Claims And Issues

OF ALL THE THINGS WE CAN CHOOSE TO FEAR ....

 State and Federal incentives to settle in dangerous places have allowed people in the United States to live dangerously with taxpayer money ...

... giving them cheap flood insurance if they reside in a flood zone, for instance, or offering subsidized or regulated home insurance policies even when they live in a wildfire area or near an eroding beach.  Ending such practices could allow homeowners to evaluate climate risks more clearly, potentially hastening moves to safer places.

          But flooding, heat waves and fires may lead to dramatic impacts in all Americans' lives.  "It's going to hit every single person," one scientist tells the author.  "No one escapes."

Jon Gertner, America is on Fire, Says One Climate Writer.  Should You Flee?, NEW YORK TIMES online March 22, 2024 (reviewing Abrahm Lustgarten, On The Move:  The Overheating Earth and the Uprooting of America (2024).

          Another person, the Sustainability Director for the City of Ann Arbor in Michigan, answered the author's question of whether her region feared climate change most, or people coming in:  "The people coming in, without a doubt."

          There is so much to fear in life and in the future, but let's do much, much better than being most afraid of each other.

The effects of claims from recent Catastrophes in various places across the world are the subject of § 2:13 by Dennis J. Wall in his co-authored book, CATASTROPHE CLAIMS / INSURANCE COVERAGE FOR NATURAL AND MAN-MADE DISASTERS (Thomson Reuters Nov. 2023).

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved.

.@Travelers #ArcticDrilling #InsureOurFuture

AN OPEN LETTER TO THE TRAVELERS INSURANCE COMPANY AND ITS SHAREHOLDERS:

The Travelers must consider the risks to its shareholders before agreeing to insure drilling operations for oil and gas in the Arctic.

To begin with, the weather conditions are variable and fickle in the Arctic. The worst can come in an instant. The worst conditions include at one and the same time sudden freezing, gale winds, enormously choppy seas, and rain and snow -- all simultaneously.  This greatly increases the risk not simply of a loss but of a catastrophic loss which would not be in the best interests of your shareholders to insure.

Second, the drilling operations are in places that necessitate long supply lines which are subject to the weather and the geographical conditions as well, such as ice packs in the sea and frozen ground where drilling operations take place on ground.  The geography of Arctic drilling also increases not just the risk of a loss but it increases the risk of a catastrophic loss.

Third, the oil and gas industry collectively is known as a group of companies and individuals which routinely take risks in order to do their work.  In the Arctic, however, the risks of this work are not simply losses in the ordinary course of their business.  In the Arctic, the risks are huge and the likely losses would be catastrophic.  Drilling inherently involves taking a risk; drilling in the Arctic is reckless and involves the kind of risk to which you should not expose your shareholders.

For all these reasons, the risks to The Travelers shareholders outweigh the benefits by huge margins and drilling operations in the Arctic pose too great a risk to the company to insure.

Thank you.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

BURY THE WIRES, STOP THE FIRES.

PG&E, the California utility company, is swiftly imposing third-world status on what was previously one of the world's leading economies.  See Douglas MacMillan and Faiz Siddiqui, PG&E's Role in Sonoma Fire Questioned as Power Outage Frustrations Grow, WASHINGTON POST posted online on Tuesday, October 29, 2019.  PG&E's policy of what we in Florida would call "rolling blackouts," meaning cut off the electricity for hours every so often, has apparently resulted in billions of dollars in damages to people and businesses in California.  It has disrupted lives in ways that people living there could not previously imagine.  They live without air conditioning in the heat, unable to close up their buildings to stop the smoke from getting in and choking their breathing and endangering their lives if God help them they have conditions like asthma.  They have no telephone service and no cell phones and all the batteries run out of power during these blackouts.  When they have no telephone service, they obviously cannot contact anyone else by telephone.   They cannot even telephone for emergency assistance when they have no telephone service.  So far.  More to come.

Some third-world countries could do better.

PG&E says that it is doing this because it is afraid that its overhead wires may cause more fires if they come down especially if the wires cannot stand up to the fierce California winds at this time of year.

So bury the wires and stop the fires.  PG&E's conduct in this affair is the greatest single advertisement for working on the infrastructure of this country.   Start by burying the wires that cause the fires.

Please Read The Disclaimer. ©2019 Dennis J. Wall.  All Rights Reserved.

Download CI 10.30.19.

 

WIND 2019: LET THE CONFERENCE BEGIN!

On its website, the Windstorm Insurance Network (WIND) describes itself as "the only member association to bring together both defense and policyholder professionals to connect, learn, and engage on important topics in the property/windstorm insurance claims industry."  I will be taking a look myself this week.

Starting tomorrow, Thursday the last day of January in 2019, and scheduled to continue on Friday, February 1, 2019, I will be attending the sessions I signed up for a couple of months ago.  They include catastrophe claims handling and Hurricane damages coverages.  I would like to meet up with many participants especially the defense and policyholder professionals that make up the announced membership of WIND, in other words, the people who represent the people who make and deny insurance claims every day but especially after Hurricanes and earthquakes and wildfires.

The 20th Annual Windstorm Insurance Conference is set for Jan. ​30 - Feb. 2, 2019 at the Walt Disney ​Dolphin Resort.  (I will not be staying there.  I will drive back and forth from my home in the Orlando area.  It's a lot less expensive.)

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.

"TELL ME WHAT DEMOCRACY LOOKS LIKE?"

Protecting the southern border, Sunday, November 25, 2018.

(Sandy Huffaker/AFP/Getty Images)

Please Read The Disclaimer.

FOLLOW THE MONEY 2018.

This is what follow the money looks like in 2018.

Hurricanes are coming to the United States from the East and from the West, from the Atlantic and from the Pacific.  One of those storms, Florence, is about to strike the Carolinas and Virginia, the federal government is pretty certain.  (Many other people are certain, too, but this is a tale of how the federal government spends our money in 2018.)

The coming of hurricanes means that FEMA, the United States Coast Guard, and other agencies will have a lot to do to save lives and protect property.

With hurricanes on the horizon, the federal government's Department of Homeland Security has secretly taken some $10 Million from FEMA.

They have surreptitiously taken $29 Million from the Coast Guard.

All told, without publicity they have reportedly taken $200 Million from other agencies to build prison camps for immigrant children and their families.

Saving lives and protecting property vs. prisons for children.

What sort of people would choose building prisons in the face of hurricanes?

Follow the money.  The answer is at the end of the rainbow, where we always heard it would be.

See, e.g., Isaac Stanley-Becker, "Trump Administration Diverted Nearly $10 Million From FEMA to ICE Detention Program, According to DHS Document" (Washington Post Online, posted on Wednesday, September 12, 2018).   "This is nothing to play with."  That is how the coming of Hurricane Florence was reportedly described by William "Brock" Long, the current FEMA Administrator, quoted in Reis Thebault, "'Nothing to Play With:'  FEMA Chief's Hurricane Florence Alarm Draws on Vivid Memories of Hugo" (Washington Post Online, posted on Tuesday, September 11, 2018).

Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved.

Webinars About to Start for Consumer and Tenant Lawyers!

The Florida Bar Public Interest Law Section's Consumer and Tenant Working Group of the Florida Bar is putting on webinars starting soon!  These webinars are intended for consumer and tenant attorneys.

Here is a link to the first webinar coming up soon, titled Representing Consumers and Tenants when Hurricanes or other States of Emergency Happen on Wednesday, July 25, 2018:  

https://attendee.gotowebinar.com/register/6051705794319507201 

Thanks for your interest!

FIFTY YEARS LATER AND OUR BIG CONCERN IS HURRICANE COVERAGE?

Don't have an experienced insurance coverage lawyer, or just want to check out the information about hurricane coverage?  See Alexander Nicoli, "What to Know About Your Insurance Before Hurricane Damage Strikes" (posted on The Street online, June 4, 2018).

Please Read The Disclaimer.  © 2018 Dennis J. Wall.  All Rights Reserved.

POSTSCRIPT TO THE FLORIDA NURSING HOME STORY.

In a postscript to the story of the Florida nursing home concerning liability insurance coverage questions for various actors, the Florida governor's office says that all the calls to the governor's cellphone for help during Irma were returned.

We cannot listen to the calls themselves, actually. The calls were recorded.

But they have been deleted.

All the calls were returned though, the governor's office says. And anyway, they say, the calls did not indicate an emergency. See Caitlin Ostroff, "Voicemails From Nursing Home Where 11 Died Were Deleted by Governor's Office" (Tampa Bay Times online, posted on Monday, September 25, 2017).

As noted in the previous articles posted here, for its part the nursing home reportedly says no, its calls for help were not answered. Read the hyperlinked sources in the previous articles posted here. You can see for yourself whether what the nursing home says that it said in its voicemail messages, reflected an emergency, or not. Parenthetically, the nursing home also says that it also called 911. In a statement, the Florida governor's office says in effect that was too late and no-one should confuse the Florida governor's cellphone with 911. See Kirby Wilson, "Rick Scott Fires Back at Critics in Statement on Hollywood Nursing Home Deaths" (Tampa Bay Times online, posted Tuesday, September 26, 2017). The linked article appends a copy of the Florida governor's office's statement. A review of the statement does not reflect why exactly the Florida governor did give out his cellphone number.

Other people made calls and left voicemails at the Florida governor's cellphone about the overheated conditions facing the residents of the Florida nursing home. No clear word yet on whether the calls that other people made to the governor's cellphone, in addition to the calls made by the nursing home itself, reflected the emergency at the nursing home during Irma, but since all the calls have all been deleted, we cannot listen to any of them, apparently.

Please Read The Disclaimer. ©2017 by Dennis J. Wall. All Rights Reserved.

DEATH AND COVERAGE IN FLORIDA: A CONTINUING STORY.

First installment, "They Called But No-One Came:  Liability Insurance Coverage Questions":  Monday, 09.18.17.  The second of three installments focused on liability insurance coverage questions regarding the Florida power company, "IS YOUR GENERATOR WORKING?" also at http://insuranceclaimsissues.typepad.com/insurance_claims_and_issu/2017/09/is-your-generator-working-the-first-installment-they-called-but-no-one-came-liability-insurance-coverage-questions-monda.html .  In this the final installment, we will address liability insurance coverage questions concerning the Florida nursing home.

Here is the story that continues to develop behind our insurance coverage questions.  I cautioned from the beginning of the first installment that this is a developing story,  that we do not know all the facts, and that much more remains to be reported as time goes on.

Those cautions have been borne out in the past week since I posted my first article in this series.  There are now eleven people who reportedly died after Hurricane Irma struck Florida and specifically struck a Florida nursing home.   The nursing home's air conditioning went out.  It got hot.  Very hot.

Eleven people have died from the heat.

A number of people and corporations played a role in this story.  Together we addressed liability insurance coverage questions regarding the Florida governor in the first installment, and in the second installment we addressed some liability insurance coverage questions surrounding the Florida power company.  In this last installment, together we will address liability insurance coverage questions involving the Florida nursing home.  To write again what I wrote at the outset:  What follows is from the reporting so far on what happened.   The reporting is not complete even now.  There are competing stories on lots of points.  As yet, only some things have been finalized, but they are enough to see the outlines of some important liability insurance coverage questions.

The focus of this series of articles is not on whether there may be any good claims of potential liability, but on whether there are claims to potential liability insurance coverage.

1. The Florida nursing home: Questions of Liability.

The Florida nursing home seems to be a target of opportunity for placing blame on what went wrong at the nursing home that resulted in eleven people dying when the nursing home's air conditioning failed during Hurricane Irma.  Yet it should never be overlooked that there are many actors in this play.

"Somewhere in between, the misery of a nursing home teetering toward tragedy was reported to every official channel, but no attempt was made to transfer the residents to a safer place, or even to the air-conditioned hospital practically next door."  Ellen Gabler, Sheri Fink & Vivian Yee, "At Florida Nursing Home, Many Calls for Help, But None That Made a Difference" (New York Times online, posted Saturday, September 23, 2017), also available at https://www.nytimes.com/2017/09/23/us/nursing-home-deaths.html?hpw&rref=us&action=click&pgtype=Homepage&module=well-region&region=bottom-well&WT.nav=bottom-well.

After so many people died, the Florida governor insisted that his Florida Agency for Health Care Administration adopt emergency rules requiring nursing homes to have backup generators.  But that is not the way it was before Irma and before so many people died.

There were calls to require emergency backup generators at Florida nursing homes long before Hurricane Irma was a little breeze somewhere in the Atlantic Ocean.  The expense of operating a Florida nursing home caused these calls to go without any meaningful response.  To put it another way, money talked and people in power listened.

"Very few nursing homes had generators powerful enough to keep the air-conditioning running. In 2006, Florida lawmakers considered requiring nursing homes to maintain generators to ensure comfortable temperatures during disasters. But the industry raised concerns about the cost, according to The Miami Herald, and the bill died. Last week, after the Hollywood Hills deaths, Mr. Scott announced new rules requiring those generators."  Ellen Gabler, Sheri Fink & Vivian Yee, New York Times supra.

Certainly, the Florida nursing home is experiencing its share of allegations that it was either the sole cause or a contributing cause of these people's horrible deaths.  The current owners of the Florida nursing home have run a facility that received below-average ratings from Medicare even before Irma.  And they have experienced allegations related to Medicare and nursing homes before Irma, as well, including allegations of kickbacks.  See Ellen Gabler, Sheri Fink & Vivian Yee, New York Times supra (reporting that the current owners of the Florida nursing home "were among defendants who paid $15.4 million in 2006 to settle federal and state civil claims that they had paid kickbacks to doctors in exchange for patient admissions.").

No evidence of previous wrongdoing including kickbacks, even if admissible, would prove the allegations of wrongdoing now.  What evidence there is to prove the allegations now will depend in the end on what evidence is uncovered or introduced in the inevitable lawsuits that are the result of these tragic deaths.  See, e.g., "Report:  Before Deaths, Nursing Home Called Rick Scott's Emergency Number Three Times, To No Avail" (Tampa Bay Times staff, posted online on Friday, September 15, 2017), also available at http://www.tampabay.com/news/politics/stateroundup/report-nursing-home-called-rick-scotts-emergency-number-three-times-to-no/2337665.

("On Friday, a Miami law firm filed a complaint against the Hollywood facility ....); "'Red Flag' Calls Signaled Post-Irma Deaths at Nursing Home" (Associated Press copyrighted story published online in The New York Times on Saturday, September 16, 2017), also accessible at https://www.nytimes.com/aponline/2017/09/16/us/ap-us-hurricane-irma-nursing-home-deaths-.html (reporting that a family member of a surviving resident "hired an attorney after her 93-year-old mother became severely dehydrated on Wednesday.").

Our focus here remains on the liability insurance coverage questions arising from this tragedy.  In this final installment of a continuing series of articles, our particular focus here is on liability insurance coverage questions which confront the Florida nursing home.

2. Liability Insurance Coverage Questions and the Florida nursing home.

The liability insurance coverage questions surrounding the Florida nursing home in this circumstance are similar to the liability insurance coverage questions that surround the Florida power company which were previously asked here.

The questions that follow are not all the questions that can or will be raised concerning the Florida nursing home's liability insurance coverages.  Some of these questions may not apply.

"Occurrence":  Was there an accident neither expected nor intended from the standpoint of the insured, in this instance, neither expected nor intended from the standpoint of the Florida nursing home?  This is where the history of Medicare inspections and evaluations of the Florida nursing home may prove relevant.

In the context of Directors and Officers coverage if any for the operators of the Florida nursing home:  Is there any covered conduct at issue on the part of the Florida nursing home's directors and officers?  Alternatively or additionally, is any potentially "covered conduct" excluded because of the availability of liability insurance coverage, if any, under other liability insurance policies available to the directors and officers?

The number of occurrences, if any.  Was there one or were there 11 or more "occurrences," if any?  Was there one occurrence (if any) because, say, there was at least arguably one practice and procedure at the Florida nursing home which resulted in the damages that might be complained of here?  Or were there at least 11 occurrences (again, if any) because so far 11 people have died?  Or if there were any occurrences under the insurance policies at issue, were there more than 11, counting all the people who were injured but who have not died?

Time will tell, and it bears repeating:   Over time the answers to liability insurance coverage questions like these will likely be given by the Florida courts.

Please Read The Disclaimer.  ©2017 by Dennis J. Wall.  All Rights Reserved.

"IS YOUR GENERATOR WORKING?"

The first installment, "They Called But No-One Came: Liability Insurance Coverage Questions": Monday, 09.18.17. This is the second of three installments. This installment will address liability insurance coverage questions regarding the Florida power company. In the final installment, we will address liability insurance coverage questions concerning the Florida nursing home.

Here is the story behind our insurance coverage questions:

Eight people died in a nursing home in Hollywood, Florida during Hurricane Irma. The nursing home's air conditioning went out. It got hot. Very hot.

Eight people died from the heat.

A number of people and corporations played a role in this story. We addressed liability insurance coverage questions regarding the Florida governor on Monday, and today we address some liability insurance coverage questions surrounding the Florida power company. Our last installment will address liability insurance coverage questions involving the Florida nursing home. Their continuing stories will be featured here throughout the coming week, along with their related liability insurance coverage questions.

What follows is from the reporting so far on what happened.  The reporting is not complete even now. There are competing stories on lots of points. As yet, only some things have been finalized, enough to see the outlines of some important liability insurance coverage questions.

The focus of this series of articles is not on whether there may be any good claims of potential liability, but on whether there are claims to potential liability insurance coverage.

1. The Florida power company: Questions of Liability.

Eight people died in a nursing home in Florida when the air conditioning went out. "Survival also depended on phone tag between nursing-home administrators, state officials and utility providers." Aaron Davis, Katie Zezima & Mark Berman, "Officials at Nursing Home Where 8 Died Say They Called Florida Gov. Rick Scott 3 Times For Help" (Washington Post via Chicago Tribune posted on Friday, September 15, 2017), also available at http://www.chicagotribune.com/news/nationworld/ct-florida-nursing-home-deaths-rick-scott-20170915-story.html.

The nursing home called the power company when a transformer blew out and the air conditioning stopped. This was the first of several calls the Florida nursing home says it made to the Florida power company. "Report: Before Deaths, Nursing Home Called Rick Scott's Emergency Number Three Times, To No Avail" (Tampa Bay Times staff, posted online on Friday, September 15, 2017), also available at http://www.tampabay.com/news/politics/stateroundup/report-nursing-home-called-rick-scotts-emergency-number-three-times-to-no/2337665.

The Washington Post report via the Chicago Tribune linked above reflects that "[t]he nursing home provided ticket numbers for service requests that it had placed with" the Florida power company. "The Post was able to confirm two of the requests using state records and the utility's website." Id.

The same reporting further reveals what was not widely reported previously: The nursing home personnel were not the only ones who called the Florida power company. At least one relative of a nursing home resident, perhaps joined by others, "repeatedly called" the power company. "I told [the power company] the generators were going to give up soon. And it happened." Id. [Emphasis added.]

Finally, people also called 911, more than once, before anyone died. "'Red Flag' Calls Signaled Post-Irma Deaths at Nursing Home" (Associated Press copyrighted story published online in The New York Times on Saturday, September 16, 2017), also accessible at https://www.nytimes.com/aponline/2017/09/16/us/ap-us-hurricane-irma-nursing-home-deaths-.html.

The Associated Press story which has just been hyperlinked above, summarizes the calls to the Florida power company to restore power for the air conditioning in the sweltering heat: "The [nursing home] said the hurricane knocked out a transformer that powered the air conditioning. The center said in a detailed timeline of events released Friday that it repeatedly was told by [the Florida power company] that it would fix the transformer, but the utility did not show up until Wednesday morning, hours after the first patients began having emergencies."

For its part, before it stopped issuing statements or answering questions the Florida power company said that the nursing home "was supposed to have an operational generator."

As noted, the reporting is not complete even now. However, not one report has recorded that the power company ever asked this question to anyone at the nursing home:

Is your generator working?

The power company said in a statement using the passive voice, that "'other critical facilities were identified as higher priorities.'" Tampa Bay Times, supra.

"The utility refused to answer any specific questions about the nursing home case." Associated Press, supra. While the Florida power company conveyed "'our deepest sympathies,'" the power company "did not answer questions regarding the calls the nursing home said were made." Washington Post via Chicago Tribune, supra.

"'At the time this incident occurred, you have to remember when the first patients were dying, there were 150 nursing homes across the state that did not have power.'" Jim Defede, CBS4News, Miami, quoted in Tampa Bay Times, supra.

 

2. Liability Insurance Coverage Questions and the Florida power company.

The questions that follow are not all the questions that can or will be raised concerning the Florida power company's liability insurance coverages. Some of these questions may not apply. Answers, if any, may be forthcoming in newly filed lawsuits. See Tampa Bay Times, supra ("On Friday, a Miami law firm filed a complaint against the Hollywood facility ....); Associated Press, supra (reporting that a family member of a surviving resident "hired an attorney after her 93-year-old mother became severely dehydrated on Wednesday.").

Depending on the type of policy involved, including whether it is a "claims made and reported" policy or an "occurrence-based" policy, the foremost question of liability insurance coverage regarding the power company may involve this one:

"Occurrence": Was there an accident neither expected nor intended from the standpoint of the insured, in this instance, neither expected nor intended from the standpoint of the Florida power company?

Like unto it, the question arises in the context of Directors and Officers coverage if any: Is there any covered conduct at issue on the part of any of the power company's directors and officers? Or is such coverage excluded by the availability of liability insurance coverage, if any, under other liability insurance policies available to the directors and officers?

Is there potential liability of the Florida power company here only for breach of contract, which is ordinarily excluded under standard liability insurance policies? Or is the power company's potential liability the kind that it would have even if there had been no contract?

Finally, now a very significant question from the outset: the number of occurrences, if any. Was there one or were there 8 or more "occurrences," if any? Was there one occurrence (if any) because for example there was one practice and procedure at the power company which resulted in the damages that might be complained of here? Or were there 8 occurrences (again, if any) because 8 people died? Or if there were any occurrences under the insurance policies at issue, were there more than 8, counting all the people who were injured but who did not die?

Time will tell, and over time the answers to liability insurance coverage questions like these will likely be given by the Florida courts.

Please Read The Disclaimer. ©2017 by Dennis J. Wall. All Rights Reserved.

 

HOMEOWNER'S EXCLUSIONS TRUMP HOMEOWNER'S ROOF COLLAPSE CLAIM.

In Gallegos v. Safeco Ins. Co. of Am., 646 F. App'x 689 (10th Cir. 2016), both the Tenth Circuit and the District Court needed only a little evidence to apply standard homeowner's policy exclusions and deny all coverage to the policyholders' roof collapse claim.

The loss.

Eugene and Diane Gallegos owned a home in Colorado.  Their home "suffered a partial roof collapse."  It was not disputed that the roof collapsed after snow and ice accumulated on the roof.   Gallegos v. Safeco Ins. Co. of Am., 646 F. App'x 689, 690 (10th Cir. 2016).

The Gallegoses were not the first owners of the house.  There was evidence in the record that the aged framing system was not strong enough to support the weight of the heavy snow.

This evidence came from the testimony of the Gallegoses' own expert engineer.  See Gallegos v. Safeco Ins. Co. of Am., 646 F. App'x 689, 692 (10th Cir. 2016).   The engineer also testified that in his professional opinion the roof was in no condition to support the weight of the snow before the roof collapsed, whether or not Mr. Gallegos 'made modifications' or the pre-existing roof was untouched.  In either case, he testified, "'the wood was very damaged or deteriorated, however you want to put it.'"  The roof would not hold whether the wood was original to the house or not.    See Gallegos v. Safeco Ins. Co. of Am., 646 F. App'x 689, 692-93 (10th Cir. 2016).

The relevant exclusions.

The Gallegoses' homeowner's policy contained several standard exclusions "for wear and tear; deterioration; and faulty design, construction, repair, and maintenance."  Gallegos v. Safeco Ins. Co. of Am., 646 F. App'x 689, 693-94 (10th Cir. 2016).

The policy also contained a standard anti-concurrent cause exclusion.  "That provision states that the policy does 'not cover loss caused directly or indirectly by any of [the specifically excluded perils]. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.'”  Gallegos v. Safeco Ins. Co. of Am., 646 F. App'x 689, 693 (10th Cir. 2016).

The anti-concurrent cause exclusion barred all coverage for the roof collapse.

The appellate and trial courts gave great weight in this case to the homeowner's policy's anti-concurrent cause exclusion.  Although there does not appear to have been much if any evidence that the Gallegoses somehow failed to maintain the roof "framing system," there was the opinion testimony of their own engineering expert that "faulty design, construction, repairs and maintenance" so that in the eyes of the Tenth Circuit there was improper maintenance or construction which was excluded, not to mention undisputed evidence of wear and tear, and deterioration.

The Tenth Circuit affirmed a summary judgment of no coverage here on the ground that improper construction or maintenance or both contributed to collapse of the Gallegoses' roof, and thus exclusions in insurance policy combined with the anti-concurrent cause exclusion to preclude the homeowners' recovery in this case.   Gallegos v. Safeco Ins. Co. of Am., 646 F. App'x 689, 693 (10th Cir. 2016).

The wear and tear exclusion applies to normal wear and tear.

The Gallegoses argued that their homeowner's carrier could not rely on the wear and tear exclusion in the policy because there was no evidence that the wear and tear to the framing system supporting their roof was "abnormal" wear and tear.

The Tenth Circuit ruled that the standard wear and tear exclusion in the homeowner's policy at bar does not require evidence of abnormal wear and tear.  Accordingly, the carrier did not need to prove that wear and tear contributing to homeowners' roof damage was abnormal in order to rely upon the wear and tear exclusion in that case.  Gallegos v. Safeco Ins. Co. of Am., 646 F. App'x 689, 694 (10th Cir. 2016).

The carrier's disclaimer letter raised the relevant exclusions.

Further, the courts held that the homeowner's insurer's disclaimer letter denying all coverage was adequate to the task of raising and reserving each of the relevant exclusions on which the carrier relied to deny the homeowners any coverage.  Gallegos v. Safeco Ins. Co. of Am., 646 F. App'x 689, 695 (10th Cir. 2016).

The letter itself was quoted or summarized at pages 691-92 and in footnote 2 on page 691 of the Tenth Circuit's opinion.  In general terms, the disclaimer letter in this case went well beyond any general reservation of any exclusions which may come to the carrier's attention at any time.  The letter in this case mentioned all the relevant exclusions as grounds for denying all coverage, the main one being the policy's anti-concurrent cause exclusion.

The exclusions could not be waived by the carrier by its conduct here.

Under the applicable law, the insurance carrier could waive a forfeiture of coverage which was otherwise available under the policy (such as in the case of a violation of a policy condition like notice, for example), but it did not waive any exclusions from coverage which did not exist even if its disclaimer letter might not mention them.  This is the rule under Colorado law which applied to this case, wrote the Tenth Circuit.  Gallegos v. Safeco Ins. Co. of Am., 646 F. App'x 689, 695 (10th Cir. 2016).

It is also the prevailing rule in other jurisdictions far from Colorado, including Florida for example.

The lessons to be drawn from this decision are pretty clear, including that the anti-concurrent cause exclusion is a weapon of mass exclusion as it were.  Another lesson to be drawn here is that coverage decisions in one part of the United States often reflect coverage outcomes in other cases in other parts of the United States.

Please Read The Disclaimer.  ©2016 by Dennis J. Wall.  All Rights Reserved.

FLORIDA TIPS FOR "MANAGING POST-STORM INSURANCE CLAIMS FILING PROCESS."

Storm Clouds Over the Gulf of Mexico.  Copyright by Dennis J. Wall.  All Rights Reserved.

Counseling people and businesses with insurance coverage claims caused by storm damage?  Do you have hurricane claims of your own?  See these smart tips from Florida by way of the Florida Department of Financial Services and its Office of Insurance Regulation:  Press Release, "Consumer Alert:  Managing the Post-Storm Insurance Claims Filing Process," or http://www.myfloridacfo.com/sitePages/newsroom/pressRelease.aspx?id=4723.

Please Read The Disclaimer.  © by Dennis J. Wall.  All Rights Reserved.

Postscript to help flood victims: ...

A Postscript to EMERGENCY INSURANCE RULE FOR LOUISIANA POLICYHOLDERS IMPACTED BY FLOODING … AGAIN, published here on Monday August 22, 2016.

A complete assembly of links to organizations that can help Louisiana flood victims is presented by the distinguished professionals at Political Connections in "Aid Across Acadiana."

Please.  Join the many people who are helping the Louisiana flood victims if you can!  Thank you.

Please Read The Disclaimer.  Copyright by Dennis J. Wall.  All Rights Reserved.  

EMERGENCY INSURANCE RULE FOR LOUISIANA POLICYHOLDERS IMPACTED BY FLOODING … AGAIN.

Hurricane Seen From Space.  Image Courtesy of NASA.

The Louisiana Insurance Commissioner has issued Emergency Rule 27 as a result of the recent devastating flooding in many places there.  Policyholders in certain parishes are being granted additional time to pay insurance premiums, certain policyholders are being given additional time to submit documentation in support of their claims, and all insurance companies' powers are suspended to cancel or terminate policies due to noncompliance with conditions by policyholders who live in areas ravaged by the flood waters.  Rule 27 is available on the Department's website at www.ldi.la.gov.

The Department issued a Press Release dated August 18, 2016 that described Emergency Rule 27 as reminiscent of rules issued by the Department after Hurricane Gustav in 2008 and again after Hurricane Isaac in 2012.  The Press Release would have been accurate if it had recited that Rule 27 is also similar to measures taken after Hurricanes Katrina and Rita in 2005.  See Dennis J. Wall, § 2:13, "Claims Handling Practices Issues:  Recent Catastrophes in Louisiana, Mississippi, and California," in Catastrophe Claims:  Insurance Coverage for Natural and Man-Made Disasters (Thomson Reuters West 2016).

People in Louisiana may well wonder whether they are doomed to ask this continuing question in our post-climate-change era about emergency insurance rules issued as a result of natural disasters like floods and hurricanes:  "Are we doing this again?"

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ROCKY MOUNTAINS FORECASTING HURRICANES IN ATLANTIC. THEY'RE AT IT AGAIN.

The Rocky Mountain Gang is at it again.  See Barry K. Sullivan, "Atlantic Hurricane Outlook Raised by Colorado State Forecasters" (Bloomberg Online, posted July 1, 2016).  Here is the web address of the report:  http://www.bloomberg.com/news/articles/2016-07-01/atlantic-hurricane-outlook-raised-by-colorado-state-forecasters.

What we colloquially refer to here as "the Rocky Mountain Gang" is the paid group of forecasters assembled at Colorado State University to predict hurricanes in Florida and the other Atlantic and Gulf Coast areas.  George W. Bush and his Administration were the first to think it is a good idea to pay the Rocky Mountain Gang for this service.  With Federal Tax Dollars of course.  So far they are still about the only people who think it is a good idea. 

There are a few flies in the trough, however.  There already is a Federally-funded Hurricane prediction center located in the National Climatic Data Center in Asheville, North Carolina, a division of the Federal National Oceanic and Atmospheric Administration.

Another fly in the ointment is that while the Colorado State forecasters are at least consistent, they are consistently wrong.  There are too many examples to list here.  Take a look in the "Catastrophe Claims" and "Hurricanes" categories of this blog.

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, Co-Author of "Catastrophe Claims / Insurance Coverage for Natural and Man-Made Disasters" (Thomson Reuters 2016).  (This hyperlink is to the Thomson Reuters Online Store.)  All Rights Reserved.

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Rocky Mountain Gang Probably Predicts No Hurricanes in Rocky Mountains ...

CONTINGENT BUSINESS INTERRUPTION INSURANCE COVERAGE.

The current ABA TTIPS Property Insurance Coverage Committee Newsletter features a lead article by Dan Millea, "Preparing For The Unpredictable and the Unmanageable:   Catastrophes and Contingent Business Interruption Coverage."  Another, less official title for Dan's article is something like 'Most Everything You Wanted to Know About Contingent Business Interruption Insurance Coverage.'  A valuable addition to your insurance coverage research bank.

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, Co-Author of "Catastrophe Claims / Insurance Coverage for Natural and Man-Made Disasters" (Thomson Reuters 2016), which addresses Business Interruption Coverage and Contingent Business Interruption Coverage among other insurance coverage issues.  (This hyperlink is to the Thomson Reuters Legal Solutions Online Store.)  All Rights Reserved.

CLASS ACTION, CYBERACCESS TO PERSONAL IDENTIFICATION INFORMATION, AND HEALTH INSURANCE.

For two months, from December, 2014 through January, 2015, Anthem, Inc.'s database of policyholder information was breached by cyberattackers.  Anthem itself said so.

The cyberattackers accessed the "Personal Identification Information, or 'PII'," of approximately 80 Million policyholders.  Anthem itself said so.

This was not the first time.  Anthem and Wellpoint, "Anthem's former trade name," experienced "problems with data security" in 2009 and in 2013, as a Federal Court put the matter in In re Anthem, Inc. Data Breach Litigation, No. 15-MD-02617-LHK, 2016 WL 589760, at *1 - *2 (N.D. Cal. February 14, 2016 [yes, dated on a Sunday]).

To be continued.

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, author of "Insurance Claims and Issues" (forthcoming Thomson Reuters 2016).  All rights reserved.

CATASTROPHE CLAIMS ISSUES AT THE WIND 2016 CONFERENCE!

Topics include lots of issues involved with handling Catastrophe Claims:  Lost income, Property Law, Hail Damage, among the rest.

More to come!

P.S.

Let's hope there are NO Catastrophe Claims to come!

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, Co-Author of "Catastrophe Claims / Insurance Coverage for Natural and Man-Made Disasters" (Thomson Reuters 2016).  All Rights Reserved.

MICHIGAN LEGISLATORS' REINSTATEMENT OF REPEALED EMERGENCY MANAGER LAW WAS ARROGANT, …

BUT WAS IT COVERED?

Insurance coverage issues spring up out of the current Michigan Emergency Manager story.  Again putting aside immunity issues for the moment, readers will recall that the voters of Michigan repealed Michigan's Emergency Manager law, then the people in control of the much smaller Michigan Legislature reinstated it.

If Michigan's Emergency Manager had been left where the people left it, namely, repealed and void, presumably Governor Snyder's appointed Flint Emergency Manager would not have been able to 'save money' by paying money for an 'alternative' source of water.

The disastrous decision to cut expenses of course resulted in poisoning children.  So, if the legislators had not rather arrogantly reinstated the Michigan Emergency Manager law in time for the disaster, the disaster in all likelihood would not have occurred.

Is causation in fact a reason for insurance coverage here? See Paul Egan, "Is Emergency Manager Law to Blame for Flint Water Crisis?" (Detroit Free Press Online, posted October 25, 2015).

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, Co-Author of "Catastrophe Claims / Insurance Coverage for Natural and Man-Made Disasters" (Thomson Reuters November, 2015).  All Rights Reserved.

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GOVERNOR SNYDER'S SECOND APPOINTMENT OF SAME EMERGENCY MANAGER: "KNOWN LOSS" OR "FORTUITOUS?"

FLINT, MICHIGAN GOVERNOR RICK SNYDER AND EARLEY CAME LATE.

(SORRY, COULDN'T RESIST).

Putting aside immunity issues for the moment, insurance coverage issues spring up out of the current Michigan Emergency Manager story.  I want to avoid claims that have already been alleged, so I will take a look at a claim that has not yet been alleged, to my knowledge:  Negligent retention.

If Governor Rick Snyder, cost-conscious to a fault, could be exposed to liability concerning his continued retention of Emergency Manager Darnell Earley, first in Flint and then in Detroit where Mr. Earley is equally cost-conscious it seems, would there be coverage or an exclusion from coverage under these known facts?

Test results were apparently known that Flint was drawing water from a less expensive but polluted source, although it is equally apparent that the test results were not only ignored but also that the people who reported them were dismissed and disrespected.  Yet, Governor Rick Snyder kept Flint's Emergency Manager on the payroll, so to speak.

Insurance coverage in the face of these facts?  What do you think?

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, Co-Author of "Catastrophe Claims / Insurance Coverage for Natural and Man-Made Disasters" (Thomson Reuters November, 2015).  All Rights Reserved.

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CLASS ACTION COMPLAINT OF FLINT RESIDENTS OVER WATER POISONING BOONDOGGLE.

CLASS ACTION COMPLAINT OF FLINT RESIDENTS OVER WATER POISONING BOONDOGGLE.

A class action complaint was filed on behalf of the residents of Flint, Michigan in the U.S. District Court for the Eastern District of Michigan in November, 2015.  They are complaining about their children being poisoned as a result of decisions that were made by people who wanted very much to save money such as on the cost of water children drink.  I learned of this from Wikipedia, not from any news outlets.  Here is the complaint:  Download Mays v Snyder and Earley et al Class Action Complaint Doc. No. 1 Filed Nov. 13 2015 (E.D. Mich. No. 5.15.cv.14002).

I did learn from the Detroit Free Press Online that two other complaints were recently filed in January, 2016.  The two new complaints seem to address niche aspects, you might say, of the decision by  Michigan Governor Snyder's appointed protégé, the Emergency Manager of Flint, Darnell Earley, to 'save money' by switching water sources.  (Mr. Earley is currently Governor Snyder's Emergency Manager of the Detroit Public School District.)

Note in the class action complaint that Governor Snyder is sued only for prospective injunctive relief and only in his official capacity -- and not for damages.  See ¶ 11 on page 5.   Note also that Mr. Darnell Earley, in contrast, is sued individually.  See ¶ 20 on page 8.  There are many other defendants and we shall exercise care in considering potential insurance coverage issues as a result of a total of three complaints at this time -- a number which is certain to grow.

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, Co-Author of "Catastrophe Claims / Insurance Coverage for Natural and Man-Made Disasters" (Thomson Reuters November, 2015).  All Rights Reserved.

AND NOW, NAME FLINT'S EMERGENCY MANAGER WHO MADE WATER DECISION, PLEASE.

It has been harder than it seems like it ought to be to learn the name of the Flint, Michigan Emergency Manager who decided to save money by switching Flint's water supply.  The switch was made to stop drawing treated water from Lake Huron via Detroit in about April, 2014, so as to draw from what is certainly now known as the polluted, untreated Flint River instead.  (Whether it was known at the time is the subject of some litigation.)  Flint's Emergency Manager was appointed by Michigan's Republican Governor, Rick Snyder, to save money, as you know.

The Detroit Free Press identified the Emergency Manager at the time of the switch:  Mr. Darnell Earley.

Mr. Earley is no longer Flint's Emergency Manager.

Last January he was appointed the Emergency Manager of Detroit Public Schools by Michigan's Governor Snyder.  Paul Egan, "Is Emergency Manager Law to Blame for Flint Water Crisis?" (Detroit Free Press Online, posted October 25, 2015).

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, Co-Author of "Catastrophe Claims / Insurance Coverage for Natural and Man-Made Disasters" (Thomson Reuters November, 2015).  All Rights Reserved.

WHEN CARRIERS COLLIDE: DISCOVERING EXPERTS' INVESTIGATION OF SANDY CLAIMS.

Insurance carriers should always be prepared by retaining experts who are not just experienced in publicly presenting themselves and their testimony about the particular claim, but who also understand what is involved in investigating claims of the kind involved in the particular case.         

    Further, it has been held that the parties, particularly the insurance companies who retain these experts, should be prepared to provide appropriate discovery concerning them, as well as being prepared to provide discovery concerning their investigations and evaluations in the case.  For example, it has been held that insurance companies handling catastrophe claims after Sandy were required to provide the following requested production:

 

any drafts, redlines, markups, reports, notes, measurements, photographs and written communications related thereto—prepared, collected or taken by any engineer, adjustor or other agent or contractor affiliated with any defendant, relating to the properties and damage at issue in each and every case, whether such documents are in the possession of defendant or any third party.[1]

---

[1] In re Hurricane Sandy Cases, No. 14 MC 41, 2014 WL 7011069, *1 (E.D.N.Y. December 11, 2014).  [Emphasis in original.]  This was an order issued by a Committee of three United States Magistrate Judges managing “more than 1,000 Hurricane Sandy cases”.  The Committee of Magistrates approved the previous ruling of Magistrate Brown in one of the cases that the defendant insurance company would be required to respond to the quoted production request, and affirmed that this discovery ruling applies to all of the Hurricane Sandy cases.

 

---

 Reprinted with the permission of Thomson Reuters West from the manuscript of the author's 2015 Supplement chapters in “Catastrophe Claims:  Insurance Coverage for Natural and Man-Made Disasters” ©2015 by Thomson Reuters West.

 

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WILL CITIZENS BRIDGE THE FORCE PLACED "GAP"?

"It's probably not addressed as much as it needs to be, but it is a real problem."

Mr. Archie Grant, South Broward (Florida) Board of Realtors, quoted by Dan Sweeney, Sun Sentinel (Ft. Lauderdale), December 16, 2014.

    Mr. Grant was testifying before Florida State Representatives from Broward County, Florida (Ft. Lauderdale) who are members of an insurance subcommittee in the Florida House of Representatives.  He told them about people whose homeowner's insurance policies supposedly lapsed and whose lenders force-placed insurance on them with much higher premiums.   In some cases, Mr. Grant observed, the lenders controlled the force-placing insurance carriers.

    A member of the Broward delegation to the Florida House (and a very scarce commodity in Broward County, a Democrat), reportedly suggested that perhaps Citizens Property Insurance Corporation "'can help bridge that gap until that person can get back into the private marketplace'."  Id.

    The lawmakers are planning to meet with Citizens' representatives this month to discuss their ideas about the increasing costs of wind and flood insurance for Florida residents.

The author is at work on a book on "Lender Force-Placed Insurance" which the American Bar Association has scheduled for publication this Spring. 

The author wishes to thank Mr. Dan Luby of Orlando for alerting me to this story.  Mr. Luby is an avid reader of this insurance blog and his input is always gratefully appreciated.

Copyright 2015 by Dennis J. Wall.  All rights reserved.

ADJUSTING SANDY SANCTIONS IN NEW YORK.

    A United States District Judge has affirmed a Magistrate Judge's imposition of sanctions for conduct in the course of adjusting and litigating Sandy claims.  The Magistrate Judge's decision was commented on here.  "Federal Court in New York Investigates Sandy Adjusting," November 12, 2014.

    The District Judge laid out the entire situation concisely at the beginning of a longer opinion.  The Judge's opening is well worth reading in full:

Pending before the Court is defendant's appeal of an order issued by Magistrate Judge Gary R. Brown on November 7, 2014, In re Hurricane Sandy Cases, ___ F.R.D. ___, 2014 WL 5801540 (E.D.N.Y. Nov. 7, 2014)(the “November 7 Order”), addressing the disclosure of draft engineering reports on insured properties allegedly affected by Hurricane Sandy, and imposing evidentiary sanctions on defendant Wright and monetary sanctions on its counsel for failing to obey discovery orders and causing undue delay to these proceedings. The sanctions arose from (1) a failure by defendant and its counsel to disclose an initial written report (dated December 9, 2012) by George Hernemar, an engineer from U.S. Forensic (“USF”), who had inspected the home at issue and concluded that it had been damaged beyond repair by Hurricane Sandy, and (2) the conduct by defendant's counsel at a subsequent evidentiary hearing before Magistrate Judge Brown to determine how the undisclosed initial report was modified into a second subsequent report, dated January 7, 2013 (disclosed to plaintiffs), which eliminated certain observations by the engineer and reached the exact opposite conclusions—namely, that the defects in the home had not been caused by the storm, but rather were due to long-term deterioration. In particular, following the evidentiary hearing, Magistrate Judge Brown found, inter alia, the following: (1) defendant and its counsel violated their obligations to comply with this Court's discovery orders by failing to produce the initial engineering report; (2) the process, in this particular case, that led to the alterations of Hernemar's observations in the initial report and the reversal of the report's conclusions was “flawed,” “unprincipled,” “reprehensible,” and “highly improper”; (3) the failure to disclose the initial report resulted, in this case, in “unreasonably prolonging this litigation, imposing unnecessary costs upon plaintiffs and further contributing to the unwarranted delays in resolving this claim”; and (4) “given the discovery failures by defendant's counsel, the unreasonable response by defendant to the allegations, and counsel's shocking attempt to curtail inquiry during the hearing, it is reasonable to charge the costs associated with the hearing to defendant's counsel.” (November 7 Order, at 13, 15–25.)

For the reasons set forth in detail below, the Court affirms Magistrate Judge Brown's November 7 Order in its entirety. More specifically, there is no basis for this Court to conclude that Magistrate Judge Brown's findings or his sanctions were clearly erroneous or contrary to law, as would be required for a reversal. Having carefully reviewed the record, it is absolutely clear to this Court that the process that led to the modification of the initial engineering report (including the removal of observations that were inconsistent with the new conclusions) was flawed, and the concealment of that initial report and the process that led to the new report (including conduct at the evidentiary hearing) has prejudiced plaintiffs in terms of delay and costs in this litigation, such that the sanctions were warranted.

 

In re Hurricane Sandy Cases (Raimey v. Wright Nat'l Flood Ins. Co.), ___ F. Supp. 3d ___, 2014 WL 7399179, *1 (E.D.N.Y. December 31, 2014)(Bianco, United States District Judge).  [Emphasis added.]

 

Please Read The Disclaimer.  Copyright 2015 by Dennis J. Wall.  All rights reserved.  No claim to Original U.S. Government Works.

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THEY WERE AGAINST IT BEFORE THEY WERE FOR IT: Fladell, THE FIRST PART.

THEY WERE AGAINST IT BEFORE THEY WERE FOR IT: Fladell, THE THIRD PART.

FEDERAL COURT IN NEW YORK INVESTIGATES SANDY ADJUSTING.

    Mr. George Hernemar is a licensed engineer.  His employer, an engineering firm, sent Mr. Hernemar to inspect approximately 50 homes for damage Sandy may have caused to them in 2012.

    The engineering firm that Mr. Hernemar worked for was retained by the policyholders' insurance company to investigate their claim of damage.  The policyholders owned a rental house adjacent to their own home.  Upon inspection of the rental house, Mr. Herneman affirmatively wrote that he observed among other things that Sandy structurally damaged the building.

    "However, plaintiffs never received this report from their insurance carrier."  Instead, the policyholders received a report written afterward, which contained the conclusion that, among other things, "the subject building was not structurally damaged".  In re Hurricane Sandy Cases (Raimey v. Wright National Flood Insurance Co.), 2014 WL 5801540 *3 (E.D.N.Y. November 7, 2014)(Brown, U.S.M.J.).  [Emphasis by the Court.] 

    Although Mr. Hernemar took responsibility for both reports and contended that the first one was only a draft and not a real report, the Court noted Mr. Hernemar's testimony that the "'rewrote my report'" and that the second report did not exist until after Mr. Hernemar had a telephone conversation with a representative of his employer.

    The first Hernemar report surfaced in the case only by "happenstance," the Court said.  It was apparently not produced in discovery.  The second Hernemar report was produced in discovery and, as noted, the policyholders received the second Hernemar report, but not the first one.

      "Based upon this [second] report, defendant refused to pay for any structural damage to the home."  In re Hurricane Sandy Cases (Raimey v. Wright National Flood Insurance Co.), 2014 WL 5801540 *3 (E.D.N.Y. November 7, 2014)(Brown, U.S.M.J.).

    Under all the evidence before it in this case, the Court concluded that adjustment of Sandy claims is apparently ripe for investigation:

   Against this backdrop arises the instant dispute, which has exposed reprehensible gamesmanship by a professional engineering company that unjustly frustrated efforts by two homeowners to get fair consideration of their claims. Worse yet, evidence suggests that these unprincipled practices may be widespread.

 In re Hurricane Sandy Cases (Raimey v. Wright National Flood Insurance Co.), 2014 WL 5801540 *1 (E.D.N.Y. November 7, 2014)(Brown, U.S.M.J.).

    In addition to adjusting practices in all of the consolidated Sandy-claim-cases, the Court considered the case before it, concluding that in the case at bar (1) the defendant insurance company "is prohibited from supporting its defenses or opposing plaintiffs' claims with any expert testimony other than that of George Hernemar," and (2) the plaintiffs' counsel may file a motion "for reimbursement from defendant's counsel for all reasonable costs associated with this motion, the hearing and all related briefing, including attorneys' fees, travel costs and transcription costs".

    With respect to this case and all of the other pending consolidated Sandy cases, the Court further ruled: 

3. Within thirty days of this Order, defendants in all Hurricane Sandy cases shall provide plaintiffs with copies of all reports described in CMO 1 not previously produced—plus any drafts, redlines, markups, reports, notes, measurements, photographs and written communications related thereto—prepared, collected or taken by any engineer, adjustor or other agent or contractor affiliated with any defendant, relating to the properties and damage at issue in each and every case, whether such documents are in the possession of defendant or any third party.

In re Hurricane Sandy Cases (Raimey v. Wright National Flood Insurance Co.), 2014 WL 5801540 *15 (E.D.N.Y. November 7, 2014)(Brown, U.S.M.J.).

    Clearly, the Court in this case was not pleased.  Yet no-one who reads this opinion and considers this ruling on the evidence can reasonably second-guess the decision.  The ruling, like the unpleasant taste left by the apparent conduct at issue here, was a result of the evidence in the record.

Please Read The Disclaimer.  Copyright 2014 by Dennis J. Wall.  All rights reserved.  No claim to Original U.S. Government Works.

HURRICANE HUNTING ... WITH DRONES AND OTHER AIRCRAFT WITHOUT PILOTS.

    A huge leap has recently been taken in Hurricane hunting.  You are probably very familiar with the "Hurricane Hunters," aircraft crews which fly into and out of Hurricanes at continuing risks to their lives, in order to tell us about how our lives are likely to be affected by the storms.

    A little-reported story, however, is that NASA has budgeted funds for several years of successful tests involving remotely piloted aircraft which do much the same thing.  But at a much lower risk to human life.

    The NASA project involves the use of drones powered by jet engines to fly over Hurricanes, drop sensors, and analyze the results.  Already, the project is a success.   See Scott Dance, "Mission to Analyze Hurricanes From Above Coming to Quiet End / NASA Goddard Scientists Use Unmanned Aircraft to Learn Why Tropical Storms Form and Fade" (Baltimore Sun Online September 26, 2014).  (The title of this linked article refers to this year's project coming to an end because the Hurricane season is also coming to an end this year.  It does not refer to funds being removed from the NASA budget for this project.)

    The positive effects on insurance coverage availability for Hurricanes and Catastrophes are enormous.

    If the project is allowed to succeed.

Please Read The Disclaimer.  Copyright 2014 by Dennis J. Wall.   All rights reserved.  No claim to original U.S. Government Works or Baltimore Sun copyrighted material.

 

LABOR DAY, CALIFORNIA EARTHQUAKE, SAME MESSAGE: HOME IT.

   On this Labor Day, we are all mindful of the earthquake that just struck California.  In the past, we have been mindful of the Hurricanes that strike the Southeast.  As we work to provide for our families, repair the damage, and build a better home for ourselves and our neighbors, let's take the time in the very near future to do our annual review of our homeowner's coverage.  See Ann Carrns, "After Napa Jolt, Quake-Proofing Your Homeowner's Insurance" p. B5, col. 1 (New York Times Nat'l ed., "Personal Business," Saturday, August 30, 2014).

   Remember Labor on this Day!

Please Read The Disclaimer.  Copyright 2014 by Dennis J. Wall.  All rights reserved.

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FLIGHT 17: BUT IS IT AN EXCLUDED WAR?

   The standard war exclusion in Homeowner's Policies excludes coverage ...

 

to bodily injury or property damage caused by war, including any undeclared war, civil war, insurrection, rebellion, warlike act by a military force or military personnel, destruction or seizure or use for a military purpose, and including any consequence of any of these.

 

[Boldface in original; italics added for emphasis.]  If this exclusion or one substantially like it was applied to the wreckage of Flight 17, including the deaths, injuries and damages to the passengers and crew and all their families, there may be a question whether it would exclude coverage.

   It clearly matters who "done it" in the case of the destruction of Flight 17.

   What happened and is still happening in Eastern Ukraine qualifies as an undeclared war, civil war, insurrection, rebellion, warlike act, destruction or seizure, all words used in this exclusion.

   One coverage question that would arise with respect to this exclusion is whether who done it was a military force, military personnel, or acting for a military purpose.

   It seems hard to argue that killing a civilian airliner and all of its passengers and crew was an act of war.

 

See also Keith Bradsher, "Air Insurers Worry After Malaysia Airlines' Latest Crash," p. B1, col. 2 (New York Times Nat'l ed., "Business Day" Section, Tuesday, July 22, 2014).

 

© 2014 by Dennis J. Wall.  All rights reserved.  No claim to original U.S. Government works.

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