The case pitting Swiss Re, Travelers and other insurers against Silverstein Properties, the World Trade Center master leaseholder, moved a step closer on Wednesday with the selection of five women and seven men as jurors.
Opening arguments are expected to begin Monday in the Manhattan courtroom of U.S. District Judge Michael Mukasey. The first of three trials will focus on the role played by the “WilProp form,” a binding commitment to take a portion of the WTC risk, prepared by Willis. It contains language favorable to Swiss Re’s “one-occurrence” position. Some companies have been able to conclusively prove reliance on this form, and have settled claims on that basis.
A second trial would consider which companies, if any, did not rely on WilProp, but on language in a similar binder prepared by Travelers, which doesn’t contain the restrictive language. Depending on the verdicts reached in those two trials, a third one would determine the amount of damages owed by each carrier.
So far all efforts to settle the high profile case have failed. The amount in question, approximately $3.5 billion, makes it unlikely that either side will back down at this late date.
Even the comparatively mundane process of selecting a jury became dramatic, when Judge Mukasey ruled that he had no way of knowing whether the amount of the insurance proceeds would directly affect the rebuilding on the WTC site. Lawyers for Silverstein claimed the cost of that rebuilding was so high that present plans could not be achieved without recovery of the full amount sought. Mukasey told the jury that this should have no bearing on their decision, as he apparently considered that it wasn’t relevant to the dispute over the contractual obligations between the parties, and could also have introduced a highly emotional issue into the case.
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