Hurricane Irma has come and gone. Unlike Hurricane Wilma in 2005, it did not leave a sea of blue tarps in its wake. Nonetheless, many homeowners sustained water damage and the question becomes, is there insurance coverage.
|Wind-driven rain
The lack of blue tarps in South Florida is indicative of a lack of roof damage caused by Hurricane Irma which may spell lack of coverage for water damage claims. Most insurance policies contain an exclusion or limitation for water damage to the interior of a building unless a windstorm damages the roof or exterior walls of a structure through which water enters. This policy exclusion is known as the wind-driven rain exclusion.
An example of this exclusion/limitation can be found in Insurance Services Office (ISO) forms which provide, “We will not pay for loss of or damage to property, as described and limited in this section. In addition, we will not pay for any loss that is a consequence of loss or damage as described and limited in this section … The 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 the building or structure first sustains damage from a covered cause of loss to its roof or walls through which the rain, snow, sleet, ice, sand or dust enters.”
|Maintenance issue vs. peril
The most common cause of water damage from a storm like Irma occurs when water enters through window or door seals without any damage to the windows or doors itself. Seepage of water through the seals is typically considered a maintenance issue and does not constitute a peril under the insurance policy.
Similarly, when a roof is covered by a tarp and the wind blows off the tarp causing water to enter the dwelling, the exclusion has been found to apply. Many courts have found that a temporary roof covering during construction is not considered a “roof” under the meaning of the policy.
The courts have held in order to be, or become a roof, its construction or reconstruction must have reached the point where a reasonably prudent householder would consider it, if left in that condition for a month or months, or longer, as adequate against all risks of wind and rain which could be reasonably anticipated as likely to happen according to the general and recurrent experiences of the past, but not including any extraordinary or unprecedented eventuality.
|Flood insurance coverage?
What about flood insurance coverage for water damage caused by wind-driven rain? Unfortunately, flood insurance does not cover wind-driven rain.
According to the National Flood Insurance Program (NFIP), “When rain enters through a wind-damaged window or door, or comes through a hole in the wall or roof, the NFIP considers the resulting puddles and damage to be windstorm-related, not flood related. Flood insurance covers overflow of inland or tidal waters and unusual and rapid accumulation or runoff of surface waters from any source. However, the flood must be a general and temporary condition of partial or complete inundation of two or more acres of normally dry land area.”
Coverage disputes don’t always result in an outright denial of coverage. In some instances coverage is afforded but a dispute remains as to the amount of the claim. In this scenario the retention of a public adjuster may be advisable, particularly if the difference in the claim amount is large. Be mindful, however, that most public adjustors work for a percentage of the recovery. When in doubt, seek the advice of an attorney specializing in insurance claims.
Reid A. Cocalis ([email protected]) is a director at Tripp Scott in Fort Lauderdale. His litigation practice includes complex business litigation, medical malpractice, health care law and products liability.
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