Brian Ford notes of conversations with Dickie Scruggs, Trent Lott, others

One of the more interesting documents I have seen in Katrina litigation is the notes of Brian Ford, who was an engineer with Forensic Analysis and Engineering Corp., and who was involved in investigating hurricane damage for reports that would be used by State Farm.

If you don’t remember Ford, he was at the center of a controversy about a report he submitted to State Farm saying the damage to the Thomas McIntosh home in Mississippi was caused primarily by wind.  State Farm rejected the report as not based on the available evidence, and Ford was removed from State Farm work by Forensic.  Another engineer with Forensic did another report and came to the conclusion the damage was due to flood.  You can read more about this in this post I wrote back in April.  In the post, click on the link regarding e-mails, and you can see the reports for yourself.

Ford left Forensic rather than accept being assigned to a marketing job with the company — see this transcript of the deposition of his boss, 13th page.  Now, the notes I am talking about are not notes connected with Ford’s with Forensic.  Far from it.  They are some very meticulous notes Ford took after the left Forensic and was being courted as a consultant to the Scruggs Katrina Group. In these notes, he recounts conversations he had with Dickie Scruggs, other attorneys in the SKG, and with Sen. Trent Lott, although in that case it appeared Lott did almost all the talking.

Here is a copy of his notes, more or less in their entirety, although there appear to be some redactions here and there.  And here is something else that will be of help, the supplemental index to State Farm briefing filed in November with the Fifth Circuit seeking a writ of mandamus from the U.S. Fifth Circuit Fifth Circuit — in effect a request to overturn Judge L.T. Senter’s earlier decision not to grant State Farm’s motion to disqualify Dickie Scruggs from Katrina litigation for alleged ethical breaches relating to the conduct of those cases.  The Fifth Circuit, by the way, denied the writ November 19.  And I know what some of you are thinking — are they going to renew the motion to disqualify in light of Scruggs’ indictment?  The conduct alleged in the indictment, however, isn’t directly related to Katrina litigation, it came in a breach of contract case between lawyers over how to divvy up Katrina attorney fees.

Ford’s notes show that the Scruggs Katrina Group was interested in hiring him as a consultant as well as using him as a fact witness.  Ford was asking for a salary of $10,000 a month, and, if you look at page SA-10 of the supplemental index above, you can see that in an e-mail to the Scruggs Law Firm, Ford also asked for a percentage of the settlement amounts of SKG cases. The excerpts of Ford’s deposition provided with the supplemental index show the Scruggs Katrina Group never did hire him, and page 13 of the notes contains this question: "Why did the full court press for my services suddenly stop?"  Just a guess on my part, but maybe it had something to do with Ford inviting himself into Scruggs’ attorney fees — as alleged in the Jones v. Scruggs lawsuit that was the backdrop for the alleged Scruggs’ judicial bribery conspiracy, there are some who say Scruggs is pretty grabby when it comes to fees — kind of like what his is his and what is yours is his too.

In State Farm’s reply brief in the mandamus proceedings before the Fifth Circuit, State Farm cited the information in these notes and Ford’s deposition as another example of what it calls Scruggs’ unethical conduct in Katrina cases — Ford was a material witness to the damage in one of the pre-eminent Katrina cases, McIntosh v. State Farm, yet Scruggs worked closely with him for many months, although he apparently never did hire him or pay him for the work, judging by these materials. 

I felt sorry for Ford that he appears to have gotten stuck on the phone with Trent Lott while Lott launched into his usual stem-winder speech about how State Farm was picking on him, he was ashamed of his earlier slavishness to insurance companies, going to right wrongs, give up getting his own dough to punish State Farm, etc., etc.  This can be found on page 7 of the notes.  Interestingly, the notes say that Lott was in communication with Kerri Rigsby, who as you remember is one of the sisters who copied numerous State Farm claims files from their employer, E.A. Renfroe, and gave them to Scruggs. 

Also interestingly, the notes say Lott called Ed Rust, State Farm CEO, to outline a three-part program that he, as chair of the Senate Insurance Committee,  would be in a position to "help."  I note that not only did Sen. Lott not "forgo his $ to get S.F.," as the notes say, but he in fact settled his own lawsuit against the company and will leave office at the end of this year without getting one bit of his insurance agenda enacted. 

Much of the Ford notes concerns Katrina litigation insider type stuff, and you have to know the players to appreciate what is going on.  But if you are familiar with the names, you will no doubt have an enjoyable time paging through these notes. 

 

19 Comments

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19 Responses to Brian Ford notes of conversations with Dickie Scruggs, Trent Lott, others

  1. R.J. Lehmann

    Perhaps it was just Ford misconstruing something Lott said, but there’s no such thing as the “Senate Insurance Committee.” There’s a Banking Committee, which has primary jurisdiction over insurance, but not only was Lott not the chairman of that panel, he wasn’t ever a member, either before or after the partisan switch. He is a member of the Commerce Committee, and that Committee does have a subcommittee which calls itself “Consumer Affairs, Insurance and Automotive Safety,” but it’s basically a vestigial remnant of the pre-Gramm Leach Bliley days when Commerce was the main insurance committee in both Houses. And in any case, Lott is not and was not the chair of that either!

  2. David Rossmiller

    Likely by the time Lott got to that point in his speech Ford was so bored — maybe he turned on Sports Center or something to kill the time — it’s a miracle he didn’t write that Lott was head coach of the Patriots.

  3. Steve

    Rossmiller I wonder why you choose to not examine your blog posters question?
    You thought your post of April is important enough to re-link today. Even a cursory reading of the post indicates the content is stale and misleading in todays context of available information.
    Please note a poster on todays Clarion Ledger newspaper message board clearly shows intellectual dishonesty on your part and I have personally found your information to be so old as to warrent a new examination of the information which is currently available.
    Please note post from Coastal Cowboy—
    http://forum.clarionledger.com/viewtopic.php?t=2055&start=495

  4. David Rossmiller

    Which comments are you referring to that I didn’t answer? I don’t quite understand what you are driving at. If you are talking about whatever is on the message board at the Clarion Ledger, I haven’t looked at it. I’m not aware of everything people say about me on the Web, nor do I try to control what people say. I draw my own conclusions and others can do the same. As far as the post from April being old, yes, I would expect so, because it is from April. What precisely do you find inaccurage in it? As for today’s post, perhaps you had access to the complete Brian Ford notes before I posted them, very few other people did. But in a larger sense, I am not the Associated Press, I do not claim to be a news service (although it works out that way sometimes) and I basically write about what interests me. Funny, I was just telling a reporter today one of my greatest joys in blogging is that I no longer have to answer to editors, as I did in my past life, and I write about what I choose. If you are unsatisfied, please avail yourself of ICLB’s guarantee that you will be happy with what I write or your money back.

  5. Steve

    Here is the cut n paste from the Clarion-Ledger site. I am no editor sir. Instead I am a person who has had to deal with these insurance issues since Katrina hit the shores of my hometown Bay St. Louis, Mississippi. So what you write is covered by reporters as you noted and directly impacts my life. I am also a regular guy who has infact helped a friend find his own engineer who was hired by State Farm and we discovered his report was a total fabrication on the part of his “good neighbors”. So my experience with calling engineers and yours are different. Hope you understand my concerns about your blog.
    _____________
    “I’m not sure why this story from the Clarion-Ledger of Jackson, Mississippi is coming out now, after this topic has been talked up for the past 18 months. The story discusses some e-mails between folks at an engineering firm employed by State Farm to examine and analyze Katrina damage in Mississippi. In one of them, a guy with the firm questions the ethics of State Farm if the insurer was pressuring them to change engineers’ reports. Here’s a pdf of the e-mails, followed by the original report and a second amended report. The reports have been known about for some time, and are mentioned prominently in the complaint in McIntosh v. State Farm, which was filed last year. Here’s a pdf of the McIntosh complaint. Perhaps the e-mails were produced recently in discovery, but the pdf of them doesn’t show a Bates stamp — the number code put on most records produced in discovery to help identify individual documents.
    One of the things that strikes me about these e-mails is the man complaining about State Farm’s ethics, Randy Down, did not read a prior e-mail from his boss very well. The first e-mail mentioned a claims supervisor with State Farm, identified her as Lecky, Ms. King and she, and Down’s e-mail starts off wondering whether Lecky is a man or a woman. I hope that’s not indicative of the care that went into the firm’s engineer reports. Here’s a second, similar story from Mike Kunzelman of the Associated Press, in which Down said he didn’t have any first-hand knowledge of what he was talking about, and in any event wasn’t involved in working on Katrina claims. The AP story quotes Zach Scruggs, and the e-mails would appear to have been produced in the McIntosh case, where the Scruggses are the plaintiffs’ lawyers. So I’m not sure why the story in the Jackson newspaper quotes a Florida lawyer unconnected with the McIntosh case instead of Zach Scruggs. Perhaps he wasn’t available.
    You know, I read the reports and I recommend you read them too. I don’t see a particular problem with ordering the second report, when the first one attributed all damage to the McIntosh home to wind. It was obvious — because the home was still standing and there were water marks on the walls — that flood waters had caused much of the damage. Seems like a bit of an oversight not to mention the flood damage as a cause in the first report, kind of like wondering if Ms. King is a man or a woman. The conclusion of the second report was that both wind and water caused the damage, not that only flooding caused damage, so it doesn’t appear to me the second report is all that problematic. The McIntosh complaint says that State Farm paid the McIntoshes about $36,000 for wind damage to the home…….”
    Notice how Rossmiller runs down the engineer for not automatically knowing the gender of a person called “Lecky” but also implies it was reasonable for second (and ostensibly third reports to be ordered up, after all on it’s face the basic facts say, “I don’t see a particular problem with ordering the second report, when the first one attributed all damage to the McIntosh home to wind. It was obvious — because the home was still standing and there were water marks on the walls — that flood waters had caused much of the damage.” Now ole Rossmiller is a learned man who pays great attention to detail but in this case he fails to tell his readers the rest of the story. You see folks what he leaves out is the “color” which puts things in a proper context. A reader called Brian sets him straight.
    “Written By:Brian
    On April 13, 2007 9:24 AM
    The McIntosh home is not on the Gulf. It is on a river north of Biloxi Bay and would not have been subject to significant wave force needed to knock down the first floor wall. The first report substantiates the eyewitness report that the house was slammed by wind-driven debris from neighboring houses. The second report ridiculously relies on the theories of the yardman who is cleaning up the property. Both reports agree that the roof and second floor damage were due to roof, windows, and door failures due to wind, wind-driven debris, and rainfall. The photos in the first report clearly show that the second story floor/first story roof fell in on the first floor. Flooding occured after that and sloshed the debris around. That is what the first (honest) engineer saw. The second engineer wrote the report State Farm demanded, even to the point of using the exact terminology that SF requested.”
    Strangely Rossmiller doesn’t defend his flawed conclusions when Brian tells us the rest of the story, though in an earlier comment he slipped in this jab at the engineers implying they were incompetent.
    “Written By:David Rossmiller
    On April 12, 2007 3:26 PM
    Layne, I think your question is rhetorical, but it makes a point: with the scope of this disaster, a lot of people had to be plugged into the mix in a hurry. Talk about the government’s response in New Orleans, how about trying to adjust damage to tens of thousands of properties? You just have to believe that there are issues with finding enough competent and qualified people to do everything that needs to be done. I would much more suspect mistakes and lacked of qualified personnel, plus the inherent tendency for chaos to assert itself, as an explanation for discrepancies than I would a conspiracy or bad faith plot.”
    Now when big business puts Lipstick on a Pig they make sure they hire with best stuffed shirt in a Gucci suit they can find; a hired gun that would hold himself out as the reasonable expert but whose real job is to pee on everybody’s leg and tell them it’s raining. Well, ole Rossmiller’s big head got the best of him today ’cause he should have thrown that April blog entry into the compost pile.
    So Tops, you were right and this Cowboy was mistaken. Rossmiller is an industry shill just like you said.

  6. David Rossmiller

    I’m not sure I can figure out what exactly you are cutting and pasting here, it seems to be some comments by Brian Martin and others. Do you know who Brian Martin is? He’s the policy director for Rep. Gene Taylor and he’s been out peddling his point of view on every forum there is including this blog, and I have repeatedly pointed out that I have looked at the evidence he has provided and it is not strong and does not support the conclusions he draws. You obviously are new to my blog, I have gone round and round with Brian in the comments maybe dozens of times. So what you say is me not answering is me having a job where I have to do other stuff and no matter how much I would like to spend endless time on this blog there is only a certain amount of time I have to do so in any given day. It appears you have suffered because of Katrina, and for that I am sorry.
    The McIntosh v. State Farm e-mails is what I was referring to in my earlier post, and they are indeed old news — part of the Rigsby sisters’ document dump, and they’ve been trotted out so many times they are threadbare. What is new is Brian Ford’s notes, which, you may have no way of knowing this, but they have not previously been published anywhere.
    As for your concerns for my blog or people who call me an industry shill, I have four pending or filed cases against insurance companies, I also do work on behalf of insurance companies. I have no stake in Katrina litigation one way or another; instead, I call it as I see it, this is merely a hobby of mine that I do in my non-billable hour time. It does not bother me if people disagree with me, I came to my conclusions honestly and right or wrong I am a free man who is able to write what he believes. In that, I am lucky indeed. Now, I hope that addresses your concerns.

  7. Brian Martin

    Since you have new readers from Mississippi and elsewhere, I just want to make sure they understand what it is that you find so reasonable – that State Farm can keep asking for new engineering reports until it gets one that blames only flooding. Brian Ford’s report did not blame all the McIntosh damage on wind. He honestly and appropriatly noted damage from both causes, but State Farm had previously demanded that the engineering reports not apportion damage between wind and flooding but instead merely determine the “predominant” cause of damage. The wind damage happened first and Ford determined that wind-driven debris took out the doors, windows, and roof, so wind was the predominant cause. After the phone calls described in the emails quoted below, FAEC made sure that the predominant cause was always flooding in future reports.
    From: Adam S-
    To: Bob K-
    Sent: Monday, October 17, 2005
    Subject: Conversation notes
    Conversation with Lecky King, State Farm Team Manager:
    Conversation was as follows, Lecky called and stated that due to 2 of our reports she was pulling all engineering work from our firm. When I asked why, she said because our engineers obviously could not tell the difference between wind and water and our reports were wrong. The damage to both houses was due to water and their data showed the surge levels in that area were so high it had to be water damage and from looking at the pictures it was obviously water. She then said they were not accepting our opinion and would now have to send another firm out to get it right and eat the cost of sending 2 firms out.
    I then put her on with Brian who explained his position on the report.
    From: Brian F-
    To: Bob K-
    Adam took the call and discussed a couple of reports with her. When she got to 0088, Adam told her the engineer was here and could talk to her.
    Brian: This is Brian Ford, how are you.
    Lecky: Not very good at the moment. Look at report number 88.
    Brian: yes, I have it up on the computer now.
    Lecky: This just can’t be wind! Look at photograph 3, look at the shingle damage. It just was not wind. This is a cabana house.
    Brian: The report says wind and wind debris. The front of the house was damaged by wind driven debris.
    Lecky: Look at the photograph and tell me what kind of damage that looks like.
    Brian: Yes, it looks like floodwater. Eyewitnesses reported that the house next to the insured say a house come apart from wind and debris flew into the insured’s house taking out the windows and doors.
    Lecky: You weren’t there and didn’t see that. You have to base your opinion on what you see.
    Brian: You requested eyewitness reports.
    Lecky: You should not be discussing your opinions with the insured.
    Brian: We do not do that.
    Lecky: Thank you for the reports you have done, but you will not be getting anymore from SF.
    This is the conversation to the best of my recollection.
    Thanks, Brian

  8. Thick

    David,
    Thank you for your unbiased blogs/opinions regarding this entire sordid mess. Judging from some of the latter posters, it appears a contingent of Biloxi Sun Herald bloggers have decided to cast their opinions on your website. What a shame. This used to be a forum for fair analysis of contract law…the Sun Herald posters will turn it into a mud-slinging free for all. Unfortunately, they have not progressed past the initial stages of grief, i.e. denial, anger and depression. The plaintiff’s bar and the societal creation of a sense of entitlement simply won’t allow the populace to reach the stage of acceptance. Again, thank you David for your unbiased look at a complicated issue.

  9. Steve Haas

    David I was disappointed to see in the WSJ article that you did not intend to visit us down on the Mississippi Gulf Coast. As I stated in my prior post what you write is covered by reporters (as you noted) and directly impacts my life. I had hoped you would consider visiting me and others on the Coast so you can see first hand what is going on down here. As you know the insurance industry and everyone else on planet earth notes the insurance service model for CAT events is broken. I would hope your visit would give you the real life context to frame your intellectual pursuits. Please reconsider and contact me Steve Haas at 228-493-2761. Please feel free to keep my number on this post or take it off as it suits you. Just do me a real favor and visit us down here.
    Steve Haas
    Resident Ground Zero
    Katrina Insurance Mess

  10. David Rossmiller

    This responds to Brian Martin, who is Gene Taylor’s policy director and whom I am glad to see grace this space again. Brian, you are using the terminology incorrectly, saying “predominant cause of loss” only makes sense where the efficient proximate cause doctrine would prevail, and because efficient proximate cause seeks the moving or predominant cause where there are multiple causes of the same damage, that doctrine would be applicable only where 1. there are multiple causes of the same damage 2. where efficient proximate cause, which is only a common law default rule, is superceded by anti-concurrent cause language.
    In these Katrina cases you are speaking of, there was no multiple cause of the same damage. If there was wind damage, that was distinct and separate from flood damage. Therefore, efficient proximate cause did not apply, nor did the anti-concurrent cause language apply, because it also addresses multiple causes of the exact same damage. So you’re getting off on the wrong foot in your analysis by using inappropriate doctrine, so your conclusions will be flawed as well.
    You can look, but you will not find one example of where wind and water acted as as multiple independent forces to cause the same damage.
    I don’t find those e-mails troubling at all. As you know, eyewitness evidence is very unreliable and has been proven so in criminal justice studies and other scholarly studies. If you look at the first Ford report, he didn’t mention flood water! Come on, you know the house was damaged by flood, look at the second report.
    You know, you keep trotting out these e-mails like people are supposed to bow down before them instead of analyzing what you are saying critically, and they just don’t say what you say they say. Ford himself has admitted in deposition testimony his report was wrong! why are you defending the discredited Ford report, it just does to show you are peddling an ideology instead of weighing the evidence.
    Responding to Steve, I’m not sure if you get what I do. I’m a lawyer and while I certainly feel sorry for the people who suffered a loss, my primary mission here is to discuss the law, not advocate for any particular side,and my view of the law does not change based on whether I feel sorry for people. So while I love the people of Mississippi, and would like to visit and grab a cup of coffee with you, that does not mean it would change my analysis of insurance contracts. So if you hold out that hope you would be disappointed. You know, I am well aware that behind most coverage disputes is a human being who has suffered — nevertheless, it is my obligation to analyze the law as best I can without trying to skew the analysis based on who is more sympathetic.

  11. Brian Martin

    David,
    You have an annoying habit of intentionally misrepresenting arguments and facts that refute your theories and then dismissing the straw men you created. I have presented only facts and everything I have said can be proven.
    “Predominant” cause is not my word, it is State Farm’s word. I did not apply the predominant standard to these cases. State Farm did. I agree with you that it is inappropriate. I would say it is fraudulent.
    In the first FAEC reports, the engineers estimated what portion of the loss had been caused by wind and what portion was due to flooding. State Farm demanded that they rewrite the reports to assign all the damage to the “predominant” cause and demanded that they use that word in the reports. This is related in one of earliest of the emails that were made public. The email lists reports that the engineers were required to rewrite so that State Farm would not have to pay for even the 25% or so of the damage that the engineers estimated had been caused by wind.
    I mentioned it again because you falsely claimed again that Brian Ford blamed all the McIntosh damage on wind. He did not. You also keep misrepresenting Brian Ford’s report on the McIntosh case. The eyewitness merely confirmed what the engineer could see for himself. There were large trees blown down all around the site. The house had extensive roof damage, and second story, window, and door loss from wind and wind-driven debris, and provably so because it was well above the water line. Also above the water line, the ceiling fell in on the first floor so that the floors, walls, and contents were damaged by wind, rain, and debris. After the wind damage, the first floor had a few feet of still-water flooding, but not enough wave force to knock down a wall. You dismiss the eyewitness whose statement is supported by the evidencee, but you think it is perfectly fine for Lecky King to sit in a State Farm office and overrule the on-site assessment based on detailed observations because she has water level data showing there was some flooding.
    Look up the address on an online map site. The house was far from the Gulf of Mexico. It was on the Tchoutacabouffa River(pronounced Chew-ta-ka-buf). This would be typical flood damage, not massive wave-force damage.
    Brian Ford’s report is so much more thorough and sourced than the second report that only someone on an insurer’s payroll could defend the latter and attempt to discredit the former. The second report is practically a drive-by job. Nothing was measured, not even the water level. Kelly guessed it was four feet based on statements by the yardman and a neighbor. Ford had measured it HIGHER, at five and half feet, but he determined that the house had already been substantially destroyed before then due to roof, door, and window failures and ceiling collapse from wind, rain, and wind-driven debris from other damaged houses.
    How can you defend Lecky King and denounce Brian Ford? Have you no conscience?
    I hope that this case is not settled. This one needs to go to a jury.

  12. David Rossmiller

    You, Brian, have the annoying habit of getting desperate because you are losing an argument and then accusing me of acting in bad faith or lieing. I’m not being paid by anyone to say what I say, unlike some other people I could name. If you deviated from the party line, I imagine you would be out of a job.
    I’ve been over this so many times I really don’t have time to keep going over it. If you read Brian Ford’s deposition, which I assume you have, you will see that I am right. He admitted that his report was wrong. Why you are placing such faith in a man who was seeking a consulting agreement at $10,000 a month from Scruggs while simultaneously planning to testify as a material witness is beyond me. At long last, Brian, have you no shame?

  13. Thick

    Mr. Martin, your posts are taking the tone of a person who realizes he is wrong, but can’t admit such. Childish.
    Does anyone doubt that Katrina created the highest measured storm surge in the history of measuring them? If the Tchouttacabouffa river is attached to the Gulf of Mexico (as it is), do you not think the storm surge would travel up the river?
    You have the habit of complicating a fairly simple matter…if an insured property is damaged by flood, it is simply not afforded coverage under the homeowners policy. If there is wind damage to the property it is covered. If both flood and wind combined to cause the damage, and the wind damage can not be identified, the loss isn’t covered.
    Fortunately, the Fifth Circuit has reached the same conclusions and brought some sense of reason to this madness.

  14. Brian Martin

    David,
    I am not even making an argument. I am just coming behind you correcting all your errors and misstatements. You gave me your efficient proximate cause lecture without realizing that you were agreeing with me and refuting State Farm.
    Your bias is transparent:
    Emails about threatening Lecky King call demanding new reports in State Farm’s favor without regard to evidence = irrelavent in your mind; but
    notes about Lott call with nothing of any significance to any case = smoking gun.
    Thick, I never expected State Farm to pay for flood damage. It is excluded. All they have to do is prove how much damage was caused by flooding. That is well-established law with 5th Circuit precedents. Look it up.
    Facts –
    There were four or five hours of hurricane force winds before the surge. There was extensive wind damage everywhere in Mississippi. Insurers paid hundreds of thousands of Katrina wind claims far inland, all the way into Tennessee and Georgia, far beyond any flooding, yet paid nothing on many coastal homes that experienced the highest winds for the longest duration but later flooded. There was not one building in Mississippi that was damaged only by flooding with no wind damage. Up the Tchoutacabouffa and elsewhere near the inland limits of the surge, the flooding was just flooding – it did not have the wave force that could knock down walls and destroy structures. State Farm could have conducted an honest assessment to distinguish the wind damage from the flood damage, but they chose to defraud their policyholders and taxpayers instead.

  15. David Rossmiller

    Brian, chill out for goodness sake. Did I say it implicated Lott in wrongdoing? No. In fact, I have said I accept Lott’s stated reasons for announcing his resignation and I have no evidence he did anything improper. I think it is interesting, however, that Lott was speaking with both Kerri Rigsby and Ford, the first a part of Scruggs’ litigation team and the second being courted for it. I do think it is interesting to see the account of Lott’s conversation, although as Ray Lehmann has pointed out, the transcription of the conversation must be in error in part because there is no such committee as that attributed to Lott. It is quite possible the entire notebook is filled with errors, it is also possible that just as the Lott conversation has at least one error in transcription the account of the conversation with King contains one or more errors.
    As for whether I disagree with State Farm, my purpose is not to agree or disagree with them but to give my own opinion. I merely point out that you are in over your head when you try to argue doctrines of efficient proximate cause and anti-concurrent cause with me. In reality, you cite no authority for your statement that State Farm ordered engineer’s to determine the “predominant” cause of loss. I presume you are attempting to quote from the State Farm wind-water protocol, but since this document is posted on the website of your own boss, Gene Taylor, and you very likely posted it there, you should go back and read it, because the word “predominant” is not in the document, nor is an concept equivalent to efficient proximate cause evident. Instead, it clearly states the anti-concurrent lead in language to the flood exclusion. Nor would it make any sense for State Farm to tell adjusters and engineers to look for the “predominant” cause of loss (your quotes) as that would conflict with the anti-concurrent cause language that State Farm spent hundreds of thousands if not millions in attorney time upholding before the Fifth Circuit.
    So my conclusion is that you, Brian, are in error, and as I have repeatedly schooled you on how this all works, I must reluctantly come to the further conclusion that you will continue with the same patter no matter what the evidence is. I have told you I would evaluate any further evidence you present, but you keep referring to the same old stuff. I do insist that if you are going to argue these technical points of law that you use the correct terminology. Also, if you have other citations for “predominant” please let me know. Merely because I came to a conclusion different than yours and I have expressed this different conclusion persuasively to many, many people does not mean I am acting in bad faith. I, unlike some, am not hired by a politician to express a particular point of view.

  16. Brian Martin

    State Farm’s demand that the engineering reports state the predominant cause is related in the FAEC emails.
    From: Randy Down
    Sent: October 13, 2005
    To: Adam Sammis
    CC: Bill Forbes, Bob Kochan, Nellie Williams
    Subject: Urgent – Request from State Farm
    Importance: High
    Adam,
    I just received a call from Steve Haddock at State Farm regarding an issue with our reports. They are asking that we do not apply a percentage of cause in our reports (such as: 25% attributable to wind and 75% attributable to rising or flood water). They want us to state what we believe to have been the predominant (use that word) cause of the damage (wind or water).
    – Randy
    Other FAEC emails also refer to this demand by State Farm.
    http://www.house.gov/genetaylor/FAECemails.pdf

  17. David Rossmiller

    Then why do the reports themselves, including the one that was done on the McIntosh property subsequent to the Brian Ford report, state segregable, seperate and divisible damage from wind?

  18. Brian Martin

    Come on, David.
    You are not that dense. They called it flooding anywhere it could possibly have been flooding. They took all the benefit of the doubt in their favor.
    If there was nothing left but a slab, then they said the house was destroyed “predominantly” by flooding and denied all wind coverage, but if the damaged structure survived with a clear waterline, they knew they could not blame flooding for the roof and second floor damage above the waterline. In the second McIntosh report, Kelly says “the damage to the first floor walls and floors appears to be predominantly caused by rising water from the storm surge and waves.”
    That was intended to relieve State Farm of any liability for any first floor damage even though the roof, ceiling, door, window, and wall damage caused by wind, wind-driven debris, and rain would have caused a significant amount of damage to the first floor walls, floors, and contents before any flooding. The first floor damage should have been apportioned. Ford’s report based on his observations and the eyewitness had concluded that the front right corner of the wall probably had been knocked out by wind driven debris from the neighbor’s house.

  19. Brian Martin

    The only reason to send an engineer to the McIntosh home would be to determine the amount of wind damage to the first floor before any flooding. The roof and second floor damage could not be denied with a surviving building and only 4 or 5 feet of flooding.
    State Farm’s demand that the engineers not apply percentages to wind and flood damage defeats the whole purpose of the assessment. Ford looked for evidence of wind damage to the first floor and found it. According to Adam’s email, Lecky King objected on the basis that “their data showed the surge levels in that area were so high it had to be water damage.” Even you should admit that the surge level is irrelevant to the question of how much wind damage occured before the surge. After the firing/rehiring by State Farm, the FAEC engineers understood they were to look only for justification to blame flooding as the predominant cause.
    There were many, many homes that had structural wind damage and some flooding but were not completely destroyed. I don’t have to go outside my immediate family for a case with a tree on the roof, the neighbor’s roof through the kitchen wall, and then several feet of first floor flooding. In this case, the insurer (not State Farm) paid for the roof and the wall, but not for the any of the first floor interior or contents damage. The homeowners declined to sue even though they should have received some coverage of the first floor damage due to the wall failure. They have small children and needed to get on with their lives. They took what they could get and borrowed the rest in SBA disaster loans. That is what the insurers count on. Most people who lose their homes will settle for less than they are owed because they are not able to wait years for their cases to be resolved and because the government makes it possible for them to rebuild with loans and other assistance.