Q: So you’ve finally gone with the blogosphere herd and resorted to the FAQ style for this post. Why?
A: Hey, I’ve got a day job, which usually stretches into a night shift. If you had my workload you’d be looking to get things done the quickest way possible too.
Q: Another preliminary matter, how do you pronounce FAQ anyway?
A: Check the ultimate authority on everything: Wikipedia. Which, by the way, even has this great entry about the chess game played in the movie Blade Runner: Director’s Cut. What’s really cool about the use of this game is it’s a famous one played in 1851 called The Immortal Game, and the theme of the movie is that we’re not, none of us know how much time we’ve got. Incidentally, movies hardly ever get chess right, if you watch closely you’ll see the two chess boards, one at each player’s home, had the pieces arranged differently. Hard to play a game when you can’t agree on where the pieces are. No wonder Tyrell was surprised by that last move. Also, if you look at the chess board in The Shawshank Redemption, you’ll see the board is cockeyed, with a black square on the far right of each player. A white square is always on the far right of each player. But I digress.
Q: Remind me, what’s the Tuepker case about?
A: One of the Katrina cases in Mississippi. Couple’s home was destroyed by Katrina, down to the foundation. They made a claim under their homeowners insurance to State Farm, which denied it, saying the home was destroyed by flood, waves and storm surge. Those aren’t covered. The Tuepkers said the damage was caused by hurricane winds, which would be covered. They sued. State Farm filed a motion for judgment on the pleadings. Judge Senter denied the motion because factual issues existed about what caused the destruction of the Tuepker home, wind or flood. In the course of denying the motion, Senter discussed the State Farm anti-concurrent cause clause and said this: to the degree anyone wants to interpret it to bar coverage for damage from wind, the clause is ambiguous, because the policy clearly covers wind damage. He acknowledged flood damage was excluded.
Q: What got filed and where?
A: After Senter denied the motion, he issued an order allowing an immediate appeal, which goes to the U.S. Court of Appeals for the Fifth Circuit. State Farm gets to go first in the briefing and filed its brief January 30. I got a copy from the records office at the Fifth Circuit, very nice people. However, it was not free, in case you are tempted to call and order your own.
Q: So you read the whole 80-page-plus thing?
A: More or less. You know appeals briefs, the type is so large it’s like they’re written in crayon.
Q: Lots of well-known lawyer and firm names on the brief. What did you think of the overall presentation and arguments?
A: I wasn’t blown away like I thought I’d be, having seen Judge Senter’s order certifying State Farm’s interlocutory appeal in this case. Senter stated State Farm’s argument pretty well and succinctly. Still, I thought State Farm made some good points in this brief. I liked the arguments made about Mississippi not following the efficient proximate cause doctrine, I thought that was pretty persuasive. The part on allocation of the burden of proof between claimant and insurer, it was good, it convinced me about halfway, but seemed to have too much finesse. The stuff about the anti-concurrent cause clause kind of played hide-and-seek with itself, it was hard to follow and Senter’s characterization of their argument was more persuasive than what actually got filed. The writing was a tad on the ponderous side, which happens when you have a lot of people involved, not much relief for the reader, not many water stations along this marathon course. The brief played it pretty safe, but I’ll say one thing for it, at more than 80 pages counting the index and exhibits, it was thorough. No one can blame them for that, a lot is at stake. You have to cover all the bases, maybe a couple times over.
Q: So you mentioned it’s not free to get a copy. I don’t suppose you’d be willing to share yours at no charge whatsoever?
A: Glad to do it. For readers of my blog, nothing is too good. Here’s a pdf of the brief, knock yourself out.