Insurers have been successful in their Katrina appeals to the Fifth Circuit, and given the appellate court’s analysis in two big cases — Leonard v. Nationwide and In Re Katrina Canal Breaches Litigation — I would flat out drop my red Yellowstone mug of decaf with the white moose silhouette in amazement if the result were any different in State Farm’s interlocutory appeal of Tuepker v. State Farm, even though none of the three-judge panel in this case was on the panel for either of the other two cases.
I read the briefs again, and I have a very hard time seeing it go the Tuepkers’ way. Here is their brief — as you may know, Dickie Scruggs is their attorney. Here is State Farm’s brief. The Tuepker brief deals a lot with their supposed reasonable expectations that they would be covered for all hurricane damage — a tough sell, considering that the Water Damage exclusion lists "surface water" and "waves … whether driven by wind or not" as uncovered, not to mention that they issue a pretty fair number of federal flood insurance policies in coastal Mississippi to supplement homeowners policy coverage and people know this. Why else would there be flood policies?
Just to recap, the State Farm brief is not saying wind damage that can be proven is uncovered because of the policy’s anti-concurrent cause language. State Farm admits that that damage, if proven as a distinct loss due to a distinct physical force, would be covered. Just in case someone has not heard me say it, anti-concurrent language applies only to multiple causes of the same loss. That didn’t happen here. The loss, in cases like the Tuepkers (assuming they can prove separate wind damage), involves multiple causes — wind and storm surge — but the damage is not the same. Under this scenario, each force caused its own distinct property loss. Multiple causes of separate loss is another way of saying each loss has a single cause, therefore there is no need to bring anti-concurrent language to the table. Within a few days you will be able to read me talk about this for 42 pages, if you care to, when I get back the final printer’s proof of my Appleman’s anti-concurrent article. As usual, I did my best to add a little entertainment value to it.
Here’s a story previewing the oral argument, by Mike Kunzelman of the Associated Press. Here’s another story by him reporting on the arguments after the fact. Which reminds me, there has been some excellent daily reporting done on Katrina litigation and developments, and some of the very best has been done by Kunzelman, by Anita Lee of the Sun Herald and by Becky Mowbray of the Times-Picayune. Folks shouldn’t underestimate how tough it is to do what they do, trying to figure stuff out and explain it to people in a simple way under tight deadlines. They sure have made it easy for me to follow what is going on.
Here’s a take on the case by Martin Grace, the RiskProf, citing the first Kunzelman story. He’s right, it does bring a smile to your face to hear the Tuepkers’ argument about how crafty State Farm was in hiding the secret intent of their policy language. Why, not since Edgar Allan Poe’s The Purloined Letter has anyone so cunningly hidden something in plain sight! Incidentally, if you have not read this short story, I highly recommend it, it is one of Poe’s best and, along with two other Poe stories about C. Auguste Dupin, created the archetype for the brilliant amateur detective solving cases that befuddle the rather obtuse regular police. Better than the later Sherlock Holmes, and that’s saying something. (I love Poe — I studied all his works in a Major Writers class in college. Did you know that his poetry was looked down upon by contemporaries like Emerson, who called him "the Jingle Man"? (Scroll down a bit on the link to see). His poetry is not T.S. Eliot or Yeats for certain, but I like it. Emerson, on the other hand, never did much for me).
One final thing: all this talk of poetry makes me think of one of my favorite poems, one that is poignantly apropos when considering all the losses Hurricane Katrina caused — W.H. Auden’s Musee des Beaux Arts. Don’t feel put off by its fancy-shmancy title, it is a wonder of expression on the subject of human suffering — see if you agree.