HOUSTON – It’s not often that a defendant in a civil suit fights a plaintiff’s motion to dismiss, but that’s exactly the case in a storm suit against State Farm – a lawsuit that the insurer suspects may have been brought on the plaintiff’s behalf without her knowledge.
Court records show the Texas-based Voss Law Firm filed a storm suit on behalf of Raquel Rodriguez against State Farm Lloyds on Feb. 24, 2015, in Webb County District Court, seeking exemplary damages against the insurer.
Allegedly, Rodriguez’s Laredo home suffered storm-related damages on May 8, 2014 – damages that were covered under her policy and not fully paid for by State Farm.
The case was removed to federal court last April.
On May 19, State Farm filed a motion to show authority, asking the court to require Voss Law attorney Scott Hunziker, a managing partner at the firm, to appear and show his legal authority to prosecute the action on behalf of Rodriguez, court records show.
According to the motion, State Farm took Rodriguez’s deposition on Jan. 15.
When asked how she learned of the Voss Law Firm, Rodriguez said two representatives of a company called “Valley Adjusters” approached her at her home, telling her they could “fight her case” and contact an attorney to help her out.
Using case runners to sign up clients is a form of barratry and illegal in the state of Texas. Allegations of law firms using insurance adjusters and contractors to procure clients following major storms have begun to surface the past year.
Although she verbally told them she was willing to cooperate, Rodriguez allegedly did not sign any papers, the motion states.
When counsel for State Farm presented her with the contract of legal employment that the Voss Law Firm produced in discovery, Rodriguez testified that the signature on the document was not hers and agreed that it was fraudulent, according to the motion.
Rodriguez’s attorney, Scott Hunziker, denies State Farm’s pleadings.
“Not only did we represent Miss Rodriguez, we had been in contact with her every step of they way, assisting her in full,” Hunziker told the Record.
However, Hunziker did not respond to a request for comment on how the firm came to be in the employ of Rodriguez.
“Rodriguez expressly denied signing any contract for Valley Adjusters or the Voss Law Firm,” State Farm’s motion states.
The signature on the contract did not match the one on her driver’s license, according to the motion.
“Rodriguez subsequently indicated that she came to an oral agreement over the phone that the Voss Law Firm could represent her, but she dated this agreement, her first contact with the Voss Law Firm, to maybe six months before the deposition, around the summer of 2015,” the motion states.
Several months prior to the oral agreement, the Voss Law Firm had already sent a letter of representation, a demand of money and filed suit against State Farm on Rodriguez’s behalf, according to the motion.
Rodriguez further testified that she had not been made aware that State Farm had sent a supplemental payment to her, care of the Voss Law Firm, in March of 2015, “a payment on which she and the Voss Law Firm had been made joint payees, until counsel for State Farm brought it to her attention at the deposition,” the motion states.
“Rodriguez also testified that, contrary to the written language in the fee contract, she did not agree that the Voss Law Firm could pay money to Valley Adjusters if the case settled.”
When asked to describe her feelings about what happened with Valley Adjusters, Rodriguez started crying and said Valley Adjusters “went to my house to tell me a bunch of lies,” according to the motion.
Two months after the deposition, on March 16, the Voss Law Firm sent State Farm a letter enclosing “checks to clients that are dismissed or we no longer represent.”
Rodriguez was among the people listed, the motion states.
On May 6, counsel for State Farm emailed the attorney of record for Rodriguez, James McClenney, stating no action has been taken to withdraw from the case and requesting he withdraw or the insurer will be forced to file a motion to show authority with requests for costs.
“McClenney did not respond and counsel for State Farm has since learned from Scott Hunziker … that McClenney is no longer employed by the Voss Law Firm,” the motion states, adding that Hunziker did not respond to repeated inquiries on whether he was withdrawing his appraisal demand on behalf of Rodriguez.
A response to State Farm’s motion to show authority was filed May 25, stating that the Voss Law Firm represents Rodriguez and has done so since the litigation began.
“This has included the filing of this suit, invocation of appraisal, and producing Plaintiff for her recent deposition, which ironically has given rise to Defendant's motion,” the response states. “In fact, upon receipt of this Honorable Court's Order requiring the present response, counsel contacted Plaintiff again, simply to confirm her wishes to continue our firm's representation, which Plaintiff expressly did, and which was witnessed.”
The response further states the “confusion in this matter was the apparent mistake of a young attorney, James McClenny,” the man who sent a letter to State Farm “erroneously representing that our firm was discontinuing our representation.”
A week after filing the response, Rodriguez’s counsel filed a motion for dismissal with prejudice on June 1.
On June 10, State Farm responded to the motion to dismiss, requesting a hearing on the pending motion to show authority; an order requiring the Voss Law Firm to disclose the name of the Valley Adjuster’s marketer who allegedly procured Rodriguez’s signature on the legal contract; and leave to depose the marketer and a corporate representative of the law firm, court records show.
“The Voss Law Firm’s response … contains only conclusory statements,” State Farm’s response states. “Due to the dubious timing and circumstances of the Voss Law Firm’s motion to dismiss … (State Farm) submits dismissal is premature.”
A hearing on the motions to show authority and dismiss was held July 28, where the court ordered State Farm to provide information regarding Voss business practices.
On Aug. 4 State Farm submitted a brief regarding the Voss Law Firm’s potential misconduct, sanctions and additional discovery permitted in other courts where Voss cases were litigated.
“State Farm has unearthed evidence showing policyholder Plaintiffs variously unaware of being represented, unaware of payments and settlement offers State Farm had made to them, and unaware of outcome-determinative actions by the Voss Law Firm, such as invoking appraisal,” reads State Farm’s brief.
The brief contains several exhibits, including court orders from other Voss cases and news articles produced by the Record about the law firm.
“Additionally, orders, pleadings, minutes from hearings and articles from the SE Texas Record are provided to the Court for further illumination of Voss’ questionable business practices,” the brief states.
State Farm argues “it has become obvious” the motion to dismiss is “being used to avoid discovery.”
If the court does dismiss the action, the insurer is requesting the court does it conditionally, issuing an order requiring Voss Law to disclose the name of the Valley Adjuster marketer who allegedly procured Rodriguez’s signature, and the opportunity to depose the marketer and a corporate representative of Voss.
State Farm also reminded the court that a district court has jurisdiction to impose Rule 11 sanctions, “even where it has dismissed a case under Rule 41(a).”
On Aug. 8 U.S. District Judge Marina Garcia Marmolejo granted a Voss motion to leave to file a response to State Farm’s brief, giving the firm 14 days to respond, court records show.
The judge also ordered State Farm to file a proposed order by Aug. 11, which it did, in light of the insurer’s request to abate dismissal to investigate the allegations against Voss Law.
Voss Law responded to State Farm’s brief on Aug. 18 and included a motion for sanctions, “which is based upon facts, versus the fantasy and imagination from which Defendant’s brief derives.”
In its response, Voss Law argues that:
- State Farm’s counsel submitted cases as evidence that did not involve defendant’s counsel or firm;
- Cases that did not even fall within the state of Texas;
- Cases that had literally nothing to do with Voss;
- Exhibits in the form of biased web site articles - which represent no authority at all.
State Farm is represented by Mark Lindow and Jana Richard, attorneys for the San Antonio law firm Lindow Stephens Treat.
“At the end of this unfortunate exercise, the Court will see that Mr. Lindow is simply taking an opportunity to endeavor into a pure fishing expedition, in a matter that (ironically) Plaintiff herself simply wishes to dismiss,” the response states.
“As this is an improper tactic, and an improper use of the legal system in general, the present responsive brief by Plaintiff also seeks sanctions against Mr. Lindow personally (as opposed to his firm and his client) for forcing the undersigned to go through such a protracted exercise in futility.”
In the Southern District of Texas, case No. 5:15-cv-00085