While insurance coverage cases are normally the focus of the Hurricane Katrina litigation that I follow, an important non-insurance ruling in the Katrina Canal Breaches litigation is worth noting here.
Yesterday, U.S. District Judge Stanwood R. Duval Jr., for the Eastern District of Louisiana, dismissed the U.S. Army Corps of Engineers from a class action lawsuit alleging that the Corps' negligent design, construction, maintenance and operation of the Mississippi River Gulf Outlet (MRGO) contributed to levee breaches and subsequent flooding during Hurricane Katrina (In Re: Katrina Canal Breaches Consolidated Litigation, No. 05-4182, E.D. La.).
In his 48-page order, Judge Duval said the Flood Control Act of 1928, Section 702c, extends immunity to the Corps, but noted that, “it is not free, nor should it be, from posterity’s judgment concerning its failure to accomplish what was its task.”
Under Flood Control Act Section 702c, Congress provided that “[n]o liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place. ...”
The judge went on to express his reluctance in issuing the order, saying, “The citizens of each and every city in this great nation have come to depend on their government and its agencies to perform certain tasks which have been assigned to federal agencies by laws passed by Congress and overseen by the Executive Branch. It should not be unreasonable for those citizens to rely on their agents, whom they pay through their taxes, to perform the tasks assigned in a timely and competent way. However, because of § 702c, there is neither incentive, nor punishment to insure that our own government performs these tasks correctly. There is no provision in the law which allows this Court to avoid the immunity provided by § 702c; gross incompetence receives the same treatment as simple mistake.”
The plaintiffs claimed that the Army Corps’ failure to properly maintain the MRGO intensified the destructive forces of Hurricane Katrina, causing the flooding of the Lower Ninth Ward, New Orleans East and St. Bernard Parish. The plaintiffs alleged that the Army Corps knew that the destruction of the marshlands surrounding the MRGO intensified the storm surge, resulting in the flooding of much of New Orleans.
Based on the ruling, it is only natural to wonder if the plaintiffs will even have a case on appeal. Is there any way the plaintiffs can circumvent the immunity provided to the Army Corps under the Flood Control Act?