Articles Posted in Hurricane Litigation

If you live along the coastline of Louisiana, you are no stranger to hurricane season. Every year residents and business owners try and prepare for hurricane season by securing their properties and following the suggestions and guidelines of authorities. Even with the best preparations, homes and businesses can be severely damaged or destroyed after Mother Nature has her way. When these disasters strike, do you know if you have the right insurance coverage to cover the damages?

If you have a business, you most likely have a general liability insurance policy and possibly a Business Interruption Insurance policy. A Commercial General Liability policy is a type of insurance policy that provides coverage to a business for bodily injury, personal injury, and property damage caused by the business operations, products, or injuries that occur on the business premises. Business Interruption Insurance is insurance coverage that replaces business income lost in a disaster. Business Interruption insurance is usually attached to a property or business owner’s policy, since it cannot be purchased on its own.

In order for a Business Interruption claim to be covered because of hurricane damage several things will have to be proven:

Has your adjuster denied your claim because he said you didn’t have proper coverage? Many insurance companies deny claims on the grounds that the damage incurred is excluded under your policy. This happens often with hurricanes when an adjuster claims damage was caused by flooding, when in all actuality it was caused by wind damage and heavy rainfall through that damage.

Wind damage is generally covered under a homeowner’s policy and can cover damage such as fire, lightning, or hail. A homeowner’s policy can also cover damage including a fallen tree that damages a roof or windows of a home.

Water Damage is also generally covered under a homeowner’s policy, but with very specific exceptions. Water damage that would be covered in a homeowner’s policy would be damage such as a busted pipe, or a leaking roof. It generally does not cover damage from water coming into the home from the ground since this would be considered flooding. A separate flood policy must be purchased to cover this type of damage. It would include water that seeps into the home from a heavy rainfall or as the result of a lake, ocean or river overflowing onto the property.

After Hurricane Ike, residents of Galveston and Bolivar Islands discovered they did not have the insurance their agent had told them they purchased. To recover, a claim must be brought against the agent.

Defense – Coverage Not Obtainable

Sometimes, the defendant in an action against an insurance agent or broker for failure to procure insurance coverage will attempt to avoid liability by showing that the client’s failure to obtain the desired coverage was not caused by any wrongdoing on the defendant’s part because the desired coverage was not obtainable from any source. Where such a claim is made, the defendant generally will bear the burden of proving it as an affirmative defense. Stevens v Wafer. The burden of proof is said to be placed on the defendant because an insurance agent or broker is in a better position than the client or the intended beneficiary to determine the availability of insurance coverage.
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On April 13-16, 2010, Tom W. Thornhill participated with the other lead members of the slab committee for the multi-district litigation and class action suits against Texas Windstorm Insurance Association (“TWIA”) to depose TWIA experts on causation issues. The defense of TWIA is that the damages to the homes on Galveston and Bolivar Islands are not covered. TWIA statistically calculated damages in the amount of 11.2% of the losses without looking at the homes based on faulty science which when explored in deposition showed fingerprints of mismanagement that will expose TWIA to punitive damages for bad faith conduct. The law in Texas allows recovery under the provisions of Section 541 & 542 in the Insurance Code and the Deceptive Trade Practices Act. TWIA insurance policy holders are encouraged to take notice of the statutory time period in which to file suit. Texas allows only two years within which to file suit. Thornhill Law Firm has formed a joint venture in Texas to handle these suits named, Thornhill, Shrader & Burdette, PLLC, and can be reached at 1-800-989-2707.

A reality of living on the Gulf Coast is the yearly threat of hurricane season. While many bypass us, the threat of a direct hit requires property owners to plan for the future, whose plans typically involves insurance policies. Insurance companies hold an important role in society, they are the ones we turn to when disaster strikes, as they represent themselves in large-scale advertising campaigns. Their job is to assess the chance of any given peril occurring, and determining a value a policyholder should pay for the right to receive a benefit should the covered event occur. Some perils carry such high rates of risk, private insurers are unwilling to write policies regarding that event. With some exceptions, flood and certain water-related events are typically not covered under an all perils insurance policy, or flood is excluded under an all risks policy.
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Rule 403 of the Federal Rules of Evidence states that “although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403 (Emphasis added). The application of this rule has been hotly contested in current insurance litigation, with specific regard to the admissibility of videos documenting Hurricane Katrina conditions in a different geographic location from where the property damage at issue in the case occurred.
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