Canadian Underwriter

Battle between Silverstein and insurers over WTC claim heats up

January 4, 2002   by Canadian Underwriter

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The court case between World Trade Center leaseholder Larry Silverstein and insurers is broadening in scope, with Silverstein asking courts to extend his suit to all of the building’s insurers, except ACE and XL. Silverstein has already filed suit against Swiss Re, claiming that the toppling of the World Trade Center towers by terrorists on September 11, 2001, constitutes two insured events. Swiss Re launched a suit in late October, seeking a judgement that the attacks are one event, meaning the insured parties would receive only one payment of $3.5 billion under the policy.
Silverstein was in negotiations with the 21 other insurers who are involved in covering the towers, but when talks broke down late last week, a request was put forward to extend the original Swiss Re suit, and a suit was launched specifically against Citigroup’s Travelers Indemnity. ACE and XL are still in talks with Silverstein.
Whether or not the terrorist attacks, which involved two planes being flown into the towers approximately 18 minutes apart, should be classified as one loss event or two has become a hot topic for debate. If Silverstein succeeds in his suit, he and the building’s owners, the New York Port Authority, as well as his debtors, would receive double the settlement, more than $7 billion. He claims the wording of the policies, which were not actually finalized as of September 11, does not define “occurrence”, leaving it to New York common law to determine the definition of the term.
Swiss Re claims in its suit that the policy defines “occurrence” as “all losses or damages that are attributable directly or indirectly to one cause or to one series of similar causes. All such losses will be added together and the total amount of such losses will be treated as one occurrence irrespective of the period of time or area over which such losses occur.”
If the courts choose to apply common law, then precedent would be used to determine if it is one loss or two. In an article in the New York Law Journal, insurance law professor Mark Geistfeld notes that there is some precedent for the “two events” case.
Both Allianz and Chubb have joined Swiss Re’s suit to have a declatory judgement made. Discovery for the Swiss Re case will end on April 30 and a decision is expected in early summer.
Another issue is whether or not Silverstein and the City of New York intend to rebuild. Swiss Re claims that a request from Silverstein for advance payment, which was granted by insurers, constitutes electing to recover the “actual cash value” of the building, rather than reconstruction costs. The actual cash value of the building would likely be less than Silverstein denies this.
In its filing, Allianz notes that Silverstein was told by his broker that to replace the buildings would cost in excess of $5 billion, but that he chose the $3.5 billion limit.
New mayor Michael Bloomberg says the city will not likely rebuild the towers, but will construct smaller buildings on the site, as well as a memorial to the victims.

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