Claims and Bad Faith Law Blog

Landlord Package Liability Insurer Held to Good Faith, Coverage/Not.

    A Liability Insurance Company issued what the Court in the case called a "Landlords Package Policy" which originally "specifically provided coverage for misrepresentation claims brought by third parties against the insureds."  Download Metropolitan Business Management, Inc. v. Allstate Insurance Co. (C.D. Cal. Opinion filed 08.06.09), attached Official Slipsheet Opinion at 4.  When this Coverage was in effect, one of the Policyholders was a mortgagee and a trust beneficiary of a deed on certain property.  That Policyholder was sued by third parties "for fraud and conspiracy" related to alleged misrepresentations concerning its deed of trust on that property.

   Apparently without informing its Policyholders, the Insurance Company purportedly deleted that Coverage.  According to facts in the record, the Insurance Company adjusters would adjust the Claim based on the policy forms that were in effect at the time of the lawsuit "and not investigate whether earlier policy forms applied."  Id.

   It was held that the Defendant Insurance Company was subject to duties of Good Faith and Fair Dealing based on this evidence which was introduced at Trial.  The Federal District Judge rejected the Insurance Company's contention in this case that it did not breach the Insurance contract, that there was "a genuine dispute as to coverage," and that "it engaged legal counsel and made a legal determination that there was no coverage under the operative policy.  Download Metropolitan Business Management, Inc. v. Allstate Insurance Co. (C.D. Cal. Opinion filed 08.06.09), at 11.  There was evidence that the Defendant Insurance Company did not reasonably inform its Policyholders of their rights and obligations, and that it did not investigate prior forms which might have remained in effect for Coverage.  On this record, the Federal District Judge held in this case, a reasonable jury "could have concluded that defendant acted in bad faith."  Download Metropolitan Business Management, Inc. v. Allstate Insurance Co. (C.D. Cal. Opinion filed 08.06.09), at 12.

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Bank of America Answer Does Not Allege Advice of Counsel.

   Sure enough, Bank of America's Answer does not rely on a Defense of Advice of Counsel to the pending claims of Securities Fraud leveled by the Securities and Exchange Commission.  In fact, the Answer does not even allege advice of counsel at all, really.  Not so you would notice.

   BOA's Answer was filed on Friday, September 25, 2009 in the same proceeding in which the United States District Judge previously refused to approve the Consent Settlement Judgment that BOA reached with the SEC, calling it "a contrivance."   As was previously reported in this space, the Federal Judge's Order expressed concern about what apparently amounts to alleged Breaches of Fiduciary Duties among other things.  Here is a complete copy of the Bank's Answer:  Download BOA.Answer.092509 (SDNY Case No. 09 civ 6829).

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Jury Verdict: No Bad Faith Statutory Penalties.

   A Jury reached a Verdict declaring that the evidence did not warrant Bad Faith statutory penalties in Download One River Place Condominium Association, Inc. v. Axis Surplus Insurance Co. (E.D. La. Opinion filed 08.04.09).

   A lesson taught by the Insurance Company in this case is that it was not content to leave the introduction of all evidence to the Policyholder, One River Place Condominium Association, Inc., after Axis denied part of One River's Hurricane Katrina Property Damage Claim.  "Axis set forth evidence that it did not delay in paying the interior damages while inspecting the exterior of the property," that it paid an additional amount for a particular type of damage once it confirmed that the original tally of that particular amount was too low, that it paid depreciation even before it was due under the Policy, and presented evidence, said the Court, that the Policyholder "withheld providing ... documents required to process the claim."  Download One River Place Condominium Association, Inc. v. Axis Surplus Insurance Co. (E.D. La. Opinion filed 08.04.09), attached Official Slipsheet Opinion at 5.

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Bank of America, Attorney-Client Privilege, Logs and Press Releases.

   Bank of America has stared down the United States Congress.  BOA will not produce numbers of records subpoenaed by the House Oversight and Government Reform Committee.  Instead, BOA will provide a privilege log in an unspecified format with unstated detail.  BOA will assert Attorney-Client Privilege in refusing to produce the subject documents.  The Committee will scour BOA's Privilege Log instead "to determine which documents are critical to the Committee's ongoing investigation."  Press Release, House Committee on Oversight and Government Reform, Tuesday, September 22, 2009.

   It is unknown how anyone can determine which documents are critical to an investigation without knowing some detail about the substance that is in the documents in the first place.  Nor is there any announcement of an agreement about what the U.S. Congress and Bank of America will do if the Congress declares certain documents "critical" and BOA declares them "privileged".  The BOA privilege log may be a political cover, without being much of an aid in understanding the Bank's assertion of Attorney-Client Privilege.  Time perhaps will tell.

   Oh, one other thing in the meantime.  The Committee's rather cryptic Press Release did not contain any mention of the fact that the Bank is continuing to blame its lawyers for providing advice to BOA officials regarding disclosure and nondisclosure issues surrounding the Merrill Lynch acquisition and bonus payoff fiasco, on the one hand, while on the other hand BOA contends that it is not formally relying on a defense of advice of counsel which would subject that advice to discovery.

The House Committee's investigation of and subpoenas to Bank of America come with a context.  BOA's proposed Settlement Consent Judgment with the Securities and Exchange Commission has been rejected by the United States District Court as a "contrivance".  The SEC's Federal Court civil enforcement action concerns the same BOA-Merrill Lynch issues that are being investigated by the House Committee.  The New York State Attorney General is also reportedly investigating the same issues.  These developments have been explored in previous posts in this space and on Insurance Claims and Issues Web Log at www.insuranceclaimsissues.typepad.com most recently on September 22, 2009.

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Rescission: Post-Claims Underwriting, or Controlling Fraud?

    The issues posed by Rescission of Health Insurance Policies after Claims are made on those Policies are addressed in this new report by Karl Vick, "When Your Insurer Says You're No Longer Covered/Firms Defend 'Rescissions' as Fraud Control" (Washington Post Online, Tuesday, September 8, 2009).

    Why Rescission by Health Insurance Companies after Claims are made casts them in the role of the villain in the Health Insurance Reform saga, is made clear in the linked report as well.

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Credit Rating Companies and Fiduciary Duties.

   Many forms of Regulation reform are currently being considered regarding Credit Rating Companies.  In one person's view:

[A] better approach would be new legislation that makes clear that the ratings agencies owe the fiduciary duty of care and loyalty to their investor clients.  That doesn't mean they can be sued any time an investment goes sour.  What it does mean is that they would be liable if they put out a rating that they knew, or should have known, was misleading after taking reasonable steps to ascertain that the information provided to them was accurate.

Steven Pearlstein, "Missing the Mark on Ratings-Agency Reform" (Washington Post Online, Friday, September 18, 2009).  This is well said.  The Courts have also spoken well.  They have imposed Fiduciary Duties recognized at Common Law in many respects on persons and entities in the position of Credit Rating Companies.  These persons and entities have, however, often defended on the ground of immunity conferred by Congress and with a defense that their paid pronouncements are 'protected' by the First Amendment to the United States Constitution.

   Perhaps against this background, new Federal legislation also imposing Fiduciary Duties may well be welcome in this area.

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More, More, MORE: Bonuses Bonked, Fiduciary Concerns Stifle SEC Settlement!

    Last week the Securities and Exchange Commission had a proposed Consent Settlement Judgment with Bank of America disapproved by a Federal Court as a "contrivance".   This week, the SEC announced that it is going to Trial with BOA.  "SEC to Take Bank of America to Trial Over Merrill Lynch Bonuses" (Associated Press Copyrighted Story published in Los Angeles Times Online, Tuesday, September 22, 2009); see Greg Farrell, "BofA to Pay $425m Over Toxic Assets" (Financial Times.com, Tuesday, September 22, 2009).

   Stay tuned.  The SEC is unlikely to attempt to try this case.  Based on their past record, the SEC is much more likely to try again to settle.  And to somehow come up with a reason to move the case out of the Court of the Federal Judge that disapproved its proposed settlement with BOA in the first place.

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POSTSCRIPT to "$200,000 a Deposition ...

... and Climbing:  YOU Pay Fannie Fees Now," a post here on September 8, 2009.

The debacle addressed in this post has resonated with public opinion across the nation.  For example, the Orlando Sentinel has addressed the subject, too, in an editorial that is highly critical of paying the Fannie Fees with Federal Taxpayer Funds.

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Reinsurance Allocation Alleged in Bad Faith.

   Global International Reinsurance Company agreed to reinsure TIG Insurance Company for certain Losses.  Global and TIG set out their arrangement in a Loss Reserve Reinsurance Agreement.  Global defended in an Arbitration of the parties' disagreement over allocated Losses, on several asserted grounds which included fraud, and Global's contention "that TIG had allocated the disputed claims in bad faith".  Download In re TIG Insurance Co. v. Global International Reinsurance Co., Ltd (S.D. NY Opinion filed 08.11.09, Opinion Signed 08.07.09)(Rakoff, J.), attached Official Slipsheet Opinion at 1-2.

   In the Arbitration Proceeding arising from the Reinsurance Agreement, the Arbitrator granted TIG's Motion for Partial Summary Judgment on Global's fraud and  Bad Faith Claims.  Global then filed a Petition to Vacate the Arbitration Award, and TIG filed a Petition to Confirm it.   Judge Jed Rakoff granted TIG's Petition and denied Global's Petition.  Download In re TIG Insurance Co. v. Global International Reinsurance Co., Ltd (S.D. NY Opinion filed 08.11.09, Opinion Signed 08.07.09), at 5-6.  "Here, the losing party got all that it bargained for when it elected arbitration."  Download In re TIG Insurance Co. v. Global International Reinsurance Co., Ltd (S.D. NY Opinion filed 08.11.09, Opinion Signed 08.07.09), at 1.

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MORE and MORE: Bonuses Bonked, Fiduciary Concerns Stifle SEC Settlement!

    This adds information on new developments in issues previously addressed in posts here on August 13, 2009 and again on August 25, 2009 and on September 13, 2009.

    On Monday, September 14, 2009 Federal Judge Jed Rakoff entered an Order denying the SEC's proposed Settlement Consent Judgment with Bank of America.  Judge Rakoff was careful in his recitation of the facts of the case and the reasons for the Order.  He was also justifiably scathing in response to what can only, at best, be called posturing both by the SEC and by Bank of America.  See Download Securities and Exchange Commission v. Bank of America Corp. (S.D.N.Y. Opinion Filed September 14, 2009).

    The proposed settlement was denied because it was "neither fair, nor reasonable, nor adequate."  Download Securities and Exchange Commission v. Bank of America Corp. (S.D.N.Y. Opinion Filed September 14, 2009), attached Official Slipsheet Opinion at 3.

    "It is not fair, first and foremost, because it does not comport with the most elementary notions of justice and morality, in that it proposes that the shareholders who were the victims of the Bank's alleged misconduct now pay the penalty for that misconduct."  Download Securities and Exchange Commission v. Bank of America Corp. (S.D.N.Y. Opinion Filed September 14, 2009), at 4.

    There is another reason that the proposed Settlement Consent Judgment is not fair.  Bank of America's placing the blame on its lawyers is not a justification for this Consent Judgment, wrote Judge Rakoff:

But if that is the case, why are the penalties not then sought from the lawyers?  And why, in any event, does that justify imposing penalties on the victims of the lie, the shareholders?

***

    The S.E.C. also claims that it was stymied in determining individual liability because the Bank's executives said the lawyers made all the decisions but the Bank refused to waive attorney-client privilege.  But it appears that the S.E.C. never seriously pursued whether the [sic] this constituted a waiver of the privilege, let alone whether it fit within the crime/fraud exception to the privilege.  And even on its face, such testimony would seem to invite investigating the lawyers.  The Bank, for its part, claims that it has not relied on a defense of advice of counsel and so no waiver has occurred.  But, as noted earlier, the Bank has failed to provide its own particularized version of how the proxies came to be and how the key decisions as to what to include or exclude were made, so its claim of not relying on an advice of counsel defense is simply an evasion.

Download Securities and Exchange Commission v. Bank of America Corp. (S.D.N.Y. Opinion Filed September 14, 2009), at 5 & 9 n.3.  [Emphasis added.]

    Under the circumstances, the proposed Settlement Consent Judgment is, in the Court's view, a "contrivance" which, as noted, is not only not fair but is also not reasonable.  Download Securities and Exchange Commission v. Bank of America Corp. (S.D.N.Y. Opinion Filed September 14, 2009), at 8-11.  In the final analysis, and also as was previously noted, the proposed Consent Judgment is "inadequate":

    Oscar Wilde once famously said that a cynic is someone "who knows the price of everything and the value of nothing.". . .  The proposed Consent Judgment in this case suggests a rather cynical relationship between the parties:  the S.E.C. gets to claim that it is exposing wrongdoing on the part of the Bank of America in a high-profile merger; the Bank's management gets to claim that they have been coerced into an onerous settlement by overzealous regulators.  And all this is done at the expense, not only of the shareholders, but also of the truth.

Download Securities and Exchange Commission v. Bank of America Corp. (S.D.N.Y. Opinion Filed September 14, 2009) , at 11-12.  The proposed Settlement was not approved.  Instead, Trial in the case is set to begin on February 1, 2010.  The SEC and BOA are ordered to be ready to try the case beginning on that date.

    Newspapers have rushed to print the story.  See, e.g., Greg Farrell, "Court Rejects SEC Settlement With BofA" (Financial Times Online, Monday, September 14, 2009); Louise Story, "Judge Rejects Settlement Over Merrill Bonuses" (New York Times Online, posted on Monday September 14, 2009 for print publication on Tuesday, September 15, 2009); and Zachary A. Goldfarb, "Judge Rejects SEC, Bank of America Settlement" (Washington Post Online, Monday September 14, 2009).

    Many of these and other newspaper reports mention that if this case goes to Trial, witnesses who may be called to testify may include Henry Paulson, former Secretary of the Treasury; Mr. Benjamin Bernanke, then and now the head of the Federal Reserve; former Merrill CEO John Thain; and BOA's CEO then and now, Mr. Ken Lewis.  Some of the newspapers also mention that Judge Rakoff refused to approve a settlement proposed by the SEC six years ago with WorldCom, until the SEC increased its fine by a Quarter of a Million Dollars -- from $500,000.00 to $750,000.00 -- and changed the payees to WorldCom's shareholders instead of the SEC.  Then Judge Rakoff approved that settlement.

    However, none of the newspaper reports read in preparation for this post, mentioned that Judge Rakoff began his legal career as a distinguished prosecutor in the Securities Fraud Division of the Office of the United States Attorney for the Southern District of New York.

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MORE on Bonuses Bonked, Fiduciary Concerns Stifle SEC Settlement!

   This adds information on new developments in issues previously addressed in posts here on August 13, 2009 and again on August 25, 2009.

   Bank of America reportedly told the Federal Judge considering whether to approve BOA's settlement of allegations including fraud leveled by the Securities and Exchange Commission, that BOA is ready to go to trial.

   Also, that Bank of America did not actually rely on the advice of its attorneys either to tell its shareholders that it would tell the shareholders if Merrill Lynch paid bonuses, or not to tell its shareholders when as a matter of fact Merrill Lynch already had paid bonuses.  However, BOA contends that its lawyers are responsible for these things, and not its officers, although these are not bad things anyway, BOA says.

   At the time, as you may recall, BOA was in the process of buying Merrill Lynch.  See, e.g., Zachary A. Goldfarb, "Financial Crisis/Bank of America Defiant Over Merrill Lynch Bonuses" (Los Angeles Times Online, Thursday, September 10, 2009, courtesy the Washington Post); Zachery Kouwe, "S.E.C. Defends Deal in Merrill Takeover" p. B2, col. 4 (New York Times, Business Section, Thursday, September 10, 2009); Dan Fitzpatrick & Kara Scannell, "'Simply Wrong':  BofA Fires Back at Cuomo" p. C3, col. 2 (Wall Street Journal, Thursday, September 10, 2009)(payment to Wall Street Journal required to read or view).

   Transparently on the offensive against allegations of withholding information, BOA also challenged assertions of the New York Attorney General's Office that BOA is relying a lot on advice it allegedly received from its attorneys, not simply to defend itself against the SEC but as a reason to withhold information by asserting attorney-client privilege.

   The same linked sources also report that the SEC told the Federal Judge that it did not have evidence of wrongdoing by officials of Bank of America regarding the withheld information.  Note that much information was also withheld from the SEC by BOA's assertion of attorney-client privilege.

   As we began by noting, note again that BOA has defiantly told the Federal Judge that BOA is prepared to proceed to trial if its settlement with the SEC is not approved.

   Proceed to trial.  Enough words.  Proof is what is required.  Enough blaming the lawyers and other people.  Let the information all come out, the good and the bad alike.

   Try it.

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Bad Faith Attorney's Fees ... Or Not.

   Attorney's Fees can be awarded under 29 U.S.C. Section 1132(g)(1) in the discretion of the Federal District Court.  This includes ERISA benefit employee actions.

   However, one factor involves fault or "Bad Faith" of the opposing party and where, "in this case, Defendant was neither acting in bad faith, nor out to harass Plaintiff," no such Attorney's Fees would be awarded.  Download Cabernoch v. Union Labor Life Insurance Co. (N.D. Ill. Opinion Filed 08.14.09), attached Official Slipsheet Opinion at 1-2.

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Bad Faith Standard, First-Party Insurer's Settlement Conduct Held: Reasonableness.

    The standard of liability for alleged Bad Faith settlement conduct by First-Party Insurers in many jurisdictions, including in Florida for example, is reasonableness:

    The legal standard governing an insurer's settlement conduct is one of reasonableness.  D. Wall, Litigation and Prevention of Insurer Bad Faith § 9.03 (1985).

Download Cruz v. American United Insurance Co. (Fla. 3d DCA 1991).

California Insurance Law provides another example of a jurisdiction in which this objective standard of liability is in effect.  Download Bosetti v. United States Life Insurance Co. (Cal. 2d DCA, Div. 3 Opinion Filed July 17, 2009), attached Official Slipsheet Opinion at 40.

See generally Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" § 9:3 (Second Edition Shepard's/McGraw-Hill; 2009 Supplement in process West Publishing Company).

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$200,000 a Deposition, and Climbing: YOU Pay Fannie Fees Now.

   Fannie Mae  once had three top executives who have been sued over alleged accounting irregularities.  They are its former CEO, former CFO, and former Controller.  The accounting irregularities seem to have something to do with why they are all "former" executives of Fannie Mae.

   Fannie Mae had agreements with these executives before they became "former" executives of Fannie Mae.  Once they became "former" and no longer "current" executives, Fannie agreed to pay "the legal costs associated with shareholder suits brought against them in the wake of the accounting scandal."  Gretchen Morgenson, "Fair Game/They Left Fannie Mae, but We Got the Legal Bills" p. 1, col. 2 (New York Times Nat'l ed., "SundayBusiness" Section, Sunday, September 6, 2009).

    As has been more widely reported, the Federal Government 'took over' Fannie.  When it did so, it took over the cost of paying Fannie's agreements with the Three Former Fannies.  See id.

   At an average cost of $200,000.00 a Deposition, 33 Depositions of people other than the Three Former Fannies have been taken and paid for by Federal Taxpayers -- you.  The total cost of defense for those items is $6.3 Million or $6,300,000.00.  That legal bill is for ten (10) months.  Id.

   That does not include an additional  $16.8 Million or $16,800,000.00 that "was paid in the period to cover legal expenses of workers at the Office of Federal Housing Enterprise Oversight, Fannie's former regulator."  The reason for these additional Millions in legal fees?  "These costs are associated with defending the regulator in litigation against former Fannie executives."  Id.

   More to come.  Much more.

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Pennsylvania Bad Faith Statute of Limitations.

   The Pennsylvania Bad Faith Statute, 42 Pa. Cons. Stat. Section 8137, does not include a Statute of Limitations.

   Claims brought under the Pennsylvania Bad Faith Statute have been held to be subject to the two-year Statute of Limitations for Tort actions.  Download Sikora v. State Farm Insurance Co. (W.D. Pa Opinion filed 08.04.09), attached Official Slipsheet Opinion at 4-5.

   Pennsylvania Statutory Bad Faith Claims have been held to begin when the Insurance Company denied the Insured's Claim in Bad Faith.  Download Sikora v. State Farm Insurance Co. (W.D. Pa Opinion filed 08.04.09), at 5.

   In the Sikora case, Mr. Sikora filed a Claim with State Farm for Underinsured Motorist (or "UIM") Benefits on September 12, 2005.  State Farm wrote to Mr. Sikora in a December 27, 2005 letter that it did not consider him to be its "Insured" and that it was not going to provide him with Coverage.  Mr. Sikora filed a Bad Faith Claim on June 23, 2008.

   On these facts, Mr. Sikora's Bad Faith Claim under the Pennsylvania Statute was held to have been presented "almost six months after the two-year statute of limitations had run."  Accordingly, the Federal Court granted State Farm's Motion for Partial Summary Judgment on Mr. Sikora's Pennsylvania Statutory Bad Faith Claim.  Download Sikora v. State Farm Insurance Co. (W.D. Pa Opinion filed 08.04.09), at 5-6.

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Calling All Mediators: Help Borrowers, Lenders Mediate Foreclosures, Avert Evictions.

A Task Force assembled by the Supreme Court of Florida recently recommended that all of Florida's Trial Courts adopt a policy to require Mediations in Foreclosure Cases.  This is part of an effort to avoid evicting people from their homes whenever eviction can be avoided by mutual agreement between the Lender-Plaintiff and the Borrower-Defendant in the Foreclosure Case.  Report of the Florida Supreme Court Task Force on Residential Mortgage Foreclosure Cases, August 17, 2009:  Download Filed_08-17-2009_Foreclosure_Final_Report.  Foreclosure Mediations may be ordered in Foreclosure Cases, but Mediator participation at greatly reduced rates is voluntary.

This policy is already in effect in many if not all Florida Circuit Courts.  Mediators who are willing to volunteer their time and services in this effort in the Ninth Circuit in the Orlando, Florida area only have to link to the Orange County (Florida) Bar Association here to volunteer.

Volunteer Mediators in the Seminole County, Florida area may send their resume, a copy of their Mediator Certificate, and a cover letter to:

Seminole County Circuit Court

Mediation Department

301 N. Park Avenue

Sanford, FL  32771

 

Re:  Seminole County Fixed Fee Foreclosure Mediation Panel.

 

If there is a program of Foreclosure Mediation in your jurisdiction, and if you are a Certified Mediator, please consider volunteering your time and services, too.

If there is no program yet in your jurisdiction, please consider starting one.  Then be among the first volunteer Mediators in the Mediation Foreclosure program in your Court.  Without you, it cannot be done nearly as well.

To rephrase an insight penned by Albert Camus:

This may be a world in which people are evicted from their homes.  We may not be able to do anything about that.  But we can lessen the number of people who are evicted from their homes.  If you do not help in this effort, who will?

An identical call to Mediators is posted on this same date on Insurance Claims Issues Web Log at www.insuranceclaimsissues.typepad.com.

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Bond Insurance Kaput, Credit Rating Agencies Not Rating: Muni Disclosures.

   The collapse of Bond Insurance Companies has taken away what was viewed as a form of Risk Management for Municipal Bonds.  This collapse has taken place at the same time that the Munis Market faces an astonishing lack of ratings by the Credit Rating Agencies which remain extant despite their well-reported failures.

    The combination of these events has spurred Disclosure Initiatives of Munis including by Regulators.  One effect in addition to increasing transparency in the Munis Market may be to increase the performance of Fiduciary Duties as well.  See Gretchen Morgenson, "Fresh Air in the Muni Market" (New York Times Nat'l ed., Sunday Business Section, Sunday, August 30, 2009).

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Expert Witnesses on Bad Faith, Punitive Damages.

   Expert Witnesses on Bad Faith were part of the Policyholder's Proof that did not convince the Court in Download WMS Industries, Inc. v. Federal Insurance Co. (S.D. Miss. Opinion Filed August 4, 2009).

   The Court found in that First-Party Bad Faith Case brought under Mississippi substantive law, that the Policyholder "failed to establish that Federal, or its agents acted willfully, maliciously, or with reckless disregard" for the Policyholder's rights.  Accordingly, the Court did not assess Bad Faith Punitive Damages under Mississippi Insurance Law.  Download WMS Industries, Inc. v. Federal Insurance Co. (S.D. Miss. Opinion Filed August 4, 2009), attached Official Slipsheet Opinion at 20-21.

    With regard to the Policyholder's "two bad faith experts" in particular, the Federal Judge in that case wrote that "[t]he Court ruled on the motion to exclude [one of them] on the record."  A review of the entire online Docket of this case failed to reveal any ruling on the motion to exclude that Expert Witness.  Perhaps the ruling was made "on the record" at Trial and is thus contained instead in the Trial Transcript.  Presumably, the "motion to exclude" was granted, because the Court did not refer to any testimony given by that Expert.

    As to the other of the "two bad faith experts," the Court ruled on "the outstanding motion to exclude [that Expert, holding that] the Court's conclusion regarding bad faith renders that motion moot.  The Court as the finder of fact was not persuaded by his testimony."  Download WMS Industries, Inc. v. Federal Insurance Co. (S.D. Miss. Opinion Filed August 4, 2009), at 20-21 n.15.

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