RISK:

Insurer mysteriously withdraws high-profile lawsuit for climate damages in Chicago flooding case

Farmers Insurance Co. has withdrawn its lawsuit against Chicago for climate-related flooding, marking an abrupt end to a novel legal claim that had tantalized observers with its prospects for pushing cities to act against climate change.

The company filed for dismissal Tuesday after its case against dozens of municipalities in the Chicago area gained national media attention and no short amount of criticism from local officials, who warned that taxpayers would shoulder the cost of the class-action suit.

A spokesman for Farmers said in a statement that the company reversed course after the lawsuit successfully caught the attention of municipalities, which the company had accused of mismanaging their stormwater systems. The lawsuit claimed that 600 homes were damaged during a downpour in April 2013 after local officials allegedly failed to drain underground storm tunnels and deploy protective barriers. It also said the officials failed to account for heavier rainfall from global warming.

Some industry observers described the sudden withdrawal as unusual, but probably not surprising given the legal challenges ahead. Those hurdles included showing a court that all the damages stemmed from a similar error -- something that's difficult to do when the flooding occurred in nearly 200 different towns, said Michael Gerrard, director of the Center for Climate Change Law at Columbia Law School.

"Many people were scratching their heads when it was brought," he said."I think that there will still be many lawsuits about failure to anticipate and prepare for the impacts of climate change. But this particular vehicle was a strange one to launch a new species of cases."

Gerrard believes that future lawsuits could make professional malpractice claims against architects and engineers who build structures that don't withstand anticipated weather events. Others might include breaches of contract. For example, if a farm can't fulfill its responsibility to deliver oats to a cereal company because of drought or flood, a lawsuit could hinge on the question of whether it was an unavoidable act of God or a foreseeable event, he said.

Tensions rise with floodwater

Other analysts believe the failed case foretells a growing tension between insurers and governments at a time when damage from natural catastrophes is growing. Should lawmakers and local officials provide funding to harden homes and build sturdier infrastructure? Or should insurers be exposed to larger losses, even if it means higher prices for policyholders?

"As we are in a period where we're seeing an increased frequency and severity of extreme weather events, it's likely that we'll tend to see more, say, urban flooding events ... that cause damage to homes, to businesses and to infrastructure," said Robert Hartwig, president and chief economist of the Insurance Information Institute. "I think this [lawsuit] is part of a larger question about who's going to pay for all of this."

Insurers have lobbied Congress for years to fund mitigation efforts, like installing hurricane shutters. Research shows that upfront investments to make homes and other buildings more resilient to storms can result in much larger savings down the road. But it's politically difficult to spend money on projects that avoid damage that hasn't happened yet.

The lawsuit by Farmers might change that, even though it failed, said Maxine Burkett, an associate professor at the University of Hawaii Law School.

When it comes to preparing for climatic impacts, people tend to look only at the initial cost of building a stronger road, bridge or home. But if they were to compare that cost to the potential price of floods or hurricanes over the life of the project, it might seem like a good investment, Burkett said. In the case of Chicago flooding, it might be cheaper to buy your first house outside of the flood zone.

"Lawsuits like this are really good at putting municipalities and other entities that are building in dangerous areas on notice with regards to the impacts of climate change," Burkett said.

"In other words, entities can have a better sense of what risk they're taking when there's an amount that's sort of attributed to the loss that will be experienced," she added. "Right now, we think about adaptation somewhat in a vacuum and we only consider the cost of adapting or preparing for climate change, without thinking about the costs or risks [we incur] by putting ourselves in harm's way."

Mysterious end to a novel claim

Burkett said that eventually, municipalities and private developers could be found negligent for building things that can't withstand the pressures of rising seas, bigger storm surges and heavier rain. The odds of that happening will increase as the scientific evidence of climate change mounts and as attention is drawn to the issue -- perhaps through lawsuits like the one in Chicago.

Some observers seemed perplexed by the conclusion of the Farmers case, which the company withdrew shortly after generating a wave of media attention about its potential influence on climate adaptation policies. The case also drew a large amount of pushback from local officials, who had generally acknowledged the risks of flooding from climate change.

Insurers are not shy about engaging in court fights, but they don't do it without believing they can win, analysts said. So it's unlikely that the company's motivation was based entirely on sending a signal to Chicago and other municipalities about hardening their flood defenses.

"It's very unusual to bring a large, highly publicized lawsuit and then drop it so quickly without a clear explanation," Gerrard said.

Stuart Brody, a partner with the 10-person law firm that filed the suit for Farmers, declined to comment about the dismissal when reached at his Chicago office yesterday.

Twitter: @evanlehmann | Email: elehmann@eenews.net

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