First-Party Property and Business Interruption Coverage After Hurricanes Harvey and Irma

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A First-Party Property and Business Interruption Coverage After Hurricanes Harvey and Irma Flood Exclusions, Concurrent Causation, Business Interruption Losses, and Off-Premises Time Element Coverages for Insureds and Insurers WEDNESDAY, OCTOBER 25, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Raymond T. DeMeo, Counsel, Robinson & Cole, Hartford, Conn. Finley T. Harckham, Shareholder, Anderson Kill, New York The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 First-Party Property and Business Interruption Coverage After Hurricanes Harvey and Irma Raymond T. DeMeo Robinson + Cole Finley T. Harckham Anderson Kill P.C.

6 Hurricane Harvey US Insured losses estimated at > $10 BB (not including NFIP) Source AIR Worldwide Interstate 45 Houston, TX Houston, Texas 6

7 Hurricane Irma- Estimates of U.S Insured Losses $20-$40 BB (not including NFIP) Source AIR Worldwide Miami, FL South Beach, FL 7

8 Irma Whale Harbor, Islamorada, Florida Keys 8

9 Hurricane Maria insured losses in Caribbean $40-$95 million, mostly in Puerto Rico Air Worldwide 9

10 BACKGROUND: HURRICANE KATRINA, THE WATER DAMAGE EXCLUSION AND ANTI-CONCURRENT CAUSATION August 29, Katrina makes landfall in Mississippi and Louisiana gulf coast Category 3 hurricane, sustained winds of 120 mph Mississippi 27 foot storm surge, coastal properties devastated New Orleans storm surge, heavy rain, failures of levees 10

11 HURRICANE KATRINA, THE WATER DAMAGE EXCLUSION AND ANTI-CONCURRENT CAUSATION We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. Water Damage -- Flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether driven by wind or not... 11

12 In re Katrina Canal Breaches Litigation 466 F. Supp. 2d 729 (2006), vacated and remanded, 495 F. 3d 191 (2007) What is a flood? Plaintiffs argue flood means only natural events, levees were negligently designed, etc. Insurers Flood means widespread inundation of water regardless of cause 12

13 In re Katrina Canal Breaches Litigation Nov. 2006: Federal district court denied motions to dismiss of ISO carriers and Allstate Court held flood has numerous definitions Exclusion references natural events (surface water, waves, tidal water) ISO anti-concurrent cause clause ( regardless of any other cause that contributes ) inapplicable because if there was no flood there is no other cause 13

14 In re Katrina Canal Breaches Litigation Aug U.S. Court of Appeals for the Fifth Circuit The enormous and devastating inundation of water into the city... was a flood within that term s generally prevailing meaning as used in common parlance, and our interpretation of the exclusions ends there. [W]e first question the notion that the flood in this case was nonnatural. Distinguished cases involving water main breaks: (1) do not involve bodies of water or watercourses; and (2) are not comparable to the massive inundation in New Orleans. 14

15 Leonard v. Nationwide Ins. Co. ISO water damage exclusion Nationwide argued: damage caused by both flood and wind, regardless of sequence, is excluded Federal district court: Anti-concurrent causation preface is ambiguous. Wind damage is covered regardless of whether flood also damaged the same area of the home Court awards less than $3,000 for wind damage 15

16 Leonard v. Nationwide Ins. Co., 499 F. 3d 418 (5 th Cir. 2007) [There are] three discrete categories of damage at issue in this litigation: (1) damage caused exclusively by wind; (2) damage caused exclusively by water; and (3) damage caused by wind concurrently or in any sequence with water.... The only species of damage covered under the policy is damage caused exclusively by wind. But if wind and water synergistically caused the same damage, such damage is excluded. Anti-concurrent causation clause trumps efficient proximate cause doctrine. 16

17 Leonard v. Nationwide Ins. Co., 499 F. 3d 418 (5 th Cir. 2007) If, for example, a policyholder's roof is blown off in a storm, and rain enters through the opening, the damage is covered. Only if storm-surge flooding-an excluded peril-then inundates the same area that the rain damaged is the ensuing loss excluded because the loss was caused concurrently or in sequence by the action of a covered and an excluded peril. The phrase storm surge is little more than a synonym for a tidal wave or wind-driven flood, both of which are excluded perils. 17

18 Tuepker v. State Farm (USDC, MS law) Home completely destroyed by Katrina Claim denied: loss caused by storm surge Trial court denied motion to dismiss ruling similar to Leonard Trial court anti-concurrent causation clause ambiguous; damage caused by wind is covered even if flood later damages same part of the building 18

19 Tuepker v. State Farm, 507 F.3d 346 (5 th Cir. 2007) [T]he ACC Clause in combination with the Water Damage Exclusion clearly provides that indivisible damage caused by both excluded perils and covered perils or other causes is not covered. However, as State Farm has conceded in its briefs... for example, if wind blows off the roof of the house, the loss of the roof is not excluded merely because a subsequent storm surge later completely destroys the entire remainder of the structure; such roof loss did occur in the absence of any listed excluded peril. 19

20 ANTI-CONCURRENT CAUSATION - TEXAS Texas law - Anti-Concurrent Causation Clauses Enforceable JAW the Pointe, LLC v. Lexington Ins. Co., 460 S.W.3d 597 (Tex. 2015) Carrier adjusted and paid flood damage Issue whether ordinance requiring demolition, rebuilding of apartments if damage equals/exceeds 50 percent of market value applied 20

21 Anti- Concurrent Causation - Texas - JAW the Pointe, LLC v. Lexington Ins. Co., 460 S.W.3d 597 (Tex. 2015) Insured has burden of establishing coverage under the terms of the policy. Policy s flood exclusion preceded by anti-concurrent causation language Under this language, if the covered wind damage and the excluded flood damage contributed to cause the enforcement of the city ordinances, then the policy excludes coverage. Court determined that insured s damage estimate included both wind and flood damage, therefore entire loss excluded 21

22 ALLOCATING DAMAGE IN THE ABSENCE OF ACC CLAUSE - TEXAS Texas applies concurrent causation doctrine - when covered and non-covered perils combine to create a loss, the insured is entitled to recover only that portion of the damage caused solely by the covered peril(s), and insured has the burden of proving covered loss Wallis v. United Services Auto Ass n, 2 S.W.3d 300, 333 (Tex. App. 1999) Travelers Indem. Co. v. McKillip, 469 S.W.2d 160 (Tex. 1971) All Saints Catholic Church v. United Nat l Ins. Co., 257 S.W. 3d 800, 802 (Tex. App. 2008). 22

23 ANTI-CONCURRENT CAUSATION - FLORIDA Florida Courts Employ The Efficient Proximate Cause Doctrine When Analyzing Causes That Are Dependent Paulucci v. Liberty Mut. Fire Ins. Co.,, 190 F. Supp. 2d 1312 (M.D. Fla. 2002) - Where causes of loss independent, concurrent cause doctrine applies Concurrent cause doctrine -- if independent perils converge to cause a single loss, and no specific peril can be pinpointed as the sole or proximate cause, then an all-risk policy will cover the loss. Where causes of loss dependent, efficient proximate causation doctrine applies if cause that sets other causes in motion covered, entire loss covered Where policy contains anti-concurrent causation language, loss caused by both covered and excluded event not covered 23

24 ANTI-CONCURRENT CAUSATION - FLORIDA Liberty Mut. Fire Ins. Co. v. Martinez, 157 So. 3d 486 (Fla. 5th DCA 2015). intermediate state appellate court expressly enforced the ACC provision attached to a water damage exclusion, which excluded losses caused directly or indirectly by water which exerts pressure on... a swimming pool.... Court reversed the trial court s grant of summary judgment to insured, stating that the damage in question was caused directly or indirectly by subsurface water pressure, and was excluded, regardless of the operation of any other causes. Other Florida courts have emphasized the absence of ACC language in analyzing coverage for first-party claims implication that the use of anticoncurrent language would have yielded a different outcome. Florida Supreme Court has yet to decide a case involving an ACC provision in the context of a first-party property claim 24

25 BUSINESS INTERRUPTION COVERAGE - GENERALLY Typical commercial policy provides coverage fori the actual loss of Business Income you sustain due to the necessary suspension of your operations during the period of restoration. Suspension must be caused by direct physical loss of or damage to property at premises which are described in the Declarations...[and] the loss or damage must be caused by or result from a Covered Cause of Loss. 25

26 ELEMENTS OF BUSINESS INTERRUPTION COVERAGE Actual (not theoretical) loss of Business Income (as defined) Loss must be caused by a necessary (not discretionary) suspension of the insured s operations Loss of income must occur during the period of restoration Suspension of operations must be caused by direct physical loss to covered property caused by a covered peril. 26

27 BUSINESS INTERRUPTION COVERAGE NECESSARY SUSPENSION OF OPERATIONS Is coverage is triggered where the insured sustains merely a slowdown or partial cessation of its operations? Apt. Movers of Am., Inc. v. OneBeacon Lloyd s of Tex., 2005 U.S. Dist. LEXIS 695 (N.D. Tex. Jan. 19, 2005) (no business interruption coverage without total cessation of operations) Royal Indemnity Ins. Co. v. Mikob Props., Inc., 940 F. Supp. 155 (S.D. Tex. 1996) (denying business income coverage for apartment owner where damaged apartment buildings were still operating, even though not fully occupied, on the grounds that business interruption coverage does not cover a decrease in income). Ramada Inn Ramogreen, Inc. v. Travelers Indem. Co., 835 F.2d 812 (11th Cir. 1988) (applying Florida law) (fire damage to hotel restaurant did not trigger coverage for loss of revenue caused by decrease in room occupancy) CSX Corp. v. North River Ins. Co., 2009 U.S. Dist. LEXIS (M.D. Fla. Sept. 25, 2009) ( [L]essened demand does not constitute a suspension of business. ) 27

28 BUSINESS INTERRUPTION PARTIAL OR COMPLETE CESSATION OF BUSINESS OPERATIONS Where policy includes coverage for partial or complete cessation of business operations, issue of total suspension of operations rendered moot 28

29 BUSINESS INTERRUPTION SUSPENSION MUST BE CAUSED BY DIRECT PHYSICAL LOSS OR DAMAGE TO INSURED PROPERTY Nat l Union Fire Ins. Co. v. Texpak Grp. N.V., 906 So. 2d 300 (Fla. Dist. Ct. App. 2005) (business interruption loss caused by excluded design defect not covered under the policy). Royal Indemnity Ins. Co. v. Mikob Props., Inc.:, 940 F.Supp. at 155, Some (but not all) buildings in an apartment complex damaged by fire. Insured made claim for the loss of rental income to both the damaged and the undamaged buildings that resulted from the fire USDC in Texas found that there was no coverage for the loss of income for the undamaged buildings because those losses were not caused by a suspension stemming from covered direct physical damage. 29

30 BUSINESS INTERRUPTION SUSPENSION MUST BE CAUSED BY DIRECT PHYSICAL LOSS OR DAMAGE TO INSURED PROPERTY Pentair v. American Guarantee and Liability Insurance Co., 400 F.3d 613 (8 th Cir. 2005) 8 th Circuit held that, in the absence of a special coverage for loss of income resulting from power interruption, a loss of electrical power does not constitute a covered direct physical loss to insured property that can give rise to a covered suspension and resulting loss of business income. 30

31 BUSINESS INTERRUPTION POST-LOSS WINDFALL Manufacturers and sellers of building materials and equipment, furniture, tools, and similar products often experience a significant uptick in sales following hurricanes. Hotels often experience a short term increase in demand as a result of insurance personnel and repair contractors coming into the area after a storm. If other requirements of business interruption coverage satisfied, is the business entitled to make claim for the hypothetical increased post-storm income? 31

32 BUSINESS INTERRUPTION POST-LOSS WINDFALL Levitz Furniture Corp. v. Houston Casualty Co., 1997 U.S. Dist. LEXIS 5883 (E.D. La. 1997): Where policy determined indemnity by comparing pre-loss business experience to experience had no suspension of business operations occurred, post-loss windfall taken into account in determining business income Prudential-LMI Insurance Co. v. Colleton Enterprises, Inc., 1992 WL (4 th Cir. 1992) where indemnity clause measured business interruption by experience of business had no loss occurred, income caused by the loss itself not taken into account. 32

33 BUSINESS INTERRUPTION POST-LOSS WINDFALL Some policies answer this question by expressly stating that a covered loss of business income does not include any Net Income that would likely have been earned as a result of an increase in the volume of business due to favorable business conditions caused by the impact of the Covered Cause of Loss on customers or on other businesses. 33

34 BUSINESS INTERRUPTION PERIOD OF RESTORATION Period of restoration typically defined to begin on the date of direct physical damage to insured property, and typically ends on the earlier of: (1) the date when the property should be repaired, rebuilt or replaced with reasonable speed and similar quality; or (2) the date when business is resumed at a new permanent location. Date when the property should be repaired is typically measured by an objective test, and is not dependent on when the insured actually completed repairs. 34

35 BUSINESS INTERRUPTION PERIOD OF RESTORATION SR Int l Bus. Ins. Co. v. World Trade Ctr. Props., LLC, 2005 WL (S.D.N.Y. Feb. 16, 2005) (period of restoration measured by objectively measured time reasonably necessary to repair or replace property) Omaha Paper Stock Co. Inc. v. Harbor Ins. Co., 445 F. Supp. 179 (D. Neb. 1978) (period of restoration was not extended to include delays caused by insured s lack of diligence). 35

36 BUSINESS INTERRUPTION PERIOD OF RESTORATION Complex issues can arise in connection with the interruption to an insured s business caused by a hurricane, which may produce physical damage from both wind and flood. When covered and excluded causes combine to damage property, the insurer must determine, 1) whether the covered loss caused a suspension of operations; and 2) the theoretical duration of the period of restoration if only the covered property damage needed to be repaired. To the extent excluded damage extends the necessary repair time, the loss of business income during that extended repair time should not be covered. 36

37 COVERAGES THAT DON T REQUIRE DAMAGE TO YOUR PROPERTY Contingent Business Interruption Based on damage to suppliers or customers property Period of recovery tied to time needed to restore suppliers or customers property Dependent or Attraction Property Based on damage to property that attracts business to you Period of recovery tied to time needed to restore attraction property Service Interruption Based on damage that interrupts utilities (for time beyond waiting period) Civil Authority Based on government order that prohibits access to your property Ingress or Egress Based upon damage that physically prevents access to insured property 37

38 CONTINGENT BUSINESS INTERRUPTION Covers business interruption losses resulting from damage to: Customers Suppliers Leader properties Must result from a covered cause of loss. 38

39 CONTINGENT BUSINESS INTERRUPTION (cont.) Cases: Millenium v. National Union: 2012 U.S. Dist. LEXIS (D.Md. 2012) policy covered loss resulting from damage to direct contributing properties the policyholder had to shut down its chemical plant because of a disruption in the supply of natural gas caused by an explosion at a natural gas production facility the policyholder purchased its gas from a distributor, not directly from the manufacturer nonetheless, the court found the coverage grant to be ambiguous and applied contra proferentem 39

40 CONTINGENT BUSINESS INTERRUPTION (cont.) Archer Daniels Midland Co. v. Phoenix, 936 F. Supp. 534 (S.D. In. 1996) Policy covered loss caused by damage to property of any supplier of goods or services which results in the inability of such supplier to supply an insured location. The policyholder is a food processor which lost business due to flooding of the Mississippi which killed crops and caused damage to the navigation structures on the river. The Court found that the farmers were suppliers even though NDM bought the crops through grain dealers. Found that the Coast Guard and Corp. of Engineers which ran the waterways over which the grains were shipped were also suppliers. 40

41 SERVICE INTERRUPTION Covers business interruption losses resulting from damage to: Personal property of a UTILITY (inside or outside) and building equipment, necessary to supply premises with: Power Water Communication Natural gas Sewage On-line access 41

42 SERVICE INTERRUPTION (cont.) Damage to overhead equipment typically excluded From a covered cause of loss? Wind; Water/Flood; Fire; Explosion; Preemptive Shutdown 42

43 SERVICE INTERRUPTION (cont.) Causation Issues - Con Edison -- Transformer explosion Johnson Gallagher Magliery LLC v. The Charter Oak Fire Ins. Co., SDNY, Docket No. 1:13-cv-866 (holding that undisputed evidence demonstrated that cause of Bowling Green (lower Manhattan) network outage was flooding). Limited record No discussion or consideration of fire/explosion at 14th Street facility 43

44 SERVICE INTERRUPTION (cont.) Causation Issues - Preemptive Shutdown NY: Period between shut down and flood damage not covered (no physical damage), and no coverage during repair of flood damage (water exclusion), but held open question of coverage for period of time between repair of flood damage and return of electrical service at insured premises. Johnson Gallagher Magliery LLC NJ: Support for coverage in Wakefern Food Corp. v. Liberty Mut. Fire Ins. Co., 406 N.J. Super. 524, 540, 968 A.2d 724, 734 (App. Div. 2009) (blackout case; holding that a power plant s inability to perform its essential function of providing electricity constitutes physical loss or damage for purposes of coverage under a property insurance policy). 44

45 CIVIL AUTHORITY PROVISION The Company will pay for the actual Time Element loss sustained by the Insured, as provided by the Policy, resulting from the necessary Suspension of the Insured s business...if the Suspension is caused by order of civil or military authority that prohibits access to the Location. That order must result from a civil authority s response to direct physical loss of or damage to property

46 CIVIL AUTHORITY ELEMENTS Depends on policy language: Order or Action ; Access must be prohibited, prevented or impaired by the action or order; Direct physical loss or damage caused by a covered cause of loss; 46

47 INGRESS/EGRESS 47

48 INGRESS/EGRESS PROVISION This policy covers loss sustained during the period of time when, as a direct result of a peril not excluded, ingress to or egress from real and personal property not excluded hereunder is denied. Elements: 1) access is prevented or denied ; 2) by a covered peril; 3) resulting in a direct loss. 48

49 INGRESS/EGRESS Fountain Powerboat Industries, 19 F. Supp. 2d 552 (E.D. NC 2000): - only road leading to facility was flooded for several days from Hurricane Floyd; - insured s efforts to pick up employees and drive them to the facility over closed and flooded roads was extraordinary ; - Court held in favor of coverage and explained exclusion relates only to reasonable access. FOR EDUCATIONAL PURPOSES ONLY * NOT TO BE DISTRIBUTED WITHOUT PERMISSION 49

50 Ordinance or Law Coverage Covers Demolition Costs or Increased Costs of Construction due to enforcement of ordinance or law following a loss. Applies to damaged and undamaged property. Proximate cause can be an issue. 50

51 COVERAGE PROVISIONS A. GOOD FOR POLICYHOLDERS (1) If a covered Cause of Loss occurs to covered Building property, we will pay: (a) For Loss or damage caused by enforcement of any ordinance or law that: (i) Requires the demolition of parts of the same property not damaged. (c) The cost to demolish and clear the site of undamaged parts of the property caused by enforcement 51

52 COVERAGE PROVISIONS (cont d) So, no requirement that the covered cause be the cause the enforcement of the ordinance or law. Just that, the enforcement be in connection with the covered loss Issues: Is there an applicable law or ordinance? Is the law or ordinance being enforced? 52

53 B. MIDDLE COVERAGE PROVISIONS (cont d) In the event of physical loss or damage insured under this Policy that causes the enforcement of any law or ordinance in force at the time of such loss or damage regulating the construction or repair of damaged facilities, Insurers shall also be liable for : a) the increased cost of demolishing the undamaged facility including the cost of clearing the site; b) the increased cost of rebuilding the damaged and the demolished undamaged Property ; and c) any Time Element coverages afforded by this Policy arising out of the additional time required to comply with said law or ordinance 53

54 COVERAGE PROVISIONS (cont d) So, coverage is provided where Issues: Physical loss or damage causes enforcement Of a law or ordinance Is there an applicable law or ordinance? Is the law or ordinance being enforced? Is the enforcement caused by physical loss or damage? 54

55 COVERAGE PROVISIONS (cont d) C. BAD FOR POLICYHOLDERS the cost to demolish and clear the site of the undamaged portions of the dwelling caused by the enforcement of a building, zoning or land use ordinance of law if the enforcement is directly caused by the same Loss Insured. 55

56 COVERAGE PROVISIONS (cont d) So, coverage is provided when the covered loss directly causes the enforcement of the ordinance or law. Issues: Is there an applicable law or ordinance? Is it being enforced? Is the enforcement directly caused by the covered loss? 56

57 WHAT IS AN ORDINANCE OR LAW? According to Webster s Ordinance a public enactment, rule or law promulgated by governmental authority Law a rule or mode of conduct or action that is prescribed or formally recognized as binding by a supreme controlling authority 57

58 WHAT IS AN ORDINANCE OR LAW? (cont d) As a general rule, any type of government mandated requirement will do. E.g. Building codes ADA Americans with Disabilities Act requires accommodations for disabled people in public accommodation or commercial facility public accommodation is broadly defined 58

59 WHAT IS AN ORDINANCE OR LAW? (cont d) Industry Guidelines E.g., American Petroleum Institute Recommended Practices ASME Have they been adopted by the state or municipality? Current refinery case 59

60 WHAT TRIGGERS COVERAGE? Coverage is triggered for the enforcement of an ordinance or law Requirements of inspectors or permits What about voluntary compliance? most courts say that is enforcement. E.g., Windowizards v. Charter Oak, 2015 WL (E.D. Pa. 2015) Court found enforcement despite the lack of a government document requiring compliance because The insured was aware of the need for plan approval under ordinances Conducted its work as required by the ordinances 60

61 CASE HISTORIES FROM BEST TO WORST FOR POLICYHOLDERS 1. City of Elmira v. Selective 83 A.D.3d 1261 (N.Y. App. Div. 2011) Involved the Good O&L provision Part of a brick façade on an armory was blown off in a windstorm The town engineer inspected and found that other areas of the building were at risk Based upon the engineer s report, the Fire Marshall found the town to be in violation of a state code The town tore down the building and bought another one Town sought coverage for demolition costs and cost of new building Insurer refused to pay, except for wind damage, arguing that the windstorm loss did not cause the enforcement of the code Court ruled that the only requirement to trigger O & L coverage was the occurrence of a covered cause of loss 61

62 CASE HISTORIES FROM BEST TO WORST (cont d) 2. DEB Associates v. Greater N.Y. 407 N.J. Super 287 (App. Div. 2009) Involved a Middle O&L provision Similar facts to the Town of Elmira case Partial façade collapse led inspectors to find problems with walls in other areas of the building The town required the other parts of the building to be brought into compliance with the state building code GNY argued that the only undamaged property that is ever covered by O & L is that which must be replaced to repair damaged property The court applied a proximate cause test and found that the collapse was the cause of the inspection and requirement to repair other areas 62

63 CASE HISTORIES FROM BEST TO WORST (cont d) 3. Chattanooga Bank v. Fidelity, 302 F.Supp.2d 774 (E.D. Tenn. 2004) Involved a Bad O&L provision A building was damaged by fire Inspectors found unrelated code violations The court held that there was no coverage for fixing the code violations Because the policyholder could not show that the fire, or attempts to extinguish it, created the need to repair.. some portion of the property.. consistent with current building codes 63

64 COVERAGE CONDITIONS Deadline for filing proofs of loss Contractual suit limitation Cooperation with insurers 64

65 RAYMOND T. DEMEO Robinson + Cole 280 Trumbull Street Hartford, CT Main (860) Fax (860) rdemeo@rc.com Direct (860) FINLEY T. HARCKHAM Anderson Kill P.C Avenue of the Americas New York, NY (212) Fax (212) fharckham@andersonkill.com Direct (212)