Larry Silverstein holds a 99 year lease for the twin towers. The three-judge court sitting presently in New York is hearing argument as to whether the terror attacks were one “occurrence” or two. The difference is $3.5 billion.

Silverstein’s claim is twice the ostensible policy limit, on the ground that the attack of the center was two occurrences, not one. Otherwise, he would be stuck with the $3.55 face value of the policies.

Silverstein’s lawyer, Herbert Wachtell, told the appeals court that the law was so clear that his client deserved summary judgment on the issue, which a lower court judge had denied. Though he insisted the result was inescapable, Wachtell’s argument drew some incredulous questioning from the judges.

Wachtell’s argument goes like this: When Silverstein was negotiating with the insurance companies, his broker Willis Group Holdings propounded a form of insurance called the WilProp form. This form defined “occurrence” to mean “losses or damages that are attributable directly or indirectly to one cause or to one series of similar causes.” U.S. District Court Judge John Martin, whose decisions are on appeal, said this definition means that the attack was a single occurrence.

Wachtell disagreed, but he emphasized more his view that the WilProp form had been abandoned, and that Silverstein and the insurers were about to proceed with a form issued by Travelers Property Casualty. The Travelers form did not define occurrence at all and it was never formally agreed to by anyone. In fact, by Sept. 11, there was no final policy, just a series of preliminary agreements known as binders.

But Wachtell insisted that the progress of the negotiations indicate that they would have adopted the Travelers form, and, without a definition, the court must enforce the definition supplied by New York law. That definition would define the World Trade Center attack as two occurrences.

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