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Defendant: Phoenix FD had inappropriate relationship with her insurer

In 2009, Barbara Sloan found herself without a house, without insurance and facing 27 years in prison.
The scene of a fire at Barbara Sloan's home in 2009. Still image from 12 News file video.

In 2009, Barbara Sloan found herself without a house, without insurance and facing 27 years in prison. But over the course of six years, Sloan has worked her way from a Maricopa County 4th Avenue jail cell to vindication.

BACKGROUND: Raked Over the Coals: A 12 News investigation

Now, judgment day may be coming to those she says tried to destroy her.

Sloan's long climb from the ashes included roadblocks. She was criminally charged with arson and attempted fraudulent schemes. The case against her was dismissed. She then sued her insurance company for bad faith, claiming it stopped payment on her claim and withheld evidence that would have helped aid in her criminal defense.

Instead, Sloan lost and Farmers Insurance prevailed by proving it had a reasonable belief she was involved in setting the fire at her home. The jury awarded a $1.68 million judgment against Sloan for Farmers' legal fees.

But now, several years after the fact, the judge overturned the jury's verdict -- an extraordinary event -- citing Sloan may not have received a fair trial.

As a result, Sloan and her attorney are urging Phoenix Fire Chief Kara Kalkbrenner and the Phoenix City Council to open an investigation into what they call the close and inappropriate relationship that persists between the Phoenix Fire Department arson squad and private insurance companies that benefit financially from arson determinations.

Sloan was first accused of arson by the Phoenix Fire Department and records show her insurer initially used that accusation to deny her insurance claim. Sloan and her attorney also allege Farmers began working closely with the Phoenix Fire Department to secure a criminal conviction of Sloan.

It's arson day one

When Barbara Sloan's home burned down on May 13, 2009 lead investigator Phoenix Fire Department Capt. Sam Richardson called it arson the very day of the fire. He also named Sloan as his "investigative lead."

Farmers Insurance hired Robert Laubacher to investigate independently. Laubacher is a private investigator licensed through the Arizona Department of Public Safety.

Before moving to Arizona, Laubacher worked as firefighter for the City of New York Fire Department for 20 years and then was FDNY Fire Marshal for the department's Special Investigations Unit for six years, according to his curriculum vitae.

In 2007, he was named "Investigator of the Year" by the Arizona Chapter of the International Association of Arson Investigators.

The day after the fire at Sloan's home, Laubacher and Capt. Richardson compared notes over the phone. Richardson said arson. Laubacher didn't agree. His May 19 report to Farmers read, in part, "The fire started from an unknown source. No arson or suspicious fire."

Two days after the fire, Laubacher spoke with Barbara Sloan in a recorded interview. Laubacher is heard telling a sobbing Sloan, "I'm sitting here telling you I honestly can't tell you how this fire started. I don't know. So rest easy. There's probably nothing you did. You know, stuff happens."

Sloan filed her insurance claim. She says she thought her insurance company was there for her and that investigator Robert Laubacher reassured her that the fire was accidental. Sloan says she believed him. She had no reason not to.

According to logs from Farmers Insurance, a week after his conversation with Sloan, Laubacher spoke again with Richardson. According to those same logs, Laubacher told Farmers he had issues with Richardson's statements.

Then in June 2009, more than a month after the fire, Laubacher met with Richardson again. Only this time, Laubacher told Farmers his report would say arson was the cause, though he wouldn't name Sloan as the culprit.

"I felt like my insurance company was literally setting me up," said Sloan.

Still Laubacher had his doubts. Laubacher called Farmers large loss adjustor/claim representative Won Chang back four hours later and said he strongly felt writing the report as "arson" will not be wise, based on his experience and to protect Chang, himself and Farmers Insurance.

Chang notes he asked Laubacher why the change in direction in his report and wrote Laubacher said he felt that way based on the evidence and past experiences.

Farmers' strategy

Sloan's attorney, Mike Poli, alleges attorney Joseph Rocco was brought in by Farmers to monitor Sloan's criminal prosecution and use the criminal case to deny her claim.

In a August 31, 2009 memo, Rocco outlines Farmers' strategy. If Sloan took the Fifth at her examination under oath, Farmers would say that was lack of cooperation under the insurance policy and deny the claim. If she ended up taking a plea bargain, then that would be a basis to deny the claim. If she went to trial and lost, that too would be a basis to deny the claim.

According to Farmers' claims log dated Aug. 20, 2009, Rocco reported to Farmers that Sloan would be arrested on Friday Aug. 31. Sloan's attorneys alleged Rocco refused to give her public adjustor a copy of Laubacher's cause and origin report.

Filings show on Sept. 3 Rocco sent an email to Laubacher, instructing him to direct any inquiries about the report to the Rocco Law Firm. Rocco considered the report a preliminary and privileged one. Sloan's attorneys accused Farmers of going through Rocco to protect Laubacher's initial report from disclosure.

In depositions taken in the case, Farmers representatives admitted that Farmers relied on the advice of Rocco to suppress all exculpatory evidence. In a March 31, 2010 ruling, Judge Jonathan Schwartz determined Rocco was acting as a claims adjustor.

We reached out to Joseph Rocco, but he has not returned our call seeking comment.

The "rabbit"

During a recorded interview by Capt. Richardson of a Farmers adjuster, with attorney Joe Rocco present at police headquarters, Richardson can be heard telling the two how they used to beat confessions out of people.

On the video Rocco and Richardson can be seen laughing.

Using the slang term rabbit for a perpetrator who always runs, Richardson tells the men, "In the old days, we used to bring the rabbit in and beat the hell out of the guy with the rabbit. And the guy says, 'I'm not talking.' 'Bring the rabbit back in.' 'All right, all right.'"

The unwritten rule

Farmers' claims manager Bill Payton was deposed about the "unwritten rule" that, if they have an insured who is subject to criminal prosecution and they have evidence that could help the insured, they withhold the evidence.

UPDATE: Hear Farmers Insurance Claims Manager being asked about the "unwritten rule"

During Payton's deposition, the attorney asked him if it's customary for Farmers Insurance to withhold cause and origin reports even if there is exculpatory evidence and an ongoing active investigation. To which he said yes.

During the civil trial, Payton testified he's done that five to 15 times.

He was then asked if he thought Farmers' Insurance is allowed to do that under Arizona law. He again said yes.

In this case, Farmers Insurance withheld its expert Robert Laubacher's initial report that concluded the cause of the fire was undetermined.

Sloan's expert witness Charles Miller testified at trial, saying in effect, of course the rule's unwritten:

"You wouldn't want other people to know about this, because it's not going to make you look good if it comes out," he said. "It's going to make -- it's an unethical practice, it's wrong, and you just wouldn't want people to find that out."

"They had evidence that could have vindicated her and they went to great lengths to keep that evidence from her and to keep it from law enforcement authorities," said Mike Poli, Sloan's attorney.

Miller further testified about Laubacher's initial report, in which he wrote the cause of the fire was undetermined, saying it "would have been incredibly helpful to Mrs. Sloan to have had this. It's definitely exculpatory."

When asked if it should have been given to Sloan, Miller testified, "Oh, without a doubt, yes, under this principle that we're talking about. There's no question about that."

There was a heated discussion between Mike Poli and Don Myles with regards to any cross-examination of Miller. Myles told the judge, "There's no way to cross examine him and deal with issues that don't exist. He doesn't have the foundation to testify to this." It does not appear, according to the court record, Myles actually cross-examined Miller about his testimony that Farmers withholding reports that would be favorable to an insured if they were subject to criminal prosecution was an "unethical practice." It appears according to the trial transcripts Myles likely left it alone and did not call attention to it.

"I don't think that anyone who has insurance would want to be treated that way," said Poli. "It's a very scary concept."

Lose his bonus

Joe Baselice was Sloan's insurance agent. Records show he expressed concerns about Sloan's claim to superiors, saying that Capt. Sam Richardson told him the fire at Sloan's home was an arson fire.

When Baselice was deposed in the civil case he admitted paying the large claim would cut into the company's profitability and he would lose his bonus.

Mike Poli asked Baselice, "If Farmers had paid that claim, instead of getting a, you know, bonus that year, you would not have gotten a bonus, correct?"

Baselice told Poli that was correct.

Laubacher deposed

In a January, 2011 deposition in the civil case, Laubacher was deposed in preparation for the civil trial. He was asked if he was under any pressure at all from Farmers to revisit his findings. Laubacher simply answered no.

But that's not what five men close to the case contend. The five, including fire and insurance professionals and Sloan's boyfriend at the time, signed sworn affidavits that Laubacher told them he was pressured to change his report to coincide with the fire department's finding of arson.

In that same deposition, Laubacher refused to say whether he thought Sloan was the arsonist.

"That's a question I'm not going to answer," Laubacher said.

He was asked again and said he wanted to take a break.

On the videotaped deposition the attorney told him he was not allowed to take a break when a question is pending, but they ended up taking a break.

In the end, Laubacher was compelled to answer the question.

"I think that there was an arson committed at the Sloan residence," he finally replied. "Anyone, including Mrs. Sloan or myself, could have committed that arson."

Incestuous relationship

Phone records indicate there were multiple calls between Laubacher and Richardson, 10 in one month. Four of the calls lasted more than four minutes.

When interviewed by DPS, Richardson denied speaking with Laubacher. At an earlier deposition however, he said he spoke with him once. And then he said twice. Laubacher said he spoke with Richardson on numerous occasions.

In 2014, when Richardson was interviewed by DPS Det. Carlos Contreras during the DPS criminal investigation of Richardson, his colleague Capt. Fred Andes and their supervisor, Richardson said, "They said I was in cahoots with them, that I was working with the insurance company to get her and that's not true."

When the criminal case against Sloan was dismissed, the prosecutor noted Richardson and the insurance company had an "incestuous relationship."

Jack Ballentine, Richardson's supervisor at the time was being interviewed in the DPS criminal investigation, took exception to the term "incestuous relationship" and told the detective:

"It saddened me when I saw that in this, when the judge made the decision to eliminate evidence in this case, he used the term 'incestuous relationship' between the privates and the investigators."

He went on to say, "The judge doesn't deal in that world and didn't understand that that is the norm. That's how that works, that's how they do what they do."

Ballentine said that authority comes from the National Fire Protection Association's guidebook fire investigators are supposed to follow, more commonly known as NFPA 921.

Maricopa County Criminal Court Judge Christopher Whitten characterized them as "disclosure sins" and further wrote in a minute entry Capt. Sam Richardson collaborated with Robert Laubacher, Farmers' investigator, including asking him to scientifically examine evidence. The two consulted about each other's opinions and seemingly worked "hand-in-hand together."

Laubacher takes the Fifth

Neither the criminal trial judge nor prosecutor's findings were allowed as evidence in Sloan's suit against Farmers Insurance for bad faith. The jury trial began in April, 2012 and lasted five weeks.

When it came time for Robert Laubacher to testify, Sloan and her attorney say they were stunned.

Laubacher, on the advice of a private attorney he retained, invoked his Fifth Amendment right, the right against self-incrimination, and refused to testify.

Civil trial Judge Arthur Anderson asked Laubacher several questions. Each time he repeated the same words: "On the advice of counsel, I am going to invoke my Fifth Amendment rights, Sir."

When asked by Judge Anderson about any possible pressure to change his opinion, Laubacher repeated, "I am going to invoke my Fifth Amendment rights, Sir."

Laubacher was allowed to exit the civil trial without being cross-examined by the attorneys.

Sloan says her family members and friends did not know what had just occurred. She says the severity of what Laubacher did by invoking his Fifth Amendment right and having his answers limited to several questions asked by the judge seriously downplayed any alleged wrongdoing by Laubacher.

"You destroyed my life. Why couldn't you just stand up to Farmers and tell the truth?" Sloan asked about Laubacher's refusal to testify.

Sloan was unable to meet the burden of proof. The jury was out for 2 1/2 days. On June 1, 2012 the jury returned a verdict by a 7-2 vote in favor of Farmers in the amount of $1.68 million for its legal fees.

Farmers Insurance later paid Sloan's insurance claim after the criminal charges against her were dismissed.

Sloan seeks new civil trial

In an effort to get a new trial, Mike Poli, Sloan's attorney, prepared to argue "fraud on the court" in what's known as a Rule 60 motion, which can overturn a jury award. In response, Farmers attorney Don Myles wrote, among other things:

"Sloan has concealed from the Court the pitifully one-sided media campaign she, her attorneys, and her experts, orchestrated after trial presumably for the purpose of influencing the outcome of this ongoing case."

Myles further wrote, that if Sloan were granted a new trial, Farmers would have to be given the opportunity to conduct discovery and depose the DPS and MCAO officials involved in the investigation.

He went on to write it would also include, "The Channel 12 News reporters who put pressure on these agencies to investigate, Captains Andes and Richardson, Chief Ballentine, and Sloan's attorneys and experts who instituted the media crusade against the fire department."

12 News obtained permission to have a camera in court for Sloan's Rule 60 motion, which was scheduled for March 24. Our request was approved by the court.

Farmers did not object to the media request prior to the deadline. Instead Farmers missed it by two days and then objected to our coverage, citing concerns about privileged documents.

After a 25-minute, closed-door meeting in chambers, Farmers attorney Don Myles withdrew his objection to the camera coverage request.

During oral arguments on March 24, Myles argued Sloan was indicted and Farmers had a right to rely upon that indictment to deny her claim. Judge Arthur Anderson, the presiding judge in Sloan's civil trial, said the question is whether justice was done in this case. Anderson said the court cannot conclude that it was.

In his ruling Anderson wrote:

"The issue at trial was whether Farmers acted reasonably in handling Sloan's claims. In arguing that it did, Farmers relied on a de facto arson defense. As Farmers told the jury during opening statement, 'this case isn't about an insurance company. This case is about Barbara Sloan.' For Farmers to dispute it defended this case on the basis that Sloan 'burned her house down' simply belies the facts."

"To be sure, Farmers presented evidence of its own fire investigation. But its central argument throughout weeks of trial was that the MCAO and grand jury ('people much like yourselves') believed Sloan was an arsonist. And the tree from which this argument grew was the integrity of the PFD investigation. The facts changed when the fire department said, 'We think it's arson, and we think she did it.' Richardson was unequivocal in his opinion that Sloan had committed arson, and Richardson had everything. He had every single bit of exculpatory evidence that we talked about in this case … it made no difference."

Judge Anderson ruled that the court finds extraordinary circumstances or injustice relief and granted Sloan a new trial, overturning the 2012 verdict and judgment against Sloan.

Robert Laubacher declines to speak to 12 News

12 News spoke with Robert Laubacher in 2013 about this case but he quickly ended the call. We tried several times to speak with him again as to why he invoked his Fifth Amendment right against self-incrimination in 2012 and also to see if he knew the verdict was recently overturned. But he would not speak with us.

The May 13, 2009 fire started in the car parked in Sloan's garage, according to multiple experts, including Phoenix Fire Department personnel. The Toyota Corolla was subject to a recall.

Earlier in this report we mentioned Robert Laubacher interviewed Barbara Sloan two days after the fire. Captured on his recording was this morsel of information he said to Sloan: "Originally when I first pulled up, I stood outside your fence. I said, 'Oh, great. It's a simple garage fire.'"

On May 19, 2009 Laubacher indicated to Farmers that lab tests, witness statements and fire damage confirmed to him that the fire originated in the northeast portions of the garage, but that he could not determine the cause.

After receiving a complaint from Sloan, the International Association of Arson Investigators found evidence of unethical conduct and revoked Robert Laubacher's membership and fire certification. That according to Deborah Neitch, the Executive Director of IAAI.

Laubacher remains a private investigator licensed by the Arizona Department of Public Safety. According to spokesman Bart Graves, Laubacher's license is valid through September, 2015.

No comment

The Phoenix Fire Department declined to comment. Mayor Greg Stanton has not responded to a request for an on-camera interview. On Friday May 8th, City Manager Ed Zuercher emailed 12 News to tell us we would be hearing from Deb Ostreicher, the city of Phoenix public information director, but so far we have not heard back from Ostreicher. Ostreicher called back Tuesday and apologetically indicated there was some miscommunication and that's why we did not get a response. She says she's working on a response to our questions. As soon as we have that, we will post it.

Farmers Insurance declined to provide anyone to speak on camera or answer any of our questions after we reached out to its corporate office. Spokesman Luis Sahagun emailed this brief statement:

"We thank you for offering us the opportunity to provide input. However, as this matter is still in litigation we are unable to provide comment."

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