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NEW YORK CITY-The United States Court of Appeals for the Second Circuit affirmed a District Court decision that a jury would have to decide whether the terrorist attacks on the twin towers constituted one or two occurrences for purposes of the $3.55 billion per occurrence insurance policy covering the commercial buildings at the World Trade Center complex. The appeals court also affirmed a ruling that three insurers responsible for only $112 million of the overall policy, representing approximately 3% of the coverage, were only liable to pay on a single occurrence basis.

In affirming the decision, the Second Circuit, in its 62-page decision, ruled that the meaning of the term is “ambiguous under New York law” and that a jury would have to decide the issue in order to determine the parties’ intentions as to the meaning of the term as applied to the events of Sept. 11, 2001.

Howard J. Rubenstein, a spokesman for Larry Silverstein, head of Silverstein Properties, leaseholder of the site, states, “While we had hoped that the Second Circuit would rule that the events of Sept. 11 constituted two occurrences as a matter of law, we are fully confident that a jury hearing all of the evidence will reject the insurers’ attempts to avoid paying for the cost of rebuilding the World Trade Center.”

Jacques Dubois, chairman of Swiss Re America Holding Corp., one of the WTC insurers, comments that, “Swiss Re is ecstatic about the decision. Every court that has considered Silverstein’s argument to recover beyond his stated insurance policy limit has rejected it outright. We are confident that a jury will do the same.”

Swiss Re’s attorney, Barry Ostrager of Simpson Thacher & Bartlett LLP, says, “(The) decision confirms our entire theory of the case. Silverstein purchased $3.5 billion worth of insurance coverage based on the WilProp policy form–the form that he and his broker wanted. His recovery is capped at $3.5 billion.”

Silverstein is also in the process of creating a plan to repay loans. GMAC Commercial Mortgage is the lead bondholder. A hearing in the matter was adjourned so the parties could continue discussions.

“The agreement to adjourn the hearing will give the Port Authority and the Silverstein parties the opportunity to see if they can come forward with a proposal to resolve the dispute,” says GMAC in a statement.

The Port Authority of New York and New Jersey, owner of the WTC site, says, “We remain confident that this matter will be resolved quickly, and allow all parties to continue meeting Governor Pataki’s timetable for the renewal of Lower Manhattan. Our goal remains ensuring that all parties invest all available funding in the rebirth of the World Trade Center site.”

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