Buente v. Allstate has been closely followed as a bellwether case in Hurricane Katrina insurance coverage litigation. I was aware that U.S. District Court Judge L.T. Senter Jr. had another ruling in the case last week, but due to pressing work demands, I had time only to read journalistic accounts of the ruling. As a former newspaper reporter, I never believe anything I see in the press, so I waited till today to comment so I’d have time to read the opinion myself.
As it turns out, it’s only one page, and my last post on the subject foreshadowed this ruling by Judge Senter, a senior judge in the Southern District of Mississippi. My call on this case was somewhat less startling than Babe Ruth’s famous "called shot," however, because the plaintiffs’ arguments seemed out of the mainstream. Judge Senter denied a summary judgment motion by the plaintiffs, Elmer and Alexa Buente. The Buentes’ home was damaged by Katrina, and they claimed Allstate has wrongly refused to pay, under a homeowners policy, for damage that was caused by "storm surge." The gist of their argument was that storm surge, or tidal water driven by hurricane winds, is somehow different than flood damage, which is excluded by the policy terms. Putting a new label on flood waters doesn’t make them something other than a flood.
The brevity of the opinion says it all: Judge Senter found the exclusion unambiguous, in that "flood" was defined in the policy as including "surface water, waves, tidal water or overflow of any body of water, or spray from any of these, whether or not driven by wind" and "Water or any other substance on . . . the surface of the ground regardless of its source." The Westlaw citation for the decision is 2006 WL 980784.