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WTC jury deliberations ongoing

The verdict on the latest round of WTC insurance litigation is still hanging in the balance, as Insider Week goes to press.

The case, which has been played out in US courts over the past month, concerns WTC leaseholder Larry Silverstein’s attempt to prove the 9/11 attacks constituted two separate attacks, ensuring payouts of at least $1.1bn from his insurers for each event.

Opposing Silverstein are nine insurers that provided cover two months before 9/11 – each determined to prove that the two attacks constituted a single insured loss.

It is the second time the building’s insurers have been in court. An earlier case found a separate group of insurers – Swiss Re, ACE, Chubb and a host of Lloyd’s syndicates among them – were bound under the so-called WilProp wordings, which hold them to only a single payout.

However, the latest group of insurers, which includes Allianz, Industrial Risk Insurers (IRI), Travelers and Tokio Marine, is not bound under the WilProp wordings and so may be liable to dual payouts for the 9/11 attacks.

As jury deliberations have continued, the presiding judge, Judge Makasey, has been asked to make available transcripts of certain witness cross examinations – sparking conjecture as to the possible outcome of the trial.

On 17 November the jury asked for transcripts of testimony by IRI senior vice-president Frank Teterus when during cross examination he was asked how the company dealt with a series of rainstorms in Shreveport, Louisiana. Teterus was forced to admit that the rainstorms had been dealt with as multiple occurrences, despite his own admission that the insurance was bound under the same policy form as that used for the Twin Towers.

A second request by the jury, this time for clarification of Mukasey’s understanding of the word "intent", drew a further bout of speculation. The jury wanted to know what exactly the judge had meant in a paragraph in his instructions to them, which dealt with what the two sides intended when they signed insurance binders.

After hearing spirited arguments from lawyers from both sides, the judge adjourned proceedings to produce a written clarification of his instructions.

When he returned he told the jury that an "uncommunicated understanding" was relevant as evidence as long as other evidence existed indicating a “joint understanding” of that meaning. This is significant because it could allow the jury to consider evidence that was presented about what certain parties believed the policy wordings meant immediately after 9/11.

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