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In order for a levee breach to be the kind of accident intended to fall within the scope of 28 U.S.C.S. § 1369, there would have to be at least seventy-five deaths that occur at a discrete location due to the breach. The term discrete location would be bounded not physically, but by whether there exist common questions of fact among claimants as to liability and/or causation of damages. This limitation of what constitutes a "discrete location" would preclude the exercise of § 1369 jurisdiction over actions arising out of "single accidents" that have widespread damages, and deaths that occur in a number of places and for different reasons, though the accident might precipitate such deaths. Moreover, for purposes of removal, the action to be removed would also need to arise out of the accident that caused the deaths at a discrete location, and not merely out of the "single accident" that causes diffuse damages, even if at least seventy-five people die. For example, the action to be removed would have to arise out of a levee breach that caused seventy-five deaths at a hospital in order to be removable under 28 U.S.C.S. § 1441(e)(1)(B).
Plaintiffs Gordon and Tanjha Case ("Cases") instituted the state court action on August 22, 2006, against ANPAC Louisiana Insurance Company ("ANPAC") in Civil District Court, Parish of Orleans, Louisiana, seeking a declaratory judgment as well as damages in connection with destruction of their home during and in the aftermath of Hurricane Katrina. The parties are both domiciled in Louisiana. Specifically, the Cases aver the following: The strength and magnitude of Katrina's violent winds leaves little doubt to consider that the high velocity wind force was the "efficient proximate cause" of the damage to petitioners' building and ancillary structures and total destruction/loss of petitioner's building and ancillary structures.
In addition to a request for the full value of the policy and other damages, the Cases also request 1) a declaration that damage due to "storm surge" is not excluded by the policy; 2) a declaration that the "flood" exclusion is inapplicable and ambiguous; and 3) a declaration that Louisiana Valued Policy Law applies to the instant matter. Defendants, on the other hand, attribute the loss to the flooding that came as a result of the levee breaches. This risk is allegedly not covered under the policy by virtue of the flood exclusion.
Was the Cases’ opposition to the removal claiming that there was no subject matter jurisdiction over the proceeding under 28 U.S.C.S. §§ 1441(e)(1)(B) and 1369 meritorious?
The Court held that the actions were not properly removed under 28 U.S.C.S. § 1441(e)(1)(B). The instant Court assumed that 28 U.S.C.S. § 1369 jurisdiction was available for the third case action despite it involving multiple accidents, and that a single accident, that gave rise to part of the entire action could be piggy-backed upon. However, because the Cases brought actions arising out of multiple levee breaches, this precluded the possibility that these actions arose out of the same single accident that gave rise to part of the action in the third case. Further, defendants did not make a prima facie showing that seventy-five people had died at a discrete location due to a single accident. The metro area of New Orleans was not a discrete location for the purposes of the MMTJA. There may have been seventy-five deaths at a discrete location; however, the Court would have had to determine that a single accident caused these deaths.