Judge refuses to kill lawsuit against insurers

Published 7:53 pm Wednesday, November 29, 2006

A federal judge refused to throw out a Louisiana lawsuit for damages from Hurricane Katrina’s floods, saying the language excluding water damage from some policies is ambiguous.

The 85-page ruling by U.S. District Judge Stanwood Duval Jr. covered several cases that had been consolidated because they were similar. He immediately sent the decision to the 5th U.S. Circuit Court of Appeals for review.

There is no timetable for that review, plaintiffs’ attorney Joseph Bruno said. Still, he was optimistic.

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“Right now, we’re on the verge of an opportunity to get a recovery for people who have lost everything and who didn’t have flood insurance or didn’t have enough flood insurance,” he said.

Under Louisiana law and precedent, Duval ruled, insurance companies must prove that a clause excluding coverage applies — and, without such an exclusion, provisions are generally construed in favor of coverage.

“The law says that when you write an exclusion, it has to be strictly construed. If it’s ambiguous, it doesn’t apply,” Bruno said.

He said Duval found that language used by most insurance companies doesn’t differentiate between a flood caused by an act of God, such as excessive rainfall, and a flood caused by an act of man, which would include the levee breaches.

Allstate Insurance Co., one of the companies named in the suit, plans to appeal Duval’s decision to the 5th Circuit, said Mike Siemienas, a spokesman for Allstate Insurance Co.

“Allstate disagrees with the judge’s conclusion that its policy exclusions do not apply to water damage resulting from the flooding in the New Orleans area,” he said.

Duval issued his ruling Monday, the same day the U.S. Supreme Court declined to block Duval from hearing the Katrina insurance cases.

The Board of Commissioners of the Orleans Levee District had questioned whether any of the federal judges in New Orleans, including Duval, could be impartial after personally experiencing Katrina and its aftermath.

“This isn’t about (Duval), in particular,” said Erwin Chemerinsky, a lawyer for the board of commissioners. “All of the judges in New Orleans were affected (by Katrina) and should be disqualified.”

In court papers, Duval said neither he nor his family suffered any flood damage from Katrina and didn’t have any financial stake in the outcome of these lawsuits.

Although Duval’s ruling covers several cases, the judge has not decided to certify it as a class-action suit yet. A decision on whether to do that probably won’t come until the appellate court rules on Duval’s decision, Bruno said.

If the suit becomes a class action, it could grow exponentially, he said, because it could include everyone whose home sustained storm-related water damage.

Duval was appointed to the federal bench by President Clinton in 1994.

Duval’s ruling follows an August decision by a federal judge in Gulfport, Miss., who ruled that a couple could not collect from their insurer because their policy doesn’t cover damages from floodwaters or storm surges.

“Almost all the damage … is attributable to incursion of water,” U.S. District Judge L.T. Senter Jr. wrote in the Mississippi suit.

Senter did say that the policy the couple’s insurer used to deny coverage was ambiguous because it covers wind damage but not damage caused by a combination of wind and water.

“The reading of the policy would mean that an insured whose dwelling lost its roof in high winds and at the same time suffered an incursion of even an inch of water could recover nothing,” he wrote.

At the time, Louisiana Insurance Commissioner said the decision probably would not affect Louisiana litigation because Senter sits in a different district.

Allan Kanner, chairman of the Louisiana Trial Lawyers Association, said insurance companies probably would use it in litigation.

Since Mississippi also is part of the 5th Circuit, any appellate court ruling in the Mississippi case would apply to Louisiana.