Judge Jed Rakoff applied a policy's limiting language of "flood" without objection in National R.R. Passenger Corp. (a/k/a "Amtrak") v. Arch Specialty Ins. Co., 124 F. Supp. 3d 264, 267 n.3 (S.D.N.Y. 2016) (case involved New York substantive law), appeal docketed, No. 15-2358 (2d Cir. July 24, 2015):
Defendant Westport Insurance Co. issued a policy that defines flood as “surface water, flood waters, waves, tide or tidal waters, sea surge, tsunami, the release of water, the rising, overflowing or breaking of defenses of natural or manmade bodies of water or wind driven water, regardless of any other cause or [e]vent contributing concurrently or in any other sequence of loss.” Insurers' 3/9/2015 56.1 Statement ¶ 9. Amtrak does not dispute that this definition covers at least some of the damages it sustained during Superstorm Sandy.
Judge Rakoff did not say so, but the above-quoted "flood" definition appears to come from Westport's "flood" exclusion which plainly comes equipped with an Anti-Concurrent Case Exclusion. As Judge Rakoff pointed out in his opinion, there were two definitions of "flood" under Amtrak's many insurance policies at issue in that case.
"The Court finds that both definitions of the term 'flood' unambiguously encompass inundation of normally dry land that is caused by storm surge." National R.R. Passenger Corp. (a/k/a "Amtrak") v. Arch Specialty Ins. Co., 124 F. Supp. 3d 264, 269 (S.D.N.Y. 2016), appeal docketed, No. 15-2358 (2d Cir. July 24, 2015).
The District Court accordingly denied Amtrak's motions for summary judgment, and granted in part and denied in part the carriers' motions for summary judgment. The Second Circuit's docket shows that it has set oral argument in the appeal in this case for August 19, 2016.
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