My initial and simple impression posted in Corban Mississippi Supreme Court Case Decided, Part 2 stands. My emotions and thoughts during my three readings of this decision kept reminding me of people I have met, represented, debated and lived out this saga with in Mississippi since the fall of 2005.
I live in a world where words, and the subtle understanding of them, mean much financially to everybody involved, including myself. I personally had millions of dollars on the line advancing the costs of lawsuits in Mississippi. I was very much a partner with my clients advocating for coverage.
Corban is a big decision in my world. As I read the decision, most of my thoughts were upon others that have been through this huge legal mess. Unless you have lost everything and have had your insurance denied, it is hard to comprehend how frustrating being embroiled in a sea of insurance lawyers can be—it is a curse at best.
When I first started reading the case, I was silently cursing our firm’s knowledge manager for not indicating which side won the decision. Since some of the award was for the insurance company regarding the flood issue, maybe he could not figure it out. I am certain that some insurance company claims executives and their counsel will feign that this is “a win” because the storm surge and flood exclusions were found to be valid and applicable. I have never shared much hope for that legal position. I think my view regarding that issue prevented me and others with me from joining Dickie Scruggs’ group and his attempts for a class action lawsuit on that issue.
Yet, I knew that Judy Guice always advocated that view of flood being covered. When I read Anita Lee’s article this afternoon quoting from Judy Guice’s class action attorney, Richard “Flip” Phillips, I kept thinking about Judy advocating that flood was not excluded for a number of reasons. Judy Guice is a noble person and a worthy advocate. I am happy she uses her talents for policyholders and people rather than corporate and insurance company interests. She should be proud of the result. She has worked very hard for the people along the Mississippi Coast.
I also thought about my argument against Flip and Judy Guice about making the cases a class action. The federal courtroom was filled with journalists and I was pretty punishing about my views of how a class would hurt most policyholders. Honestly, class action status would have been a windfall for the attorneys, but a lopsided loss for the policyholders. I know Dickie Scruggs and I disagreed about that, but all you need to do is watch our clients, the Lees, to understand why I say that.
Slabbed was also on my mind while reading the decision. Their post, Insurance is a big think – Have you ever tried to think?, is something I can appreciate and strongly urge others to read and gain a better intellectual knowledge of the legal discussion in Corban.
There was an entire causation discussion in this decision where I was thinking about an attorney, David Rossmiller, who had nothing personally involved with the outcome of any of these cases. Rossmiller is a former journalist turned lawyer. I thought of Rossmiller teaching that many concurrent cases were truly not concurrent situations when the Corban court wrote:
No reasonable person can seriously dispute that if a loss occurs, caused by either a covered peril (wind) or an excluded peril (water), that particular loss is not changed by any subsequent cause or event. Nor can the loss be excluded after it has been suffered, as the right to be indemnified for a loss caused by a covered peril attaches at that point in time when the insured suffers deprivation of, physical damage to, or destruction of the property insured. An insurer cannot avoid its obligation to indemnify the insured based upon an event which occurs subsequent to the covered loss. The insured’s right to be indemnified for a covered loss vests at time of loss. Once the duty to indemnify arises, it cannot be extinguished by a successive cause or event…. The same principle applies in reverse. In the case of a loss caused by an excluded peril, that particular loss is not changed by any subsequent covered peril or event. Nor can that excluded loss become a covered loss, after it has been suffered.
Loss to property can consist of many losses because property can consist of many
elements, and ‘loss’ need not refer only to the totality of the damage and in fact should not when different forces have caused different damage.” Appleman on Insurance § 192.03[H] (2009) (emphasis added). The subject homeowner’s policy insures “for direct, physical loss” to property.
Rossmiller wrote this about the Corban case long before this decision in his post, Mississippi Supreme Court Asked to Interpret Anti-concurrent Cause in Interlocutory Appeal:
When I see something like this, I call it a "yeah but" moment. Yeah, but where’s the analysis showing exactly how you think wind and water acted either concurrently or sequentially to cause the same damage? Those words, concurrently or sequentially, can have meaning only within the context of the clause’s overarching purpose – to address multiple causes of the same loss. And if there ain’t no same loss, they ain’t no good.
So "concurrent" and "in sequence" have to have some specialized meaning within this context, or they make no sense — they can’t be used in a colloquial sense. Merely because one thing follows another does not give it the meaning of sequentially within this context, nor are two things concurrent in this context merely because the forces act at roughly the same time or act on the same physical element of property. You have to understand the purpose of those words, and once you do, it is relatively easy to see that Katrina wind and water were neither concurrent nor sequential. They can’t be, because they didn’t cause the same loss at the same time, they caused different losses to property at different times. It is not important that the same element of property was damaged by different forces twice — they are still distinct and so any form of causation analysis used to sort out what is responsible for the same loss is irrelevant. I am still waiting for anyone to show me even one instance of Katrina wind and water acting concurrently or sequentially as I explain those terms. No one has yet, and I doubt anyone ever will.
The Corban Court obviously followed Rossmiller’s causation analysis. While he is not blogging any longer, his analysis is still respected among those of us that do this law day to day.
Thank God the Mississippi Supreme Court did not follow Nationwide’s analysis or nobody would have coverage for just about any cause of loss. Nationwide is not on Your Side unless you have an ownership interest in its profits. Beware if this is your insurance company. Their public claims of limited coverage in courts and lawsuits are very different than what that company advertises and leads customers to think is covered. The executives of Nationwide should be ashamed to have allowed their attorneys to argue what they did. The Mississippi justices singularly pointed out how harsh Nationwide’s interpretation was against the policyholder. This company obviously has an anti-customer attitude when it comes to claims. Buyer beware.
I wish this case came out two years ago. The Fifth Circuit should have allowed the Mississippi Supreme Court to decide these issues in the Leonard case, but it refused to place a certified question before the Mississippi Supreme Court at that time.
The bottom line is that this case is so long in the tooth that most Mississippi policyholders cannot benefit from it because most cases are finished. It is a rule of law that benefits a few and hurts a few because the vast majority of Katrina cases are settled, for better or worse.
Still, I keep wondering what I, and my clients, would have done had this case come out three years ago and followed Nationwide’s argument. We would have been in a world of hurt and true despair.