Nearly 2,000 lawsuits are pending against insurers over Hurricane Sandy damage, but class actions likely will play at best a small role, plaintiffs and defense attorneys agreed.
According to Stephen Goldman, a partner with Robinson & Cole in Hartford, Ct., who is defending insurers in Sandy-related cases, en masse litigation against insurers following other catastrophes has rarely panned out.
It is difficult to win certification of federal class actions, and these cases usually end up in federal court under the Class Action Fairness Act of 2005, he said.
“You really need to show the commonality and predominance of one issue, basically, to resolve all of them,” Goldman said. But “most of these coverage disputes are fact-specific.“
Class actions proliferated following Hurricane Katrina, but most were unsuccessful, Goldman said. For example, in In re Katrina Canal Breaches Consolidated Litigation, claims that the plaintiffs were denied coverage in bad faith and against the terms of their policy were dismissed.
In another example, the Louisiana Attorney General unsuccessfully brought a subrogation-based class action claiming that recipients of a housing recovery program, Louisiana Road Home, were entitled to insurance proceeds for losses to their homes from hurricanes Katrina and Rita.
Considerably less litigation has arisen from Sandy, technically a post-tropical cyclone, than from Katrina, Goldman said.
In New York and New Jersey, Goldman said, plaintiffs counsel seems “a little more careful about the lawsuits filed. New York law makes it difficult for plaintiffs to win class certification, he added.
Theresa Guertin, an associate with Saxe Doernberger & Vita in Hamden, Ct., said some plaintiffs tried to come up with their own mass procedure, collecting a number of cases involving one insurer and filing a single complaint.
The reaction of the court was “you’re not doing a class action—you’re just improperly joining plaintiffs,” Guertin said. “People were probably trying … to get around harsher restrictions on class actions.” The Hamden firm is handling as many as 20 Sandy cases for policyholders
Tracey Rannals Bryan of Gauthier, Houghtaling & Williams in Metairie, La., is plaintiffs liaison counsel for Sandy insurance litigation in the U.S. District Court of the Eastern District of New York. She said her firm made the mistake of filing lawsuits against insurers covering every plaintiff it represented. But at the direction of the court, the firm refiled those cases individually, she said during a conference held earlier this month on Sandy insurance litigation.
More than 1,000 Sandy-related cases are pending in the Eastern District of New York, and 949 cases are pending in the District of New Jersey, according to reports by two U.S. magistrate judges at the conference.
Amaris Elliott-Engel contributes to law.com.