Since I’m not a lawyer, I really just have one standard and that’s does an argument or decision make sense. A lot of these decisions just don’t. Why?
Judge Helen “Ginger” Berrigan of Louisiana’s Eastern District Federal Court is one judge I had in mind when responding to Chip Merlin’s comment on the need to better educate judges trying Katrina insurance cases.
However, I don’t believe Judge Berrigan needs educating. Instead, it appears she’s contracted the highly contagious strain of 5th Flu that causes Leonard hallucinations and delusions of coverage.
Now, I’m not a doctor either; but, I could tell Judge Berrigan was was coming down with something when I read the Order and Reasons she issued in Adams v Lexington. So, I examined the docket and several of the documents; and, then, I read her history.
Based on what I learned, I suspect she had a natural immunity to the 5th flu as she showed no symptoms of Leonard hallucinations in her reasoning when she threw a wrench into FEMA’s effort at redemption with an order barring FEMA from trying to reclaim some of the money it had thrown at anyone claiming to be a Katrina victim.
In her ruling, Judge Helen Berrigan criticized FEMA for writing notification letters laced with “incomprehensible hieroglyphic abbreviations” and urged the government “to return to their original mandate of alleviating their suffering and focus its substantial powers on continuing to help those entitled to relief.”
Somehow her immunity weakened as Adams v Lexington made it way through her court; and, by the time she needed to rule on the various motions for summary judgment, the “incomprehensible” portion, it seems a Leonard hallucination made the decision go down like tonic for a cure.
The plaintiff apparently agrees that the policy language qualifies for inclusion under the rule recognized in Bilbe v Belsom…and Leonard v Nationwide…[and] that there is no coverage under the policy for any damage caused by wind and flood, or by wind “concurrently or in any sequence with” water.
If only she only gone to the ACC-doc-in-a-blog she would have had the right prescription.
So we can see the [Leonard] court is dead wrong when it analyzes storm surge as being the product of concurrent causes. Perhaps in a philosophic sense it is correct, perhaps not, that wind that drives waves is two forces or two causes.
In this philosophic sense, I still see flood as flood, whether it human negligence, earthquake, wind or some other factor can be said to be in the causal chain, but I can see the argument for the other side. But we are not talking about philosophy with this case, we are talking about the contract language.
There is absolutely no need to discuss storm surge as involving concurrent forces once you accept that it is flood. By definition, it becomes one force, one peril, one cause. It will only confuse others, and perhaps the court itself, by trying to get fancy with a causation analysis that can’t lead anywhere.
The “doc” recommends a second opinion – this great piece of Leonard analysis on the blog of the Merlin Law Group,
After finding that the anti-concurrent causation language was not ambiguous, Judge Edith Jones went too far and provided the following:
“If, for example, a policyholder’s roof is blown off in a storm, and rain enters through the opening, the damage is covered. Only if storm-surge flooding – an excluded peril – then inundates the same area that the rain damaged is the ensuing loss excluded because the loss was caused concurrently or in sequence by the action of a covered and an excluded peril. The district court’s unsupported conclusions that the ACC clause is ambiguous and that the policyholder can parse out the portion of the concurrently caused damage that is attributable to wind contradict the policy language.“Where did that come from? Virtually every adjuster and claims manager I have ever deposed with that similar hypothetical situation in a Katrina loss has said coverage would be granted under the all-risk policy for the full amount of the loss. Maybe Judge Jones and her colleagues know more about how to deny insurance claims than the people that could profit from doing so.
From a practical standpoint, where is there going to be any coverage if the flood policy has the typical exclusions regarding pre-existing loss or “roof leaks or wind-driven rain” as found in the National Flood Policy? Policyholders with all-risk and flood coverage under separate policies are left with the absurd result of having no coverage at all under this wrongly reasoned opinion.
Bilbe v Belsom was a mutation; but, the problem with the 5th flu when you have a Leonard hallucination – it’s hard to knock out. The only known hope for a cure is to quarantine Leonard opinion.
I suppose that’s easier said than done – unless, you happen to be Ginger Berrigan who blows off ill wind, doesn’t mind getting into plenty of water, and seems to regularly get at least eight hours of unrest.