MEMORANDUM
This сase concerns an insurance coverage dispute between plaintiff National Railroad Passenger Corporation (“Amtrak”) and various defendant insurance companies (the “Insurers”) that arose in the aftermath of Super storm Sandy. During the pendency of this action, the parties filed .competing motions for summary judgment-and the Insurers moved to dismiss Amtrak’s demand for consequential damages resulting from the alleged breaches of the insurance policies. In two bottom-line orders, this Court (1) denied Amtrak’s motions requesting that the Court interpret the term “flood” to exclude storm surge and construe the policies to treat separate losses arising indirectly from a common cause as separate “occurrences”; (2) granted the Insurers’ motion requesting that the Court find that Amtrak’s damages arose only from “flood” and were all part of the same “occurrence”; (3) granted in part and denied in part the Insurers’ motion requesting that the Court find that Amtrak was not entitled to coverage for repairs of certain allegedly undamaged property; and (4) granted in part and denied in part the Insurers’ motion to dismiss Amtrak’s demand for consequential damages. See June 24, 2015-Order, ECF Dkt. No. 255; February 13, 2015 Order, ECF Dkt. No. 158.
Pertinent to the resolution of these motions are the following facts and allegations. Amtrak purchased a set of all-risk property insurance from the Insurers, as well as other non-defendant insurers, for the policy period spanning December 2011 to December 2012. See Plaintiffs Rule 56.1 Statement of Undisputed Facts in Support of Plaintiffs Motion for Partial Summary Judgment Regarding the Flood Sublimit (“Amtrak 12/18/2014 56.1 Statement”), ECF Dkt. No. 104, ¶2; see also, e.g., Affidavit of Rhonda Orín, ECF Dkt. No. 105, Ex. 7, Federal Insurance Co. Policy, at 1. The defendant- insurers partic
The primary layer policies each contain a sublimit for “flood,” a defined term in the policies. The sublimit provides:
With respect to the perils of flood and earthquake, this Company shall not be liable, per occurrence and in any one policy year, for more than its proportion of $125,000,000.... Even if the peril of flood or earthquake is the predominant cause of loss or damage, any ensuing loss or damage not otherwise excluded herein shall not be subject to any sub-limits or aggregates specified in this Clause [ ].
Id. ¶ 11. In the policies at issue in the parties’ respective summary judgment motions, flood was defined in one of two ways.
The term Flood shall mean' a temporary condition of partial or complete inundation of normally dry land from
(1) the overflow of inland or tidal waters outside the normal watercourse or natural boundaries
(2) the overflow, release, rising, backup, runoff or surge of surface water; or
(3) The unusual or rapid accumulation or runoff of surface water' from any sour[ce].
A Tsunami shall not be considered Flood as defined abovef.] Id. ¶ 8. The Court will refer to this as the “Minority Definition.” Rounding out the flood-related provisions, all policies grouped together “loss by ... flood” as a “single loss ... if’ (1) “any flood occurs within a period of the continued rising or overflow of any river(s) or stream(s) or other bodies of water and the subsidence of the same within their normal confines” or (2) “any flood results from any tidal wave or series of tidal waves caused by any one disturbance.” Id. ¶ 6.
On October 29, 2012, while the policies at issue were in effect, Superstorm Sandy made landfall near New York City. Sandy generated a “storm surge” that drove water from the East and Hudson Rivers onto the shore and led to the' inundation of Amtrak’s tunnels under the East River (referred to as the East River Tunnel or “ERT”), its tunnel under the Hudson River (referred to as the North River Tunnel or “NRT”), and certain other Amtrak
After the storm subsided, Amtrak undertook to pump the water out of the tunnels. Id. ¶ 55. Each tunnel consists of multiple “tubes” through which trains run. Id. ¶ 51. Amtrak removed the water from the South Tube in the NRT by November 1, but the water was not pumped out of thе three other inundated tubes—the North Tube in the NRT and two of the four tubes in the ERT—until November 4. Declaration of Glenn Sullivan (“Sullivan Decl.”), ECF Dkt. No. 196, ¶ 11. The process, which removed millions of gallons of water from the tunnels, left behind “chlorides” from the brackish water. Amtrak 3/30/2015 56.1 Counterstatement ¶ 55. At other locations, specifically, “at 11th Avenue” and at a “fan plant” in Long Island City, Amtrak removed the chlorides from its property, Declaration of Evan P. Lestelle (“Lestelle Decl.”), ECF Dkt. No. 181, Ex. A, Deposition of Cathy H. Rawlings (“Rawlings Dep.”), at 154:7-18, but it did not remove the chlorides from the ERT and NRT. Amtrak 3/30/2015 56.1 Counter-statement ¶ 55.
The chlorides that remained in the tunnels then allegedly combined with the surrounding environment to cause additional damage in what Amtrak describes as a “chloride attack.” See id. ¶ 56. According to Amtrak, “the damage process” brought about by the chloride attack “requires a combination of chlorides, humidity and oxygen.” Id.; see also id. ¶ 41 (“[T]he damage process requires a combination of steel, chlorides, humidity and oxygen.”). One of Amtrak’s experts explained the dаmage process as follows: “The salt [chlorides] in the presence of moisture and oxygen will cause corrosion of the rebars and ... as a result, there would be expansion of the rebar, of the metal, and that will put significant stresses on the concrete and it will cause the concrete to spall.” Declaration of Marshall Gilinsky (“Gilinsky Decl.”), ECF Dkt. No. 221, Ex. Q, Deposition of Nasri Munfah, at 252:25-253:7. Moreover, because the attack occurred only once the chlorides were “exposed to oxygen in a humid environment,” it was not possible for this damage to occur until Amtrak removed the water from the tunnels. Amtrak 3/30/2015 56.1 Counterstatement ¶ 61; cf. also Declaration of Michael Thomas, ECF Dkt. No. 194, ¶ 11 (“[S]teelreinforced concrete that is continuously submerged in sweater (e.g., pilings at the end of an oceanfront pier) will not deteriorate from chloride attack in that environment.”).
As part of the subsequent process of assessing its damages, Amtrak engaged experts to recommend repairs to the tunnels. Two of the proposed repairs for which Amtrak now seeks coverage are relevant to the instant motions. First, Amtrak seeks to replace the existing track
Against the background of the foregoing facts and allegations, the Court turns to the parties’ motions. The motions for summary judgment present the following four issues: first, whether the $125 million sublimit for losses resulting from the peril of “flоod” applies to' the damage Amtrak incurred from the storm surge that caused the inundation of Amtrak’s property; second, whether the damage from the chloride attack constitutes “ensuing loss” to which the flood sublimit does not apply; third, whether Amtrak’s losses arose from a single or multiple occurrences; and fourth, whether the policies obligate the Insurers to provide coverage for repairs to undamaged portions of the track bed and benchwalls.
The applicability of the $125 million sub-limit turns on whether the definitions of “flood” in the policies here at issue encompass inundation caused by storm surge. “When the question is a contract’s proper construction, summary judgment may be granted when its words convey a definite and precise meaning absent any ambiguity.” Seiden Associates, Inc. v. ANC Holdings, Inc.,
The Court finds that both definitions of the term “flood” unambiguously encompass inundation оf normally dry land that is caused by storm surge. Storm surge, as the parties agree, see supra footnote 4, pushes water beyond its usual borders and onto normally dry land. This fits easily within the Majority Definition, which defines flood as “a rising and overflowing of a body of water onto normally dry land,” and the Minority Definition,
Indeed, Amtrak concedes that the “colloquial” use of the word “flood” encompasses the type of inundation that Amtrak’s tunnels sustained during Superstorm Sandy. See Reply Memorandum of Law in Further Support of Plaintiffs Motion for Partial Summary Judgment Regarding the Flood Sublimit (“Amtrak' 1/15/2015 Reply Br.”), EOF Dkt. No. 141, at 3. Likewise, Amtrak acknowledges that the definitions of flood at issue mirror how dictionaries definе “flood.” See id. To take just one example, Merriam-Webster defines flood as “a rising and overflowing of a body of water esp. onto normally dry land.” Merriam-Webster’s Collegiate Dictionary 480 (11th ed.2003). See also, e.g., American Heritage Dictionary of the English Language 674 (4th ed.2000) (“[a]n overflowing of water onto land that is normally dry”). In the face of the general rule that, “[w]hen construing an insurance contract, ■the tests to be applied are common speech and -the reasonable expectation and purpose of the ordinary businessman,” Wai Kun Lee v. Otsego Mut. Fire Ins. Co.,
Nevertheless, Amtrak contends that the definitions of. flood in the , policies here exclude storm surge-caused inundation. According to Amtrak, “loss by the peril of flood” is a “different, phenomenon” from inundation caused by storm surge or wind-driven water, and the former “occurs when the volume of water in a, given watercourse is too great to be contained within that body of water, such as when heavy rainfall or snow melt causes a. river to rise and overflow onto normally dry land.”
Amtrak’s argument falters at each step. First and foremost, the interpretation of “flood” that Amtrak advances cannot be reconciled with the plain language of the policies. Even if the Majority Definition or Minority Definition could be read to contain a volume-based restriction when viewed in isolation, a contract must be construed as a whole, seе, e.g., CNR Healthcare Network, Inc. v. 86 Lefferts Corp.,
Moreover, even if tidal wave did not encompass storm surge, the language of the “singleJoss” provision, as stated above,, unambiguously contemplates that, “flood,” for purposes of these policies, encompasses floods caused by tidal waves, not merely, as Amtrak claims, floods caused by an increase in the volume of a given body of water from something such as snow melt or rain. The Court recognizes that the
Second, Amtrak’s consultation of other policies to prove the meaning of the policies in issue is inappropriate. Under New York law, extrinsic evidence should not be consulted unless an ambiguity exists. See, e.g., W.W.W. Associates, Inc. v. Giancontieri,
Third, the case láw on which Amtrak relies is inapposite. Public Service Enterprise Group, Inc. v. ACE American Ins. Co. addressed a policy that explicitly included “storm surge” within the definition of named windstorm. See 2015 N.J.Super. Unpub. LEXIS 620, at *11. Similarly, in Pinnacle Entertainment, Inc. v. Allianz Global Risks U.S. Insurance Co., the policy at issue “provide[d] specific coverage for Weather Catastrophe Occurrences,” a term defined to include “all weather phenomenon associated with or occurring in conjunction with the storm or weather disturbance, including, but not limited to flood.”
The third case to which Amtrak points the Court, Seacor Holdings, Inc. v. Commonwealth Ins. Co., requires a more extended discussion, but is equally unpersuasive. Although Amtrak did not cite Seacor in its briefing on this issue, at oral argument counsel for Amtrak took the position
In other words, Seacor is about causation, not about the scope of the term “flood.” In fact, the policy under consideration in Seacor defined flood to include “inundation ... whether wind-driven or not.” See id. at 679. This is the precise type of language that Amtrak suggests that the Insurers should have added if they wanted the sublimit to apply to Amtrak’s Sandy losses. And, indeed, the Fifth Circuit commented that the sublimit for flood would apply to inundation caused by wind-driven water so long as the wind was not part of “ ‘another covered peril, such as a Named Storm.’ ” Id. at 683 (quoting Six Flags, Inc. v. Westchester Surplus Lines Ins. Co.,
To the extent Amtrak raised Seacor to argue that the damages it sustained because of Superstorm Sandy were actually caused by the peril of named storm or windstorm, the argument, if not waived,
Thus, the Court concludes that both the Majority Definition and the Minority Definition of flood encompass inundation caused by storm surge and that, because Amtrak’s damages arose from such inundation, the flood sublimit applies.
This brings the Court to Amtrak’s argument that, even if the sublimit applies to some of Amtrak’s losses arising from Superstorm Sandy, loss resulting from the chloride attack constitutes “ensuing loss” that is beyond the reach of the flood sub-limit. “Ensuing loss” is a term of art in insurance law, and policies allowing for recovery of such loss “ ‘provided coverage when, as a result of an excluded peril, a covered peril arises and causes damage.’ ”
Amtrak’s theory is as follows. Amtrak first suffered “water damage” when the water from the East and Hudson Rivers inundated its tunnels and caused damage to various Amtrak-owned equipment. Thereafter, Amtrak pumped water out of the tunnels, but chlorides from the brackish water were left behind. The chlorides then combined with a certain level of humidity, with oxygen, and with the existing steel structures in the tunnel, to trigger a “chloride attack” that caused (and continues to threaten) damage to the steel structures.
The distinction that Amtrak draws between “water damage” and “chloride damage” is artificial, especially in the context of a 'sublimit that applies to “flood.” For loss to constitute “ensuing loss” from flood, the flood must cause some sort of damage that, in turn, creates a separate damage-causing agent that brings about “ensuing loss.” Cf. Platek,
Stripped of the labels designed to facilitate Amtrak’s ensuing loss argument, the “chloride attack” that Amtrak posits is corrosion. See Amtrak 3/30/2015 Br. at 19 (“[R]ust and corrosion from chlorides following a storm surge is ensuing loss here.”). When brackish water floods areas containing steel, corrosion “is a natural and expected” result. See Prudential Prop. & Cas. Ins. Co. v. Lillard-Roberts, No. 01 Civ. 1362,
“[T]he meaning of ‘occurrence’ must be interpreted in the context of the specific policy and facts of th[e] case.” Newmont Mines Ltd. v. Hanover Ins. Co.,
Any insured loss or several insured losses arising directly from one common cause, event or catastrophe and during the period of this insurance. If such loss or several losses are attributable to several causes in an unbroken chain of causation, the cause which triggered the chain of causation is understood to be the common cause, event or catastrophe. All such loss or losses shall be added up and the result shall be treated as one occurrence irrespective of the period of time or area within which such losses occur.
Insurers’ 3/9/2015 56.1 Statement ¶ 21. If, as the Insurers argue, the chloride damage “arfóse] directly from” the flooding, then all of Amtrak’s losses arose from a single occurrence pursuant to the first sentence of the “occurrence” definition. If, as Amtrak argues, the storm surge did not cause the chloride damage directly, it nonetheless caused the circumstances that brought about such damage. Thus, even assuming, arguendo, that Amtrak is correct in this aspect of its causation analysis, all losses are still part of a group of “losses ... attributable to several causes in an unbroken chain of causation” that traces back to the same “trigger.”
Amtrak’s attempt to avoid this result is, once again, in tension with the policy language. Amtrak argues that the reference to “such losses” in the second sentence of the “occurrence” definition refers back not just to “fa]ny insured loss or several insured losses” in the first sentence, but to the entire phrase “fa]ny insured loss or several insured losses arising directly from one common cause.” See Amtrak
To read the definition of occurrence in the manner Amtrak requests is to read it out of the policy. If the losses arise directly from the first link in the chain of causation, then the first sentence in the definition already applies, аnd there is no need for the second sentence. Hence, the second sentence, if it is not to be a mere redundancy, cannot be read to apply only when all losses already arise directly from one common cause; instead, it must be read to apply to losses that arise directly from different links in the same, unbroken chain of causation, but indirectly from the first link. While Amtrak complains that this construction is contrary to the “approach to causation” that New York courts apply, see Amtrak 3/30/2015 Br. at 23 n. 101, the Court disagrees. The manner in which the law of causation may apply to the interpretation of “occurrence” when the term is undefined is of little moment when, as here, the parties expressly agreed to a specific meaning. For the same reason, Amtrak’s reliance on Newmont Mines, which dealt with a policy that did not define “occurrence,” is misplaced. Accordingly, the Court rejects Amtrak’s argument that its damages arose from multiple occurrences and concludes that all of Amtrak’s damages from Superstorm Sandy are the product of a single occurrence.
The remaining summary judgment issue concerns Amtrak’s right to coverage for the cost of repairing undamaged portions of the track bed and benchwalls. Each of Amtrak’s insurance policies includes a “demolition and increased cost of construction” clause (the “DICC Clause”) that provides a limited right to coverage for undamaged property.
In the event of loss or damage under this policy that causes the enforcement of any law, ordinance, governmental directive or standard regulating the construction, repair, use, or occupancy of property, this Company shall be liable for:
(1) the cost of demolishing the undamaged property including the cost of clearing the site;
(2) the proportion that the value of the undamaged part of the property bore to the value of the entire property prior to loss;
(3) increased cost of repair or reconstruction of the damaged and undamaged property on the same or another site, limited to the cost that would have been incurred in order to comply withthe minimum requirements of such law or ordinance regulating the repair or reconstruction of the damaged property on the same site. However, this Company shall not be liable for any increased cost of construction loss unless the damaged property is actually rebuilt or replaced;
(4) any increase’ in the Time Element loss arising- out of the additional time required to comply with said law or ordinance.
See, e.g., Federal Insurance Co. Policy ¶ 8.A. The Insurers contend that portions of the track bed and benchwalls did not suffer any damage and that Amtrak has failed to offer any evidence, showing that the alleged losses it did .suffer-“cause[d] the enforcement .of any law, ordinance, governmental directive or standard” that require repairs to those undamaged portions and thereby triggеr coverage. Amtrak, which bears the burden of proving coverage, see Morgan Stanley Grp. Inc. v. New England Ins. Co.,
To begin with, Amtrak, under the circumstances presented here, need not comply with local fire ordinances. As the Insurers observe, 49 U.S.C. § 24902Q) provides that, “in connection with the construction, ownership, use, [or] operation ... of -... any land ... on which [an improvement that is part of the Northeast Corridor Improvement Project] is located,” Amtrak shall be exempt from any “State or local law from which a project would be exempt if undertaken by .the Federal Government or an agency thereof within a Federal enclave wherein Federal jurisdiction is exclusive.” “Section 24902(j) was intended to exempt Amtrak from burdens imposed by state and local governments.” City of New York v. Nat’l R.R. Passenger Corp., 06 Civ. 793,
Further, Amtrak has failed to raise a genuine issue of fact regarding whether the FRA will require that Amtrak make the proposed portal-to-portal repairs to the track bed and benchwalls. The Court accepts for these purposes Amtrak’s premise that the FRA has authority to regulate Amtrak, see Memorandum of Law in Opposition to Defendants’ Motion for Partial Summary Judgment Regarding Replacement of Benchwalls and Track Bed. ECF Dkt. No. 188, at 16. If, therefore, the
Further still, Amtrak also has not shown that the ADA mandates that it make the repairs to the undamaged portions of the track bed or benchwalls. Amtrak argues that replacement of thе current track bed with a direct fixation system, which will create a level walking surface, and replacement of the benchwalls, which will allow for the construction of new benchwalls- at the same height as the train floors, will increase accessibility for physically disabled persons. See Amtrak’s Bench-walls/Track Bed 56.1 Counterstatement ¶¶ 45-46. But while this goal is laudable, Amtrak has not shown it to be mandated by law. The relevant regulation provides,
When a public entity alters an existing facility or a part of an existing facility used in providing designated public transportation services in a way that affects or could affect the usability of the facility or part of the facility, the entity shall make the alterations (or ensure that the alterations are made) in such a manner, .to the maximum extent feasible, that the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon the completion of such alterations.
49 C.F.R. § 37.43(a)(1). The plain languаge of this provision allows alterations only to “part of an existing fácility.”
Accordingly, the Court concludes that the repairs that Amtrak desires to make to the undamaged portions of the track bed and the benchwalls are not required by local ordinances, the FRA, or the ADA, and Amtrak' is therefore not entitled to coverage for such repairs under the DICC Clause.
It is well established that, in general, “an insured may not recover the expenses incurred in bringing an affirmative action against an insurer to settle its rights under the policy.” New York Univ. v. Cont’l Ins. Co.,
Nevertheless, the Court allowed Amtrak’s claim for attorneys’ fees to go forward, albeit in a more limited manner. The New York Court of Appeals has suggested that an exception to the general rule prohibiting claims for attorneys’ fees may exist when the insured can make “a showing of such bad faith [on- the part of the insurer] in denying coverage that no reasonable carrier would, under the given facts, be expected to assert it.” Sukup v. State,
Accordingly, for the foregoing reasons, the Court issued its bottom-line Orders denying Amtrak’s motions for summary judgment; granting in part and denying in part the Insurers’ motions for summary judgment; and granting in part and denying in part the Insurers’ motion to dismiss.
Notes
. The Court, as a result of these rulings, also dismissed as moot the separate motion for summary judgment of defendant Partner Reinsurance Europe pic. See June 24, 2015 Order.
. Shortly after the Court issued its aforementioned Orders and an Order denying reconsideration, see June 30, 2015 Order, ECF Dkt. No. 331, the parties settled all remaining issues and proposed a final judgment that in effect allows appeal from certain of the issues resolved in those Orders and explained in this Memorandum. The Court adopted the proposal and entered final judgment on July 2, 2015.
. Defendant Westport Insurance Co. issued a policy that defines flood as "surface water, flood waters, waves, tide or tidal waters, sea surge, tsunami, the release of water, the rising, overflowing or breaking of defenses of natural or manmade bodies of water or wind driven water, regardless of any other cause or [e]vent contributing concurrently or-in any other sequence of loss.” Insurers’ 3/9/2015 56.1 Statement ¶ 9. Amtrak does not dispute that this definition covers at least some of the damages it sustained during Superstorm Sandy.
. The parties agree that " ‘storm surge’ is 'the rise and on-shore surge of sea water as the result primarily of the winds of the storm and secondarily of the surface pressure drop near the storm center,’ ” Defendant-Insurers’ Memorandum of Law in Support of Their Motion for Summary Judgment—Application of Flood and Occurrence Provisions, ECF Dkt. No. 179, at 9 (quoting Memorandum of Law in Support of Plaintiff’s Motion for Partial Summary Judgment Regarding the Flood Sublimit (“Amtrak 12/18/2014 Br."), ECF Dkt. No. 100, at 12 n. 29).
. In support of its motion for summary judgment on this issue, Amtrak asserted that the “recognizable meaning to 'a rising and overflowing’of a body of water onto normally dry land’ ... [is that it] identifies the particular circumstance when a body of water rises up and overflows its banks or boundaries onto the surrounding dry land,” which Amtrak claimed "is different from whеn a wind-driven storm surge drives water inland, far beyond any banks or boundaries.” Amtrak 12/18/2014 Br. at 13. .What Amtrak describes as the "recognizable méaning” of the Majority Definition is simply a near-verbatim restatement of its text, As for Amtrak’s contention that inundation caused by wind-driven storm surge is not flood because water ends up especially far from the banks, the Court sees no support for such a construction in the text of the policies or elsewhere.
. In its brief in opposition to the Insurers’ motion, Amtrak argued that storm surge is a separate peril and was the cause of Amtrak’s losses. See Amtrak 3/30/2015 Br. at 15.
. The Insurers, for 'purposes of summary judgment, do not contest the facts underlying Amtrak’s ensuing loss theory. Nevertheless, the Court notes that Amtrak has not presented a consistent theory óf how this "chloride attack” works.' In its counterstatement of facts, Amtrak asserts that the .chloride attack "requires a combination of chlorides, humidity and oxygen.” Amtrak 3/30/2015 56.1 Counterstatement ¶ 56. Amtrak then cites the deposition testimony of two of its experts as authоrity for this proposition. . One of those experts, however, testified that "electrochemical corrosion” occurs "the moment” when a track is ”power[ed]” if that track is "wet.” Gilinsky Decl., Ex. R, Deposition of Francisco Robles Hernandez, at 225:24-226:14 (emphasis added).
. Amtrak also asserts that, because this ensuing loss provision appears in the context of a sublimit rather than an exclusion, the normal reluctance to interpreting an "ensuing loss” provision to recapture coverage for an excluded risk should not apply. The Court sees no, merit in this argument. A reading of an "ensuing loss” provision that would render a sublimit meaningless is just as dubious as one • that would render an exclusion meaningless.
. Amtrak also suggests that the flood is not the efficient proximate cause of the chloride damage. To the contrary, as just explained, even if Amtrak is correct that the "water damage" is not the efficient proximate cause of the chloride damage, the peril of flood is.
. The Insurers, in their memorandum of law in support of their motion for summary judgment, made clear that, if the Court were to dеtermine that the storm surge-caused inundation constituted "flood" and that the chloride damage is not “ensuing loss”—which the Court now has—then dismissal of the excess insurers was warranted. See Defendant-Insurers' Memorandum of Law in Support of Their Motion for Summary Judgment-Application of Flood and Occurrence Provisions, ECF Dkt. No. 179, at 2. This is because (1) the excess insurers are not required to provide coverage until, at a minimum, the $125 million primary layer is satisfied, (2) rulings that the flood sublimit applied and that there was no ensuing loss cap Amtrak’s damages at $125 million for the "water damage” and "chloride damage,” and (3) the Insurers took the position that Amtrak suffered no other damage. Amtrak did not contest this point in its opposition brief, and the Court, when it issued its bottomline Order granting the Insurers’ motion, therefore dismissed the excess insurers. See June 24, 2015 Order. Following the issuance of that Order and notwithstanding its previous silence, Amtrak moved for reconsideration on the ground that it suffered non-flood—specifically, losses attributable solely to wind—that were not subject to the sublimit and that would have to be covered by the excess insurers if Amtrak recovered $125 million on the primary layer. The Court denied the motion. See July 1, 2015 Order, ECF Dkt. No. 331. What Amtrak attempted to frame as mere, "mistake, inadvertence, surprise, or excusable neglect,” see Fed.R.Civ.P. 60(b)(1), was anything but. Two Amtrak 30(b)(6) witnesses testified that Amtrak’s losses were confined to losses from the inundation and the alleged chloride attack. See Rawlings Dep. at 206:22-207:12; Lestelle Decl., Ex. B, Deposition of Randolph H. Goodman, at 182:07-183:04. Likewise, Amtrak failed to meaningfully dispute the Insurers’ contention in their Rule 56.1 statement that Amtrak suffered no non-water, non-chloride damage. See Amtrak 3/30/2015 56.1 Counterstatement ¶¶ 43, 46. In any event, Amtrak simply provided no valid excuse for its failure to identify these non-flood losses the first time around; instead, it conceded that, "with hindsight,” it "should have.” Memorandum' of Law in Support of Motion for Reconsideration of Order Granting Motion for Summary Judgment-Application of Flood
. Amtralc's decision to pump the water out of the tunnels may have accelerated this chain of causation, but it did not break it.
. Amtrak argues that, even if the DICC Clause does not apply, it can recover under a separate provision that requires the Insurers to cover the “replacement cost new” of damaged property. The Insurers’ motion did not request a ruling on the applicability of that provision, and so the Court declines to address it.
. “Facility” is defined as “all or any portion of buildings, structures, sites, complexes, equipment, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.” 49 C.F.R. § 37.3.
. Nor has Amtrak explained why the ADA requires replacement of the portion of the track bed under the tunnels but not replacement of the track bed that extends outside of the tunnels.
. The Insurers alsо request that the Court rule that Amtrak is not entitled to coverage for the portions of the track bed and bench-walls that were, according to the Insurers, not inundated. Construing the record in the light most favorable to Amtrak, the Court declines to make such a finding, as it requires that the Court equate a lack of inundation with a lack of damage, even though the brackish water (the alleged cause of the chloride damage) was pumped through portions of the tunnels that were not inundated.
. Amtrak also initially sought to recover for “unnecessary expenses imposed on Amtrak through the unduly protracted adjustment process'.” See Amtrak’s Memorandum of Law in Opposition to Defendant-Insurers’ Partial Motion to Dismiss, ECF Dkt. No. 106, at 7. The Court ordered Amtrak to file a more definite statement explaining how these expenses differed from "loss adjustment expenses” that Amtrak alleged it was entitled to under the express terms of its policies. See Amended Complaint ¶ 62; February 13, 2015 Order. In its more definite statement, Amtrak expressed that it had yet to "identif[y] other categories of unnecessary expenses.” See More Definite Statement, ECF Dkt. No. 166, ¶ 1.