Mr. Boyd made his comment on Feb. 23his fourth-straight day of testimonyunder redirect examination from Barry Ostrager, the lead attorney for Swiss Reinsurance Company, the largest player involved in this case.

In earlier statements, Mr. Boyd had said that even though the Wilprop form was sent out to the marketplace to find carriers for the WTC program, the form governing the coverage was later switched to Travelers' by mid-July 2001. However, under questioning from Mr. Ostrager last week, Mr. Boyd said he couldn't remember ever seeing specific information officially written down to alert carriers about the change.

“Isn't it a fact, Mr. Boyd, that there is not a single piece of paper that states that as of any certain date [prior to Sep. 11, 2001], the Wilprop policy form is not going to be the policy form for the WTC placement” for the carriers in this trial? Mr. Ostrager asked.

Mr. Boyd replied: “I don't recall seeing a written document to that effect.”

The question of whether the Wilprop form was used by the carriers in their coverage binders is the principal issue in this federal trial, now in its fourth week.

In the court battle between Mr. Silverstein and 13 of his carriers, insurers contend they are bound to the Wilprop form (which defines “occurrence” and would limit the WTC claim to one event of $3.5 billion) rather than a Travelers form (which offers no such definition, and thus would be more beneficial to Mr. Silverstein's claim that when terrorists used two jetliners to bring down the WTC, it represented two separate occurrences for insurance purposes and a loss of some $7 billion).

Mr. Silversteins attorneys acknowledge that many insurers received only the Wilprop form for the WTC underwriting submission before they issued binders in the summer of 2001. However, they contend that Wilprop was only “a starting point,” adding that when Travelers insisted on using its own form, the Travelers document became “the operative form.” Final policy documents were not signed before the terrorist event.

Mr. Boyd from Willis was one of the central players during the WTC placement. However, last week he often sounded unsure and at times changed his testimony. He also volunteered extra commentaries that tested the patience of Judge Michael Mukasey, who is presiding over the case.

For instance, when Mr. Ostrager asked whetherin the specifications for underwriting submissions sent out to the marketplace in July 2001the term “manuscript form” referenced in them meant the Wilprop form, Mr. Boyd initially said, “That is correct,” adding, “In this case, the form that was attached when I went out with the specs was the guideline Wilprop policy form.”

Moments later, however, Mr. Boyd retracted his answer: “That's not correct. I misspoke… Because when we put manuscript form in a specification, we know there is going to be a form eventually that is tailored to that risk, and that's what we use in manuscript form. And we keep that language in there whether we attach Wilprop or something else.”

Several times during Mr. Boyds testimony, Judge Mukasey asked him to answer questions directly and later told him: “Mr. Ostrager is entitled to answers to questions that he poses. If you think that the question introduces a matter that is incomplete, then that is something that can be cleaned up by the other lawyers.” The judge added, “Otherwise, we are going to be here a lot longer than we would be.”

During his testimony, Mr. Boyd told the court he indeed considered Travelers to be “the lead insurer,” with its form governing the entire WTC insurance consortium. However, Mr. Ostrager countered Mr. Boyds claim by pointing out that Mr. Strachanwho had worked with Mr. Boyd on obtaining WTC insurancesaid in deposition testimony that “the whole concept of lead insurers and follow form has been introduced by the attorneys here.”

On the other hand, Mr. Strachan also said in deposition that Travelers “did rise to the top and start fulfilling all the requirements” he would anticipate from a would-be lead insurer, adding, “If you are asking me who I thought the lead insurer was going to be on the program, it is obviously Travelers.”

Nonetheless, he said, “there was never a lead insurer picked prior to 9/11; this is a creation by all you guys.” In responding to Mr. Strachans statements, Mr. Boyd told Mr. Ostrager, “I do see that. I don't agree with it.”

Last week, the Willis executive who oversaw the marketing of the WTC placement in the London and European markets also began his testimony. The witness, Paul Blackmore–who at the time of the WTC placement was a property insurance broker at Willis London office–told the court that the Wilprop form was the only form that had been sent to Swiss Re before the reinsurer signed a slip (or a binder) to offer coverage on July 9, 2001. However, Mr. Blackmore said that the Wilprop form was provided only as “a starting point.”

In other news on the case, there was controversy on Feb. 24 when Judge Mukasey raised the question of whether Mr. Strachan perjured himself when he was asked back as a witness the day before.

Mr. Strachan testified only for a brief period during his recall, to discuss a conversation he had on Sept. 12, 2001, with an insurance representative from GMAC, which loaned $563 million to Mr. Silverstein for his WTC lease. Mr. Strachan said that for the most part, he couldn't remember details of the conversation. When Judge Mukasey asked Mr. Strachan during his recall if he had any conversations with Mr. Silverstein's lawyers, Mr. Strachan said, “no.”

However, at the start of the hearing on Feb. 24, Marc Wolinsky, one of Mr. Silversteins lawyers, revealed that he had actually talked with Mr. Strachan before his recall appearance. “I wanted to clear up something from Mr. Strachan,” Mr. Wolinsky told the judge. “I did meet with him briefly before he took the stand yesterday.”

“You are telling me he perjured himself?” Judge Mukasey asked Mr. Wolinsky, who quickly answered: “No, your Honor, I don't think he perjured himselfI think he misunderstood your first question and then continued from there.” Mr. Wolinsky went on: “He understood the question to be, did any lawyer tell you how to testify today? and the answer to that, truthfully, is no. No lawyer told [Mr. Strachan] how to testify.”

Judge Mukasey didnt appear to be entirely convinced: “It sounds like [Mr. Strachan] had a guilty conscience This whole business is getting curiouser and curiouser; it really is.”

Reproduced from National Underwriter Property & Casualty/Risk & Benefits Management Edition, February 27, 2004. Copyright 2004 by The National Underwriter Company in the serial publication. All rights reserved. Copyright in this article as an independent work may be held by the author.

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