Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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Earlier this year I wrote about a Plaintiff verdict in a Hurricane Katrina wind vs. water trial against Lloyd's of London here, here and here.

The plaintiff was allowed to recover attorney's fees in the case because the Court found that Lloyd's had no arguable basis to deny the claim. On December 21 Judge Sul Ozerden awarded the plaintiffs the following extra-contractual damages:

• $1,922,487.25 in attorney's fees
• $234,800.73 in expenses
• $954,245.31 in pre-judgment interest.

The total extra-contractual damages were $3,111,533.29 (plus post-judgment interest).

Here is Judge Ozerden's 40–page opinion on the attorney's fee issue. The Court awarded a rate for Don Barrett of $375 per hour ($475 hr. requested) and David McMullan's of $300 per hour ($345 requested). From my knowledge of hourly rates in Mississippi, both the rates requested and the rates awarded were in the range of reasonableness when compared to premium rates charged by top litigation attorneys in the state.  

Lloyd's took an interesting approach in opposing the requested rates by identifying the rates of its trial attorneys: $285–hr. for Paul Fields from Atlanta and $200–hr. for Whit Johnson from Currie Johnson in Flowood. Lloyd's should be ashamed that it was paying Whit Johnson only $200–hr. Whit is one of the top defense lawyers in the state and could justify a rate double what Lloyd's was paying him.

Judge Ozerden also reduced the compensatory damages award to $1,832,602.20 based on the policy's coinsurance condition and windstorm or hail deductible. Here is that opinion. 

My Take:

Judge Ozerden's opinions were thorough and well-reasoned.

Don't look for Lloyd's to be lobbying for loser-pays legislation when the State Legislature convenes this week.   

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 A few weeks ago there was a $2 million verdict in a federal court Katrina wind vs. water trial. I last discussed the verdict in this post. Following the verdict the Court ruled that there was no arguable basis for Lloyd's of London to deny the claim, so the plaintiff is entitled to recover attorney's fees and expenses.

Here is plaintiff's motion, which it filed last week. The motion is well written and a good read.

The motion requests the following:

• attorney's fees: $2,312,312
• expenses: $279,338
• interest: $950,389
• Total: $3,512,039.

That's a lot of money. But does anyone want to bet me that the defendant did not have more than $2.6 million in fees and expenses? I bet they did.

Some facts about the scope of the case from the motion:

• pleadings: 400 plus
• depositions: 31
• motions: 68
• summary judgment motions: 4
• pre-trial order: 239 pages.

I look at those stats and see $5–10 million in defense fees and expenses. This is one of those cases where people see the verdict and the motion and think about all the money that the plaintiff's lawyers will make. But the defense lawyers will make as much or more than the plaintiff lawyers while taking no risk. Equally as important, the defense lawyers have been banking their money for years while the plaintiff lawyers have to collect to fill a big hole.

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Two weeks ago I reported in this post on a $2 million verdict in a Katrina wind vs. water trial. I have not heard anything new about the case other than what I've read on Pacer.

Here is the original Complaint, filed in 2007 and signed by Sid Backstrom of the Scruggs Law Firm. The Complaint appears to be a product of the now infamous Scruggs Katrina Group. It looks like the Barrett law firm ended up trying the case. The Scruggs lawyers were—presumably—unavailable for trial.

The defense team appeared to involve a cast of thousands with lawyers from Atlanta and New Orleans. Whit Johnson from Currie Johnson in Flowood is also listed down in the ranks of defense lawyers. I don't know who did what at trial.  

The Pre-trial order is not available on Pacer. Judge Ozerden ordered the plaintiff to to file a motion for attorney fees before March 17, 2011. An award of attorney fees could substantially increase the defendant's exposure.   

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A federal court jury in Gulfport rendered a plaintiff verdict yesterday in a Katrina wind vs. water trial against Lloyd's of London. Here is the verdict form, which I interpret to mean that the plaintiff recovers just over $2 million.

Judge Sul Ozerden was the trial judge. I will post more on this verdict next week.

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On Thursday Hancock County Circuit Court Judge Lisa Dodson declared a mistrial in a Hurricane Katrina wind vs. water trial between Coastal Hardware and Lloyd's of London. The reason for the mistrial was that the jury could not hear the witnesses due to acoustic problems in the courtroom in the recently renovated Hancock County courthouse. I discussed the problems in this post last year.

It's my understanding that in the trial last week Judge Dodson questioned jurors after a juror complained of not being able to hear the witnesses. Several other jurors admitted to having trouble hearing the witnesses. One juror said that they could hear every few words. As a result, Judge Dodson ordered a mistrial.

Former Southern District U.S. Attorney Brad Pigott represents the plaintiff. Whit Johnson of Currie Johnson in Flowood and Atlanta lawyers represent Lloyd's.

The trial will be re-set in October with a Hancock County jury. But the trial will take place at the Harrison County Courthouse in Gulfport.

It is reported that of the four Circuit Judges who cover Hancock County, three already refused to hold trials in the courtroom because of the acoustic problems. But after this latest mistrial, I would be surprised if any of the judges will hold jury trials in the courtroom until the problems are fixed.

More importantly, this raises due process questions about prior trials in the courtroom—particularly prior criminal trials. I hear that there have been two criminal convictions in trials held in the courtroom.  There is nothing to suggest that the experience with the jury last week was unique. This means that juries in the previous criminal trials likely also had trouble hearing witnesses. How would you like to be sitting in Parchman based on a conviction where jurors could not hear due to acoustic issues? This could create some interesting issues for the Mississippi Supreme Court to grapple with.

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On Thursday a federal court jury in Gulfport awarded no punitive damages in the latest State Farm Katrina wind vs. water trial. The jury, which had previously awarded the plaintiffs $52,300 in compensatory damages, took 80 minutes to reach its decision.

This is the kind of result where there is no real winner. The plaintiffs cannot be happy with $52,300 for a destroyed home, especially since they may have had over $50,000 in litigation expenses in the case.

State Farm is no doubt happier than the plaintiffs, but having a jury find that State Farm should have paid over $50,000 more than it did may not be good for State Farm's long-term sales. State Farm also would have had $50,000 or more in litigation expenses, plus well over $100,000 in attorney's fees. If you told me that State Farm paid its attorneys $300,000 in fees in the case I would not be surprised.   

Earlier posts on trial:

Judge Senter Encourages State Farm to Settle Latest Wind vs. Water Trial

Split Decision in Wind vs. Water Trial

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The Sun-Herald reports that in the latest Katrina wind vs. water trial a federal court jury deliberated 80 minutes before ruling for State Farm on the wind vs. water issue and the homeowners on the contents claim:

After deliberating for 80 minutes Tuesday, a jury said Reginald Bossier isn’t entitled to any additional money for damage to his Biloxi home during Hurricane Katrina, but State Farm does owe him $52,300 for damage to its contents.

In the case of Bossier v. State Farm Fire & Casualty Co., the jury of five men and three women also found Bossier shouldn't’t receive any compensation for additional living expenses after his home was destroyed.

The jury will return to federal court Thursday at 1 p.m. to decide if Bossier should be awarded punitive damages in the case. Sr. Judge L.T. Sent er Jr. said State Farm had no legal reason for denying Bossier’s claim for three years on and outbuilding and the contents of that building.

Bossier had asked the jury for the policy limit of $650,000 on his home on the north side of Biloxi’s Back Bay. The judge instructed the jury members they could award him from zero to a maximum of $325,337.87 for damage to the home and up to $255,907 for contents.

State Farm appears to be spinning the verdict as  a win, but a large punitive verdict for not paying the contents claim would change their tune. Plaintiffs' counsel were Judy Guise and Shanon Fountain Jr.

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The Sun Herald reports on the ongoing Katrina wind vs. water trial pending before Judge Senter in Gulfport. Here is an earlier article on the trial. The plaintiff seeks policy limits of $650,000. State Farm offered $2,300 on the claim. The article states that after denying State Farm's motion for directed verdict, Judge Senter:

suggested State Farm consider making an offer to policyholder Reginald “Ed” Bossier that would end the trial.

Senter said the record so far includes “some pretty tough stuff” pertaining to the insurance company. “See what you can come up with,” Senter told the attorneys, “and everybody can come out of this with a degree of honor.”

In addition:

State Farm waited four years to compensate the Bossiers for an outbuilding that, according to an eyewitness, was gone after the roaring sound of a tornado passed and before the tide rose. The payment came as the case headed toward trial. Also, the company erred in calculating what was owed for roof and siding damage, correcting the $13,000 mistake with a check in January 2008.

I don't have any word yet as to whether State Farm took the hint from Judge Senter. The plaintiff is Ed Bossier of Biloxi and his attorney is Judy Guice of Biloxi. State Farm's attorneys are Ben Mullen and John Banahan.

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A unanimous Mississippi Supreme Court ruled for the homeowners today in the most watched case before the Court in recent memory. Here is the Court's opinion in Corban v. USAA. Justice Randolph wrote the Court's opinion, which is not surprising to people who saw the oral argument. Justice Randolph was active in the oral argument and openly critical of some of the insurance company arguments.

Although not a party, Nationwide appeared in the case and argued at the hearing. Nationwide's theory was that if hurricane winds blows the home from the Coast all the way up to Wiggins, but 8 hours later a storm surge reaches where the home used to be, then there is no insurance coverage. The Court rejected this bad argument. 

The Court found that all water damage, including storm surge, is excluded. All wind damage is covered. The plaintiff must show that there was an accidental physical loss. Once the plaintiff meets his/her burden, the insurance company has the burden to prove that the damage was caused by the storm surge to the exclusion of wind. If the plaintiff can prove evidence of wind damage before the surge arrived, then the plaintiff is on good shape. The plaintiff has the burden of proof to establish that there was wind damage for contents. In an earlier version of this post I erroneously stated that the plaintiff had the burden for everything.

This was a big win for the Corbans, led by attorney Judy Guice of Biloxi. The Court should be credited for reaching a unanimous decision, since such decisions often carry more weight than split decisions.