You don’t need a weatherman to see which way the wind blows. Allstate, for a second time in a Katrina case on the cusp of the moment of decision, has come out with allegations that a policyholder made material misrepresentations in a Katrina claim. You may remember the earlier case of Tomlinson v. Allstate, which I blogged about here and here. The Tomlinsons dismissed their case during trial, right before it went to the jury, after Allstate alleged they misrepresented post-Katrina living expenses by claiming damages for having to spend money on living arrangements, when they were actually living in another house owned, in effect, by themselves.
At the time, this seemed a little mysterious — you drove all the way to the prom in your rented tux, why not go in and see if the jury will dance with you — but if Allstate’s brief in Weiss v. Allstate is correct, now it makes more sense. Here’s a pdf of the brief filed April 4. It says that the judge in the Tomlinson case, Judge Feldman, had approved a jury verdict form saying Louisiana law requires that a material misrepresentation about any part of the policy voids the whole thing. That is a heavy penalty — forfeiture of rights you do have along with rights you don’t have. If the judge decides the law voids the entire policy with a material misrepresentation, and the insurer has you nailed, your case goes poof. Mind, I’m in no position to state whether anyone made any false statement in either case, and I do not say they did. I comment only on the effect of the law, and what the insurer alleges. The Weiss case is scheduled for trial April 9 in the U.S. District Court for the Eastern District of Louisiana. Another thought: folks also may not want to take the chance of a jury coming back with a verdict that brands them a liar, in addition to coming away with nothing after a tough, psychologically draining lawsuit. Having a jury call you out as a scoundrel is something you do not want on your record.
Here’s a good story on developments in the Weiss case from one of the best Katrina reporters out there, Mike Kunzelman of the Associated Press, who is on the scene in New Orleans, with a quote from me. You may note from looking at the case documents that the attorney for Allstate was the same in both the Tomlinson and Weiss cases, although the plaintiffs’ lawyers are different. It will be interesting to see what happens from here.