I’m going to take the easy way out and post the Sher update from this comment on the ALL Board.
The Louisiana Supreme Court refused Tuesday to reconsider its recent ruling that an insurance company isn’t liable for water damage from the failure of levees in Hurricane Katrina’s aftermath.
The court ruled in April that Lafayette Insurance Co. isn’t obligated to pay policyholder Joseph Sher, the owner of a New Orleans apartment complex, for water damage from levee breaches after the August 2005 hurricane.
Sher’s lawyers asked the court for a rehearing on that issue, but the justices rejected their request Tuesday without giving an explanation.
“It’s over now,” said attorney Howard Kaplan, who represents Lafayette. “It puts the flood issue to an end.”
Last year, a state appeals court ruled that Lafayette’s homeowner policy failed to exclude all forms of flooding because its language was ambiguous. The Supreme Court disagreed, however, and said Lafayette is entitled to limit its liability for damage from a levee breach.
Our friends at the Ladder have been on top of levee stories and had this report on a new attempt to hold the Corps accountable – along with some interesting history.
Thanks to an act of Congress passed 80 years ago, the Army Corps of Engineers, and by extension the federal government, is largely immune from liability for the failure of any flood control project that it builds. For that reason, federal judges have already tossed out several lawsuits brought against the U.S. government by owners of flooded properties in New Orleans.
But now lawyers pursuing a multibillion-dollar class-action lawsuit on behalf of Katrina victims think they have discovered a crack in the government’s immunity. And if they prevail at a federal trial now set for January _ they’ve already won a crucial early round in court _ the attorneys believe the victory could pressure Congress to reconsider its old calculus and compensate victims of federal flood-control failures across the nation, much like victims of the Sept. 11 attacks.
“The federal government has admitted in New Orleans that their levees were responsible for the catastrophic flooding, yet they have been stonewalling in court,” said Pierce O’Donnell, the lead attorney in the lawsuit. “But the law is clear: Once you decide to build a major public works project, you are obligated to do it in a safe, competent manner. And once you learn it poses serious threats to public and private property and life, you must take immediate action to remedy that.”
New Orleans flooded, more than 1,100 people died and more than 160,000 homes were destroyed when Hurricane Katrina slammed into the region on Aug. 29, 2005, cracking, smashing or overtopping scores of levees and floodwalls ringing the historic city built below sea level.
But the lead plaintiffs in the current lawsuit _ five individuals whose homes in eastern New Orleans and neighboring St. Bernard Parish were destroyed by the floodwaters _ are not contending that failed levees caused their losses, which would be precisely the type of claim against which the federal government is immune.
Instead, the plaintiffs are targeting the Mississippi River Gulf Outlet (MRGO), a 76-mile-long navigation canal carved out of environmentally sensitive wetlands by the U.S. Army Corps of Engineers in the 1960s to create a shipping shortcut between New Orleans and the Gulf of Mexico.
The lawsuit contends that the MRGO not only destroyed protective wetlands that had long served as a natural hurricane buffer but also funneled huge storm swells from Katrina straight into the heart of New Orleans like a shotgun, flooding the entire eastern region.
“Since 1958, the Army Corps was on written notice that the MRGO posed a serious threat to human life and property in Greater New Orleans,” the lawsuit asserts. “Despite repeated warnings from knowledgeable experts and public officials over the next 47 years before Katrina, the Army Corps did nothing to mitigate or prevent the very calamity that occurred during Katrina. This lawsuit seeks to expose this egregious legacy of our government’s dereliction of duty, not only to compensate plaintiffs, but to prevent such a travesty from ever occurring again.”
Moreover, the plaintiffs’ attorneys have discovered thousands of pages of government documents they say prove that the Army Corps long knew of the hurricane dangers posed by the navigation canal but repeatedly refused to do anything about it.
Hopefully, the Ladder will continue to follow this case. It’s definitely one to watch.