Lawsuit Abuse Fortnightly #4-8

Published October 24, 2005

Special Hurricane Katrina Edition

Lawsuit Abuse Fortnightly readers will be dismayed–but not surprised–to learn plaintiffs’ lawyers are following close on the heels of rescue workers in the wake of Hurricane Katrina.

That Giant Sucking Sound

That giant sucking sound you may have heard wasn’t made by the receding waters of Katrina. It was none other than Richard “Dickie” Scruggs, the infamous plaintiffs’ lawyer who has scored hundreds of millions of dollars in tobacco and asbestos litigation, getting ready to file yet another set of class-action lawsuits.

Scruggs makes his home in southern Mississippi. He lost a vacation house in Pascagoula to the hurricane, according to the Los Angeles Times, which further reported Scruggs plans to file “thousands of lawsuits” against major insurance companies.

Scruggs said he will file suit against State Farm, Allstate, Nationwide, and other property and casualty insurers on behalf of Mississippi and Alabama residents who suffered property losses in the hurricane. The cases will center on whether the damage was caused by hurricane winds–in which case insurers will pay–or by flooding, which is usually excluded from coverage.

Scruggs characterizes flooding exclusions as “The intentional effort by these insurance companies to avoid meeting their policy obligations.” He continued, “As a community member, neighbor, and victim of the hurricane, I simply cannot sit by and allow this needless exploitation of those of us who live and work in the Gulf Coast region.”

A spokesman for the Property Casualty Insurers Association of America told the Los Angeles Times insurers will not pay for flood damage … and they are trained to tell the difference between covered and uncovered damages. From the Los Angeles Times and PR Newswire

Suit: Oil Companies Caused Troubled Waters

A class-action lawsuit was filed during the week of September 12 alleging the oil companies are to blame for the damage caused by Hurricane Katrina, according to Associated Press. Named in the lawsuit are 11 oil companies, including BP Corp., Chevron, ExxonMobil, and Shell Oil, Associated Press reported.

The named plaintiffs are “all persons, businesses and entities in the state of Louisiana who have suffered damages as a result of Hurricane Katrina’s winds and storm surge.” The suit contends oil and gas pipeline canals in the coastal marshes eliminated parts of the marsh area, which allegedly serves as a buffer zone.

But state officials interviewed by Associated Press attributed losses of marsh areas to other causes as well, including sinking of the coast and levees along it. A spokesman for the Louisiana Independent Oil and Gas Association told AP it was “greatly saddened” by the damage caused by the hurricane but denied any role in the damage on the part of the oil companies: “A hurricane like that would have done what it did regardless,” he said. From Associated Press

FEMA to Rescue Workers: “No Touching”

More than 1,000 firefighters who traveled from throughout the United States to participate in emergency assistance in the southern Gulf states after Katrina wound up in a Federal Emergency Management Agency (FEMA) staging area in Atlanta, where they received instruction in avoiding sexual harassment and participated in other FEMA orientation tutorials, the Salt Lake City Tribune reported.

The firefighters were responding to the pleas of New Orleans Mayor Ray Nagin, who asked them to relieve exhausted city emergency workers, the newspaper said. Instead, they learned in Atlanta they would be doing outreach work in the community to help hurricane victims contact FEMA.

The newspaper quoted a Texas fire chief who thought the visiting firefighters could have been used more effectively. “They’ve got people here who are search-and-rescue certified, paramedics, haz-mat certified,” he told the Salt Lake City Tribune. “We’re sitting in here having a sexual-harassment class while there are still [victims] in Louisiana who haven’t been contacted yet.” From the Salt Lake City Tribune

Be Careful What You Wish for

John Berlau of the Competitive Enterprise Institute noted on September 8 that the Sierra Club Web site “brags that the group is ‘working to keep the Atchafalaya Basin,’ which adjoins the Mississippi River not far from New Orleans, ‘wet and wild.’

“These words may seem especially inappropriate after the breaking of the levees that caused the tragic events in New Orleans last week,” Berlau continued.

In 1996, the Army Corps of Engineers proposed to fortify the levees on the Mississippi River in Louisiana, Mississippi, and Arkansas. The Sierra Club filed suit claiming the Corps had failed to consider the impact on flora and fauna in the area. Berlau also notes the National Audubon Society urged the Corps in 2002 to remove or lower the levees, arguing this “natural” method would prevent flooding better than levees.

Berlau noted it is too early to draw the conclusion that a cause-and-effect relationship existed between environmental opposition to levee improvement and the Katrina flooding. But the U.S. Senate Environment and Public Works Committee, which oversees the Corps, is looking into this, the Washington Post reports. From the Washington Post and National Review Online

Who’s Able to Respond? Who Should?

Local and state workers traditionally have served as “first responders” in disaster relief efforts, notes The Christian Science Monitor. “Katrina, however, completely incapacitated local first-responders, and in the days before help arrived, New Orleans was beset by anarchy,” it reports.

States can call in the National Guard, but the rest of the military is barred from local law enforcement by the Posse Comitatus Act, which dates to the post-Civil War era. The military can intervene locally, under the Insurrection Act, only if there is an open rebellion against the government.

After Katrina, many observers are calling for an expanded role for the military in disaster relief efforts. President Bush said the military is “the institution of our government most capable of massive logistical operations on a moment’s notice.” There is opposition, however. One general noted problems arose in New Orleans only because first responders were poorly organized. The American Civil Liberties Union agreed: “Changing the law in a way that threatens civil liberties isn’t the answer to a problem of management.” From The Christian Science Monitor

Lawsuit Abuse Fortnightly

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