The U.S. Court of Appeals for the Fifth Circuit has reversed the decision of the lower court, finding that a policy that listed windstorms among the covered perils did not cover flood damages caused by Hurricane Harvey, even though flooding was not specifically excluded. The case is Landmark Am. Ins. Co. v. SCD Mem'l'l Place II, L.L.C. No. 20-20-389, 2022 U.S. App. LEXIS 3128 (5th Cir. Feb 3, 2022).

In 2016, Landmark Insurance Company (Landmark) issued an insurance policy to SCD Memorial Place II, L.L.C. (SCD) that covered several SCD properties, including an office building in Houston with an insured value of $71,100,000. The policy was a "deductible buy back policy," (DBBP) designed for insureds to purchase if their primary insurance policy has a high deductible. If the insured makes a claim on the primary policy, the DBBP may cover all or a portion of the required deductible, reducing the out-of-pocket costs for insureds. 

In this case, the primary policy was an "all risks" policy issued by the Lexington Insurance Company, covering "all risks of direct physical loss or damage including flood, earth movement, and equipment breakdown." Because the Lexington policy had a high deductible, the insured purchased the separate Landmark policy to help cover the cost of that deductible.