In a decision handed down Wednesday that is being called "groundbreaking," U.S. District Court Judge Stanwood Duval, Jr. found in favor of four plaintiffs and awarded damages totaling $719,00.00 against the U.S. Army Corps of Engineers. The suit was brought over alleged negligence by the Corps in building and maintaining the Mississippi River Gulf Outlet canal, eerily nicknamed "Mr. Go" by New Orleans residents. In the scope of the disaster wrought by Katrina, this award may sound like a mere drop, but the result opens the channel to many more potential claims.
Why did this case reach a final decision in favor of the plaintiffs when so many others failed even to reach the courtroom? According to Judge Duval, New Orleans' levees, designed by the Corps as storm protection, were works protected by the theory of sovereign immunity. Sovereign immunity is a theory which holds that the sovereign (in history a king, now for example, the federal government) is immune to civil or criminal liability. Thus, claims for damages resulting from those levee failures were denied. However, Mr. Go was designed not as storm protection, but as a navigation canal. Thus, the Army Corps of Engineers was not protected by sovreign immunity against suits over Mr. Go, and the plaintiffs claims were allowed a hearing.
As for the defendants, the Army Corp did not fare well under the Judge's ruling. Duval went as far as to accuse them of "insouciance, myopia and shortsightedness... . " This surely must be the the first time in it's over 200 year history that anyone has described the Corps as insouciant.
The Corps tried to defend the maintenance of Mr. Go as decisions based upon "policy judgments of their professional staff, " and therefore protected under federal law. The Judge disagreed. "Ignoring safety and poor engineering are not policy, and clearly the Corps engaged in such activities," he said. The Corps defense also rested on the Act of God theory, claiming that the effect of Katrina was so massive, nothing they could have done would have prevented flooding. This was also unsuccessful.
But what did the plaintiffs actually accomplish here? Each of the four, all from Lower Ninth Ward, received between about $100,000 and $300,000. More importantly, the question now becomes, will this open the doors to successful claims by their neighbors leading to money enough to truly rebuild?
The full effects of this decision will take months or years to comprehend. A certain next step will by an appeal by the Corps to the 5th cir. Ct. of Appeals. Someone will also need to address the 490,000 claims still outstanding.
- Corps' operation of MR-GO doomed homes in St. Bernard, Lower 9th Ward, judge rules (New Orleans Times-Picayune)
- Army Corps laible for Katrina damage (Christian Science Monitor)
- Special Coverage: Katrina's Legal Aftermath (FindLaw)
- Defining Bad Faith Insurance (provided by Lamkin, Van Eman, Trimble, Beals & Dougherty, LLC)