0001 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI 2 SOUTHERN DIVISION CIVIL ACTION NO. 1:06CV457 3 4 WILLIAM MULLINS, et al., ) 5 ) Plaintiffs, ) 6 ) vs. ) 7 ) STATE FARM FIRE AND ) 8 CASUALTY COMPANY, et al., ) ) 9 Defendants. ) ) 10 11 VIDEOTAPED DEPOSITION OF ROBERT KIMBERLEY KOCHAN 12 (Taken by Plaintiffs) 13 Raleigh, North Carolina 14 Thursday, November 30, 2006 15 16 17 18 19 20 21 22 23 Reported in Stenotype by V. Dario Stanziola, CSR, RPR, CRR 24 Transcript produced by computer-aided transcription 25 0002 1 APPEARANCES 2 ON BEHALF OF THE PLAINTIFFS: 3 DEREK A. WYATT, Esquire Barrett Law Office, P.A. 4 404 Court Square North Lexington, Mississippi 39095 5 (662) 834-2376 6 MARY E. McALISTER, Esquire Nutt & McAlister, PLLC 7 605 Crescent Boulevard, Suite 39157 Ridgeland, Mississippi 39157 8 (601) 898-7304 9 GARY YARBOROUGH, Esquire Hesse & Butterworth, PLLC 10 841 Highway 90 Bay Saint Louis, Mississippi 39520 11 (228) 466-0020 12 ON BEHALF OF THE DEFENDANTS FORENSIC ANALYSIS AND ENGINEERING CORPORATION and WILLIAM C. FORBES: 13 LARRY G. CANADA, Esquire 14 Galloway, Johnson, Tompkins, Burr & Smith One Shell Square 15 701 Poydras Street, Suite 4040 New Orleans, Louisiana 70139 16 (504) 525-6802 17 ON BEHALF OF THE DEFENDANT STATE FARM FIRE AND CASUALTY COMPANY: 18 SHERRIE L. MOORE, Esquire 19 Allen, Cobb, Hood & Atkinson, P.A. 2512 25th Avenue 20 Gulfport, Mississippi 39501 (228) 864-4852 21 Also Present: 22 JOHN GIRDLER, CLVS, Videographer 23 24 25 0003 1 VIDEOTAPED DEPOSITION OF ROBERT KIMBERLEY 2 KOCHAN, a witness called on behalf of the 3 Plaintiffs, before V. Dario Stanziola, CSR, RPR, 4 CRR, Notary Public, in and for the State of North 5 Carolina, held at the Hilton North Raleigh, Oakwood 6 Room, 3415 Wake Forest Road, Raleigh, North 7 Carolina, on Thursday, November 30, 2006, 8 commencing at 8:13 a.m. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0004 1 INDEX OF EXAMINATIONS 2 By Mr. Wyatt PAGE 6 3 4 INDEX OF EXHIBITS 5 NUMBER EXHIBIT MARKED 6 Forensic 10: United States District 5 Court Subpoena in a Civil Case dated 7 11/29/06 171 8 Forensic 12: A compilation of documents with the first being handwritten notes 9 dated 11/9/05 194 10 Forensic 13: A yellow lined paper with the handwritten word drat three times 11 with a signature 230 12 Forensic 14: Forensic Analysis & Engineering Report dated October 20, 13 2005 of the insured Thomas and Pamela McIntosh 14 237 Forensic 15: Forensic Analysis & 15 Engineering Report dated February 10, 2006 of the insured Alfred Pepperman 16 245 Forensic 16: Forensic Analysis & 17 Engineering Report dated January 9, 2006 of the insured Julie Nelson 18 252 Forensic 17: Forensic Analysis & 19 Engineering Report dated November 30, 2005 of the insured Robert Erichsen 20 255 Forensic 18: Forensic Analysis & 21 Engineering Report dated October 6, 2005 of the insured Archie and Eltie Flowers 22 256 Forensic 19: Forensic Analysis & 23 Engineering Draft Report dated October 13, 2005 of the insured Charles A. Smyly 24 58 Forensic 20: Forensic Analysis & 25 Engineering Report dated November 21, 0005 1 (Forensic 10: United States District 2 Court Subpoena in a Civil Case dated 3 11/29/06 marked for identification, as of 4 this date.) 5 THE VIDEOGRAPHER: We're going on the 6 record. The time on the monitor is 8:13 7 a.m. This is the video deposition of 8 Robert K. Kochan taken by the plaintiffs 9 in the matter of William Mullins, et al., 10 plaintiffs versus State Farm Fire and 11 Casualty Company, et al., defendants 12 under the jurisdiction of the United 13 States District Court for the Southern 14 District of Mississippi, Southern 15 Division, Civil Action Number 1:06CV457. 16 This deposition is being held at the 17 Hilton North Raleigh, 3415 Wake Forest 18 Road, Raleigh, North Carolina on 19 Thursday, November 30th, 2006. 20 My name is John Girdler, I'm the video 21 specialist. The court reporter is Dario 22 Stanziola. We're from Huseby, 23 Incorporated. 24 Counsel will now state their appearances 25 for the record and the court reporter 0006 1 will swear in the witness. 2 MR. WYATT: I am Derek Wyatt of the 3 Barrett Law Firm. I represent the 4 plaintiffs Terry and William Mullins. 5 MS. McALISTER: Meg McAlister for the 6 plaintiffs. 7 MR. YARBOROUGH: Gary Yarborough for the 8 plaintiffs. 9 MS. MOORE: Sherrie Moore for State Farm 10 Fire and Casualty Company. 11 MR. CANADA: Larry Canada for FAEC. 12 ROBERT KIMBERLEY KOCHAN, 13 having been duly sworn, was examined and testified 14 as follows: 15 EXAMINATION 16 BY MR. WYATT: 17 Q. Good morning, Mr. Kochan. 18 A. Good morning. 19 Q. My name is Derek Wyatt. I'm with the 20 Barrett Law Firm in Lexington, Mississippi, and I 21 will be asking you some questions today pursuant to 22 this subpoena and Notice of Deposition that has 23 been served on you this morning. 24 After I finish asking questions, counsel 25 on the other side of the table, Forensic's counsel 0007 1 and also State Farm's counsel, will be afforded the 2 same opportunity. And then if I have some 3 follow-up questions after that, I'll have some 4 more. 5 Would you please state your full name for 6 the record. 7 A. Robert Kimberley Kochan. 8 Q. And what is your current residence 9 address? 10 A. 3743 Chesapeake Avenue, Hampton, 11 Virginia. 12 Q. And how long have you lived at that 13 address? 14 A. Approximately three years -- I'm sorry, 15 two, two-and-a-half years. 16 Q. And before that where did you live? 17 A. In Raleigh. 18 Q. What was your address in Raleigh? 19 A. 7608 Wingfoot Drive. 20 Q. And how long did you live there? 21 A. Approximately eight years. 22 Q. Are you married? 23 A. Yes. 24 Q. What is your wife's name? 25 A. April. 0008 1 Q. And where does she live? 2 A. In my residence in Hampton, Virginia. 3 Q. What is your current business address? 4 A. 3401 Atlantic Avenue, Suite 101 in 5 Raleigh. 6 Q. North Carolina? 7 A. Yes. 8 Q. And how long has that been your business 9 address? 10 A. Since about the first of February of this 11 year. 12 Q. '06? 13 A. Yes. 14 Q. And what was the address before? 15 A. 5301 Capital Boulevard, Suite A, Raleigh, 16 North Carolina. 17 Q. So you moved from Capital to Atlantic? 18 A. Yes. 19 Q. Are there any other offices of Forensic 20 currently? 21 A. In North Carolina or at all? 22 Q. At all. 23 A. Yes, we have established opportunity to 24 do business in North -- in Virginia, Florida and 25 Mississippi. 0009 1 Q. Do you have -- do you have offices 2 located in those locations? 3 A. We've had physical offices. Right now we 4 have a virtual office in Orlando and in Hampton 5 with a P.O. Box, and we have a P.O. Box in 6 Mississippi, Ocean Springs, Mississippi. 7 Q. Mr. Kelly's residence? 8 A. Yes, that's correct. 9 Q. So you don't have any other offices 10 presently other than the one at 3401 Atlantic 11 Avenue, Raleigh? 12 A. That's correct. 13 MR. WYATT: All right. Let me make some 14 recitals here into the record. This 15 deposition is being taken pursuant to 16 notice and to a subpoena which we've 17 marked as Forensic 10, which was issued 18 pursuant to Rule 45 through the Eastern 19 District of North Carolina, United States 20 District Court and served upon 21 Mr. Kochan. 22 Q. And Mr. Kochan, I'm going to hand you a 23 copy of what's been marked as Forensic 10 and ask 24 you, were you served with that subpoena? 25 A. Effects -- I believe similarity of one, 0182 1 those are the only possibilities, aren't they? 2 A. I either became aware of it by reviewing 3 the document and then reacted to it or Nellie 4 Williams or someone informed me of it. 5 Q. Okay. 6 A. Yeah. 7 Q. And if you became aware of the problem 8 while you were peer reviewing it, would you affix 9 your signature to it anyway? 10 A. Like I said, the -- that was an 11 electronic signature that was performed 12 automatically before the peer-review process was 13 completed. 14 Q. Oh, so the signature went on every time 15 before you even peer reviewed? 16 MR. CANADA: Asked and answered. 17 Q. Is that correct? 18 A. Not every time, but I'd say a majority of 19 the time because it was done in that cycle when the 20 invoices were performed, again, for -- on the 21 particular reports that I was scheduled to peer 22 review. 23 Q. And that's very few? 24 A. Yes, it is. 25 Q. Overall it's very few? 0183 1 A. That is correct. 2 Q. All right. Who were you talking with at 3 State Farm at this time? Who were you 4 communicating with? 5 MS. MOORE: Object to form. 6 Q. And the time period of course is 7 October 24th, 2005. 8 A. Well, Mark -- as I said earlier, Mark 9 Wilcox was my primary contact person. That's it. 10 Q. You had not talked with Lecky King? 11 A. As of this date? Yes, I had. 12 Q. You just testified a little while ago you 13 had, didn't you? 14 A. Yeah. 15 Q. In fact, there was a big blow-up with 16 Lecky King, so that's one of the people you'd been 17 talking with at State Farm, right? 18 MS. MOORE: Object to form. 19 MR. CANADA: Object to form. 20 A. Well, I had spoken to her one time. 21 Q. Okay. All right. You had spoken to her 22 and then you arranged to meet with her in person 23 already? Before this e-mail was ever generated, 24 you had it in your mind that you were going to 25 drive to Biloxi, Mississippi and meet with Lecky 0184 1 King? 2 A. Well, I had already in my schedule that 3 started back in September that I was going to be in 4 Biloxi shortly after this date and, therefore, 5 that's when I spoke with Lecky -- Lecky a few days 6 prior to this and told her that's when I would like 7 to meet with her. 8 Q. Okay. But let's see if we can get a 9 chronology here. You had already had a phone -- 10 all of this prior to October 24th, 2005, 6:32 p.m., 11 as indicated on Forensic 9, A, you had had a 12 conversation with Lecky King where she had 13 communicated she was upset about Forensic's 14 reports? 15 A. Yes, yes. 16 Q. B, Brian Ford had severed his employment 17 and he was the principal engineer on site for 18 Forensic in Biloxi, Mississippi, his employment had 19 been severed? 20 A. I'm not going to verify that because 21 we -- Jack Kelly came aboard simultaneously, so 22 there was no lapse in coverage, in professional 23 engineering coverage. 24 Q. I thought you told me a minute ago 25 that -- that Mr. Ford became absent between your 0185 1 conversation with Lecky King by telephone and your 2 meeting -- 3 A. Well, you suggested that and I -- I'm not 4 sure, as I said. The record would show that I said 5 I'm not positive. 6 Q. I thought you affirmed that that 7 happened? 8 A. I don't believe so. And if I did, I -- 9 I'm incorrect. 10 Q. So maybe he was discharged after your 11 meeting with Lecky King? 12 MR. CANADA: Object -- 13 A. He was never discharged and I want to 14 make that very clear for the fifth time. He was 15 asked to continue with our firm. He chose to 16 resign and move away because he didn't want to be 17 in the -- a marketing/sales role. 18 Q. Was there any other issue with Mr. Ford's 19 employment other than what Lecky King had 20 complained about? 21 A. Absolutely not. And I would have -- I 22 would have kept him on as an engineer. 23 Q. So if he wasn't there and it wasn't 24 because of any other reason, then the only reason 25 we can pinpoint today is that Lecky King was upset 0186 1 with him being there? 2 A. No, not at all. 3 Q. Okay. All right. 4 A. He wasn't on State Farm's work any longer 5 because Lecky King was upset with the quality of 6 his work and she had -- she in her role had 7 absolute authority to say, I don't want that 8 engineer or that engineer on my job. That's a 9 normal process in the engineering environment. 10 Q. And she exercised that authority in this 11 situation? 12 A. She did exercise it. And I -- but I did 13 not let Brian go because of that. Brian had an 14 opportunity to continue to make a very good wage 15 with me from that point forward. He chose not to. 16 Q. She told you, no more Brian Ford on State 17 Farm's jobs? 18 A. Yes, she did. 19 Q. And you said, we'll do that? 20 A. First I said, we're going to look into it 21 and we're going to evaluate it and find out if he 22 made mistakes. He did make mistakes, all right? 23 And he made improper technical judgments in my 24 opinion. And that's why we reacted to it. And in 25 my opinion, she was -- she had a valid complaint. 0187 1 Q. Did you have those complaints before you 2 talked to Lecky King or afterwards? 3 A. I didn't know about the problems until 4 after she brought it to our attention. 5 Q. So you didn't have any problems with 6 Mr. Ford until you talked to Lecky King? 7 A. I had no knowledge of his tendency to be 8 biased toward individuals who lost their homes. 9 Q. In favor of coverage? 10 A. Correct. 11 MS. MOORE: Object to form. 12 Q. And that's what Lecky King was 13 complaining about? 14 A. That's not what she was complaining 15 about. She was complaining about very specifically 16 and I made -- I made a point of saying, we are 17 going to do this in an unbiased fashion, unbiased 18 manner. She made a very specific point of saying 19 the information that we supplied with our report 20 didn't technically justify the conclusions. If we 21 had been able to, which we did in other matters, 22 show technically through photographs, through 23 documentation that -- that wind destroyed the 24 residence before the water was even involved, all 25 right, then she accepted that. The record goes to 0188 1 show there's a number of reports that we turned in 2 that -- that were accepted by State Farm under 3 those premises. 4 Q. So you took -- you conducted your 5 engineering practices according to what State Farm 6 told you to do? 7 A. Absolutely not. 8 Q. And in fact, you told your principal 9 engineer that he couldn't work on their files 10 anymore because they said, we don't want him 11 working on them? 12 A. Well, that part is correct. 13 Q. And then after they said that, you went 14 and discovered for the first time that suddenly you 15 thought Mr. Ford had made errors, but you'd 16 never -- 17 A. No. No, the chronology is incorrect 18 there. 19 Q. Excuse me, sir. You'd never complained 20 to Mr. Ford before Lecky King talked to you about 21 any of Mr. Ford's activities? 22 A. I wasn't aware of the problem. 23 Q. And then after your -- between this 24 telephone conversation with Lecky King and your 25 meeting with Lecky King, and let me just make sure 0189 1 I'm clear about this, did you or not -- did 2 Mr. Ford sever his employment with Forensic in that 3 time period? 4 A. I don't recall. I'll have -- I don't 5 know. 6 Q. Okay. 7 A. I'd have to check his payroll record. 8 Q. By the time you wrote this e-mail on 9 October 24th, 2005, you had had phone contact with 10 Lecky King concerning the fact she was upset with 11 Forensic's reports? 12 A. Yes. 13 Q. And in this e-mail, your last line 14 says -- well, would you please read that into the 15 record, sir, the last line of this e-mail. 16 A. I suggest that the conclusion be altered 17 to indicate that it was a combination of both and 18 not primarily the wind. 19 Q. So you specifically directed or advised, 20 I suppose, rather than -- not directed -- 21 A. I advised. 22 Q. -- that the report be altered? 23 A. That the report be adjusted to more 24 technically represent what the information -- the 25 evidence showed.
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