Final arguments and testimony ended yesterday in the first trial over an insurer's use of flood exclusion policy language to deny a Mississippi homeowner's claims for Hurricane Katrina damages.

The case involving Nationwide Insurance was tried before U.S. District Court Judge L.T. Senter Jr. in Gulfport, Miss. Judge Senter, who heard the case without a jury, now must render a verdict.

Judge Senter is due to receive post-trial briefs within the next seven days and issue his ruling sometime after that.

The defendant, Nationwide Mutual Insurance Company, Columbus, Ohio, in making its case, argued that flooding from storm surge caused the destruction of Paul and Julie Leonard's home in Pascagoula, Miss., and such damage is not covered under their policy.

Vince Vitkowsky, New York-based partner in the law firm of Edwards Angell Palmer Dodge, said that since Judge Senter had in previous rulings declared that storm surge is part of flood damage, the argument in this case would have to focus on what exactly ripped through the Leonards' home–wind or flood water.

Mr. Vitkowsky said the fact that the plaintiffs again focused on the actions of the agent in the case, Jay Fletcher, would seem to indicate they did not have much confidence in their assertions that wind severely damaged the Leonard home.

The Leonards claim that Mr. Fletcher told them they did not need flood insurance, which he denies. Nationwide presented testimony that the couple had flood insurance with a previous carrier as evidence they knew the role it plays in hurricane protection.

Nationwide spokesman Joe Case said the plaintiff's case has taken any number of tacks during the bench trial.

“This case is not about the agent. It is not about the wind tower that blew down at the Trent Lott Airport,” Mr. Case said. “It is about the Leonards' home and the evidence as to what caused its damage.”

Mr. Case said the fact there was a water mark at the five-foot level, and that the second level for the most part remained intact, indicated this was damage caused by flooding and not wind.

“Wind damage starts at the top and works down, while flood damage starts at the ground and works up,” Mr. Case said.

Mr. Fletcher was originally named in the case, but the plaintiffs later dropped him as a defendant.

Nonetheless, the Leonards' attorney, Zach Scruggs, focused on the role Mr. Fletcher played in allegedly advising the Leonards that they did not need to purchase flood insurance.

Mr. Case noted that Mr. Fletcher had sold flood insurance to several of the Leonards' neighbors, which would indicate that it was not his general practice to discourage the purchase of flood insurance.

“After all, he makes a commission on that also,” Mr. Case said.

Mr. Scruggs, the son of noted plaintiff's attorney Richard “Dickie” Scruggs, has brought several other Katrina claim actions before Judge Senter. He did not respond to National Underwriter's request for an interview.

Mr. Vitkowsky said the Leonard case is not precedent-setting in the strictest sense.

“But it is a matter of practical importance to see how this judge is going to hear the other cases, and how he is likely to approach these other issues,” he said.

As a neutral observer, Mr. Vitkowsky said the merits of the wind vs. flood issue seemed pretty close during the trial. “But it appears that Nationwide will prevail in that storm surge-flood caused the damage,” he said.

Expert testimony from both sides focused on how strong the wind was, where it was coming from and when it happened. “It all overlapped in such a short time. But it looks as though the insurance company presented a good case on the factual question,” he said.

Mr. Vitkowsky said he expects whichever side loses the case to appeal it.

The attorney also said the other cases were not expected to be heard for at least a year. The Leonard case moved relatively swiftly since as a bench trial it was subject only to the judge's ruling.

Special Reports /

Verdict Due In First Big Katrina Claim Case

Related Stories

Recommended For You