“Katrina in the Fifth Dimension: Hurricane Katrina Cases in the Fifth Circuit Court of Appeals,” is written by David P. Rossmiller, a partner in the Insurance Coverage and Recovery section of the Business and Commercial Litigation Department of Dunn Carney Allen Higgins & Tongue, in Portland, Oregon. This article discusses the Hurricane Katrina insurance coverage court cases that are the most important and far-reaching in their effect on the interpretation of policy language and those that have already gone through decisions in the trial courts and have been, or are being, reviewed on appeal by the U.S. Fifth Circuit Court of Appeals. The insurance coverage issues and court precedents being set are not only of keen interest to attorneys involved in the thousands of insurance claims arising from Hurricane Katrina but also to attorneys who may well become involved in claims that will inevitably follow the inevitable hurricanes and other major catastrophes that are yet to come.

“Katrina in the Fifth Dimension: Hurricane Katrina Cases in the Fifth Circuit Court of Appeals is one of three articles on compelling current issues in insurance law published in the April 2008 issue of New Appleman on Insurance: Current Critical Issues in Insurance Law.

Mr. Rossmiller has offered some observations on the wind vs. water debate that rages on in litigation spawned by Hurricane Katrina. Rossmiller states: “The wind versus water debate actually had several components. One was the false doctrine that damage from a force like a hurricane involves multiple causation of loss merely because two forces, one covered and one uncovered, cause damage to a structure. In reality, in Katrina, no one has been able to point me to a single example where specific damage to a particular portion of a house resulted from a combination of forces. Instead, where a house was damaged by wind and water, these forces caused separate property damage, and did not combine to cause precisely the same loss to property as that term is understood in insurance contracts. If they had, anti-concurrent cause language would have been implicated, but it was not, because separate damage was caused by separate single forces. The notion that anti-concurrent cause language was vital or even necessary to a determination of coverage for Katrina damage is entirely false. The great irony of Katrina litigation is that anti-concurrent cause language was relentlessly attacked by the media, policyholder lawyers, politicians and consumer groups, and the result of those attacks is that anti-concurrent cause language has been upheld on appeal by the Fifth Circuit and even arguably extended by those appellate decisions beyond where it was originally intended to go. These Fifth Circuit decisions are not without their own errors in understanding causation, and the ultimate result will be a resounding victory for insurers, who got more from the court than they should have expected.”

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Lexis.com subscribers may access additional items authored by Rossmiller by clicking on the links to the following publications:

Interpretation and Enforcement of Anti-Concurrent Policy Language in Hurricane Katrina Cases and Beyond, October 2007 Appleman: Current Critical Issues in Insurance Law § I

Applying Attorney-Client and Work-Product Privileges
Chapter 19, New Appleman Insurance Law Practice Guide

Conducting Discovery
Chapter 20, New Appleman Insurance Law Practice Guide

Insurance Coverage Issues Involving Hurricanes
Chapter 192, Appleman on Insurance 2d

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