The Katrina fund: Repairing breaches in Gulf Coast insurance levees

Harvard Journal on Legislation

Volumn 43, Issue 2, 2006, Pages 329-373

  Crusto, Mitchell F ^a  

^a LOYOLA UNIVERSITY   (United States)

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EID: 33746267427     PISSN: 0017808X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (357)

1. Hurricane Katrina was a major part of the most volatile Atlantic Hurricane season on record, which included Hurricanes Katrina, Rita, Wilma, and Beta. For purposes of this Article, the terms "Hurricane Katrina" or "Katrina" shall generally include Hurricane Rita and Hurricane Wilma. See also Press Release, Office of Governor Kathleen Blanco, Governor Blanco Creates Louisiana Recovery Authority (Oct. 17, 2005), available at http://www.gov.state.la.us/index.cfm?md=pagebuilder&tmp=home&cpid=87 (announcing the creation of the Louisiana Recovery Authority);
2. Press Release, Office of Mayor Ray Nagin, Mayor Calls on Citizens to Help Bring New Orleans Back (Sept. 30, 2005), available at http://www.city-ofno.com/portal.aspx?portal=1&load=~/PortalModules/ ViewPressRelease.ascx&itemid=3179 (announcing the creation of the Bring New Orleans Back Commission).
3. See generally Royals See Storm Hit New Orleans, BBC NEWS, Nov. 5, 2005, http://news.bbc.co.uk/2/hi/uk_news/4409232.stm;
4. Farah Stockman, U.S. Accepts Nearly $1B in Foreign Aid, BOSTON GLOBE, Sept. 8, 2005, at A12 (explaining the amount of international attention and charitable gift giving resulting from Katrina).
5. See Nat'l Oceanic and Atmospheric Admins. ("NOAA"), 1 National Climatic Data Center's News Highlights 4 (2005), available at http://www.ncdc.noaa.gov/oa/about/NOAANewsletter4.pdf: Katrina was one of the strongest storms to impact the coast of the United States during the past 100 years .... The loss of life and property damage was worsened by breaks in the levees that separate New Orleans from surrounding lakes. At least 80% of New Orleans was under water on August 31, 2005, largely as a result of levee failures from Lake Pontchartrain. The combination of strong winds, heavy rainfall and storm surge led to breaks in the eastern levee after the storm passed, leaving some parts of New Orleans under 20 feet of water.
6. Id.
7. See also NOAA, billion Dollar U.S. Weather Disasters, http://www.ncdc.noaa.gov/oa/reports/billionz.html#narrative (last visited Feb. 10, 2006) (reporting that Hurricane Katrina was "the most expensive natural disaster in U.S. history" with preliminary estimates of over $100 billion in damages and high winds and some flooding in the states of Louisiana; Mississippi; Alabama; Florida; Tennessee; Kentucky; Indiana; Ohio; and Georgia);
8. Higher Insurance Premiums: Blame Climate Change?, CONSUMER REP., Feb. 2006, at 6 (stating that hurricanes Dennis, Katrina, Rita, and Wilma caused an estimated $55 billion to $75 billion in insured property losses).
9. For purposes of this Article, the term "homeowners" refers to primary residential premises, not rental property. See generally TOM BAKER, INSURANCE LAW AND POLICY, CASES, MATERIALS, AND PROBLEMS 337, 342 (2003) (defining "residence premises" as "the one or two family dwelling, other structures, and grounds or that part of any other building where you reside and which is shown as the 'residence premises' in the Declarations").
10. See Leonard v. Nationwide Mutual Ins. Co., No. 2005-2021JB (Miss. Ch. Ct. filed Oct. 4, 2005) (seeking injunctive relief and a declaration that the insurer cannot rely on the policy's water exclusion to deny coverage for damages to their home caused by Katrina);
11. Orrill v. AIG Inc., No. 2005-11720 (La. Civ. Dist. Ct. Orleans Parish filed Oct. 27, 2005) (alleging in a class action suit that an insurer failed to provide a means for its insureds to initiate a claim or to provide any temporary disaster relief);
12. Comer v. Nationwide Mutual Ins. Co., No. 05-00436 (S.D. Miss, filed Sept. 30, 2005) (alleging in a class action complaint that homeowners insurers should not be permitted to deny coverage for damages caused to homes by Katrina's winds, naming their insurers, numerous oil companies, and mortgage lending companies as defendants).
13. See generally Kathy Bushouse, Mississippi Takes on Insurance Industry, ORLANDO SENTINEL, Sept. 29, 2005, at CI (noting that immediately following Katrina, Mississippi attorney general Jim Hood requested that a judge override provisions in state insurance contracts that exclude coverage of damage from storm surge, arguing that those provisions are "contrary to public policy, are unconscionable, and are ambiguous," and that insurers are "utilizing these exclusion provisions as grounds to deny and/or substantially reduce their coverage that they otherwise should pay").
14. See EVAN MILLS, RICHARD J. ROTH, JR., & EUGENE LECOMTE, AVAILABILITY AND AFFORDABILITY OF INSURANCE UNDER CLIMATE CHANGE: A GROWING CHALLENGE FOR THE U.S. (2005), available at http://www.ceres.org/pub/docs/Ceres_insure_climatechange_120105. pdf (reporting that even before Hurricane Katrina, consumers and businesses in many parts of the U.S. were seeing higher premiums, lowered limits and increased restrictions in coverage due to rising weather-related losses in Florida, Texas, California and elsewhere).
15. But see, e.g., Press Release, Allstate Corporation, Allstate Reports 2005 Fourth Quarter Net Income EPS of $1.59, Fourth Quarter Operating Income EPS of $1.49, Provides Guidance on 2006 (Jan. 31, 2006), available at http://media.corporate-ir.net/media_files/irol/93/ 93125/news/all_060131er.pdf (announcing catastrophe losses totaling $657 million pre-tax in the fourth quarter of 2005, but noting "[l]iti-gation has been filed, which if ultimately decided against us, could lead to a material increase in our catastrophe claims and claims expense estimate").
16. See Chehardy v. Wooley, No. 536451 (La. Dist. Ct. filed Sept. 15, 2005);
17. see also Hood v. Mississippi Farm Bureau Ins., No. 05-00572 (S.D. Miss, filed Sept. 16, 2005) (asking the court in a class action suit to declare damage caused by the storm as covered);
18. Hurricane Katrina and Hurricane Rita Flood Insurance Buy-In Act, H.R. 3922, 109th Cong. (2005) (proposing that Katrina homeowners facing a gap in their flood insurance coverage be allowed to purchase flood insurance retroactively). Katrina victims also face a host of challenges, including significant environmental threats resulting from Katrina-damaged residences. See U.S. Envtl. Protection Agency, News Brief: EPA Releases Longer Term Analyses of Sediment Data from Hurricane Katrina (Dec. 16, 2005), http://yosemite.epa.gov/r6/press.nsf/name/SedimentData_12-16 [hereinafter EPA News Brief] (noting that in some areas, high concentrations of various chemicals were detected to be above acceptable levels);
19. see also Matthew Brown, Groups Brand Storm Sediment Unsafe, TIMES-PICAYUNE, Dec. 2, 2005, at 3 (stating that environmental groups found chemical contamination at thirty of thirty-one sites tested and said state and federal agencies are "grossly misleading the public" by playing down the health risks of living and working in New Orleans).
20. Martin Grace & Robert Klein, Katrina's Liability Implications, Panel at American Enterprise Institute for Public Policy Research (Oct. 3, 2005), available at http://www.aei.org/events/eventlD.1156,filter.all/event_detail.asp. During the program, Martin F. Grace, the James S. Kemper Professor of Risk Management and Insurance at Georgia State University, reportedly stated that if the Katrina class action litigation were successful, the insurance industry would stop in its tracks temporarily and possibly face bankruptcies and massive availability problems followed by a potential contagion into other states and a call for greater federal regulation.
21. Id.;
22. see also Hurricanes Drive Up Insurance Costs, Bus. ENV'T, Oct. 2005, at 14 (reporting that "[i]nsurance companies have often been caught unprepared for unforeseen combinations of events, like the 2001 attack on New York's World Trade Center, multiple hurricanes hitting Florida in 2004, or the great tsunami of 2004.");
23. Federal Emergency Management Agency (FEMA), New Hampshire Flooding Update: Aid Total Tops $3 Million, Dec. 14, 2005, available at http://www.fema.gov/news/newsrelease.fema?id= 21418 (noting that by December, 14, 2005, 709 victims from the nine New Hampshire counties affected by the flood had applied for FEMA assistance and more than 3 million in aid had been distributed for the rebuilding effort).
24. See generally Katrina's Economic Impact, MSNBC, http://www.msnbc.msn.com/id/9241617 (last visited Apr. 17, 2006) (reporting that Congress already has allocated $10.5 billion toward recovery efforts and President Bush intends to seek an additional $40 billion). Senate Democratic leader Harry Reid said recovery and relief costs ultimately could top $150 billion. The loss of economic output from businesses shut down by Katrina and a related slowdown in consumer spending are likely to cut 0.5% from the nation's overall growth rate in the current quarter, and possibly 0.5% in the fourth quarter. According to the Congressional Budget Office, Katrina is likely to cost the economy 400,000 jobs.
25. See id.
26. See, e.g., Bill Walsh, White House Against Baker Bailout Bill, TIMES-PICAYUNE, Jan. 25, 2006, available at http://www.nola.com/news/t-p/frontpage/index.ssf7/base/news-4/1138202723122050. xml (noting, however, that President Bush has disfavored a federal bailout of Katrina homeowners and Katrina survivors).
27. Air Transportation Safety and System Stabilization Act, 49 U.S.C.A. §40101 (West 2004).
28. See Press Release, White House, Press Briefing by Scott McClellan and Senior Officials on Levee Reconstruction (Dec. 15, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051215-4.html (announcing that President Bush recently asked Congress for an additional $1.5 billion to increase levee protection).
29. See Press Release, I.S.O. Properties, Preliminary Estimate Puts Insured Losses from Hurricane Katrina at $34.4 Billion: ISO Property Claim Services (Oct. 4, 2005), available at http://www.iso.com/press_releases/2005/10_04_05.html [hereinafter I.S.O. Press Release].
30. See Lott v. State Farm Fire & Casualty Co., No. 05-00671 (S.D. Miss, filed Dec. 15, 2005).
31. See generally Why Your Homeowners Policy Might Not Be There When You Need It Most, CONSUMER REPORTS, Sept. 2005, available at http://www.consumerreports.org/cro/personal-finance/flood-insurance-905.htm (stating that when it comes to hurricane-related damages, homeowners policies are "full of holes" and typically do not cover storm drainage and sewer backups, as well as water damage from storm surges and other types of environmental flooding).
32. Dean Starkman, Same Insurance Claims, Different Results for Katrina Victims, STANDARD-TIMES, Dec. 4, 2005, at B6 (stating that, "[t]here is evidence of disparate treatment of policyholders, which raises fairness questions").
33. See Why Your Homeowners Policy Might Not Be There When You Need It Most, supra note 14 (noting that water damage from storm surge, other types of flooding, storm drainage, and sewer backup are typically not covered by homeowners policies).
34. See Ins. Info. Inst., Flood Insurance, http://www.iii.org/media/facts/statsbyissue/ flood (last visited Mar. 17, 2006) (reporting that many homes in counties affected by Katrina lacked flood insurance).
35. See supra note 4 and accompanying text.
36. ROBERT H. JERRY II, UNDERSTANDING INSURANCE LAW 16-77 (3d ed. 2002) (providing several pertinent cases in which courts have interpreted the scope of insurance policies).
37. See David Herr, Commercial and Residential Property and Liability Insurance, 17 REAL PROP. PROB. & TR. J. 633, 633-35 (1983);
38. Timothy Palmer & John T. Waldron III, Insurance Coverage for Mold and Fungi Claims: The Next Battleground?, 38 TORT TRIAL & INS. PRAC. L.J. 49, 57 (2002).
39. See New Orleans Residents Lament Lack of Insurance, REUTERS, Sept. 5, 2005, available at http://www.msnbc.msn.com/id/9170157 (pointing out that standard homeowner insurance policies only cover damage from fire and wind).
40. See JERRY, supra note 19, at 11-15 (providing a brief history of insurance law).
41. See AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS, Homeowners Insurance, http://pfp.aicpa.org/Resources/Insurance+and+Risk+Management/ Property+and+Casualty+and+Liability+Insurance/Homeowners+Insurance (last visited Mar. 15, 2006) (providing a description of the six standard policies).
42. See Adam Scales, How Will Homeowners Insurance Litigation After Hurricane Katrina Play Out? The Key Dynamics, the Mississippi Lawsuit, and the Courts'Likely Views, Sept. 19, 2005, http://writ.news.findlaw.com/commentary/20050919_scales.html.
43. Rachel Emma Silverman, Flood Coverage for Costly Homes, WALL ST. J. GUIDE TO PROP., Sept. 2, 2005, http://www.realestatejoumal.com/buysell/taxesandinsurance/20050902-silverman. html.
44. See BAKER, supra note 3, at 337;
45. see also JERRY, supra note 19, at 11-15, 352.
46. BAKER, supra note 3, at 351-52.
47. Id.;
48. see also U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA), TERMINOLOGY REFERENCE SYSTEM: WATER DAMAGE, http://iaspub.epa.gov/trs/trs_proc_qry.navigate_term?p_term_id= 27575&p_term_cd=TERMDIS (last visited Apr. 18, 2006) (explaining that "water damage can be caused by flooding, severe storms, tidal waves, seismic sea waves, storm surges, etc.").
49. Congress has found that: (1) many factors have made it uneconomic for the private insurance industry alone to make flood insurance available to those in need of such protection in reasonable terms and conditions; but (2) a program of flood insurance with large-scale participation of the Federal Government and carried out to the maximum extent practicable by the private insurance industry is feasible and can be initiated. See 42 U.S.C. § 4001 (2000).
50. See id.
51. See FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA), NATIONAL FLOOD INSURANCE PROGRAM: CALL FOR ISSUES STATUS REPORT (2000), available at http://www.fema.gov/pdf/nfip/calliss.pdf (analyzing several cases regarding flood insurance and concluding that flood insurance is cost prohibitive).
52. See generally Why Your Homeowners Policy Might Not Be There When You Need It Most, supra note 14.
53. See id.
54. See supra note 4 (describing Katrina class action lawsuits that have been filed);
55. see also supra note 6 (describing other Katrina class action law suits that have been filed).
56. See Leonard v. Nationwide Mutual Ins. Co., No. 2005-2021JB (Miss. Ch. Ct. filed Oct. 4, 2005); Orrill v. AIG Inc., No. 2005-11720 (La. Civ. Dist. Ct. Orleans Parish filed Oct. 27, 2005); Comer v. Nationwide Mutual Ins. Co., No. 05-00436 (S.D. Miss, filed Sept. 30, 2005); Chehardy v. Wooley, No. 536451 (La. Dist. Ct. filed Sept. 15, 2005); Hood v. Mississippi Farm Bureau Ins., No. 05-00572 (S.D. Miss, filed Sept. 16, 2005).
57. See Leonard, No. 2005-2021JB; Orrill, No. 2005-11720; Comer, No. 05-00436; Chehardy, No. 536451; Hood, No. 05-00572.
58. See Leonard, No. 2005-2021JB; Orrill, No. 2005-11720; Comer, No. 05-00436; Chehardy, No. 536451; Hood, No. 05-00572.
59. See supra note 7 (describing effects of class action on insurance companies).
60. See generally Alan O. Sykes, Judicial Limitations on the Discretion of Liability Insurers to Settle or Litigate: An Economic Critique, 72 TEX. L. REV. 1345 (1994).
61. See generally BAKER, supra note 3, at 25-50.
62. See Scales, supra note 24.
63. See Grace & Klein, supra note 7.
64. See Scales, supra note 24.
65. See Grace & Klein, supra note 7.
66. See id.
67. See id.
68. See id.
69. See Hood v. Mississippi Farm Bureau Ins., No. 05-00572 (S.D. Miss, filed Sept. 16, 2005).
70. See Chehardy v. Wooley, No. 536451 (La. Dist. Ct. filed Sept. 15, 2005).
71. See Hood, No. 05-00572.
72. Id.
73. See id.
74. See id.;
75. see also Mississippi Consumer Protection Act, Miss. CODE ANN. § 75-24-1 to 75-24-175 (2006).
76. See Hood, No. 05-00572.
77. See Chehardy v. Wooley, No. 536451 (La. Dist. Ct. filed Sept. 15, 2005); see also Slaton v. St. Paul Fire and Marine Ins. Co., No. 05-1138 (M.D. La. filed Sept. 30, 2005) (alleging that the defendants' actions resulted in the levee system's failure that caused the flood damage following Katrina); Barasich v. Columbia Gulf Transmission Co., No. 05-4161 (E.D. La. filed Sept. 13, 2005) (alleging in a class action that the defendants' dredging pipeline canals and other activities affected the marshes of southeast Louisiana and contributed to the loss of life and destruction of property resulting from Katrina).
78. See Chehardy, No. 536451.
79. Joe Hagan & Joseph T. Hallinan, Why Levee Breaches in New Orleans Were Late-Breaking News, WALL ST. J., Sept. 12, 2005, at Al (reporting the morning after landfall that many believed that New Orleans had "dodged a bullet," but many homes flooded the following day as a result of levee breaches).
80. See Gordon Russell, Letten Probing Levee Breaches: U.S. Attorney Looks at Possible Corruption, TIMES-PICAYUNE, Nov. 10, 2005, at 1, available at http://www.nola.com/news/tp/frontpage/index.ssf?/base/news-4/1131605966166260. xml.
81. See Chehardy, No. 536451.
82. See generally ALBA CONTE & HERBERT B. NEWBERG, NEWBERG ON CLASS ACTIONS (Thomson West 2002).
83. See Gregor J. Schwinghammer, Jr., Comment, Insurance Litigation in Florida: Declaratory Judgments and the Duty to Defend, 50 U. MIAMI L. REV. 945, 946 (1996) (explaining that there is disagreement in Florida over whether an insurer should be able to bring a declaratory action to determine its coverage duties).
84. See generally Why Your Homeowners Policy Might Not Be There When You Need It Most, supra note 14.
85. This action might raise constitutional concerns over the impairment of the obligation of contract. Cf. U.S. CONST., art. I, § 10, cl. 1.
86. See Lisa Friedman, Lawmakers, Do Something!: Rush of Legislation Echoes Frantic Days After Sept. 11, DAILY NEWS L.A., Sept. 11, 2005, at N10 (reporting that within the two weeks following Katrina, members of Congress introduced over forty bills related to relief efforts);
87. see also Keith Darcé, Outer Ring of Flood Protection Proposed, TIMES-PICAYUNE, Nov. 15, 2005, at 1 (reporting that much discussion and planning will be undertaken in the upcoming months and years to address the prevention of future natural disasters, including numerous models of flood protection, from the systems adapted by the Dutch, to incredible sea walls being investigated by the Army).
88. See, e.g., Deficit Reduction Act, S. 1932, 109th Cong. §§ 6201-6203 (2005) (seeking to make $35 billion in spending cuts to help pay for Katrina-related expenditures); Small Business Hurricane Relief and Reconstruction Act, S. 1807, 109th Cong. (2005) (proposing a $450 million bridge loan program); Deficit Reduction Act, H.R. 4241, 109th Cong. §§ 3201-3205 (2005) (seeking to increase the federal contribution to state Medicaid and SCHIP spending to provide up to 100% of funding for individuals living in Louisiana, Mississippi, and parts of Alabama during the week prior to Katrina); Hurricane Katrina Bankruptcy Relief and Community Protection Act, S. 1647, 109th Cong. (2005); Katrina/Rita Hurricane Relief Act, H.R. 4287, 109th Cong. (2005); Small Business Gulf Coast Revitali zation Act, H.R. 4234, 109th Cong. (2005); Housing Opportunities and Mitigating Emergencies Act, H.R. 4266, 109th Cong. (2005); Hurricane Regulatory Relief Act, H.R. 3975, 109th Cong. (2005); Superfund for Hurricane Accountability and Recovery Act, H.R. 4481, 109th Cong. (2005).
89. See Press Release, Bill Frist, The First Session of the 109th Congress: Securing America's Future (Dec. 23, 2005), available at http://frist.senate.gov/_files/122305.pdf (providing a list of bills enacted by 109th Congress).
90. There are other related bills not discussed that deserve honorable mention, including Katrina/Rita Hurricane Relief Act of 2005, H.R. 4287, 109th Cong. (2005) (amending the Internal Revenue Code of 1986 to allow a deduction for portion of charitable contributions related to Hurricane Katrina or Hurricane Rita in computing adjusted gross income) and Housing Opportunities and Mitigation Emergencies Act of 2005, H.R. 4266, 109th Cong. (2005) (amending the Robert T. Stafford Relief and Emergency Assistance Act to provide temporary emergency assistance for primary residences damaged or destroyed by Hurricane Katrina and Rita).
91. U.S. GOV'T ACCOUNTABILITY OFFICE, REPORT No. GAO-03-606T, CHALLENGES FACING THE NAT'L FLOOD INSURANCE PROGRAM 1 (2003), available at http://www.gao.gov/new.items/d03606t.pdf.
92. See RAWLE O. KING, Federal Flood Insurance: The Repetitive Loss Problem, CONG. RES. SERV. at 1-4 (2005), available at http://www.fas.org/sgp/crs/misc/RL32972.pdf.
93. Mississippi River Commission Act of 1879, ch. 43, 21 Stat. 37 (codified as amended at 33 U.S.C. §§ 641-653a (2000)).
94. See id. § 1.
95. See FED. EMERGENCY MGMT. AGENCY, NATIONAL FLOOD INSURANCE PROGRAM: PROGRAM DESCRIPTION at 5-6 (2002), available at http://www.fema.gov/doc/library/nfipdescrip.doc.
96. See id. at 22.
97. See, e.g., American International Group, http://www.aig.com (last visited Jan. 28, 2006) (permitting policyholders to insure their property up to its full value and providing varying premiums for excess flood coverage);
98. Chubb Group of Insurance Companies, http://www.chubb.com (last visited Jan. 28, 2006) (offering excess flood insurance at premiums of $1,000 for $1 million in coverage).
99. See King, supra note 68, at 1-4.
100. See id. at 2.
101. See id.;
102. Federal Flood Insurance Act, Pub. L. No. 84-1016, 70 Stat. 1084 (1956).
103. See King, supra note 68, at 2-3.
104. See id. at 3-4;
105. National Flood Insurance Act of 1968, Pub. L. No. 90-448, 82 Stat. 572 (codified as amended at 42 U.S.C. §§ 4001-4129 (2000)).
106. See King, supra note 68, at 1.
107. See id. at 6.
108. See id. (noting that Congress assumed that communities with a history of flooding would take advantage of the program, yet by 1973, only 5500 communities had done so).
109. Flood Disaster Protection Act of 1973, Pub. L. No. 93-234, 87 Stat. 975 (codified as amended at 42 U.S.C. §§ 40014129 (2000)).
110. See id. § 102 (codified as amended at 42 U.S.C. § 4012a (2000)).
111. See King, supra note 68, at 18.
112. National Flood Insurance Reform Act of 1994, Pub. L. No. 103-325, 108 Stat. 2255 (codified as amended at 42 U.S.C. §§ 4001-4129 (2000)).
113. See id.
114. See id.
115. See INS. INFO. INST., THE NATIONAL FLOOD INSURANCE PROGRAM 4 (2005), available at http://server.iii.org/yy_obj_data/binary/745030_1_0/FloodWhitePaper.pdf.
116. See id. at 4-7.
117. See Exec. Order No. 12127, 3 C.F.R. 376 (1979), reprinted in 15 U.S.C. § 2201 (2000).
118. U.S. GOV'T ACCOUNTABILITY OFFICE, REPORT No. GAO-06-119, IMPROVEMENTS NEEDED TO ENHANCE OVERSIGHT AND MANAGEMENT OF THE NATIONAL FLOOD INSURANCE PROGRAM 2 n.2 (2005), available at http://www.gao.gov/new.items/d06119.pdf.
119. See FED. EMERGENCY MGMT. AGENCY, FEMA History, http://www.fema.gov/about/history.shtm (last visited Apr. 18, 2006).
120. Bunning-Bereuter-Blumenauer Flood Insurance Reform Act of 2004, Pub. L. 108-264, 118 Stat. 712 (to be codified at 42 U.S.C. §§ 4001-41129).
121. FED. EMERGENCY MGMT. AGENCY, NATIONAL FLOOD INSURANCE PROGRAM: GENERAL PROPERTY FORM 1 (2000), available at http://www.fema.gov/pdf/nfip/gppl27.pdf.
122. See id. at 9.
123. See id. at 4.
124. See id. at 10.
125. See id.
126. See FED. EMERGENCY MGMT. AGENCY, NATIONAL FLOOD INSURANCE PROGRAM: GENERAL PROPERTY FORM 6 (2000), available at http://www.fema.gov/pdf/nfip/gpp127.pdf.
127. See generally id.
128. See Paulucci v. Liberty Mut. Fire Ins. Co., 190 F. Supp. 2d 1312, 1318 (M.D. Fla. 2002).
129. Sidney Simon, Proximate Cause in Insurance, 10 AM. Bus. L.J. 33, 37 (1972).
130. See Hurricane Ins. Info. Ctr., Facts & Stats, http://katrinainformation.org/disaster2/facts/katrina_faq (last visited Apr. 19, 2006).
131. See, e.g., Rhoden v. State Farm Fire & Cas. Co., 32 F. Supp. 2d 907, 912 (D. Miss. 1998); Assurance Co. of Am. v. Jay-Mar, Inc., 38 F. Supp. 2d 349, 354 (D.N.J. 1999).
132. Preferred Mut. Ins. Co. v. Meggison, 53 F. Supp. 2d 139, 142 (D. Mass. 1999).
133. See Seth A. Tucker & Ann-Kelley Kemper, Hurricane Katrina - Insurance Coverage Issues (Covington & Burling, Ins. Coverage Law Bull., D.C.), Oct. 4, 2005, at 3, available at http://www.cov.com/publications/download/oid27267/570.pdf.
134. 44 C.F.R. pt. 61 app. at A(1) (2005).
135. See JERRY, supra note 19, at 627.
136. 44 C.F.R. § 61.13 (2005).
137. See, e.g., North Dakota ex rel. Olson v. Ctr. for Medicare and Medicaid Serv., 403 F.3d 537, 541 (8th Cir. 2005); Pollock v. Chertoff, 361 F. Supp. 2d 126, 134 (W.D.N.Y. 2005); Tashjian v. I.R.S., 325 B.R. 56, 60 (D. Mass. 2005).
138. Rutten v. U.S., 299 F.3d 993, 995 (8th Cir. 2002).
139. Department of Defense Appropriations Act, 2006, H.R. 2863, 109th Cong. Div. B (2005).
140. Department of Defense Appropriations Act of 2006, Pub. L. No. 109-148, 119 Stat. 2680.
141. See id.
142. See Adam Nossiter, A Big Government Fix-It Plan for New Orleans, N.Y. TIMES, Jan. 5, 2006, at A1.
143. Department of Defense Appropriations Act of 2006, Pub. L. No. 109-148, 119 Stat. 2680.
144. National Flood Insurance Program Enhanced Borrowing Authority Act of 2005, H.R. 3669, 109th Cong. (2005).
145. See U.S. GOV'T ACCOUNTABILITY OFFICE, REPORT No. GAO-06- 335T, CHALLENGES FOR THE NATIONAL FLOOD INSURANCE PROGRAM 3 (2006), available at http://www.gao.gov/new.items/d06335t.pdf.
146. See Bill Swindell, Dispute Over Low-Income Energy Assistance Delays Flood Insurance Bill, CONGRESS DAILY, Feb. 16, 2006, available at http://www.govexec.com/dailyfed/0206/021606cdam2.htm.
147. Hurricane Katrina Recovery, Reclamation, Restoration, Reconstruction and Reunion Act, H.R. 4197, 109th Cong. (2005) [hereinafter H.R. 4197];
148. see also MICHAEL ERIC DYSON, COME HELL OR HIGH WATER: HURRICANE KATRINA AND THE COLOR OF DISASTER (2006) (analyzing Katrina through the lens of race and wealth).
149. See, e.g., H.R. 4197 (covering areas including environment; health; public housing; education; voting; financial services; small business opportunities; tax; and bankruptcy).
150. H.R. 4197 § 103.
151. Air Transportation Safety and System Stabilization Act, 49 U.S.C.A. § 40101 (West 2004).
152. H.R. 4197 § 105(c)(3)(b)(i).
153. W. § 105(c)(3)(b)(ii).
154. W. § 105(c)(2)(a)(i,ii),(b).
155. Id. § 105(b)(1)(B)(i,ii).
156. W. § 105(b)(1)(B)(i,ii).
157. Id. § 105(b)(2),(5).
158. H.R. 4197 § 105(b)(6).
159. Id. § 102(2).
160. Louisiana Recovery Corporation Act ("Baker Bill"), H.R. 4100, 109th Cong. (2005);
161. see also Louisiana Recovery Act, S. 2172, 109th Cong. (2005) (introducing a similar bill by Senator Mary Landrieu);
162. Nossiter, supra note 115, at A1;
163. Richard Wolf, Another $120B Sought for Wars, USA TODAY, Feb. 3-5, 2006, at 1A (noting that while the White House has requested another $120 billion for conflicts in Iraq and Afghanistan, it will only seek another $18 billion for hurricane-related expenses in the Gulf Coast).
164. See Bill Walsh, Plan Would Pay for Ruined Houses, TIMES-PICAYUNE, Dec. 2, 2005, Nat't at 1.
165. See Nossiter, supra note 115;
166. Financial Institutions Reform, Recovery, and Enforcement Act, H.R. 1278, 101st Cong. (1989).
167. See Nossiter, supra note 115;
168. see also Housing Plan: Rebuild, Sell Out, or Move, COMMERCIAL APPEAL (Memphis), Feb. 21, 2006, at A4 (describing a housing assistance plan that would provide money to repair or rebuild damaged homes, relocate people who want to rebuild elsewhere in Louisiana, or buy out people who want to leave at sixty percent of the pre-storm home value).
169. See Nossiter, supra note 115, at A1.
170. See Louisiana Recovery Corporation Act, H.R. 4100, 109th Cong. § 8(c)(3)(f)(ii) (2005) (noting six percent annual interest paid over the ten years of the Corporation's existence).
171. See Louisiana Recovery Corporation Act ("Baker Bill"), H.R. 4100, 109th Cong. (2005).
172. See H.R. 4100.
173. See Walsh, supra note 9.
174. Hurricane Katrina and Hurricane Rita Flood Insurance Buy-In Act, H.R. 3922, 109th Cong. (2005).
175. See id.
176. See id.
177. See Grace & Klein, supra note 7 (quoting Robert W. Klein, an expert on the economics of insurance markets as opposing this plan' "because it greatly undermines any incentive for people to purchase flood insurance in the first place").
178. H.R. 4366, 109th Cong. (2005).
179. See id. § 2.
180. See id. § 2(14).
181. H.R. 4507, 109th Cong. (2005).
182. See id. § 2.
183. See id. § 2(6).
184. H.R. 4320, 109th Cong. (2005).
185. Id. § 6(1) (increasing maximum coverage amount for residential property from $250,000 to $335,500); id. § 6(2) (increasing maximum coverage amount for contents from $100,000 to $135,000).
186. W. § 2(b)(1).
187. See id. § 2(b)(2).
188. Id. § 2(b)(4).
189. See generally U.S. GOV'T ACCOUNTABILITY OFFICE, REPORT No. GAO-05-199, CATASTROPHE RISK: U.S. AND EUROPEAN APPROACHES TO INSURE NATURAL CATASTROPHE AND TERRORISM RISK (2005), available at http://www.gao.gov/new.items/d05199.pdf (analyzing different mechanisms to increase the capacity of the insurance industry to manage catastrophic events).
190. 49 U.S.C.A. § 40101 (West 2004).
191. Id.
192. see also 28 C.F.R. § 104.4 (2005).
193. 28 C.F.R §7sect; 104.2, 104.4 (2005).
194. See 28 C.F.R. § 104.61 (2005).
195. 49 U.S.C.A. § 40101 (West 2004).
196. Id.
197. Id.
198. Press Release, U.S. Dep't. of Justice, September 11th Victim Compensation Fund Claims' Deadline Approaches-December 22, 2003 (Nov. 25, 2003), available at http://usdoj.gov/opa/pr/2003/November/03_civ_648.htm.
199. Press Release, RAND Corp., RAND Study Shows Compensation For 9/11 Terror Attacks Tops $38 billion; Business Receive Biggest Share (Nov. 8, 2004), available at http://www.rand.org/news/press.04/11.08b.html.
200. See, e.g., 49 U.S.C.A. § 40101 (West 2004).
201. Anthony Sebok, The Final Rules for the September 11 Victims Compensation Fund: Are They a Laudable Model, or a Large Mistake?, FINDLAW.COM, Mar. 25, 2002, http://writ.corporate.findlaw.com/sebok/20020325.html.
202. See id.
203. See 49 U.S.C.A. § 40101 (West 2004).
204. See Press Release, Dep't. of Justice, September 11th Compensation Fund Regulations Announced (Dec. 20, 2001), available at http://www.usdoj.gov/opa/pr/2001/December/01_ag_658.htm.
205. See Stephanie Saul & Ellen Yan, A Fund for the Families: Average Payout of $1.6M-Before Likely Deductions, NEWSDAY, Dec. 21, 2001, at A5.
206. Stephanie Saul & Ellen Yan, A Fund for the Families: Average Payout of $1.6M-Before Likely Deductions, NEWSDAY, 2001, at A5, Id.
207. Stephanie Saul & Ellen Yan, A Fund for the Families: Average Payout of $1.6M-Before Likely Deductions, NEWSDAY, 2001, at A5, Id.
208. 49 U.S.C.A. § 40101 (West 2004).
209. See id. (collateral sources include life insurance, pension funds, death benefit programs, payments by federal, state, or local governments related to the September 11 crashes).
210. See id.
211. Id.
212. Id.
213. See Charlene Porter, Tens of Thousands of Katrina Evacuees Find Shelter Around Country, U.S. FED. NEWS, Sept. 8, 2005.
214. See id.
215. See id.
216. See generally KAID BENFIELD ET AL., NAT'L RES. DBF. COUNCIL, AFTER KATRINA: NEW SOLUTIONS FOR SAFE COMMUNITIES AND A SECURE ENERGY FUTURE (2005), available at http://www.nrdc.org/legislation/hk/hk.pdf (describing Katrina's public health effects and proposing solutions).
217. See Brown, supra note 6, at 3;
218. see also EPA News Brief, supra note 6.
219. See Jayne Gurtler, Katrina's Lessons: Out of the Worst Come Some of the Best, 10 ONCOLOGIST 661-62 (2005), available at http://theoncologist.alphamedpress.org/cgi/reprint/10/8/661.
220. See id.
221. See Interview by Amy Goodman with Ishmael Muhammad, Attorney at Advancement Project, and Sonia Kahn, New Orleans resident, in Atlanta, Ga. (Dec. 16, 2005), available at http://www.democracynow.org/article.pl?sid=05/12/16/1457242.
222. See id.
223. See id.
224. See id.
225. See id.
226. See Brown, supra note 6, at 3;
227. EPA News Brief, supra note 6.
228. See Brown, supra note 6, at 3.
229. Brown, supra note 6, at 3, Id.
230. See American Morning: Thousands of Katrina Evacuees Still Living in Shelters (CNN broadcast Oct. 14, 2005), available at http://transcripts.cnn.com/TRANSCRIPTS/0510/14/ltm.03.html.
231. See id.
232. See id.
233. See Larry Magid, Reuniting Families After Katrina, CBS NEWS, Sept. 15, 2005, http://www.cbsnews.com/stories/2005/09/15/scitech/pcanswer/main850384.shtml.
234. See id.
235. See JASON WALSH & ANDY VAN KLEUNEN, WORKFORCE ALLIANCE, WORKFORCE (RE)DEVELOPMENT IN THE GULF COAST REGION: A THREE-PART AGENDA FOR ACTION 1 (2005), available at http://workforcealliance.org/policy/WorkforceReDevelopmentintheGulfCoastFINAL. pdf (outlining the Workforce Alliance's agenda to address this problem);
236. see also Adam Nossiter, Sparing Houses in New Orleans Spoils Planning, N.Y. TIMES (Late Edition), Feb. 5, 2006, § 1, at 22 (noting the frustration that Katrina survivors face in getting building permits to rebuild in light of FEMA's pending flood insurance guidelines).
237. See Jessica Robertson, Hurricane Katrina Victims May Feel Financial Effects for Years to Come, WORLD INTERNET NEWS, Dec. 5, 2005, http://soc.hfac.uh.edu/artman/publish/article_315.shtml;
238. Carol Rust, Staci Semrad & Dirk Johnson, Katrina's Refugees, NEWSWEEK, Sept. 2, 2005, at 42, available at http://www.msnbc.msn.com/id/9149624/site/newsweek.
239. See id.
240. See id.
241. See id.
242. See supra text accompanying note 4 (describing Katrina class action lawsuits that have been filed); see also supra text accompanying note 6 (describing other Katrina class action lawsuits that have been filed).
243. See Food Research and Action Center (FRAC), Special: Hurricane Katrina Center, available at http://www.frac.org/html/disaster/disaster_media.html (last visited Mar. 14, 2006) (pointing out that Katrina evacuees are dispersed across the country from Arkansas to New Mexico and are having trouble accessing their bank accounts and receiving mail);
244. see also PATRICK BUCKLEY ET A.L., AMS. FOR INS. REFORM, THE INSURANCE INDUSTRY'S TROUBLING RESPONSE TO HURRICANE KATRINA 12 (2006), available at http://www.centerjd.org/air/pr/KATRINAREPORT.pdf. (noting that a Katrina victim had to press her insurance company for over two months in order to receive her insurance check).
245. See id.
246. See generally BUCKLEY, supra note 205.
247. See JERRY, supra note 19, at 13-24.
248. See id.
249. See id.
250. See Regulators Say Industry Prepared for Katrina Costs, INSURANCE J., Sept. 2, 2005, available at http://www.insurancejouraal.com/news/national/2005/09/02/59132.htm.
251. See NOAA's Report, supra note 2;
252. CONSUMER REPORTS, supra note 2.
253. See id.
254. See MILLS, supra note 5, at 7.
255. See id.
256. See id.
257. See id.
258. See id.
259. See Doug Simpson, Unintended Consequences of Flood Avoidance Suits, Sept. 17, 2005, http://www.dougsimpson.com/blog/archives/000478.html.
260. See id.
261. See Adrian Sainz, Ten Years After Hurricane Andrew, Effects Are Still Felt, SUN-SENTINEL, Aug. 18, 2002, at 2, available at http://www.sun-sentiniel.com/news/-weather/hurricane/sfl-1992-ap-mainstory,0, 913282.story (noting that eleven insurers became insolvent at least partly because of Andrew, and surviving insurers were reluctant to stay in Florida).
262. See FED. EMERGENCY MGMT. AGENCY, supra note 71, at 1.
263. See id. at 5.
264. See id. at 15.
265. See id.
266. See GOV'T ACCOUNTABILITY OFFICE, REPORT No. GAO-06-174T, CHALLENGES FACING THE NATIONAL FLOOD INSURANCE PROGRAM 7 (2005), available at http://www.gao.gov/new.items/d06174t.pdf.
267. See id. at 2.
268. See id. Congress increased the borrowing capacity of the NFIP by $2 billion, bringing the total to $3.5 billion.
269. See id.
270. See id.
271. See id.
272. The Future of the National Flood Insurance Program: Hearing Before the S. Comm. on Banking, Housing and Urban Affairs, 109th Cong. 3 (2005) (written statement of Robert Hartwig, Vice President and Chief Economist for the Insurance Information Institute).
273. See id. at 6.
274. See supra note 226 and accompanying text.
275. See Scales, supra note 24.
276. See Press Release, Nat'l Urban League (Sept. 8, 2005), available at http://www.nul.org/PressReleases/2005/2005PR222.html (stating that Marc Morial, President and CEO of the National Urban League, as well as former mayor of New Orleans, is calling for the creation of such a fund);
277. NAACP, Congress Urged to Establish a Hurricane Victims Compensation Fund, Sept. 9, 2005, http://www.naacp.org/news/2005/2005-09-06.html (declaring the NAACP's support for such a fund).
278. See Anthony J. Sebok, Ken Feinberg's 9/11 Victims' Fund Rules Versus Cantor Fitzgerald's Critique of the Rules: What Did Congress Intend to Be "Full Compensation"?, FINDLAW, Sept. 23, 2002, available at http://writ.news.findlaw.com/sebok/20020923.html.
279. See Russell, supra note 57. Several investigations into the design and construction of the levee system in New Orleans are ongoing.
280. See id.
281. See Evacuees Fan out Through 50 States, Assoc. PRESS, Sept. 5, 2005, available at http://www.cbsnews.com/stories/2005/09/05/katrina/main815262.shtml.
282. See Hastert Questions Rebuilding New Orleans, Assoc. PRESS, Sept. 1, 2005, available at http://abcnews.go.com/Politics/wireStory?id= 1089373 (last visited Mar. 17, 2006) (quoting House Speaker Dennis Hasten as having said, "[i]t makes no sense to spend billions of dollars to rebuild a city that's 7 feet under sea level" and that "[i]t looks like a lot of that place could be bulldozed.");
283. Charles Babington, Hasten Tries Damage Control After Remarks Hit a Nerve, WASH. POST, Sept. 3, 2005, at A17.
284. 240See, e.g., John Pomfret, Evacuees Begin to Put Down Roots, WASH. POST, Oct 22, 2005, at A8.
285. See Kate Moran, Shrinking City, TIMES-PICAYUNE, Oct. 23, 2005, at 1, available at http://www.nola.com/news/t-p/frontpage/index.ssf?/base/news-4/113005104877980. xml. New Orleans Mayor Ray Nagin estimates that half of the 500,000 people who lived in New Orleans will return.
286. See id.
287. See Press Release, President George W. Bush, President Discusses Hurricane Relief in Address to the Nation (Sept. 15, 2005), available at http://www.whitehouse.gov/news/releases/2005/09/20050915-8.html. On September 15, 2005, President Bush addressed the nation in front of Jackson Square in New Orleans and promised that "[t]hroughout the area hit by the hurricane, we will do what it takes, we will stay as long as it takes, to help citizens rebuild their communities and their lives."
288. George W. Bush, President Discusses Hurricane Relief in Address to the Nation, 2005, http://www.whitehouse.gov/news/releases/2005/09/20050915-8.html, Id.
289. Other arguments against the Katrina Fund include the Fund's use of eminent domain; potential cuts to other social services; and the opportunity for corruption in the operation and implementation of the Fund. See generally SUSAN F. FRENCH ET AL., CASES AND TEXT ON PROPERTY 1065-1222 (5th ed. 2004) (discussing case law involving eminent domain, condemnation, and taking).
290. See Lee Davison, Politics and Policy: The Creation of the Resolution Trust Corporation, 17 FDIC BANKING REV. 2 (2005);
291. Gillian Hadfield, The September 11th Victim Compensation Fund: "An Unprecedented Experiment in American Democracy," 7 (Univ. of S. Cal. Legal Working Paper Series, Univ. of S. Cal. Law and Econ. Working Paper Series, Working Paper No. 29, 2005), available at http.//ssrn.com/abstract=690401.
292. See Davison, supra note 244 at 2;
293. Hadfield, supra note 244, at 11.
294. FLA. STAT. ANN. §627.702(1)(a) (West 2003).
295. See Mierzwa v. Fla. Windstorm Underwriting Ass'n, 877 So. 2d 774, 775 (Fla. Dist. Ct. App. 2004).
296. See FLA. STAT. ANN. § 627.702(1)(a) (West 2003).
297. See id.
298. Mierzwa, 877 So. 2d at 781-82 (Gross, J. concurring).
299. The statute provides: The intent of this subsection is not to deprive an insurer of any proper defense under the policy, to create new or additional coverage under the policy, or to require an insurer to pay for a loss caused by a peril other than the covered peril. In furtherance of such legislative intent, when a loss was caused in part by a covered peril and in part by an uncovered peril, paragraph (a) does not apply. In such circumstances, the insurer's liability under this section shall be limited to the amount of the loss caused by the covered peril. However, if the covered perils alone would have caused the total loss, paragraph (a) shall apply. The insurer is never liable for more than the amount necessary to repair, rebuild, or replace the structure following the total loss, after considering all other benefits actually paid for the total loss.
300. FLA. STAT. ANN. § 627.702(1)(b) (West 2005).
301. See LA. REV. STAT. ANN. §22:695 (2004).
302. See MISS. CODE ANN. § 83-13-5 (1999).
303. Mississippi Attorney General Jim Hood has filed a class action suit and may be using this rationale. See Hood v. Mississippi Farm Bureau Ins., No. G2005-1642 (Miss. Ch. filed Sept. 15, 2005).
304. See Memorandum from David C. John, Heritage Found., Providing Flood
305. See id.
306. See H. Sterling Burnett, Bush Should Apply the Ownership Society to Environmental Issues, Department B, Feb. 13, 2006, http://www.pmandr.com/physiatry/index.php?option=comnewsfeeds&task= view&feedid=218&Itemid=60 (noting that bringing people back to New Orleans all at the government's expense is a huge mistake).
307. See U.S. CONGRESSIONAL BUDGET OFFICE, THE MACROECONOMIC AND BUDGETARY EFFECTS OF HURRICANES KATRINA AND RITA 21 (2005), available at http://www.cbo.gov/ftpdoc.cfm?index=6669&type=1.
308. See id. at 2.
309. See id. at 2.
310. Peter Flaherty, president of the National Legal and Policy Center (NLPC), has questioned whether the Katrina Fund will help those affected by Katrina, particularly African Americans, or merely be a financial "bonanza" for civil rights groups such as the Southern Christian Leadership Council (SCLC), the National Urban League, and the Rainbow/PUSH Coalition. See Marc Morano, Katrina Cash Could Create "Slush Fund" for Left, CNSNEWS. COM, Oct. 03, 2005, http://www.cnsnews.com/ViewSpecialReports.asp?Page= %5C%5CspecialReports%5C%5Carchive%5C%5C200510%5C%5CSPE20051003a.html.
311. See DAVID ROTH, NAT'L WEATHER SERV., LOUISIANA HURRICANES 1 (1998), http://www.srh.noaa.gov/lch/research/lahur.php. The first well-documented hurricane hit September 22-24, 1722.
312. See id.
313. See Scales, supra note 24.
314. See id.
315. Cf. Loyola Univ. v. Sun Underwriters Ins. Co., 93 F. Supp. 186, 189 (E.D. La. 1950), aff'd, 196 F.2d 169 (5th Cir. 1952) (holding that when no ambiguity exists, insurance contracts are enforced as written).
316. See id. at 190.
317. 232 So. 2d 490 (La. 1970).
318. Id. at 493.
319. Id.
320. 881 So. 2d 787 (La. Ct. App. 2004).
321. See id. at 788.
322. See id.
323. See id.
324. See W. at 788-89.
325. Urrate, 881 So. 2d at 790.
326. See Urrate v. Argonaut Great Cent. Ins. Co., 891 So. 2d 690 (La. 2005); Urrate v. Argonaut Great Cent. Ins. Co., 891 So. 2d 686 (La. 2005).
327. 93 F. Supp. 186 (E.D. La. 1950).
328. See id. at 187.
329. See id. at 190.
330. See id. at 187.
331. Id. at 190;
332. see also Constitution State Insurance Company v. Werner Enterprises, Inc., No. 86-1624, 1987 U.S. Dist. LEXIS 6023, *1-2 (E.D. La. June 26, 1987).
333. So. 2d 695 (La. Ct. App. 2005), reh'g denied, 2005 La. App. LEXIS 1922 (La. App. Aug. 2, 2005).
334. See id. at 698-99.
335. See id. at 699.
336. See id. at 695.
337. Susan Finch, Rocky Course Awaits Flooding Lawsuits; Insurers, Army Corps of Engineers, Levee Board Sued, TIMES-PICAYUNE, Dec. 25, 2005, at BI.
338. Susan Finch, Rocky Course Awaits Flooding Lawsuits; Insurers, Army Corps of Engineers, Levee Board Sued, TIMES-PICAYUNE, 2005, at BI, Id.
339. 28 U.S.C.A. § 1346 (b) (West 2005).
340. See id.
341. See Finch, supra note 286.
342. Lee S. Kreindler, Pros and Cons of Victims' Fund, N.Y. L.J., Nov. 27, 2001, at 5;
343. see also Bob Van Voris, Fund Boss Spurns Huge Payout Gaps, NAT'L L.J., Dec. 10, 2001, at A1.
344. See Kreindler, supra note 291, at 5.
345. See id.
346. See Saul & Yan, supra note 171, at A5.
347. See Kreindler, supra note 291 at 5 (noting that liability insurance maintained by American and United Airlines is on the basis of per-aircraft, per-occurrence, and each plane is insured for $1.5 billion).
348. See generally BAKER, supra note 3, at 401-02 (discussing insurance issues involving the September 11th Fund).
349. See Kreindler, supra note 291, at 5.
350. See id.
351. See Benefits for U.S. Victims of International Terrorism: Hearing Before the S. Comm. on Foreign Relations, 108th Cong. 5 (2003), available at http://www.mipt.org/GetDoc.asp?id=1993&type=d (examining the issue of providing terrorism compensation in a deliberative, timely, and detailed fashion).
352. This issue was already being discussed ten days after the September 11 attacks. See Julie Hirschfeld Davis, The Economic Initiative: A Cautious Start for Stimulus, CONG. Q. WKLY., Sept. 22, 2001, available at http://www.financialpolicy.org/dscquotes2001.htm.
353. See BAKER, supra note 3, at 435-36 (noting the longevity of asbestos litigation, over thirty years, and opining that "[w]hat makes [the asbestos cases] significant to insurance law is their status as the first mass tort cases that really pushed the boundaries of liability insurance coverage").
354. See generally MILLS, ROTH & LECOMTE, supra note 5 and accompanying text.
355. In addition to the insurers named as defendants, Ned Comer named numerous oil companies and mortgage lending companies claiming, among other things, that the oil companies caused the global wanning that caused Katrina. See Comer v. Nationwide Mutual Ins. Co., No. 05-00436 (S.D. Miss. filed Sept. 30, 2005).
356. See id.
357. See, e.g., Scott Shane, After Failures, Government Officials Play Blame Game, N.Y. TIMES, Sept. 5, 2005, at A2, available at http://www.nytimes.com/2005/09/05/national/nationalspecial/05blame.html?ex= 1283572800&en=5d14ec03d94387d0&ei=5088&partner=rssnyt&emc=rss.