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NEW YORK CITY-World Trade Center developer Larry Silverstein and reinsurer Swiss Re will go to trial in November as planned, but a new ruling has split the case down the middle. A first trial will decide whether the Sept. 11 bombings of the twin towers constituted one coordinated act or two separate ones. Once that issue has been decided and unless a settlement is reached, a second trial will determine the property’s value.

The two issues had been lumped together until Judge John S. Martin bifurcated the case at Thursday’s hearing. But the lion’s share of attention garnered by the case has been centered on the one-event-versus-two argument. Silverstein has used every available opportunity to assert his claim that the bombings were two separate incidents while Swiss Re maintains that there was one attack and that Silverstein is entitled to only one payout. Since the maximum payout for a single occurrence is variously reported as somewhere between $3.5 billion and $3.8 billion, the stakes are astronomical and the rhetoric from both sides has become increasingly heated.

“The whole world saw two separate planes hit two separate buildings at two separate times,” said Silverstein spokesman Howard Rubenstein in a statement following the hearing. “We are fully confident that the jury will conclude that there were two occurrences’ for insurance purposes and that Swiss Re and the other insurers will not succeed in getting away with paying only one-half of what they owe.”

Rubenstein was responding to post-hearing statements from Swiss Re, once again claiming the attacks comprised a single occurrence. “We are confident that a jury will determine that the World Trade Center was one insured property subjected to one coordinated attack and that its destruction resulted in one insurable loss,” remarked Swiss Re Holding Corp Chairman and CEO Jacques Dubois.

While both sides will be armed with plenty of case law supporting their arguments come November, the official number of occurrences that took place on Sept. 11 may well come down to a simple form.

Swiss Re claims that its coverage is based on what is known as the WilProp policy form, which defines an occurrence as “all losses or damages that are attributable directly or indirectly to one cause or to one series of similar causes. All such losses will be added together and the total amount of such losses will be treated as one occurrence irrespective of the period of time or area over which such losses occur.”

Silverstein contends that Swiss Re is bound by language in a policy by Travelers, lead underwriter for the WTC, which does not specifically define an event or occurrence. Because Silverstein’s 99-year lease on the property was signed only six weeks before the attacks, the insurance coverage was not finalized.

In its post-hearing statement, Swiss Re attorney Barry Ostrager of Simpson Thacher & Bartlett reasserted his client’s position on WilProp. “The record will demonstrate that Swiss Re bound coverage on the WilProp policy form,” he said. “Presuming that the jury agrees, there are no further issues to be decided.”

Rubenstein’s countered, stating, “discovery has shown that Swiss Re was told that the Travelers form would be used in place of WilProp.

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