As night follows day, class actions follow natural disasters. After Katrina, plaintiffs' lawyers pursued class actions against numerous defendants, ranging from levee districts to the federal government. Most of the suits proved unsuccessful, but some survived. And given the slow grind of classwide litigation, the survivors were inching towards resolution right as Hurricane Harvey came ashore.
For example, earlier this year Times Picayune reported that the proceeds of a 2009 settlement of flood claims against three Louisiana levee districts were delivered to residents and businesses. It was no litigation bonanza: individual payments topped out at $3,700 and drifted down to as little as $2.50. Funding of the settlement came, predictably enough, from insurance policies that the districts held.
Potentially much larger class actions urged that the U.S. Army Corps of Engineers (Corps) was negligent in building but not maintaining the Mississippi River-Gulf Outlet, which led to the much-publicized devastation of the Lower Ninth Ward in New Orleans. These cases were recently dismissed after the Fifth Circuit Court of Appeals held that the Corps is immune from suit. Nonetheless, plaintiffs have so far successfully urged in the federal Court of Claims that the Corps should be liable under an "unlawful takings" theory. That case is now on appeal.
So there is something of a roadmap for class-action lawyers to follow in the wake of Hurricane Harvey. But it will not be an easy course, given that Texas is less sympathetic to flood-disaster claims than some other jurisdictions. Indeed, in a 2016 decision, the Texas Supreme Court dismissed homeowner claims alleging that Harris County officials botched flood control decision.
Despite the many obstacles, plaintiffs are already pursuing claims arising from Hurricane Harvey. The first case targets flooding following releases from the Addicks and Barker dams on August 28. The theory is that the government affected an "inverse condemnation" by taking private property for public use—here allowing homes and businesses to flood to protect the two dams from catastrophic destruction.
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