The trial of Tomlinson v. Allstate has begun in the U.S. District Court for the Eastern District of Louisiana. Here is a story on it by Michael Kunzelman of the Associated Press, who has done some great reporting on the Katrina litigation in Louisiana and Mississippi.
Unlike some of the other Katrina cases I have written about at length, this one does not involve the interpretation of terms of the homeowners policy: it is undisputed that the policy does not cover flooding, but does cover wind damage to the Tomlinsons’ home. In fact, Allstate has paid the Tomlinsons more than $150,000 for damage to their home and personal possessions, plus living expenses, but they say Allstate owes them more. The policy limits are $376,300. The claims in the lawsuit are for breach of contract for alleged failure to pay for all the wind-caused damage, and first-party bad faith over how Allstate adjusted the Tomlinsons’ claim. Under Louisiana law, when sufficient evidence of the damages in a first party claim is presented, an insurer has 30 days to pay. The Tomlinsons say Allstate failed to do so.
Allstate moved for partial summary judgment on a few claims, including intentional and negligent infliction of emotional distress. Here is Allstate’s brief. It is short. Here is the judge’s order granting it. It also is short.
From the court’s electronic docket report, one can see this has been a contentious case. It is a very long docket for just over one year of litigation. The Tomlisons believed Allstate failed to comply with a court order compelling production of certain documents — agreement had been reached between the parties to produce other documents — and filed a motion for sanctions including attorney fees spent in seeking the documents and filing the motion. This backfired when the court said Allstate had not in fact violated the court’s order, and found the motion for sanctions was without substantial justification and awarded Allstate its fees. That one has got to hurt. Here is a pdf of the magistrate judge’s order.
I like to look at the parties’ proposed jury instructions and verdict form in a case, because it tells how far apart they are. The plaintiff usually wants a simple form that reads something like: "How much money do we get?" The defendant usually proposes a form that has so many questions that the jury foreman would have to be a map reader to find the place where the jurors can award money to the plaintiff. These weren’t as far apart as I thought they’d be. Here is the Tomlinsons’ and here is Allstate’s.
This case lacks some of the flamboyance of the Mississippi cases, and because it is so fact specific it won’t necessarily produce an impact on the many, many Katrina cases still in litigation. Still, it is a bad faith claim and has potential punitive damages, so it will be interesting to see what happens.