Illinois Farmers Insurance Company and Farmers Insurance Exchange recently filed in the Illinois Circuit Court for Cook County a putative class action against various municipalities and the Metropolitan Water Reclamation District of Greater Chicago (see the Illinois Farmers v Metropolitan Water complaint).  This case appears to be the first of its kind and has gotten significant media attention (see this Washington Post article and Claims Journal article for example).  Farmers filed this as a subrogation case, on behalf of a proposed class of similarly situated insurance companies and property owners who suffered water damage on April 17 and 18, 2013, when heavy rainfall allegedly caused stormwater and sewer system overflows.  The complaint alleges generally that the defendants failed to take appropriate steps to mitigate problems of stormwater and sewer system overflows following climate change that has occurred over the last 40 years.  Climate change is alleged to have caused increased rainfall, necessitating higher capacity stormwater and sewer systems that the defendants failed to implement. This will be an interesting case to follow.  A key challenge that Farmers is likely to face is to maintain consistency between its position in this case as a class action plaintiff that will be seeking to certify a class and its position in other cases as a class action defendant.  It seems clear that one of the key issues will be whether causation can be established on a classwide basis, where the allegations focus on two specific rainfall events but encompass large geographic areas.  The complaint suggests the possibility of subclasses.  Whether damages can and need to be proved on a classwide basis also could be a key battleground on class certification. I wonder whether any insurers that are members of the proposed class will try to join this case in its early stages.  They might well wait to see whether a class is certified before deciding whether or not to participate in the lawsuit.  If Farmers is successful, this case might lead other insurers to file subrogation class actions.  But Farmers faces significant challenges, and insurers will need to be cautious about maintaining consistency of position as subrogation plaintiffs and as class action defendants.

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Photo of Wystan Ackerman Wystan Ackerman

Wystan Ackerman is a partner in Robinson+Cole’s Insurance + Reinsurance Group and handles a diverse range of property insurance litigation, including large business interruption cases, class actions, other complex litigation, and appeals. He also has substantial experience representing insurance companies in putative class…

Wystan Ackerman is a partner in Robinson+Cole’s Insurance + Reinsurance Group and handles a diverse range of property insurance litigation, including large business interruption cases, class actions, other complex litigation, and appeals. He also has substantial experience representing insurance companies in putative class actions involving homeowners’ insurance coverage and market conduct/claim-handling practices. He has been prominently involved in high-profile property insurance litigation concerning the September 11th catastrophe and Hurricane Katrina, and Chinese-made drywall. Based in the insurance capital of Hartford, Connecticut, Wystan writes the blog Insurance Class Actions Insider, which was selected by Lexis Nexis as a top insurance blog for 2011.

Wystan grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state. He always had strong interests in history, politics and baseball and his heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox). Wystan says it was his early fascination with Lincoln that drove him to practice law. As a high school senior, he was one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified his interest in law and government. He went on to Bowdoin College, where he wrote for the Bowdoin Orient and majored in government. After Bowdoin, he went on to Columbia Law School. He also interned in the chambers of then-Judge Sonia Sotomayor on the Second Circuit. Wystan graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole.

When Wystan’s not at his desk, flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation he often can be found watching “Dora the Explorer” or reading or playing whiffleball with his young daughter, helping his wife with her business, Option Realty, reading a book about history or politics, or watching the Boston Red Sox.

Read Wystan’s rc.com bio.

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