Jury returns $3.4M verdict to reimburse flood insurer

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A federal jury of eight women has returned a $3.4 million verdict for plaintiff United States Fire Insurance Co. in a flooding case in Westmoreland County.

The jury found that the flooding from a severe rainstorm in June 2009 was escalated by an improperly narrow culvert owned by a company called Omnova Solutions. Omnova was downstream from F.C. Meyer Packaging Co., which collected roughly $3.4 million from its insurer for losses of its equipment, inventory and office supplies, and labor to fix damage after the storm.

In a coincidental twist, the jury was considering the case just after Superstorm Sandy had come ashore a few weeks ago. Peter Rossi of Cozen O'Connor in Philadelphia represented the insurance company and worried that the destruction wrought by Sandy could influence the jury's view of F.C. Meyer's damage.

But, in the end, the jury found negligence on the part of Omnova, and looked kindly on the insurer's claim.

"We wanted a smart jury," Mr. Rossi said, adding, "The defense did, too."

Subrogation cases -- cases in which an insurance company tries to recoup claim expenses from another responsible party -- can be complicated, and juries often take an antagonistic view of insurance companies, Mr. Rossi said.

Neither Anthony Rash nor John Wall of Dickie, McCamey & Chilcote in Pittsburgh, who represented Omnova, could be reached for comment.

According to experts who testified at the weeklong trial, the rainstorm was the biggest ever in Jeannette and neighbors took dozens of pictures after it had passed. Many of them showed debris clogged in the culvert.

Constructed in 1975, the culvert directs the flow of Brush Creek beneath the building that is owned by Omnova, according to court papers. The company has attended to the maintenance of the culvert, including the removal of vegetation and sediment buildup, it said in its pretrial statement.

"At the Omnova facility and during the flooding, a dead tree became snagged in the culvert's roof; following this tree was the liner of someone's upstream pool," the statement said. "Neither of these items nor any other sizeable waterborne debris that fell out of Brush Creek's flood-flow and into the culvert emanated from Omnova's property," it said.

However, the jury wasn't convinced that the company was absolved from responsibility for the flooding to F.C. Meyer caused by the flooding from the clogged culvert about 120 yards downstream. The jury found that Omnova was negligent in both its maintenance and construction of the culvert.

Although Omnova contested the argument that its parent company is General Tire & Rubber Co., which built the facility, the jury agreed with Mr. Rossi that Omnova "is the mere continuation of General Rubber & Tire Co.," according to the verdict slip.

"We dug and dug and dug," Mr. Rossi said last week, and the plaintiff's team found that the original permit for the culvert required it to be 43 feet wide. The defense said it was 40 feet wide and the plaintiffs measured it at 38 feet, he said.

Explaining that flood cases like this aren't usually litigated, partly because of the complex science, Mr. Rossi used an example of a man who was bitten by a shark on his surfboard. He didn't see the shark, but, based on the tooth marks on the board, scientists could figure out that it was a 14-foot long, 350-pound great white shark.

It's the same for scientists looking at the aftermath of a flood, he said -- one small detail can tell them how fast and in what direction the water was flowing. That kind of analysis then has to be explained to a jury.

"You have to be methodical," he said of trying these kinds of cases.

Mr. Rossi guessed that his group looks at 100 of these cases a year and probably not even 10 go to trial. After the flooding in Nashville, Tenn., a couple of years ago, which wiped out much of downtown and the famous Opryland hotel, only one case went to trial, he said.

Winning a case like this shows clients that it can be done, he said, and it's worth it to have a lawyer and an expert look at a given situation to see if there is any human intervention or negligence issue.

The June 17, 2009, flooding of Jeannette's Brush Creek meant that 50 people had to be evacuated from their homes, some with the help of divers because the water was so deep. Pittsburgh received a record-setting 2.92 inches of rain that day, while other towns, including Jeannette, recorded more than 4 inches over just a few hours.

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Saranac Hale Spencer: sspencer@alm.com or 215-557-2449. To read more articles like this, visit www.thelegalintelligencer.com.

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