ALVIN K. HELLERSTEIN

Derek Todd Smith, Zafer Adem Akin, Akin & Smith, LLC, Dale Christian Christensen, Jr., Seward & Kissel LLP, Douglas J. Pepe, Gregory P. Joseph Law Offices LLC, David Jaroslawicz, Jaroslawicz & Jaros, LLC, Robert Joseph Tolchin, Robert J. Tolchin, Esq., Bruce M. Friedman, Paul Fredric Kovner, Rubin, Fiorella & Friedman, L.L.P., David John Przygoda, Ropes & Gray, LLP, Frank H. Granito, III, Speiser, Krause, Nolan and Granito, Charles Edward Joseph, Joseph, Herzfeld, Hester, & Kirschenbaum, Christopher Bruce Hitchcock, Terry Cummings, Hitchcock & Cummings LLC, Philip L. Guarino, Phillips Nizer LLP, Anthony Labozzetta, Anthony Labozzetta Esq., Kymberly Kochis, Nelson Levine De Luca & Hamilton, Stephen Mortimer Marcusa, Bigham Englar Jones & Houston, Marina A. Spinner, Nicoletti, Gonson, Spinner & Owen, LLP, Mark Leigh Antin, Stanley Walter Kallmann, Gennet, Kallmann, Antin & Robinson, P.C., Richard Arthur Williamson, Thomas A. Egan, Alexander Fellows Powell, Andrew John Scholz, Jason Todd Cohen, Flemming Zulack Williamson Zauderer, LLP, Jay B. Spievack, Sari E. Kolatch, Cohen Tauber Spievack & Wagner, P.C., New York, NY, Jemi Goulian Lucey, Jane J. Felton, Greenbaum, Rowe, Smith & Davis LLP, Iselin, NJ, Jennifer E. Shafer, Kristopher E. Kuehn, Timothy W. Triplett, James M. Warden, Walden Triplett Grier, Overland Park, KS, Kenneth W. Erickson, Matthew M. Burke, Robert A. Skinner, Ropes & Gray LLP, Boston, MA, Robert J. Bates, Robert J. Bates, Esq., Westwood, NJ, Michael Sukhman, Frenkel Sukhman, LLP, White Plains, NY, Thaniel James Beinert, The Law Office of Thaniel J. Beinert And Associates, Brooklyn, NY, Carol M. Rooney, Paul B. Butler, Scott S. Katz, Butler Pappas Weihmuller Katz Craig, LLP, Tampa, FL, Kimberly M. Collins, Robert A. Clifford, Timothy S. Tomasik, Clifford Law Offices, P.C, Chicago, IL, Catherine M. Colinvaux, Zelle, Hofmann, Voelbel, Mason & Gette, L.L.P., Waltham, MA, H. Jerome Gette, Zelle, Hofmann, Voelbel & Gette, M. Anthony Parsons, II, Steven J. Badger, Zelle Hofmann Voelbel Mason & Gette LLP, Dallas, Tx, James S. Reece, Zelle Hofmann Voelbel Mason & Gette LLP, Minneapolis, MN, Michael Joseph Kuckelman, Pleasantville, NY, Franklin Michael Sachs, Greenbaum, Rowe, Smith & Davis LLP, Woodbridge, NJ, Jennifer L. Beidel, John F. Stoviak, Mia Mary Meloni, Shiloh D. Theberge, Timothy W. Callahan, II, Patrick M. Hromisin, Saul Ewing LLP, Philadelphia, PA, Vincent Ian Parrett, Motley Rice LLC, Mount Pleasant, SC, for Plaintiffs. Desmond Thomas Barry, Jr., Condon and Forsyth LLP, James Patrick Connors, Jones Hirsch Connors & Bull P.C., Peter James Gallagher, Kennedy Johnson Gallagher, LLC, Derek Adam McNally, Johnson, Gallagher Magliery LLC, Jacqueline Keller, Rubin, Fiorella & Friedman, L.L.P., Kevin J. O'Neill, Stephen Paul Schreckinger, Gogick, Byrne & O'Neill, L.L.P., John J. McDonough, Cozen O'Connor, Timothy Joseph Keane, Veronica Spicer, Anoushka Sharifi Bayley, Brian Patrick Sexton, Jeffrey J. Ellis, Loretta Anne Redmond, Quirk and Bakalor, P.C., Willard Mark Wood, John L. Altieri, Jr., O'Melveny & Myers LLP, Beth D. Jacob, Paul Andrew Scrudato, Donald Allen Klein, Schiff Hardin LLP, Megan Lee, Offices of Milton H. Pachter, Timothy Gerard Stickelman, The Port Authority of New York and New Jersey, H. Christopher Boehning, Robert A. Atkins, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Katherine Lindsay Pringle, Eric Jonathan Seiler, Heather Jo Windt, Friedman Kaplan Seiler & Adelman LLP, Christopher P. Moore, Cleary Gottlieb Steen & Hamilton, LLP, Melissa Tabako Billig, Robert Alan Banner, Ingram Yuzek Gainen Carroll & Bertolotti, LLP, David Moore Lindsey, Chaffetz Lindsey LLP, James Milton Hosking, Clifford Chance U.S., LLP, Daniel John McNamara, Decicco, Gibbons & McNamara, P.C., Carol A. Sigmond, Dunnington, Bartholow & Miller, LLP, Kenneth George Schwarz, Fischbein, Badillo, Wagner & Harding, Michael Thomas Rogers, Vashali Maria Aggarwal, Wasserman Grubin & Rogers LLP, Chad Everette Sjoquist, Zetlin & De Chiara, LLP, Thomas V. Giordano, Zeynel Karcioglu, Esq., Mark Joseph Weber, Mound Cotton Wollan & Greengrass, New York, NY, T. Patrick Byrnes, Ann Caroline Taylor, Locke Lord LLP, Adam Randall Sorkin, Shiff Hardin LLP, Chicago, IL, Johnathan Jeffrey Ross, H. Lee Godfrey, Laurie Gallun, Max Tribble, Susman Godfrey LLP, Houston, TX, Bruce Richard Wildermuth, Alexis M. Dougherty, Edward James McMurrer, Ralph Vincent Pagano, Mendes & Mount, LLP, Newark, NJ, Kimberly A. Donlon, Kimberly A. Donlon, Attorney at Law, Beverly, MA, Edwin W. Green, Ed Green Attorney at Law, Breckenridge, CO, Dennis M. O'Hara, Jason A. Glusman, Robert C. Bauroth, Wicker, Smith, O'Hara, McCoy, Graham & Ford, P.A., Ft. Lauderdale, FL, Jeffrey W. Moryan, Connell Foley LLP, Roseland, NJ, Kathleen Marie Guilfoyle, Kurt Bernard Gerstner, Richard Paul Campbell, Campbell Campbell Edwards & Conroy, Boston, MA, Sarah D. Youngblood, Schiff Hardin LLP, San Francisco, CA, Leah Ward Sears, Schiff Hardin LLP, Atlanta, GA, Mack H. Shultz, Jr., Steven C. Minson, Thomas Jeffrey McLaughlin, Todd W. Rosencrans, Perkins Coie LLP, Seattle, WA, Jeffrey W. Moryan, Connell Foley LLP, Roseland, NJ, David A. Harrison, Lieben, Whitted, Houghton, Slowiaczek & Cavanagh, P.C., L.L., Omaha, NE, Anita B. Weinstein, Cozen O'Connor, Philadelphia, PA, Daniel W. Morrison, III, Michael P. Benenati, Bleakley Platt & Schmidt, LLP, White Plains, NY, for Defendants.

OPINION AND ORDER DENYING MOTION TO CREDIT INSURANCE RECOVERIES AGAINST POTENTIAL TORT RECOVERIES

ALVIN K. HELLERSTEIN, District Judge.

On July 16, 2001, plaintiffs World Trade Center Properties, LLC and affiliated companies (collectively “WTCP”) purchased 99–year leases to four World Trade Center buildings, Towers One, Two, Four, and Five, from the Port Authority of New York and New Jersey, Inc., the owner of the properties. Plaintiffs paid $2.805 billion. Two months later, the terrorist air crashes of September 11 caused the Twin Towers (Towers One and Two) to become raging infernos and collapse. And their collapse caused Towers Four and Five (and Tower Seven) to collapse. WTCP sued United Airlines, American Airlines, and others (collectively, the “Aviation Defendants” or “Defendants”), alleging that but for the Aviation Defendants' negligence, the terrorists could not have boarded and hijacked the aircraft and flown them into the Twin Towers.

WTCP also recovered $4.091 billion from insurance.

The Defendants now move for “collateral setoff,” alleging that insurance recoveries more than compensated WTCP for potential tort recovery. SeeN.Y. C.P.L.R. § 4545.

Defendants' motion is denied. The overlap between WTCP's insurance recovery and its potential tort recovery presents issues of fact requiring trial.

I. Factual and Procedural Background

The issue presented by this motion follows from my earlier opinions in this matter. In December 2008 I limited WTCP's recovery to the lesser of fair market value or replacement cost. In re September 11th Litig., 590 F.Supp.2d 535 (S.D.N.Y.2008). In a follow-up order, after separate briefing and argument, I fixed the limit of tort recovery at $2.805 billion. The price paid for the leases, I found, was equivalent to their fair market value on September 11, 2001. In re September 11 Litig., 2009 WL 1181057, 21 MC 101 (April 30, 2009, S.D.N.Y.). The Aviation Defendants then moved for collateral setoff, and I denied the motion as premature. In re September 11th Litig., 21 MC 101, Doc. No. 945 (Sep. 30, 2009, S.D.N.Y.). I assume familiarity with this background.

A. WTCP's Insurance Coverage

By the terms of its leases, WTCP covenanted, in the event of damage or destruction to the leasehold, to “rebuild, restore, repair and replace” the premises to the extent “feasible, prudent and commercially reasonable.” See, e.g., Agreement of Lease: One World Trade Center, § 15.1.

WTCP agreed also to insure the buildings against property damage for the lesser of “actual replacement cost” or $1.5 billion “per occurrence.” Id. § 14.1.1. The leases provided that there was to be no exclusion for “terrorist acts,” so long as such a policy term was available “at commercially reasonable rates.” Id.

Additionally, to ensure that WTCP would be able to continue to make its lease payments to the Port Authority in the event that a building was “out of operation,” WTCP agreed also to insure against “Loss of Revenue/Business Interruption” in such amounts as “reasonably required by the Port Authority,” to cover a three-year period of no building operation. Id. § 14.1.2.

Upon signing the 99–year leases, WTCP procured twelve-layer, multiple-company insurance coverage aggregating $3,546,800,000 “per occurrence.” The coverage, defined by different insurance forms and binders, included Property Damage and Business Interruption coverage, as required by the leases. The Property Damage coverage insured the “interest of the Insured in all property of every kind and description owned or used ....” The Business Interruption insurance covered lost revenues resulting from the “necessary interruption or reduction of business operations ... caused by loss, damage, or destruction ....”

After the Towers collapsed, WTCP filed Preliminary Proofs of Partial Loss (“PPOPLs”), of approximately $8 billion dollars.

WTCP and the insurers engaged in litigation over whether the 9/11 attacks on the Trade Towers constituted one “occurrence” or two, as defined by the definitions in the various binders and policies. See SR Int'l Bus. Ins. Co. v. World Trade Ctr. Props., LLC, 467 F.3d 107 (2d Cir.2006). Ultimately, the parties settled at $4.091 billion, and the insurers paid that amount to WTCP. The parties did not allocate the settlement between Property Damage and Business Interruption.

B. WTCP's Lawsuit Against the Aviation Defendants

In its lawsuit. WTCP alleged that it suffered damages of $8.4 billion, the estimated cost of replacing the Towers, and sought recovery against the Aviation Defendants for their negligence. The Aviation Defendants denied that they were negligent and denied that they could be liable beyond the fair market value of the leasehold. On Defendants' motion for summary judgment, I held that a tort recovery was limited to the lesser of fair market value or replacement cost, and ruled that the loss in market value of WTCP's 99–year leasehold, valued as of September 11, 2001, was the most that it could recover. In re September 11th Litig., 590 F.Supp.2d at 536 ruled that WTCP could not recover in tort, in a suit for negligence, the damages flowing from its contractual obligations to “rebuild, restore, repair and replace” the Trade Center buildings. I held that the “particular features of WTCP's contracts cannot be made the special responsibility of the Aviation Defendants ....” Id. at 544.

After further submissions by the parties, I determined the value of WTCP's destroyed leasehold on September 11, 2001 to be $2.805 billion—the price WTCP agreed to pay the Port Authority for the leasehold only a few months earlier. In re September 11 Litig., 21 MC 101(AKH), 2009 WL 1181057 at *4 (S.D.N.Y. Apr. 30, 2009), I rejected WTCP's argument that its leasehold, measured by its value as burdened by its covenant to rebuild the Trade Center, had taken on a negative value. Id. at *3.

Defendants now argue that since WTCP recovered $4,091 billion from insurance, it cannot recover the lesser amount of $2.805 billion, the fair market value of its destroyed leasehold.

In order to make such a finding, I would have to find, to a “reasonable certainty,” that the categories of insurance payments received by WTCP “correspond” to the categories of potential damages WTCP could recover in its lawsuit against the Aviation Defendants. On this record, before trial, I am not able to make such findings.

II. New York C.P.L.R. Section 4545 and Its Judicial Interpretation

New York's C.P.L.R. Section 4545 is known as a “collateral source law.” Essentially, it provides that if a plaintiff has been compensated for economic loss by some “collateral source,” such as insurance, the plaintiff cannot recover compensation again in a tort lawsuit against a defendant. The statute provides:

In any action brought to recover damages for personal injury, injury to property or wrongful death, where the plaintiff seeks to recover for ... loss of earnings or other economic loss, evidence shall be admissible for consideration by the court to establish that any such past or future cost or expense was or will, with reasonable certainty, be replaced or indemnified, in whole or in part, from any collateral source such as insurance (except for life insurance) If the court finds that any such cost or expense was or will, with reasonable certainty, be replaced or indemnified from any collateral source, it shall reduce the amount of the award by such finding, minus an amount equal to the premiums paid by the plaintiff for such benefits for the two-year period immediately preceding the accrual of such action and minus an amount equal to the projected future cost to the plaintiff of maintaining such benefits.
N.Y. C.P.L.R. § 4545(c) (2008).

Importantly, Section 4545(c) does not provide for a reduction in damages based on any and all of the plaintiff's collateral recoveries. Rather, “reduction is authorized only when the collateral source payment represents reimbursement for a particular category of loss that corresponds to a category of loss for which damages were awarded.” Oden v. Chemung County Indus. Dev. Agency, 87 N.Y.2d 81, 84, 637 N.Y.S.2d 670, 661 N.E.2d 142 (1995) (emphasis added). And correspondence must be proven by a “reasonable certainty.” Turnbull v. USAir, Inc., 133 F.3d 184, 188 (2d Cir.1998). The purpose of the law is “to eliminate windfalls and double recoveries for the same loss,” Fisher v. Qualico Contr. Corp., 98 N.Y.2d 534, 537, 749 N.Y.S.2d 467, 779 N.E.2d 178 (2002). Achieving this goal “is served by subtracting from the total award those collateral source payments that duplicate or correspond to a particular item of economic loss,” Oden, 87 N.Y.2d at 88, 637 N.Y.S.2d 670, 661 N.E.2d 142. But subtraction of all, even non-duplicative payments, would “produce results beyond those necessary to remedy the [windfalls to plaintiffs] at which the legislation was aimed” and “would confer an undeserved windfall on tort defendants and their insurers ....” Id. at 88, 637 N.Y.S.2d 670, 661 N.E.2d 142.

III. Application of Correspondence between WTCP's Losses and Insurance Recoveries

A. WTCP's Potential Recovery of Damages

By reason of the events of 9/11, WTCP lost its revenue stream, until the leasehold property could be restored. However, pursuant to its lease, it was obligated to continue to pay rents to the Port Authority. The lease required WTCP to procure Property Damage insurance to facilitate the rebuilding of the towers should they be damaged or destroyed, and Business Interruption insurance to facilitate WTCP's ability to continue to pay rent should its anticipated revenues be disrupted. Agreement of Lease: One World Trade Center, § 14.1.1, § 14.1.2. The anticipated expenses of procuring such insurance are subsumed in a real estate developer's calculation of a leasehold's anticipated net income and, hence, the price it is willing to pay for the property. Thus, the fair market value of the WTCP leasehold, as of September 11, 2001, reflected all these revenue and expense ingredients, These factors may enter into the calculation of fair market value that ready, willing, and able buyers and sellers are willing to pay and to receive. 1 would assume that the price paid by WTCP, and accepted by the Port Authority—$2.805 billion—and the competitive bids that preceded the agreement, reflected all the ingredients of anticipated revenue and expense,

B. WTCP's Insurance Recoveries

WTCP settled its litigation against its insurers for $4.091 billion, a little more than half its PPOPL total of approximately $8 billion, WTCP's claim mainly fell into two categories: Property Damage insurance to defray the cost of rebuilding the leased properties, and Business Interruption insurance to compensate for WTCP's lost revenue stream and to defray the burden of WTCP's continuing obligation to pay rent to the Port Authority. The proportions of each category to the whole were 84.2 to 15.8, respectively,

If those proportions were to be applied to the insurance recovery (and the relevance of taking such proportions is far from clear), $3,444,622,000 would be allocable to property damage, and $646,378,000 to business interruption. The legal question is whether or not there is correspondence between WTCP's insurance recovery, or any part of it, and WTCP's potential damage recovery in this lawsuit. Oden, 87 N.Y.2d at 84, 637 N.Y.S.2d 670, 661 N.E.2d 142.

C. Correspondence Between Insurance and Tort Recoveries Has Not Been Shown to a Reasonable Certainty

As stated by the New York Court of Appeals in Oden, “reduction [of damages] is authorized only when the collateral source payment represents reimbursement for a particular category of loss that corresponds to a category of loss for which damages were awarded.” 87 N.Y.2d at 84, 637 N.Y.S.2d 670, 661 N.E.2d 142, And correspondence must be proved to a “reasonable certainty.” Turnbull, 133 F.3d at 188. The Aviation Defendants argue that both aspects of WTCP's insurance recovery—Property Damage and Business Interruption—should correspond to WTCP's tort loss of the value of its leasehold, thereby subsuming all of WTCP's tort claims. But that is not clear. The proof of the experts, seeking to relate, or not to relate, a gross insurance recovery to various amounts of damage, raises many questions of correspondence. WTCP suffered different categories of loss on the morning of September 11, and the issue of correspondence between them and WTCP's insurance recoveries presents issues of complexity and nuance that will require a trial to clarify.

IV. Conclusion

Defendants' motion to credit insurance recoveries against potential tort recoveries is denied. The issue is not suitable for summary disposition on the record presented. The clerk shall terminate the motions (08 Civ. 3719, Doc. No. 153; 08 Civ. 3722, Doc. No. 169).

SO ORDERED.