Should State Farm appeal the recent Broussard v. State Farm case? You know my answer. I’m on record in this post as saying they should. The issue of allocation of the burden of proof is too important for them to let go. Will State Farm appeal? The judgment hasn’t been entered in the case yet, but it sure looks like State Farm is ready for a fight. On Wednesday, State Farm filed a brief in the Broussard case seeking to disqualify Jerry Read, the law clerk of the trial judge, L.T. Senter Jr., on the basis that Read’s involvement in Broussard creates the appearance of impropriety. State Farm’s reasoning? While working on the Broussard case, Read was in the middle of a bad faith lawsuit he had filed against Allstate that had common issues with Broussard.
Read, who represented himself in his litigation, which settled just six days after the January 11 jury verdict in Broussard, therefore had a vested interest in key legal questions, such as whether the Broussards had met their burden of showing covered wind damage, State Farm claimed in its brief. This brief (here is a pdf) is largely the same as that filed in another case, Guice v. State Farm, yesterday.
In Guice, which plaintiff lawyers want certified as a class action on behalf of all Mississippi residents whose homes were totally destroyed by Hurricane Katrina, State Farm not only asked that the clerk be disqualified, but also that Senter recuse himself. The grounds for the recusal and the disqualification motions are not the same. State Farm is asking in Guice that Senter recuse himself not because of the alleged appearance of impropriety of the clerk’s involvement, but because a federal magistrate judge and a law clerk for a federal judge are among the potential class members. I will be posting more on the Guice case later today, and pdfs from that case will be available in that post. Here is a story by Anita Lee of the Biloxi SunHerald about the Guice developments to tide you over.
I found it interesting that, in both the Broussard and the Guice briefing, State Farm alluded to "post-trial motions" that it says it is ready to file "once the Broussard judgment is entered" regarding rulings that State Farm believes are in error (just click on the binoculars icon in the pdf to get a search window and enter "post-trial" to find what I’m talking about). Note they are not speaking about a notice of appeal, which is not a post-trial motion. In fact, they are talking about post-judgment motions, not just post-trial motions. There are several post-judgment motions State Farm can file, including motions for a new trial or to amend or alter the judgment, but they are all probably long shots. We’ll have to see what gets filed.
Filing these post-judgment motions doesn’t mean State Farm won’t appeal, it means they probably will appeal. Normally the time for filing a notice of appeal is 30 days after judgment is entered, although this is different when a judgment is actually amended, and in the case of certain post-judgment motions. We’ll talk more about that if and when it’s appropriate.
UPDATE: This post took so long to write, I knew I was going to forget this by the time I got to the end. Here is a pdf of plaintiffs’ opposition brief to the motion to disqualify. It contains just one paragraph: "The motion should be denied since the ‘facts’ alleged in the motion would not lead an objective, disinterested person to question Mr. Reads [sic] impartiality." Short, without any reasoning whatsoever. Didn’t have to bill too many tenths of an hour to write that, I guess.