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Katrina lawsuits: is the Senter opinion such an insurance victory?

Today's Wall Street Journal has a front-pager on Tuesday's decision in the first bench trial, as well as an editorial on the subject. I'm not as sanguine as Wally or David Rossmiller about the Senter opinion.

First, and most importantly, by failing to give credit to the anti-concurrent cause clause in the Nationwide policy, Senter is insuring that Scruggs can force an expensive trial in almost every case, creating settlement value where none is appropriate.

Second, while Judge Senter was willing to weigh the evidence impartially in a bench trial, one questions whether a jury is going to be as sympathetic to the facts in a cases involving thousands of neighbors against faceless insurance companies. The Leonards found an expert willing to testify that $47,000 in damage was caused by wind. Such experts may have more weight with more sympathetic finders of fact.

Third, though Senter did not find that the insurance agent misled the Leonard family, a clever plaintiffs' attorney is going to notice that this was so because the Leonards made several critical concessions in testimony. I'm not saying that future plaintiffs' attorneys are going to coach their clients to lie; but they're certainly going to let their clients know that admitting that they didn't ask their insurance agent for the reasoning behind certain statements or that they read their insurance policy will have consequences. "Will no one rid me of this insurance policy?" I won't be surprised if there's suddenly a rash of plaintiffs who follow the roadmap left for them in this case, and it remains unclear under what circumstances federal judges are going to completely undo insurance contracts on fraud claims.

So while Rossmiller is correct that this week's a decision is a sure loss for the Leonard family, who got less than one percent of the $130,000 they sought, Scruggs isn't completely spinning when he suggests he's happy with the opinion. Insurers still have a lot to fear in Mississippi.




Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.