Florida has been fortunate in recent years to avoid substantial damage from hurricanes and tropical storms. However, there is no doubt that many Florida homeowners will be faced with the need to make a claim for damage to their home and personal property because of this peril in the future. While most policyholders probably assume coverage for hurricane damage is straightforward, the issue of coverage can be complicated. Homeowner’s insurance policies often place significant restrictions on coverage for water intrusion including wind-blown rain. Insurance companies often dispute coverage by claiming the damage was not caused by wind and deny the claim.
A recent case from the United States District Court, M.D. Florida, Jacksonville Division, Divine Motel Group v. Rockhill Insurance Company demonstrates the complex shifting of the burden of proof that often must be navigated when a hurricane damage claim is disputed. The insured purchased a small motel and secured an “all risk” policy. The property was badly damaged by Tropical Storm Debby five days after the purchase.
The policy included an exclusion for damage to “[t]he interior of any building or structure, or to personal property in the building or structure, caused by or resulting from rain, snow, sleet, ice, sand or dust, whether driven by wind or not, unless: (1) the building or structure first sustains damage by a Covered Cause of Loss to its roof or wall through which the rain, snow, sleet, ice, sand or dust enters ….”
In addition to this exclusion, the policy had provisions excluding the following: ordinary wear and tear, decay, deterioration, rust or other corrosion and maintenance. Finally, the policy also excluded losses caused by inadequate or faulty workmanship, construction, grading compaction, remodeling, and repair.
These exclusions also contained an exception for situations where an excluded cause of loss results in a covered loss. In this situation, the policy would compensate the homeowner for damage resulting from the Covered Cause of Loss.
The insurer retained HSA Engineering and Scientists to conduct an investigation and produce a report. HSA produced a “Cause and Damage Report” that indicated multiple leaks on the property and water damage “stemming from, or exacerbated by Tropical Storm Debbie." However, the report went on to conclude that the water intrusion was not caused by breaches of the building envelopes, such as broken windows, holes in walls or a damage roof caused by wind damage.
A separate report was prepared by Brian O’Conner, a licensed property and casualty adjuster. While O’Conner indicated he noticed openings in the roof which would allow water intrusion, it was the result of deteriorated sealants around plumbing jacks and other age-related deterioration. He specifically indicated that he did not find any evidence of wind damage that allowed penetration into the building. He did concede that there were several areas where “pieces of cap” were “pulled back.” He noted this could have been caused by wind. Another opinion was obtained from a registered Florida professional adjuster, senior structural engineer, and registered roof consultant. He did not find any evidence of wind damage and concluded that any breaches to the building envelope pre-existed the storm. In response to all of these opinions, the policy holder provided a report that indicated wind damage “could not be ruled out” as a cause.
Based on this evidence, the court considered the shifting burdens of the insured and insurer. Under the court’s analysis, the insurer had the burden of proof regarding an exclusion that limited coverage. The court found that the expert reports were sufficient to prove the existence of an exclusion based on the fact that the water intrusion was not caused by wind. Rather, the damage appeared to be caused by wear and tear and age-related deterioration, which was expressly covered by exclusions. The insured than had the duty to show that an exception to the exclusion applied. The insured tried to claim that the water damage was caused by wind that created openings for the rain to enter the property. However, the court rejected this claim because the only evidence presented to support this contention was that “wind could not be ruled out.”
This shifting of burdens based on a determination regarding whether rain or wind is the primary cause of loss when pursuing a property damage claim is complex and often contentious.
You can reach Miami Insurance Claims Lawyer J.P. Gonzalez-Sirgo by dialing his direct number at (786) 272-5841, calling the main office at (305) 461-1095, or Toll Free at 1 (866) 71-CLAIM or email Attorney Gonzalez-Sirgo directly at [email protected].
