The Legal Side of the Hurricane Sandy Recovery : LXBN Roundtable

By | LXBN | November 13, 2012

Two weeks ago yesterday, Hurricane Sandy made landfall near Atlantic City, devastating the city and leaving the state’s residents without heat, electricity, and in many cases, their homes.  Sandy swept through the Northeastern region of the United States, leaving a trail of destruction.  Two weeks later, as 80,000 homes in New York remain without electricity and thousands of families search for alternative housing, the recovery process has begun in earnest.   While businesses look to get customers back in their doors and homeowners try to find ways to piece together their lives, the authors on the LexBlog Network have turned to examining the ramifications of this 100-year storm.

Although many are talking about the unprecedented level of destruction and displacement caused by Sandy and what that could mean for the insurance claims that will certainly start flying, Wystan Ackerman, chair of Robinson & Cole‘s class action team, reminds readers that a reference point exists for this type of natural disaster: Hurricane Katrina.  In fact, Hurricane Katrina took nearly ten times the number of lives, and cost twice to repair the structural damage.  In his post on the Insurance Class Actions Insider, Ackerman discusses what we can learn from Katrina in a response to a New York Times article predicting years of litigation arising from Sandy:

“Mediations can help avoid lawsuits or resolve them early:  For any readers who are unfamiliar with mediation, it is a process whereby a neutral person, typically a lawyer, judge, or former judge, meets with the parties (and their lawyers if they have hired lawyers) and tries to help them resolve their dispute.  The mediation can offer the parties an opportunity to air their views in a confidential setting, receive a neutral opinion on the strengths and weaknesses of their position from a disinterested, neutral mediator, and attempt to resolve the dispute.”

How long many of these claims drag on is tied into the kinds of coverage and contracts each homeowner purchased.  In times like these, news anchors and journalists casually toss around phrases like “Act of God” or “force majeure” without knowing what they mean.  Maxwell Kennerly examined the legal history of these clauses on his blog, Litigation & Trial:

“I told him that, though the phrase was on its face ambiguous, there was caselaw interpreting “Acts of God” — regularly used in construction, insurance, transportation, and other contracts — to generally mean completely unforeseeable events, and there was a whole body of law relating to the interpretation of these “force majeure” clauses. “So,” he asked, “would Hurricane Sandy be an ‘Act of God’”?”

From there, Kennerly examined Hurricane Sandy, and how New York would handle such claims by insurance companies:

“Then again, thanks to global warming, the former “100-year flood’ for New York City is now becoming a “3 to 20 year” flood. If, as Governor Cuomo quipped, “We have a 100-year flood every two years now,” then we can’t say they’re “unpredictable” or “extraordinary” any more.

All in all, it seems some insurance coverage lawyers in New York may have their work cut out for them once power is restored and the clean-up is done — and we need to recognize and start responding to a world with more “storms, tempests, tornadoes, cyclones, hurricanes, blizzards, monsoons, typhoons, twisters, siroccos, gales, southwesters, duststorms, snowstorms, sandstorms, whirlwinds, [and] wind eddies.””

With insurance claims come the unenviable task of dissecting these complex contracts.  In an effort to help homeowners through an already difficult situation, Steven Berk, the author of The Corporate Observer, put together a few pointers for residents embroiled in the insurance claims process:

“Consumers should avoid statements of cause when filing insurance claims.  For example, instead of saying “wind broke my window and my dining room flooded” try “my window is broken and there is water on my dining room floor.”  Stating the cause of damage on an insurance claim could easily be used to prevent your claim from being approved, even if by “flooded” you actually meant “water dripped in through the hole in the roof”.  Consumers should also be sure to photograph all damages before repairs begin.

Consumers, brace yourselves.  The next few weeks are likely to be unpleasant.  Read your policy carefully before speaking with the insurance company or any contractors, and be prepared for the leaking roof vs. rising flood waters debate you will likely encounter when filing your claims. “

Unfortunately, the road to repairing a homestead is rougher than just getting the claimant and insurance provider on the same page.  Further complicating the recovery are, in the words of Berk, “storm-chasing scam artists”. As Berk wrote in a separate post:

“After-storm scammers usually come in two varieties:  The all-too-helpful contractor and the bleeding heart charity.  Scam contractors often knock on their victims’ doors offering to repair storm damage, assess damage for your insurance company, issue claims checks, help you file an insurance claim, or check your water for contamination.”

In light of this, it’s important to remember not everyone involved in the recovery process is a scam artist, shady insurance provider, or opportunist.  In many cases, Hurricane Sandy brought out the best in people.  David Oxenford highlighted the efforts of radio broadcasters during Sandy and a number of TV networks promoting hurricane relief after the storm passed:

“It has been great to see the many TV networks broadcasting programs with the specific purpose of promoting hurricane relief. And, in a post that we’ll put on the blog later today, the FCC has just made it easier for noncommercial broadcasters to contribute in these. Being on the ground at the NJ shore for a few days, without electricity other than what was provided by a small gas-powered generator, demonstrated to me the power and importance of portable media – including radio.

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One local radio station was particularly noteworthy, as it was operating even though it did not have operating phones or email access. Yet it continued to broadcast, conveying information as to how people could help each other. That information was collected from people posting on the station’s Twitter feed. The station truly showed how convergence of electronic and broadcast media can really work well together. “

Michele Host detailed how New York City public interest lawyers used Twitter to help clients during Hurricane Sandy to find safe haven while the storm raged.  After the storm had passed they continued their efforts, updating clients on a variety of developments:

“As New York City’s subway system shut down before the storm, lawyers used Twitter to inform their clients about court closures. While the storm raged and after it passed, organizations continued to tweet important news relating to their clients’ cases, particularly Governor Cuomo’s executive order suspending and modifying timelines for filing original cases and appeals and the New York City Civil Court’s orders halting evictions during the week of the storm, which appeared on the New York State Unified Court System’s website. In addition, advocates tweeted other important announcements relating to clients’ ability to file for unemployment benefitsobtain replacement SNAP benefits, get emergency social security payments, and find temporary shelter.”

And government agencies not directly involved in relief efforts have also stepped up to ease the pressure on businesses and individuals.  Ilyse Schuman reports on Littler Mendelson‘s Washington DC Employment Law Update that the IRS and DOL have offered various breaks, extensions, and relief to those effected by the storm.  Over on Fox Rothschild’s Immigration View, Catherine Wadhwani shows how even the U.S. Citizenship and Immigration Services is providing relief:

“Taking a humanitarian approach to the potential plight of foreign nationals who may be negatively impacted by Hurricane Sandy, the Immigration Service (U.S. Citizenship and Immigration Services or USCIS) has posted information regarding temporary reilef measures that may be of benefit to those affected by the hurricane.

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The Immigration Service has also indicated that it may exercise its discretion to allow for some filing delays or failures to appear for interviews due to the hurricane.”

These tales serve as a reminder that while Sandy and her victims are slowly fading from the national consciousness, the region is far from alone.  As Veteran’s Day came and went this weekend, National Guardsmen were deployed to places like Breezy Point, New York where they helped residents piece together their homes.  Just miles away along the New Jersey shore, more soldiers picked up rubble in the shadow of a submerged amusement park.  Sandy may be gone, but the recovery is just beginning.

To read more Hurricane Sandy coverage check out LXBN’s page on the storm and recovery here.