Trade Center Jury Tells Judge: ?We're Confused'

By Michael Ha

NU Online News Service, Feb. 19, 2:59 p.m. EST?The jury hearing evidence in the World Trade Center insurance claims dispute is baffled by the involved technical testimony they are hearing, they told the judge.[@@]

Trial Judge Michael Mukasey announced during the proceedings in Manhattan Federal Court this week that he had been informed by the jurors that they were getting confused.

"I should tell you about a request that I got from the jury," Judge Mukasey informed the lawyers for the two sides Tuesday after the jury had left for the day. He said the jurors had sent him a note asking to repeat his instructions to them on "what issue you are trying here."

"We got a note from the jury, ?What is this case about?'" Judge Mukasey commented, which drew laughter in the courtroom. "That should tell you something about what is happening here. It should also tell you something about how you are making your presentations and what you should do to them?i.e., shorten them and make them clearer."

The judge advised that if the lawyers don't tighten up their presentations, then jurors are simply going to decide this case based on "who they like the best?and I would be perfectly willing to put into a sealed envelope my views on how that is going to come out."

The key issue in the trial pitting WTC leaseholder Larry Silverstein against 13 of his insurers in Manhattan Federal Court is which insurance form may have been used by the carriers in their coverage binders.

Insurers are arguing that they are bound to the Willis property form, which specifically defines "occurrence" and would limit Mr. Silverstein's WTC claim to one event of $3.55 billion, rather than a Travelers property form, which offers no such definition and thus would be more beneficial to Mr. Silverstein's claim?that two separate airplanes crashing into two separate WTC towers constitute two occurrences for insurance purposes.

Final policy documents were not signed before the Sept. 11 terrorist attack.

Mr. Silverstein's camp has acknowledged in this trial that many insurers received only the Willis property form?also called the "Wilprop" form?for the WTC underwriting submission before they issued binders prior to Sept. 11, 2001.

However, Mr. Silverstein's attorneys contend that when Travelers had insisted on using its own form, which doesn't define occurrence, the Travelers document had become the operative form for the coverage before the attack.

During the trial so far, attorneys from both sides examined and cross-examined some 10 witnesses?starting with Mr. Silverstein's risk manager, Robert Strachan, then moving on to other executives, including officials from:

? WTC retail-space leaseholder Westfield America

? GMAC, which lent $563 million to Mr. Silverstein for his WTC lease

? Insurance consulting firm Harbor Group, which had advised GMAC on WTC matters

? Willis of New York, Mr. Silverstein's broker on the WTC insurance

The trial is expected to last through March and possibly beyond that, with scores of additional witnesses due to be called, some of the participants involved in the case told National Underwriter.

However, based on some of the testimony so far, the jurors?seven men and five women, most of whom appear to be in their 40s or 50s?perhaps can be forgiven for becoming bewildered by the technical issues in dispute. Some witnesses, for example, offered testimony that sometimes appeared to contradict other witnesses or even their own earlier remarks.

For example, Robert Strachan, Mr. Silverstein's risk manager and the trial's first witness, testified during the trial's first week that he had accepted the Travelers form as "the operative policy" back in July 2001.

He also explained that faxing the Wilprop form the day after the terrorist attack to an attorney for the WTC's owner, the Port Authority of New York and New Jersey, as well as to a representative for GMAC, was his way of saying "we were working with" this form?not that it was the operative policy. "It was the only policy I had in my office" at that time, he said.

Peter Lefkowitz?a key witness who served as principal manager from the consulting firm Harbor Group to advise GMAC on WTC insurance matters?offered testimony this week that could undermine Mr. Strachan's claim.

Mr. Lefkowitz?one of the insurance representatives for GMAC who received the Wilprop form faxed from Mr. Strachan and who had spoken to Mr. Strachan on the phone on Sept. 12, 2001?told jurors that he was the first person to suggest to Mr. Strachan that the terrorist attack might constitute two insured events.

Mr. Strachan also told Mr. Lefkowitz on the phone on Sept. 12, 2001, that he thought there was only one deductible?with the implication that there was only one insured event in the WTC case?according to Mr. Lefkowitz's testimony.

Then, Mr. Lefkowitz noted: "I said to him, ?Did you ever think of the implications if it was two occurrences?'"

"It was just, I think, a spontaneous reaction," Mr. Lefkowitz said on the witness stand, adding that when he asked Mr. Strachan on the phone, the day after the attack, if he had thought of possible implications if there were two insured occurrences, Mr. Strachan had told him, "No, I never thought of that."

Mr. Lefkowitz also said GMAC didn't have enough information to back up contentions that the Wilprop form had been replaced as the governing policy document prior to the attack, adding that it was his understanding that no policy form had been "finalized." As a result, he noted, GMAC didn't take a position in the WTC insurance debate. "I don't believe they were taking sides," he said.

During the past two weeks, there was other conflicting testimony and also what some attorneys testily described as "selective amnesia" from some of the witnesses. This week, one major witness in particular rankled attorneys representing the insurers and even tested Judge Mukasey's tolerance.

The witness, Beth Ann Herrmann, was director of insurance operations at GMAC at the time of the Sept. 11 attack. On that day, she was asked by GMAC's chairman to collect as much information as possible about the WTC coverage. She promptly began to attend meetings, take part in conference calls and listen to conversations involving managers from the Silverstein Properties and Willis, as well as people from Harbor Group and GMAC, over the following several days.

But despite taking extensive notes during that time, Ms. Herrmann answered most questions during the trial with the response: "I don't have an independent recollection" from those meetings. "I remember walking into the room, but I don't remember any of the conversation," she said of one of the meetings she had attended.

Barry Ostrager, the lead attorney for Swiss Reinsurance Company, the largest player in the case, became irritated enough during his examination to ask Ms. Herrmann: "So your mind is a complete blank?" to which she replied: "As to words and content, yes."

Judge Mukasey added his own questions, asking Ms. Herrmann if, when she met with Mr. Silverstein's lawyers, they had ever directed her about remembering certain information.

When she told the judge that she was asked to be honest and answer "if the light bulb goes off," the judge then remarked if Mr. Silverstein's lawyers would have preferred Ms. Herrmann to have "as few light bulbs as possible in this case."

Timothy Boyd, an assistant vice president of Willis who had worked on obtaining the WTC insurance coverage, proved to be a positive witness for Swiss Re. He testified Wednesday that he told GMAC representatives on July 9, 2001, that the Wilprop form was the form that was to be used by Willis to go to the marketplace.

Mr. Boyd said his colleagues at Willis had told him that the Travelers Property form was "no good" and "a pain in the neck" compared to the Wilprop form they were sending out to insurers.

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Trade Center Jury Tells Judge: ?We're Confused'

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