Property Insurance Coverage Law Blog : Florida Insurance Lawyer & Attorney : Merlin Law Group Law Firm : Tampa, Houston, Coral Gables, Gulfport

According to the Pro Football Hall of Fame, the name “Saints” was chosen by popular vote in a fan contest staged by the New Orleans States-Item. The franchise was awarded on All Saints Day, November 1, 1966. New Orleans is famous worldwide as the city of jazz and the famous marching song, "When the Saints Go Marching In.”

Except for a small number, almost all of our Hurricane Katrina insurance coverage cases in New Orleans and the Mississippi Gulf Coast are over. I was honored to use whatever talents and knowledge I have in this area of insurance law to represent some of the finest and nicest folks you would ever want to have as clients. I did it with some help from lifelong friends I first met when living in the area as a teenager. My parents received “thank yous” from friends of theirs who I was able to help.

The State Farm cases we litigated and resolved provided a significant milestone to our law firm’s success. The Port of New Orleans litigation was certainly the most challenging and fun case packed into ten months that any policyholder’s coverage counsel could hope. Saying “thank you” is important and I am looking forward to this Thursday evening’s dinner at former client, Pearl River Community College. Indeed, we hosted a thank you Thanksgiving Luncheon just for the rank and file employees at the Port of New Orleans. This kind of leads me to the point of this post.

It has been my experience that attorneys sometimes get far too much credit for winning cases. Often, the facts that make or break an insurance coverage matter are with the people you represent or the folks that are working for the organization you represent. Far too often, arrogant attorneys simply need to ask for some help from their own clients and treat them like equals rather than jump to conclusions and spend far too much money on experts that know less about the loss than the people who lived through it.

For example, employees in the maintenance department of the Port of New Orleans had never talked in depth with anybody before we were retained a couple years after Hurricane Katrina. A bright paralegal retained by my co-counsel suggested donuts and coffee in the morning and an offer of after hours beer for the guys who have to spend their own time away from their already busy jobs just to meet with the attorneys. This helped set a tone for discussion and they provided me all the help I needed to get the case resolved quickly.

I recall spending a great deal of time with one maintenance worker who had a tattoo of the Louisiana Tigers on one arm and the Dallas Cowboys on the other. I asked him why he did not have a tattoo for the Saints, and he told me that they had caused him too much heartbreak over his life. Maybe he has changed his mind.

In a post, The Port of New Orleans Employees, I noted these lessons and thoughts:

“Life's lessons can be very beneficial if you actually remember them and change your behavior according to what you have learned. I was lucky to watch my father as he lead various tours of duty in the Coast Guard. Both the ordinary seaman and the Chiefs that ran the ships seemed to respect him. He always treated everybody as important because they were. He always thanked them, and then showed his appreciation.

We had a settlement that had the Board of the Port Authority of New Orleans doing "high-fives" largely because the rank and file Port employees helped the legal team. As is customary in many of the cases we litigate, I cannot comment about the amount of the settlement even though this one is of public record. What I can say is that we held a very public "thank you" luncheon for the Port employees. Without their help, we would not have been as successful…

After the Port retained us in November 2007, it became obvious that those responsible for putting their claim together had not adequately discussed it with the employees out on the wharves, docks, in the maintenance departments, and those outside the main office building. …

A number of Port employees left their families before Katrina struck New Orleans because they had to work during the catastrophe. As a result, a number of them knew their homes had been destroyed and did not know for several weeks where their spouses and children went. A few broke down when they recounted their hardship and trauma. Many still have not rebuilt their homes. The Port Police Department helped us track down eye witnesses to the destruction. They told us of the numerous rescue efforts in the Lower Ninth Ward and how much flood damage had occurred along the Industrial Canal. They found video and photographs taken during and immediately after the storm, helping us prove our theories of loss and damage.

I often say that I am a "Johnny come lately" to the cases I get retained upon. We come after the fact and then pry into the business and past of our clients. We were a major disruption to the Port because we looked into every employee's memory about what the Port was doing before and then after Katrina. We went through six million of their documents, invaded their computers, and took time away from their pressing jobs to get our own jobs done. We completely dislodged and stole office space from the marketing department. I am certain we were silently cursed.

The employees' help and their understanding of what we were trying to do for them and the Port paid huge dividends in this case. We owe a great deal of thanks to the "rank and file…”

I could not be happier that the New Orleans Saints are the World Champions. Their fans, who have been through so much, deserve it more than most will ever realize.

So, as part of the celebration, I would suggest everyone join in with the song from the Great Louis Armstrong:

Slaten Bickford of Adjusters International grew up in the business of public adjusting. His father, Pat Bickford is a past president of the National Association of Public Insurance Adjusters. Slaten graduated from Columbia, an Ivy League school. From personal experience, he is one of the smartest, most passionate, and hardest working young public adjusters in the business.

Slaten Bickford spent a couple days driving me to each part of the Port of New Orleans property after we were retained as counsel in the fall of 2007. We had to cover 26 miles of property along the Mississippi River. Even after two years following Katrina, various parts of the Port were difficult to traverse. Indeed, one of the unique supplements to the claim were the tires that were ruined from nails and debris.

Slaten moved to New Orleans from Denver to help adjust this massive claim. Teams of estimators and adjusters were poring over the loss locations. It was obvious to me that while there were older and more experienced adjusters for the insurance companies and with Adjusters International, Slaten was going to be the best choice for me to rely upon as our client's primary adjuster. He was the one person with the detailed knowledge of the claims from all perspectives. He had the organizational skills, creativity, and historical knowledge of what had transpired before to help me refigure the damage into a proof which would withstand a critical review by the insurance company's team of attorneys and experts.

As a result of our close working relationship, I became very familiar with Slaten and his work habits. Since he is about twenty years younger than I, there are some humorous generational differences in how we approach things. I am convinced that professionals 30 years of age and younger live their lives on a laptop and a cellphone. Everything that Slaten produced or was presented to him regarding the Port claim was on his laptop. I asked a question, he looked at his laptop--no paper and nothing tangible that I could hold. For a guy that learned how to practice law with the IBM Selectric and carbon paper copies, he and I would laugh as I tried to navigate in his virtual file world of photos, spreadsheets, scanned images, and emails.

I also learned from Slaten that "the office" was the place his laptop was at, and at the time he was working. Neither were normal nor set. Going to another country to romance a young woman who would later become his fiancé' did not mean stopping work for the Port of New Orleans. 'Where are you working from?' was a question I frequently asked. The answer had some pretty exotic and out of the way venues.

The estimators reporting to him also lived in this virtual world of information sharing with massive data on spreadsheets exchanged and worked on collaboratively despite these individuals being thousands of miles from each other. I was amused while standing at a particular structure and after asking a question to Slaten, as his laptop would open and then he would communicate on cell and email--often discussing photos and videos of damaged structures with others to get my inquiry satisfied immediately. This type of efficient productivity was not possible when I was a young professional, but is the current status of how people work together in the modern adjustment era.

Slaten announced one day at lunch that he planned to propose to his Tulane medical student girfriend. I cannot remember a person as positive and ready to become engaged. Laura and Slaten are both very bright and share a love for informality in their affairs. For example, their wedding was a typical New Orleans affair with beer being served during the ceremony. If brains are determined by genetics, their children will be brilliant.

I was happy to see that so many of the estimators Slaten worked with were there to share the moment. While I demanded that certain work be done until it was done right, Slaten was the guy in the field, drinking beer with those guys, and explaining why my needs as the Port's attorney required work to be reconfigured for proof at a trial---and always right away. I am certain that, but for Slaten, some of those hardworking estimators would have simply walked off the job rather than deal with my demands.

Many of us in my line of work tend to be nomads going from one unfortunate place of disaster to another. The marriage of Lara Yanovsky and Slaten Bickford will certainly be a case study of logistics because Slaten works long and hard in far away places, and most doctors work pretty long hours in one place. I guess modern technology will help them stay close even if they are far away.

So, yesterday was a good time in New Orleans. As we flew over the Mississippi Coast and New Orleans, I was reminded of how many other good things can sometimes come out of catastrophe. 

We file coverage and claim practice lawsuits, and most work out pretty well. I think the skill level of many in the policyholder’s bar, including myself, can be improved. While lawsuits help play out the drama of legal and factual disputes, eventually a resolution must be obtained. I feel as if a post I made in December, Influence And Persuasion, Part 2 is worthy of being re-published in full in light of some suggesting that the only way to resolve conflict is through mass resolutions which may actually not be in the best interest of the individual policyholder. For some background, I wrote this blog post after resolving the Port of New Orleans lawsuit with FM Global. I was preparing a speech for the Florida Justice Association about this topic and wrote the post with those thoughts in mind.

Influence And Persuasion, Part 2

As indicated in my previous blog, everybody can benefit from understanding some basics of intellectual influence. While my speech was given to trial attorneys who typically represent people against insurance companies, anybody can use them, and should, if they want better results with dealing with people who have different views. Some may question why I would publish the "secret" to getting great resolutions from insurance companies. Frankly, if everybody practiced these principles, the world would be a lot more progressive.

The four principles of influence and persuasion are:

1. Compassion
2. Authenticity
3. Genuine Caring
4. Passion

Compassion is the ability to understand and relate an issue from the viewpoint of the person you are trying to persuade. The best negotiators learn everything they can about the decision-makers, so they can relate the issues in a manner that is understandable, respectful, and acceptable to the decision-makers’ view of the world. Some great trial lawyers still teach that you have to determine the foreperson and leaders of the jury and try a case to those people. In a mediation or settlement discussion, understanding and respecting the belief system of those you are trying to persuade is paramount.

In most settlement meetings of insurance coverage and bad faith claims disputes, the insurance company will have at least two of the following people participating:

1. Field Adjuster--possibly an independent adjuster versus an in-house adjuster.
2. Supervising Adjuster
3. Opposing Attorney
4. High Claims Level Executive
5. In-House Counsel
6. The Person on the Phone--the decision-maker.

I often tell the other attorneys in our firm that an insurance company will pay big money to a prepared, skilled and tough professional, but most insurance executives will never voluntarily pay a jerk the full value of a case. Indeed, most attorneys from a generation ago are aghast at how unprofessional and demeaning many trial attorneys publicly behave today. It is generally worse in the major metropolitan areas, and I suspect that much of the behavior is bravado by some less skilled in trial practice to "bully" a result and avoid a trial.

The problem many attorneys and public insurance adjusters have is that they simply do not understand how an insurance company claims department operates. When you can only see the world through your own eyes, it is impossible to truly have compassion. For example, to get a better understanding of State Farm in our first round of Hurricane Katrina mediations in Mississippi, I hired a person who previously worked in State Farm's Bloomington home office. This person gave us a better understanding of the decision-makers who were not in front of us in Jackson, Mississippi. I often seek retired home office people as consultants or retain private investigators to help learn about the people I am negotiating with. If I could, I would simply have a pre-mediation dinner with them, but most insurance company claims executives do not like dining with a person they view as the enemy.

Authenticity is the ability to be "real" with another human. You have to be honest with the facts and how the law applies to those facts. You have to point to facts and law favorable to the opponent. Most people lack the courage to be authentic or do it in such a manner as to shut down the person they are trying to influence. If you cannot be authentic, it is difficult for the people on the other side of a discussion accept the honest facts and law. If you cannot demonstrate the ability to recognize that truth is sometimes gray, it is hard to have authenticity as well.

In a mediation of any bad faith case, I often use the jury instructions and "the rules of the road" techniques to show the insurance company exactly what the jury will be told to determine if and how society will hold the insurer accountable for its behavior during the claims process. If the policyholder's case has merit, putting the facts of the adjustment and the admissions gained through discovery next to the jury instructions, generally gives an intelligent insurance executive an understanding of why a case may be worth so much more than previously evaluated.

Genuine Caring is the ability to seek a fair resolution. Many may question why I would want a fair resolution rather than a killing for our clients. The answer is simple--I virtually never buy or settle anything at an unfair price to me. Thus, why would another individual do the same? However, I may pay dearly for something with a lot of value. And most of our cases, if they truly have merit, are litigated so that they are very valuable. The insurance company may have a hard time accepting that fact of value as any buyer of a valuable article. But, if it is fair and based on an authentic evaluation of the facts and law, what some on the outside of a case may see as a huge amount of money paid for a case is actually a fair amount to the participants.

Passion is loving what you do. Passion is loving your client. Passion is loving your case. To be the best at anything, you have to be passionate about it. If you want to influence another human and evoke a human response, most people need to see a passion for what you are doing and saying.

Our firm is filled with zealots. More than any other reason, the passion for fighting for policyholders and against the injustice of bad claims practices is the reason why we are financially successful at what we do. The passion is not for the money, it is for the cause. David Pettinato took on a bunch of very small insurance claims for very modest individuals because they were wrongly denied their claims’ full values. I told David that we had to do this, even though we were very busy with much larger matters, because it simply was not right that an insurance company would take advantage of its poorer clients.

In any human endeavor where there is a battle of views on important issues, the resolution will often depend upon the passion one puts into the work and the advocacy necessary to overcome another view. I cannot expect anybody to be influenced to an outcome which they may initially doubt is proper unless they truly understand that I know it is fair and that they can see my belief in it. When the Port of New Orleans case settled, I honestly felt a loss. I loved the issues and the work I was doing on the case. I enjoyed every minute of it. I am certain that passion had an impact on the resolution that few thought could be achieved this year. 

The American Association for Justice is having its Winter Conference in New Orleans. A number of specialized litigation groups will also have their meetings. The Bad Faith Litigation Group is comprised of consumer attorneys that have cases where the insurance company has engaged in wrongful conduct.

Over a decade ago, I served as the Chair of that Litigation Group. David Pettinato is also a past Chair and Kelly Kubiak is a current officer. We find that by sharing information among consumer attorneys across the country, we can gain knowledge and better represent our clients against insurance companies. Twice a year, we formally get together as friends trying to help each other in our battles against wrongful insurance company practices.

The Bad Faith Litigation Group shares information regarding many insurance companies. I strongly encourage attorneys representing policyholders to join. Nobody representing insurers is allowed to be a member. Contact Kelly Kubiak if you have questions.

The Port of New Orleans lawsuit was very unique. When you pour your heart and soul into a difficult endeavor with others, there is often a special bond that forms. We expected the lawsuit to drag on through this summer. When it settled early last September, most of us missed the day to day litigation grind that takes place in such a massive lawsuit. We built a fairly large contract legal staff that was suddenly without a lawsuit to work upon. What do you do when the war is over?

Tonight, we are hosting a Port Legal Team Dinner to celebrate our work and accomplishments. New Orleans attorney, Bill Hall, was a perfect co-counsel. Like so many attorneys in New Orleans, he is a diehard LSU Tiger (pronounced "Tiga") fan. I guess Florida Gators and LSU Tigers can come together for mutual gain when they put their minds to it. I will always be indebted to Bill and the General Counsel of the Port, Brien Gussoni, for believing in our talents and selecting our firm as the litigation insurance counsel.

There is one aspect to New Orleans that everybody has to admire---the New Orleans people know how to have fun. It is a culture different from that anywhere else in the United States. The music, food, and people are exotic, and we are better for it. While New Orleans still has not recovered from Hurricane Katrina, Mardi Gras fun is still going on in the Vieux Carré.

We had a settlement that had the Board of the Port Authority of New Orleans doing "high-fives" largely because the rank and file Port employees helped the legal team. As is customary in many of the cases we litigate, I cannot comment about the amount of the settlement even though this one is of public record. What I can say is that we held a very public "thank you" luncheon for the Port employees. Without their help, we would not have been as successful against some very fine and thorough litigators FM Global hired.

After the Port retained us in November 2007, it became obvious that those responsible for putting their claim together had not adequately discussed it with the employees out on the wharves, docks, in the maintenance departments, and those outside the main office building. One of the first things we did was to interview them and change the claim to make it more accurate.

A number of Port employees left their families before Katrina struck New Orleans because they had to work during the catastrophe. As a result, a number of them knew their homes had been destroyed and did not know for several weeks where their spouses and children went. A few broke down when they recounted their hardship and trauma. Many still have not rebuilt their homes. The Port Police Department helped us track down eye witnesses to the destruction. They told us of the numerous rescue efforts in the Lower Ninth Ward and how much flood damage had occurred along the Industrial Canal. They found video and photographs taken during and immediately after the storm, helping us prove our theories of loss and damage.

I often say that I am a "Johnny come lately" to the cases I get retained upon. We come after the fact and then pry into the business and past of our clients. We were a major disruption to the Port because we looked into every employee's memory about what the Port was doing before and then after Katrina. We went through six million of their documents, invaded their computers, and took time away from their pressing jobs to get our own jobs done. We completely dislodged and stole office space from the marketing department. I am certain we were silently cursed.

The employees' help and their understanding of what we were trying to do for them and the Port paid huge dividends in this case. We owe a great deal of thanks to the "rank and file." The people who work at the Port helped make their employer and my firm a lot of money. Saying thank you with good food and fine New Orleans music seemed the right thing to do.

A Port secretary wrote:

I wanted to thank you, your firm, and employees for the lunch you provided for Port of New Orleans employees this past Friday. It was appreciated by all---I only heard positive comments following the lunch and after being here for eleven years that was rare indeed!!! May you have continued success in 2009 and the coming years.

The Merlin Law Group's Keona Williams and Kendra Kenney did a magnificent job arranging the affair. I wish all cases went so well.

We worked very hard on that case, as did the attorneys representing Factory Mutual. Between us, we reviewed over six million documents. Amazing. Such work does not happen without a team, and I will report anecdotes of our team and the litigation once the final paperwork is signed, sealed and the money delivered. In honor of the resolution, my wife and I have been relaxing in Lenox, Massachusetts, this past week before heading into New York City today. I have often said that the stress of litigation makes it a young man's game. But it certainly is a very fun, challenging, and often rewarding endeavor.