Earlier this week I was in New York City to attend a meeting of Plaintiffs’ attorneys represent policyholders in pending Superstorm Sandy cases in the Eastern District of New York (EDNY) federal court. In case you have missed our prior blogs, New York Federal Court Creates Miscellaneous Civil Case for Administration of Hurricane Sandy Claims, and New York’s Eastern District Deciding How to Handle All the Sandy Cases, the EDNY has set up a separate case titled “In re Hurricane Sandy Cases” to administer Superstorm Sandy litigation. Javier Delgado of Merlin Law Group was selected by the EDNY as one of the Liaison Counsel for Plaintiffs in Superstorm Sandy litigation.

On February 21, 2014, the EDNY entered Case Management Order No. 1 (CMO) which, among other things, required both Plaintiffs and Defendants to brief the Court on the commonly occurring legal issues and defenses which the parties anticipate will be litigated in the coming months. In accordance with the CMO, on March 7, 2014 Defendants’ Liaison Counsel submitted separate briefings on commonly occurring legal issues and defenses which they anticipate will come up in both flood and wind cases. You can read copies of their submissions here (flood) and here (wind).

On Friday March 14, 2014, Plaintiffs’ Liaison Counsel submitted a filing on behalf of all Plaintiffs in response to the defenses and issues raised by Defendants. These filings will assist the Court by providing information on issues and defenses, and will also assist mediators and arbitrators in settlement negotiations between the parties.

As you can see from the filings, some of the issues and defenses which have been raised include:

  • FEMA Proof of loss requirements
  • Statute of Limitations
  • An insured’s burden of proof in both wind and flood cases
  • Policy exclusions such as earth movement; weather conditions; and wear and tear/ faulty workmanship
  • Appraisal
  • Overhead and profit
  • Anti-Concurrent Causation (ACC) Clause

Now that Plaintiffs and Defendants have submitted their briefings for the Court, the parties will exchange initial disclosures by April 22, 2014. The CMO sets out the specific information and documentation that is required to be exchanged.