State Farm post-judgment brief filed in Broussard case

State Farm filed its promised post-judgment motion in Broussard v. State Farm last Friday, a motion for a partial directed verdict, or in the alternative, a new trial.  Here is a pdf of the supporting legal memorandum, and although State Farm had the court’s permission to file a 45-page brief (35 pages is the rule), it took only 40 pages, 36 if you count just the text of the arguments. 

I read the brief, and I thought it was nice work, well-written and argued.  I didn’t really buy the first section, which presented an argument about allocation of the burden of proof based on the Lunday case.  I’m kind of sick of talking about the Lunday case, so I’m not going to go into great detail, but there were some key differences between the type of policy in that case and the one in Broussard.   However, I thought Section II, with more arguments about the burden of proof, was very impressive and well done.  State Farm is still stuck on that burden-shifting analysis, which I wouldn’t use because it sounds too tricky and, in my view, just detracts from the strength of the argument, but this was the strongest part of the brief.  For a long brief, it was a quick read, and someone obviously spent an enormous amount of time and effort in editing and tightening it up. To whoever that person was, I say this: you did a great job.

Another thing I liked was that State Farm took the focus off the anti-concurrent language and honed in on the flood exclusion itself, which really doesn’t depend on the anti-concurrent language in these circumstances.  It was the clearest position I have yet read from State Farm on the anti-concurrent language and flood exclusion.  Overall, a superior effort and product.

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