Tag Archives: coverage a

Flood Insurance at the Crossroads

News outlets around the country are broadcasting the horrible scenes from Northern Mexico, Texas and Oklahoma of devastating floods that have killed many. Once tallies are completed, property damage will likely be in the billions of dollars. Once again, a disaster raises interest not only in the insidious nature of catastrophic flooding, but in how the insurance industry, in concert with the federal government, more specifically the National Flood Insurance Program (NFIP), tackles – or sidesteps – the vexing problems associated with this peril.

Stories abound of the heart-breaking losses as a result of flooding; homes are whisked away downstream, people’s prized possessions are destroyed and, most importantly, lives are lost. Amid the recent rampant devastation brought on by the Texas floods, what struck us was one simple statement by a local news correspondent on the scene, who described the victims’ plight: “Some residents are lucky; they have flood insurance.” “Lucky” hardly describes the harsh reality these flood victims are experiencing.

Having flood insurance with the NFIP is akin to having jumbo shrimp, in the infamous description of the oxymoron by comedian George Carlin. To understand why, consider that property damage to a house comes in three varieties: (1) damage to the actual structure, (2) damage to the contents within the structure or (3) expenses associated with not being able to live in the structure as a direct result of a flood claim and having to live elsewhere. The standard HO3 policy form has all three of those potential loss sources adequately covered. That raises the question: What does the NFIP flood policy cover?

Your Building

The maximum the NFIP will pay for the dwelling structure, referred to as Coverage A, is $250,000, even if the dwelling is worth more. There is no amount of additional premium one can pay to get more coverage for this policy. If the dwelling is worth more, the homeowner is forced to purchase another flood insurance policy to cover an amount over and above $250,000.

Your Contents

The maximum the NFIP will pay for losses to contents, referred to as Coverage C, is $100,000, again, even if the homeowner owns more than that amount. The homeowner is still out of luck even if he acquires a second flood policy to cover excess losses to the dwelling, as those types of policies do not generally cover contents. To make matters even worse, if the homeowner is “lucky” enough to have a flood insurance policy through the NFIP and should suffer a flood loss to contents, the content valuation reimbursement will be depreciated. The homeowner will NOT be reimbursed for a new carpet when forced to rip up that damaged 20-year-old carpet and will receive just enough funds from the claim to buy another 20-year-old carpet. In other words, the claim’s valuation basis via the NFIP is the actual cash value (ACV) of the damaged item, not the current replacement cost value (RCV) after applying the policy deductible.

Worse, the homeowner is forced to fill out mountains of paperwork to detail what was damaged and account for when the item was purchased and the cost. Then there are the contents in basements, which can represent a whole separate problem. Try filling out the paperwork a few hundred times over for all a household’s valuables, knowing that, regardless of whether those items are meticulously itemized, the homeowner STILL will not be paid the cost to replace them.

Loss of Use

Should a homeowner have a flood loss and need to live elsewhere while the damage is being repaired, expenses for the Loss of Use, Coverage D, is entirely borne by the homeowner. It doesn’t matter if it’s a small amount of damage requiring a one-day stay at a hotel or extensive damage requiring a new home; the homeowner is responsible to pay for all living expenses out of pocket.

If the NFIP policyholder doesn’t already feel lucky enough, then there are the lingering questions surrounding the NFIP’s solvency.  Both Hurricane Katrina and Superstorm Sandy left the NFIP with few funds to pay claims, and if the homeowner is lucky enough to have flood insurance through the NFIP she will have to wait – oftentimes months!

By now, you get the point. Flood insurance through the NFIP really is not insurance; it’s something else altogether. For starters:

  1. The NFIP is not risk-based. Two homes with very dissimilar flood exposure could pay the exact same rate.
  2. The NFIP has done little to discourage risk-taking, by subsidizing low rates for homes that have had multiple claims payments.
  3. The policies do not meet homeowners’ needs. The coverage gaps are large and the headaches dealing with getting paid are quasi-medieval – certainly not consumer-friendly.

The industry can and must do better. All the tools and resources needed to adequately price and manage risk are present. New models and maps stand ready to evaluate risk, estimate loss costs and aggregate exposure. Abundant excess capital is available, and in many cases is standing on the sidelines looking to jump in the game. What better source of risk-based premium is there than the inland flood exposures now monopolized by the NFIP and, ultimately, the taxpayers? This is the opportunity for growth, innovation and applying commonsense risk management thinking that the industry not only is starving for, but has been praying for the past 30-plus years.

The industry must now ask itself: Does it want to sustain its legacy groupthink by maintaining the status quo, or does it want to remain relevant, now and in the future, and be a part of the solution?

The Insurance Implications of Social Networking Websites, Part 3

This is the third part of a six part series of articles discussing insurance coverage for claims that can be brought against individuals or companies because of the use of Social Media websites. Earlier articles in this series can be found here: Part 1 and Part 2. This article discusses coverages potentially triggered under Coverage A – Bodily Injury.

Bodily Injury Coverage
Even if the policy contains a personal injury coverage part (as discussed in part 2 of this series), analysis should still be made whether the policy provides coverage under the bodily injury coverage part. Oftentimes, this is dependent on the policy’s definition of “bodily injury” and “occurrence.”

Does The Defamatory Comment/Posting Made On A Blog/Website Constitute An Occurrence?
In order to trigger coverage under the policy’s insuring agreement there must be a defined “occurrence” that results in defined “bodily injury” during the policy period. Policies typically define “occurrence” as an “accident, including continuous or repeated exposure to substantially the same general harmful conditions” which results in bodily injury. Most jurisdictions hold that it is the insured’s standpoint that controls in determining whether there has been an “occurrence” that triggers the duty to defend under the policy. A majority of jurisdictions have held that an accident is “an unexpected, unforeseen, or undesigned happening or consequence from either a known or an unknown cause.” A deliberate act, therefore, is not an accident.

If the defendant publishes an internet posting that referred to the plaintiff in a derogatory manner, e.g., accusing the person of being a pedophile, then this is a deliberate act which does not constitute an occurrence as defined by the policy. Stellar v. State Farm General Ins. Co., 157 Cal. App. 4th 1498, 69 Cal. Rptr.3d 350 (Cal. App. 2007). Some jurisdictions have held that the very nature of defamation precludes the conclusion that it can occur “accidentally.” See, e.g., Uhrich v. State Farm Fire & Cas. Co., 109 Cal.App.4th 598, 135 Cal.Rptr.2d 131 (Cal. App. 2003); Rogers v. Allstate Ins. Co., 938 So.2d 871, 876 (Miss. App. 2006); Iafallo v. Nationwide Mut. Fire Ins. Co., 299 A.D.2d 925, 926, 750 N.Y.S.2d 386, 388 (N.Y. App. Div. 2002). Some jurisdictions, however, recognize negligent defamation and, therefore, there may be an occurrence triggering coverage. Cincinnati Ins. Co. v. Eastern Atlantic Ins. Co., 260 F.3d 742 (7th Cir. 2001); cf., Baumann v. Elliott, 704 N.W.2d 361 (Wis. App. 2005) (finding no occurrence because complaint did not allege a negligent defamation); Farmers Ins. Exchange v. Hallaway, 564 F.Supp.2d 1047 (D. Minn. 2008) (reversing summary judgment and holding that there may be personal injury coverage because underlying lawsuit alleged negligent defamation and intent to injure had not been decided).

There are, obviously, certain factual situations that may at first blush appear to be intentional, but, upon further, investigation, may constitute an occurrence triggering coverage. For example, an individual intends on posting a defamatory comment on Facebook, spends time typing out the comment, but later decides against posting the comment, but accidentally hits “share” rather than “cancel” and so the item is accidentally posted on Facebook against the user’s wishes. Although the individual may have originally intended to post a defamatory comment, at the moment the comment was indeed posted, the individual did not have that intention. This may constitute an “occurrence” triggering coverage.

Similarly, an individual may have intended to respond to a message on Facebook with defamatory or libelous remarks, but rather than clicking the “reply” button, the individually mistakenly clicked the “reply all” button and, consequently, the message is sent to everyone on the list, rather than just the individual that the user originally intended.

Another example includes attaching a video or picture to a social media website. The individual may have intended to attach file A, but when selecting the file, the individual selected file B, which contained a picture/video of a person in a compromising position such that the individual’s privacy is invaded.

These are a few examples where the claim or complaint may allege conduct that may at first blush appear intentional, but the true facts may reveal that coverage is triggered. Further investigation may be needed to determine coverage.

Does The Emotional Distress Or Other Alleged Damages Resulting From The Defamation Constitute Bodily Injury?
“Bodily injury” is typically defined in a policy as “bodily injury, sickness or disease sustained by a person, including required care, loss of service and death that results.” Courts have held that “bodily injury” encompasses only physical injury and its consequences and does not include emotional distress in the absence of physical injury. Waller v. Truck Ins. Exchange, Inc., 11 Cal.4th 1, 44 Cal.Rptr.2d 370, 900 P.2d 619 (1995); Nguyen v. State Farm Lloyds, Inc., 947 S.W.2d 320, 323 (Tex. Ct. App. 1997); Wiard v. State Farm Mutual Auto Ins. Co., 132 N.M. 470, 50 P.3d 565 (N.M. Ct. App. 2000). Thus, pure emotional distress does not constitute “bodily injury” for purposes of a policy unless there is specific policy language providing coverage for pure emotional injuries.

Because most social media claims do not involve direct physical contact, there is generally no “bodily injury” triggering coverage in the traditional sense. However, physical manifestations of emotional distress may be covered by the policy even if there was no direct physical contact with the claimant. This may include loss of hair, loss of weight, exacerbation of existing illnesses like Crohn’s disease, etc. If the claimant alleges such physical manifestations resulting from social media torts, then there may be qualifying “bodily injury” as defined by the policy.

Hopefully, this article makes the reader aware that social media torts may not only trigger coverage under the typical personal and advertising injury provided under Coverage B of the policy, if available, but that such social media torts may also trigger “bodily injury” coverage under Coverage A, depending on the particular factual circumstances.