September 11, 2005

Insurance, Litigation and Government Funds

by PG

Unsurprisingly, civil rights groups and others are suggesting that the federal government set up a fund to compensate the victims of Hurricane Katrina for their losses, much as 9/11 victims' families were compensated. But as often happens in discussions of the 9/11 fund, the government's reason for setting it up is ignored. The motive was somewhat altruistic, but not so much as a gesture of charity to the 9/11families as one to the airline industry, Port Authority and others who would have been hard hit by litigation. Every participant in the 9/11 fund had to agree not to sue those other bodies.

In contrast, the people affected by Hurricane Katrina don't seem to have a likely target for a tort. Perhaps they could sue the entity responsible for maintaining the levees, but to my knowledge, that would be the government itself. My understanding is that suing the federal government for large-scale policy actions like cutting the budget for levees is extremely difficult, if not impossible, especially in the absence of a Federal Tort Claims Act individual to blame -- this was an instance of the government acting as governments do, not of a person acting tortiously as a government agent. However, the Katrina victims would have slightly better standing to claim real injury than taxpayer/ constituent type plaintiffs. Taxpayer standing suffices for suits against the states, but they in turn have sovereign immunity, and the affected Gulf Coast states hardly could afford to waive it right now.

September 11, 2005 03:17 PM | TrackBack

Even if sovereign immunity were waived or some method of standing were achieved, don't decisions made by governments on matters of appropriation qualify as non-justiciable political questions? Though I suppose if LA were to waive immunity, the Governor and the Mayor could be sued for negligence in the evacuation process?

Posted by: Christopher Stroup at September 13, 2005 12:06 PM

Those who stayed in the city and those who owned property there should be barred by their assumption of the risk. The potential for such a disaster was well known, and property owners had plenty of notice that such an event could occur. There were more than adequate warnings. The government is not, or at least should not be, an insuring entity.

Posted by: nate at September 16, 2005 05:58 PM
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