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Reviewing Jury Verdicts in Two Mega-Insurance Cases: The Second Circuit Decisions in Swiss Re and Olin
In the fall of 2006, the Second Circuit ruled on appeals from the jury trials in two huge insurance cases: SR International Business Insurance Co., Ltd. v. World Trade Center Properties, LLC, 467 F.3d 107 (2d Cir. 2006) ('Swiss Re'), and Olin Corp. v. Certain Underwriters at Lloyd's London, 468 F.3d 120 (2d Cir. 2006). Both cases went to a jury verdict in 2005 against fairly overwhelming odds. Commentators have widely observed that jury trials are a disappearing breed. In 2002, only 1.8% of civil cases in federal courts and only 0.6% of civil cases in state courts went to jury trial. See Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, J. Empirical Legal Stud. 1 (3), 459-570 (2004); Brian J. Ostrom, et al., Examining Trial Trends in State Courts: 1976'2002, J. Empirical Legal Stud. 1 (3), 755-782 (2004). Moreover, both cases define high stakes, mega-insurance litigation: complex fact patterns, major corporate policyholders and insurers, billions of dollars in insurance coverage, and disputes closely watched by the press and public. Given this context, it is fairly extraordinary that the parties in Swiss Re and Olin let a jury of 'peers' determine the outcome of their disputes. The trial proceedings and appellate review in these cases are worthy of study for insurance litigators hoping or planning for a jury trial of their own.
In Swiss Re, the Second Circuit upheld the jury verdicts in both phases of a bifurcated jury trial dealing with recovery under the first-party property insurance covering the World Trade Center complex on 9/11. In the first phase, the jury found nine out of 12 insurers and the London syndicates bound their coverage under a form originally generated by the policyholder's broker, known as the WilProp form. The Second Circuit had previously ruled that under the 'occurrence' definition in the WilProp form, the 9/11 terrorist attack on the World Trade Center was treated as one occurrence. In the second phase, the jury determined that the nine insurers not bound by the WilProp form had contemplated a two-occurrence treatment of two airplanes crashing into the two towers of the World Trade Center.
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