Mississippi

One evacuee’s tale is the subject of this blog post:

The six hours before dawn took us into the gridlock. Once we hit I-59, traffic was reduced to an average of one to three miles per hour. With no available gas in sight, the option of AC rapidly became too fuel-intensive to embrace. In heat close to 90 degrees we watched people around us start to wilt. With each hour, the situation became more unpleasant.[…]

As my cats came closer and closer to fatal heatstroke, we poured water over their heads to cool them off. Two almost died. People around us were obviously suffering in the temperature, including many elderly and infants. The various cars stalled out on the side of the road stood like scarecrows striking the fear of being left behind into our hearts. The worst place to be in a hurricane, bar none, is in a car stuck in traffic.[…]

In Mississippi, police blocked the off ramps, several cars at each. it seems we were not wanted or allowed to leave the parking lot that was Contraflow. Fear of the situation warred with rage at those whose panic was substituted for leadership. All the while, the radio spewed forth reports of how well Contraflow was working, alternating with self-congratulatory proclamations by the mayor.

I think it’s safe to say that government efforts in advance of “what might have been” as regards Gustav is far, far superior than what we witnessed for Katrina.  Disasters are messy, things will go wrong or take longer than we would like to resolve…but at least there seemed to be a plan and some level of competence to adapt the plan as circumstances developed.

However, that doesn’t mean that everything was perfect.

Like a few folks I am interested in why Mississippi prohibited evacuees from exiting the interstate (although my interest is that of a roadgeek, rather than a survivor).   I thought standards strongly encouraged emergency management folks to allow traffic to exit at least at a few points, in long contraflow situations.   I can imagine state troopers not wanting traffic to use ramps to bypass a bit of congestion….but evacuees do need to be able to access food, fuel, and facilities.

For folks interested in how planners think of handling hurricane evacuations, you might be interested in this document from Texas A&M.    Chapter 3 of the document discusses contraflow, including the recommendation that evacuees be permitted to exit at intermediate points from long contraflow stretches, and an observation that the merge at Hattiesburg on I-59 is really an suboptimal way to terminate contraflow.

And for potential future evacuees – remember, there are highways out there that are not necessarily interstates.  A bit of advance planning for alternate routes, and familiarity with map-reading would likely go a long way towards dodging interstate evacuation traffic jams.

It seems that the downside of having 1.9 million people evacuate Louisiana this time is that perhaps the evacuation routes might have been a bit underpowered.

Despite what’s been heard on CNN, the Best of New Orleans blog reported this afternoon:

I am livid with the information we are receiving from the authorities and the media about traffic on I-59. We left our home at 3:45am and didn’t get to Hattiesburg until 1:00pm. The contraflow, which we took, was a joke. It only lasted about 10 miles or so, and was bumper-to-bumper from start to finish.

And authorities and media keep saying how wonderful contraflow is and keep downplaying the reports by drivers that there is serious traffic problems on I-59. It is irresponsible and potentially fatal to families to continue to tell them to evacuate at this time and to tell them that it is safe to go down I-59.

Although it would be unreasonable to expand regional freeways to permit free-flowing traffic in the event of an evacuation (a lot of capacity which would likely be under-utilized in normal circumstances)…perhaps post-storm someone ought to look into what could be done to improve evac plans.  For example, perhaps identifying alternate routes after contra-flow stretches…or extending contra-flow (diverting coast-bound traffic to non-expressways) might not be inappropriate plans to make?

I haven’t written much about the Scruggses recently, but I would be remiss if I didn’t pass along this blurb from the Sun Herald:

Dickie Scruggs received the maximum 5 years in prison in $250,000 in fines for a crime Judge Neal D. Biggers Jr. called "reprehensible." […]

Biggers ordered Scruggs to report to prison at noon Aug. 4, saying he should be housed in a facility that offers mental health and drug treatment.

I’ll defer to Folo and David Rosmiller for continuing commentary on the subject.

As a result of the 2004 and 2005 hurricane seasons, many Americans became familiar with FEMA trailers—the little white structures driven in after a catastrophe, to provide basic shelter to area residents whose homes had been destroyed.

Unfortunately, FEMA trailers have problems. They’re extremely cramped, somewhat dehumanizing, rather susceptible to wind damage, emit toxic fumes…and oh yes, we found out the hard way that they have to be stored properly, or they become useless. (Witness the large trailer-park of unusable FEMA trailers in Arkansas.)

Not surprisingly, folks have been looking for alternatives.

One of the more interesting alternatives has been the “Mississippi cottage”, which was mentioned recently in the New York Times:

The only units FEMA says it is planning to test are the Mississippi Cottages, which have tin roofs, small porches and are colored like Easter eggs — rose-hip pink, malted mint, cloudless blue. The cottages are on wheels, but the larger models can be put on permanent foundations. All are equipped with appliances, beds, a table and chairs, ceiling fans, even pots and pans, and cost an average of $32,000 apiece to build.[...]

With its built-in closets and spacious kitchen cupboards, their cottage feels like a mansion, said Vicki Ladner Meshell and her husband, Rickey, whose apartment in Long Beach was washed away by Hurricane Katrina’s storm surge.[...]

The Mississippi Emergency Management Agency has installed more than 2,000 of them throughout southern Mississippi, and plans to put in 3,500.

But local governments in Mississippi have resisted the cottages. They fear people who get cottages will simply live in them and not rebuild their houses, said Mike Womack, executive director of the Mississippi Emergency Management Agency.

“They’re too nice,” he said. “I’ve heard this over and over again.”

“They’re too nice”?!!

So we have an area, which is suffering from lack of affordable housing, a need to keep workers in the area both to staff recovering businesses and to help with reconstruction, a need to reduce stress in difficult recovery process, and problems with “demand surge” prompted by a lot of pressure to reconstruct as quickly as possible.

“Too nice” seems like a rather foolish concern under such circumstances.

David Rosmiller has posted a decision from the Fifth Circuit Court of Appeals on the Broussard Katrina-slab case:

We REVERSE the judgment of the district court entering JMOL in favor of the Broussards. We REVERSE and VACATE the jury’s award of punitive damages. We AFFIRM the district court’s admission of testimony from the Broussards’ expert witness. We AFFIRM the district court’s denial of State Farm’s motion to change venue. We REMAND the case for a new trial.

The Broussards were the State Farm policyholders who brought one of the landmark Katrina slab cases. The judge in the case essentially ruled from the bench that State Farm was liable to pay policy limits since they “failed to prove” the damage wasn’t caused by flood, and let a jury determine punitive damages.

(Yes, I know that a lawyer could wax poetically to point out the technical inaccuracies in that last statement. However, I’m not a lawyer. Net effect was that it was a big slap-down upon State Farm.)

So, with the appellate decision, State Farm looks to get its day before the jury in this case.

As someone who’s been in claims limbo for over six years due to my wife’s car accident, I can empathize with the Broussards over what waiting for the appeal, and now the new trial, must feel like to them.

Hopefully, the aftermath of this and the other Katrina homeowners cases will lead to better coordination between wind and water claims, as well as less of a need to plug extremely paranoid scenarios into the cat models…all of which should mean not-quite-as-astronomic costs for Gulf coast insureds.

So, while the attention of the Mississippi legal and insurance communities has been focused on the Scruggs circus, it looks like a bit of work has still been going on elsewhere in the state. For example, consider
this story at Insurance Journal:

California-based law firm Irell & Manella reports it has won a partial summary judgment on behalf of national gaming operator Pinnacle Entertainment Inc., in an insurance coverage case arising out of Hurricane Katrina.[...]

In August 2005, Pinnacle’s facility in Biloxi, Miss., sustained property damage and business interruption loss.

According to Irell & Manella, two of Pinnacle’s insurers, Allianz Global Risks U.S. Insurance Co. and RSUI Indemnity Co. (together providing more than $100 million of excess coverage), took the position that coverage for all storm surge damage falling within their policy layers was precluded by flood exclusions contained within their policies.[...]

After a two-hour oral argument on the motion, Judge Sandoval took the motion and cross-motions under submission. On March 26, he issued his ruling in Pinnacle’s favor.

The IJ article reads like this is a case of a Mississippi judge rewriting property insurance contracts after the fact. However, while that is an attractive thought to someone in the industry…I don’t think that is actually the case here. IJ skipped over a key paragraph in Irell and Manella’s press release:

According to Pinnacle’s CEO Dan Lee, “Pinnacle has always maintained that it has coverage for flood and other related damage caused by Hurricane Katrina. We specifically bought $400 million of coverage for Weather Catastrophe Occurrences like Katrina, including any resulting flood. We have been extremely disappointed that it has taken a lawsuit to convince our excess insurers of this fact.”

The phrase “Weather Catastrophe Occurrences” is the telling phrase here. A “Weather Catastrophe Occurrence” peril is a feature of some property insurance contracts written by London brokers. It’s my understanding that, at least at the time of Katrina, it was not uncommon for London to exclude Flood but provide coverage for the specific peril of “Weather Catastrophe Occurrence”, which in the case of a hurricane, arguably includes storm surge.

I’ll make an educated guess that the excess property carriers, Allianz and RSUI, issued “follow-form” excess contracts. They probably provided their own exclusions of the flood peril…but didn’t exclude WCO since WCO isn’t a peril you normally see on primary contracts written by American insurers.

The insurers likely tried to argue that the flood exclusion was unambiguous and superseded all other perils. However, I’d bet that either “flood” was not redefined in the excess contracts, or that the judge thought the flood exclusion was ambiguous when it comes to WCO. Ambiguity tends to be interpreted in a manner favorable to the party with the shallower pockets.

Moral of the story: If you’re an excess insurer, you need to be familiar with the language of the forms you’re following, and either price or exclude accordingly.

You’ve already probably heard this news, but in case you haven’t and were wondering about all the raucous partying occurring in Bloomington, Illinois. From an AP article at the Wall Street Journal:

Citing ethical breaches, a federal judge Friday barred a group of Mississippi attorneys once affiliated with a well-known tort lawyer from representing any policyholders in lawsuits against State Farm Fire & Casualty Co. over Hurricane Katrina damage.

U.S. District Judge L.T. Senter Jr. in Gulfport, Miss., also disqualified two key witnesses in the lawyers’ cases from testifying against State Farm or their former employer, a firm that helped the Bloomington, Ill.-based insurer adjust Katrina claims.

Senter’s rulings cited improper payments that Richard “Dickie” Scruggs [...] made to Cori and Kerri Rigsby.

The Rigsbys, of course, are the two sisters who allegedly “liberated” some apparently damning paperwork from adjusting firm they formerly worked for, and which assisted State Farm in dealing with claims in the wake of Katrina.

Seen in the Sun Herald:

Attorneys for Dickie Scruggs are asking the state Supreme Court to dismiss a Mississippi Bar complaint that calls for his disbarment as the result of his guilty plea on one charge of conspiring to bribe a north Mississippi judge.

Scruggs’ attorneys argue that the formal complaint is premature because U.S. District Judge Neal B. Biggers Jr. has not yet accepted his plea. Scruggs is represented before the Supreme Court by Michael Martz, the Mississippi Bar’s former general counsel.

Dude, you’ve admitted to bribing a judge? Regardless of where you are in the process after an admission like that, you shouldn’t get to practice law!

Folo is passing along news as it comes in about Zach pleading guilty, and likely getting probation.

If I’m not mistaken, we might soon be done with this circus.

Well, this is the second most surprising thing I’ve encountered today. (It’s been a interesting day, in an Irish curse kind of way.) From the New York Times:

One of the best-known plaintiffs’ lawyers in the country, Richard Scruggs, unexpectedly agreed to plead guilty on Friday to a criminal charge of conspiracy in the attempted bribery of a judge.[...]

The single charge — five others were dismissed under the agreement — carries a maximum sentence of five years in prison and a $250,000 fine, according to the agreement.

Dickie’s son, Zach, is still reported to be heading to trial.

I’ll defer to David Rossmiller, who (among others) has been providing a good running commentary of the circus.

However, I can’t resist once again sharing some artwork I posted earlier: