National Railroad Passenger Corp. v. Arch Specialty Insurance

124 F. Supp. 3d 264, 2015 U.S. Dist. LEXIS 104477, 2015 WL 4940568
CourtDistrict Court, S.D. New York
DecidedJuly 31, 2015
DocketNo. 14-cv-7510 (JSR)
StatusPublished
Cited by10 cases

This text of 124 F. Supp. 3d 264 (National Railroad Passenger Corp. v. Arch Specialty Insurance) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Railroad Passenger Corp. v. Arch Specialty Insurance, 124 F. Supp. 3d 264, 2015 U.S. Dist. LEXIS 104477, 2015 WL 4940568 (S.D.N.Y. 2015).

Opinion

MEMORANDUM

JED S. RAKOFF, District Judge.

This case concerns an insurance coverage dispute between plaintiff National Railroad Passenger Corporation (“Amtrak”) and various defendant insurance companies (the “Insurers”) that arose in the aftermath of Super storm Sandy. During the pendency of this action, the parties filed .competing motions for summary judgment-and the Insurers moved to dismiss Amtrak’s demand for consequential damages resulting from the alleged breaches of the insurance policies. In two bottom-line orders, this Court (1) denied Amtrak’s motions requesting that the Court interpret the term “flood” to exclude storm surge and construe the policies to treat separate losses arising indirectly from a common cause as separate “occurrences”; (2) granted the Insurers’ motion requesting that the Court find that Amtrak’s damages arose only from “flood” and were all part of the same “occurrence”; (3) granted in part and denied in part the Insurers’ motion requesting that the Court find that Amtrak was not entitled to coverage for repairs of certain allegedly undamaged property; and (4) granted in part and denied in part the Insurers’ motion to dismiss Amtrak’s demand for consequential damages. See June 24, 2015-Order, ECF Dkt. No. 255; February 13, 2015 Order, ECF Dkt. No. 158.1 This Memorandum explains the reasons for those rulings.2

Pertinent to the resolution of these motions are the following facts and allegations. Amtrak purchased a set of all-risk property insurance from the Insurers, as well as other non-defendant insurers, for the policy period spanning December 2011 to December 2012. See Plaintiffs Rule 56.1 Statement of Undisputed Facts in Support of Plaintiffs Motion for Partial Summary Judgment Regarding the Flood Sublimit (“Amtrak 12/18/2014 56.1 Statement”), ECF Dkt. No. 104, ¶2; see also, e.g., Affidavit of Rhonda Orín, ECF Dkt. No. 105, Ex. 7, Federal Insurance Co. Policy, at 1. The defendant- insurers partic[267]*267ipated in one of two layers of the insurance program. Certain insurers issued primary layer policies, which obligated the insurer to provide a portion of the coverage for the first $125 million of any covered losses Amtrak sustained; the remainder issued or reinsured excess layer policies, which required the insurer to pay a portion of covered amounts in excess of $125 million. See Defendant-Insurers’ Local Rule 56.1 Statement of Facts in. Support of Their Motion for Summary Judgment—Application of Flood and Occurrence Provisions (“Insurers’ 3/9/2015 56.1 Statement”), ECF Dkt. No. 182, ¶¶ 12-13. Collectively, the insurance policies provided for a maximum of $675 million (excess of a $10 million deductible) in coverage per “occurrence.” Id. at ¶ 20.

The primary layer policies each contain a sublimit for “flood,” a defined term in the policies. The sublimit provides:

With respect to the perils of flood and earthquake, this Company shall not be liable, per occurrence and in any one policy year, for more than its proportion of $125,000,000.... Even if the peril of flood or earthquake is the predominant cause of loss or damage, any ensuing loss or damage not otherwise excluded herein shall not be subject to any sub-limits or aggregates specified in this Clause [ ].

Id. ¶ 11. In the policies at issue in the parties’ respective summary judgment motions, flood was defined in one of two ways.3 The majority of the policies defined flood to mean “a rising and overflowing of a body of water onto normally dry land.” Id. ¶ 7. The Court will refer to this as the “Majority Definition.” A smaller number of policies altered the definition of flood by endorsement to read:

The term Flood shall mean' a temporary condition of partial or complete inundation of normally dry land from
(1) the overflow of inland or tidal waters outside the normal watercourse or natural boundaries
(2) the overflow, release, rising, backup, runoff or surge of surface water; or
(3) The unusual or rapid accumulation or runoff of surface water' from any sour[ce].

A Tsunami shall not be considered Flood as defined abovef.] Id. ¶ 8. The Court will refer to this as the “Minority Definition.” Rounding out the flood-related provisions, all policies grouped together “loss by ... flood” as a “single loss ... if’ (1) “any flood occurs within a period of the continued rising or overflow of any river(s) or stream(s) or other bodies of water and the subsidence of the same within their normal confines” or (2) “any flood results from any tidal wave or series of tidal waves caused by any one disturbance.” Id. ¶ 6.

On October 29, 2012, while the policies at issue were in effect, Superstorm Sandy made landfall near New York City. Sandy generated a “storm surge” that drove water from the East and Hudson Rivers onto the shore and led to the' inundation of Amtrak’s tunnels under the East River (referred to as the East River Tunnel or “ERT”), its tunnel under the Hudson River (referred to as the North River Tunnel or “NRT”), and certain other Amtrak [268]*268property.4 See Insurers’ 3/9/2015 56.1 Statement ¶¶ 26-30; Plaintiffs Local Rule 56.1 Counterstatement of Facts in Opposition to Insurers’ Motion for Summary Judgment—Application of Flood and Occurrence Provisions (“Amtrak 3/30/2015 56.1 Counterstatement”), ECF Dkt. No. 191, ¶51. The water in the tunnels, as well as in other properties, “damaged various types of [Amtrak’s] equipment.” Amtrak 3/30/2015 56.1 Counterstatement ¶ 53.

After the storm subsided, Amtrak undertook to pump the water out of the tunnels. Id. ¶ 55. Each tunnel consists of multiple “tubes” through which trains run. Id. ¶ 51. Amtrak removed the water from the South Tube in the NRT by November 1, but the water was not pumped out of the three other inundated tubes—the North Tube in the NRT and two of the four tubes in the ERT—until November 4. Declaration of Glenn Sullivan (“Sullivan Decl.”), ECF Dkt. No. 196, ¶ 11. The process, which removed millions of gallons of water from the tunnels, left behind “chlorides” from the brackish water. Amtrak 3/30/2015 56.1 Counterstatement ¶ 55. At other locations, specifically, “at 11th Avenue” and at a “fan plant” in Long Island City, Amtrak removed the chlorides from its property, Declaration of Evan P. Lestelle (“Lestelle Decl.”), ECF Dkt. No. 181, Ex. A, Deposition of Cathy H. Rawlings (“Rawlings Dep.”), at 154:7-18, but it did not remove the chlorides from the ERT and NRT. Amtrak 3/30/2015 56.1 Counter-statement ¶ 55.

The chlorides that remained in the tunnels then allegedly combined with the surrounding environment to cause additional damage in what Amtrak describes as a “chloride attack.” See id. ¶ 56. According to Amtrak, “the damage process” brought about by the chloride attack “requires a combination of chlorides, humidity and oxygen.” Id.; see also id. ¶ 41 (“[T]he damage process requires a combination of steel, chlorides, humidity and oxygen.”). One of Amtrak’s experts explained the damage process as follows: “The salt [chlorides] in the presence of moisture and oxygen will cause corrosion of the rebars and ...

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124 F. Supp. 3d 264, 2015 U.S. Dist. LEXIS 104477, 2015 WL 4940568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-railroad-passenger-corp-v-arch-specialty-insurance-nysd-2015.