TWIA stands by work product privilege in Hurricane Ike litigation

By John Suayan, Galveston Bureau | Jan 7, 2010

Satellite view of Hurricane Ike

GALVESTON - The Texas Windstorm Insurance Association recently countered a League City man's argument that it cannot assert a work product privilege before the time it anticipated the client would file suit in the aftermath of Hurricane Ike.

In a 10-page supplemental response filed Dec. 21 in Galveston County District Court, TWIA explains that client Bakht Khattak's statements are "wrong and based on a rule of procedure that has been superceded over a decade," and communications between TWIA representatives in relation to probable Ike litigation are allowed under the Texas Rules of Civil Procedure.

Hundreds of coastal residents, including Khattak, who sustained damage from Ike in September 2008 have sued TWIA, claiming the insurer deceived policyholders.

Khattak's suit, one of the most prominent in the year-long battle, demands damages of hundreds of thousands of dollars beyond his policy's value.

According to court papers, TWIA anticipated litigation even before Ike, a Category 2 storm, made landfall based on prior experience and Ike's similarities to Hurricane Katrina.

Testimony from one of its vice presidents insists that "TWIA had experienced significant litigation in the wake of Hurricane Dolly and Hurricane Rita, and the weather reports regarding Ike suggested this storm would be much larger, leading to more losses and more disputes than either Rita or Dolly."

TWIA claims that newspaper articles from around the Texas Gulf Coast raised its awareness of possible suits and adds plaintiffs' attorneys' efforts to recruit clients justified its anticipation.

It also argues "even the Galveston judiciary was bracing itself for the Hurricane Ike lawsuits everyone was reasonably anticipating."

The response ultimately points out that TWIA's assertions of the work product privilege are amply supported by Texas law.

TWIA wants to have Khattak's objections to its assertions of privilege denied and an order protecting documents on its privilege logs from disclosure entered.

The Galveston County Daily News reported in a Nov. 11 article that approximately 900 out of 93,000 policyholders who filed claims post-Ike have sued TWIA.

Case No. 09CV0147

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