adjuster
Homeless Gypsy's-Fulltime RV travelers
Posts:284
| | 11/06/2007 3:49 PM |
| Here is the latest ruling to come out of Katrina where the 5th circuit court of appeals just over turned a decision that Judge Senter made against St Farm in MS where in he had ruled that the anti concurrent causation clause in the policy was ambigious and void and could not be applied when there were damages from both wind and water to a property. The 5th circuit ruled that Senter was incorrect and that the clause was unambigious and enforcable. Big win for St Farm and carriers that use that language in their policy.
A federal appeals court on Tuesday upheld policy language that a major insurer has used to deny hundreds ofpolicyholders' claims on the Gulf Coast after Hurricane Katrina. The 5th U.S. Circuit Court of Appeals in New Orleans overturned a federal judge's ruling that a key clause in State Farm Fire and Casualty Co.'s homeowner policies is ambiguous and therefore cannot be enforced. State Farm says its policies cover damage from a hurricane's wind but not its rising water. The Bloomington, Ill.-based insurer also says damage from a combination of wind and flood water can be excluded from coverage by "anti-concurrent cause" language in its policies. U.S. District Judge L.T. Senter Jr. in Gulfport, Miss., had ruled that this clause is ambiguous and can't be enforced, but a three-judge panel from the 5th Circuit disagreed. "State Farm argues that the ACC Clause is not ambiguous because it cannot be construed to have two or more reasonable meanings and it does not conflict with any other provisions in the policy. We agree with State Farm," Judge Will Garwood wrote in a 17-page ruling. A different three-judge panel of the 5th Circuit already has found that similar language in Nationwide Mutual Insurance Co. policies is not ambiguous and can be enforced. The 5th Circuit's ruling Tuesday was for a case filed by John
and Claire Tuepker, State Farm policyholders whose home in Long Beach, Miss., was demolished by the Aug. 29, 2005, storm. The court also upheld Senter's ruling in the Tuepkers' case that State Farm policies do not cover damage from storm surge, a hurricane's wind-driven water.
State Farm spokesman Phil Supple said the company is pleased
with the ruling. "The court's ruling reinforces our confidence in the clarity of the policy language," he said. "While we're pleased the court
resolved these issues, State Farm is working to settle remaining
outstanding claims (on the Gulf Coast)." Richard "Dickie" Scruggs, an attorney for the Tuepkers, said the ruling doesn't absolve State Farm of paying for wind damage when it can be distinguished from flood damage. "I guess it doesn't really surprise us," he said of the
ruling, "but it doesn't disappoint us, either." David Rossmiller, a Portland, Ore.-based lawyer who has written about Katrina insurance litigation but isn't involved in any of the cases, said Tuesday's ruling is a "big victory for State Farm." "Over the years, State Farm has invested huge amounts in this anti-concurrent cause language," he said. "Having this enforced is a top priority for the company."
(Copyright 2007 by The Associated Press. All Rights Reserved.)
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| Wes Davis
Lighthouse Point Florida
Posts:53
| | 11/06/2007 11:03 PM |
| | Are there still any legal issues working against State Farm? It appears the Farm has won all of their legal battles in regards to New Orleans. | | | |
| Steve Beaumont
Founding Member
Adjuster
Homeless Gypsy's-Fulltime RV travelers
Posts:284
| | Steve Beaumont
Founding Member
Adjuster
Homeless Gypsy's-Fulltime RV travelers
Posts:284
| | 11/20/2007 9:23 AM |
| Well, another ruling came down yesterday in LA out of this Katrina mess which was not good for insurance carriers or anyone living in LA and wanting to buy property insurance. As previously mentioned the 5th circuit court of appeals on the federal side overturned Judge Duval's lower court ruling where in he stated that the flood exclusion in the property policy is ambigious and claimed that flood is covered by all risk policies (at least to the extent of the levee breach/overtopping, etc). The-over turning of that was a good thing, but insurance law follows state law, so if the state courts decide something different, it will trump the federal court ruling. Well there is a case in LA called the Sher Case that was in state court, and the very astute judge in that case made the same decision that Duval made in that the policy language on the flood exclusion was ambigious. They also intrepreted the damages and attorney fees based on changes in the BF statutes that took place in the summer of 2006, after all handling of the claim was done. Well the decision was appealed on the flood issue, the attorney fees issue and how the penalties were assesed and the ruling came down yesterday from the state 4th circuit court of appeal. They agreed that the lower court erred in awarding attorney fees and how they determined the penalties as they could not use the changes in the statute retroactively. That is a good thing, and when you think of it, it is only common sense (something that is severely lacking in the court system in Louisiana). The 3rd area that they ruled on is that they agreed with the lower court Judges decision in that the flood exclusion language is ambigious. The jest of it means that every all risk policy covers flood in Louisiana, at least when it comes to all the levee breach and any other "man made event". It is almost a guarantee that this will be appealed up to the Supreme Court of LA, but if they concur with the findings, you can almost guarantee in a year you either won't be able to buy an all risk policy in LA at any price, or the cost of property insurance will go up even higher they the already very high prices out there. If the courts say it's covered, the carriers will factor in flood coverage exposure into the rates, and that won't be at the ridiciously low rates that NFIP charges. if anyone wants a copy of the decision let me know. It is about 55 pages long so I don't want to fill up the download section of the site with it. | | | |
| Larry Hardin
Adjuster
Oklahoma City, OK
Posts:328
| | 11/23/2007 11:04 PM |
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I truely believe that the tail is wagging the dog, these days. | |
Larry D Hardin | |
| Steve Beaumont
Founding Member
Adjuster
Homeless Gypsy's-Fulltime RV travelers
Posts:284
| | 11/27/2007 5:42 PM |
| It appears that the FBI showed up at the Scruggs lawfirm and served a search warrant on this this morning and have been busy today doing their thing searching for a document or documents of unknown nature throughout the day. For those of you who aren't familiar with this firm, the two main people there are Dickie Scruggs and his son Zach Scruggs. Big plaintiff firm in MS who has tons of lawsuits against SF (and others) from Katrina. Also one and the same as the firm that now employees the Ridgsby sisters that have admitted to stealing the SF documents from the vendor EA Renfroe, who handled claims for SF out of Katrina. Seems like I even read in a deposition somewhere that the sisters actually were working as "insiders" for Dickie and company while still in the employment of Renfroe. I think this is the same firm (or person) that a federal judge in Alabama is after for something or other pertaining to not turning over SF documents when ordered to do so, but instead turned those documents over to the Attorney General of MS, who already had a copy of them to begin with. I am real curious what the feds are looking for in the law firms offices today. Here is a link to the article and there should be a bit more tomorrow morning on it. http://www.sunherald.com/news/breaking_news/story/211174.html | | | |
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