Allianz Global Risks U.S. Insurance v. State
161 N.H. 121
N.H.2010Background
- Allianz Global Risks U.S. Insurance and Henkel sued NH and MA for inverse condemnation stemming from flooding of Henkel's Seabrook property.
- May 2006 rainfall caused Henkel property flooding; Allianz paid >$2 million; Henkel bore a $500,000 deductible.
- 1-95 highway embankment and a deceleration lane near Henkel's property, built in 1948/1967 and 1998 respectively, were central to the dispute.
- Experts disagreed: Henkel’s expert blamed the highway embankment and culvert for ponding; state expert blamed Henkel’s culvert under Henkel’s building.
- Trial court granted summary judgment for defendants, ruling no taking because (i) temporary loss of use wasn’t a taking, (ii) act of God caused damage, (iii) no causal link to defendants’ conduct.
- On appeal, the NH Supreme Court affirmed, holding no taking under NH law for the real property, and no inverse condemnation for personal property.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether temporary takings are compensable. | Henkel argues temporary takings are compensable under NH law. | State/Commonwealth contend temporary takings require inevitability and direct invasion; here they did not show a taking. | Temporary taking is compensable under NH law, but not in this case. |
| Whether there was a permanent taking of Henkel's personal property. | Henkel seeks inverse condemnation for loss of personal property destroyed by flood. | NH has not recognized inverse condemnation of personalty; conduct here was not intentional invasion. | Personal property destruction not cognizable as inverse condemnation. |
| Whether the flood damage was caused by act of God or defendants' actions. | Defendants' construction and design contributed to flood conditions. | Damage resulted from rare, extraordinary rainfall; no causal connection to the defendants' actions. | No genuine issue of material fact showing government-caused taking; acts of God alone not a taking here. |
Key Cases Cited
- Smith v. Town of Wolfeboro, 136 N.H. 337 (N.H. 1992) (temporary takings recognized in NH)
- Burrows v. City of Keene, 121 N.H. 590 (N.H. 1981) (inverse condemnation framework in NH)
- Sundell v. Town of New London, 119 N.H. 839 (N.H. 1979) (government action may incapacitate property use though not permanently taken)
- Ridge Line, Inc. v. United States, 346 F.3d 1346 (Fed. Cir. 2003) (takings requires direct invasion and substantial/intermittent invasions can be takings)
- Cary v. United States, 552 F.3d 1373 (Fed. Cir. 2009) (government interference with property rights to be substantial and frequent to amount to takings)
- Sanguinetti v. United States, 264 U.S. 146 (Supreme Court, 1924) (overflown water must be a permanent invasion to constitute a taking)
- Capitol Plumbing & Heating Supply Co. v. State of New Hampshire, 116 N.H. 513 (N.H. 1976) (taking can occur with recurring or non-recurring events depending on rights taken)
- Warner Elektra/Atlantic Corp. v. County of DuPage, 991 F.2d 1280 (7th Cir. 1993) (destruction of personal property may be consequential damage, not a taking)
- Barnes v. United States, 538 F.2d 865 (Ct. Cl. 1976) (government-induced flooding can be a taking if inevitable and permanent)