A Legal Guide to Recovering for Flood Losses

Name: A Legal Guide to Recovering for Flood Losses
Brand: American Bar Association
Price: 177.99 EUR
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Douglas Scott MacGregor(Autor*in)

American Bar Association (Verlag)

Erschienen am 12. September 2023

780 Seiten

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Inhalt

Intro
Title Page
Copyright
Dedication
Contents
Preface
About the Author
1 Introduction
1.1 The Flood Crisis
1.2 What Is a Flood?
1.3 Topics Covered
2 The Standard Water Damage Exclusions and Limitations
2.1 Introduction
2.2 The Water Damage Exclusion: Flood, Surface Water, Waves, and Tides
[1] Generally
[2] Defining the Terms of the Exclusion
[a] Indirectly
[b] Flood
[c] Surface Water
[d] Waves, Tides, and Tidal Waves
[e] Overflow of Any Body of Water
[f] Spray
[g] Wind-Driven
2.3 The Water Damage Exclusion: Mudslide or Mudflow
2.4 The Water Damage Exclusion: Back Up or Overflow of Water
[1] Generally
[2] "From" and "Through" Defined
[3] "Water" Defined
[4] "Backup"/"Back Up" Defined
[a] Generally
[b] Ambiguity
[c] Necessity that Water Enter Drain
[d] Location of Blockage
[e] Broken Water Main
[5] "Overflow" Defined
[6] "Sewer" Defined
[7] "Drain" Defined
[8] "Sump" and "Sump Pump" Defined
[9] "Related Equipment" Defined
[10] "Otherwise Discharged" Defined
[11] Endorsement Deleting Exclusion
2.5 The Water Damage Exclusion: Water under the Ground Surface
2.6 The Water Damage Exclusion: Waterborne Material
2.7 Objects Propelled by Water
[1] Introduction
[2] Boats and Docks
[3] Determinative Policy Language
[4] Object Directing Water
2.8 Miscellaneous Terms Used to Describe Water
[1] Introduction
[2] Flash Flood
[3] Tsunami
[4] Seiche
[5] Break, Breach, or Leak of a Levee, Dam, or Canal
[a] Introduction
[b] Break or Breach
[c] Levee
[d] Dam
[e] Canal
2.9 The Continuous Seepage or Leakage Exclusion
[1] Generally
[2] "Continuous" and "Repeated" Defined
[3] "Seepage" Defined
[4] "Leakage" Defined
[5] Distinguishing "Seepage" from "Leakage"
[6] Temporal Requirement
[7] Application of Temporal Requirement
[8] Sudden Occurrence of Breach
[9] The Vermin Exclusion
[10] Rain Exclusion
2.10 Frozen Pipes or Equipment Exclusion
2.11 Explosion Limitation
2.12 Rain, Snow, Sleet, or Ice Limitation
2.13 Weather Conditions Exclusion
2.14 Other Exclusions
2.15 The Wind and Water Conundrum
3 Recovering under Standard Property Policies
3.1 Introduction
3.2 Limited Water Damage Coverage
[1] Introduction: Standard Policy Language
[a] Commercial Property Policies
[b] Homeowners Policies
[2] Interpretation of Standard Policy Terminology
[a] Accidental Discharge or Leakage
[b] Plumbing Systems
[c] Other Systems or Appliances
[d] Breaking Apart or Cracking
[e] Described Premises
[3] Continuous or Repeated Seepage or Leakage Exception
[4] Frozen Pipes or Appliances Exception
[a] Introduction
[b] Meaning of "Frozen" Pipes
[c] Standards of Care
[d] Maintain Heat, Shut Off Water, and Drain Pipes
[e] Reliance on Third Parties
[f] Vacant, Unoccupied, or Under Construction
[g] Protective Safeguard Endorsement
[h] Evidence
3.3 Sprinkler Leakage
[1] Generally
[2] Standard Coverage Language
[3] Application of Sprinkler Leakage Provision
[4] Location of Sprinkler System
[5] Vacancy Clause
[6] Exclusion by Endorsement
3.4 Backups and Overflows
[1] Introduction
[2] Water Damage Coverage: Overflow or Discharge from a Plumbing System
[3] Endorsements Adding Coverage for Backups and Overflows
[a] Standard Residential Endorsement
[b] Standard Commercial Endorsement
[c] Endorsement Covering "Other" Systems
[d] Source of Water
[e] "Backup" Distinguished from "Overflow"
[f] Damage Caused "Solely" by Backup
[g] Anti-Concurrent Causation Clause in Policy Exclusion Section
3.5 Damage to Roof or Walls through Which Water Enters
[1] Policy Language
[a] All-Risk Policies
[b] Named Risk Policies
[c] Non-Standard Language
[d] Definition of Key Terms
[2] Burden of Proof
[3] Entry Points
[a] Windows or Doors
[b] Rooftop Air-conditioning Units
[4] Reason for the Opening
[a] Intentionally Created
[b] Wind-Propelled Projectiles
[c] Rainfall
[d] Temporary Roof
[e] Contractor Negligence
[5] Duty of Insured to Protect Property from Further Damage
[6] Exclusions
[a] Flood or Surface Water
[b] Windstorm and Hail Exclusion Endorsement
[c] Wear and Tear
[d] Faulty Workmanship
[e] Long-Term Leaks
[f] Building Upgrades
3.6 Thawing of Snow, Sleet, or Ice on a Building or Structure
3.7 Water Damage as a Consequence of Fire
3.8 Vandalism and Water Damage
[1] Introduction
[2] Definition of "Vandalism"
[3] Theft Exception
[4] Change in Temperature Exception
[5] Vandalism and Water Damage Exclusion
[6] Location of Vandalism
[7] Proof and Evidence
3.9 Explosion and Water Damage
3.10 "Ensuing" Water Damage
[1] Introduction
[2] Burden of Proof
[3] Direct Physical Loss
[4] Water Damage
[5] Not Otherwise Excluded
[6] Water Damage Sublimit
[7] Tear Out to Repair
[a] Plumbing System Leaks
[b] Exterior Stucco
[8] Sprinkler Leakage
4 Recovering under a Private Flood Insurance Property Policy
4.1 Introduction
4.2 Forms of Primary Coverage
[1] Introduction
[2] Stand Alone Policy
[3] NFIP-Compliant Policies
[a] Introduction
[b] Private Carrier Policies
[c] Advantages of NFIP-Compliant Policies
[4] Differences in Condition Policy
[5] Parametric Insurance
[6] Flood Endorsements to Property Coverage
[a] Introduction
[b] Endorsement Adding Flood Coverage
[c] Endorsement Overriding Flood Exclusion
[d] Endorsement Deleting Flood Exclusion
[e] ISO Standard Flood Coverage Endorsement
4.3 Definitions of "Flood" in Policies
4.4 Physical Loss or Damage
4.5 Exclusions to Primary Coverage
[1] Flood Zone Exclusion
[2] Rain
[3] Building Ordinance or Law Exclusion
[4] Artificially Generated Electrical Currents
[5] Named Storm
[6] Land Exclusion
[7] Vacancy
4.6 Limitations to Primary Coverage
[1] Introduction
[2] Limits of Insurance
[3] Sublimits
[a] "Sublimit" Defined
[b] Applicability Generally
[c] Statement of Values
[d] Ensuing Loss Clause and Sublimits
[e] Direct Physical Loss or Damage
[f] Loss Caused by Windstorm
[g] Multiple Insurers and Quota Share Programs
[4] Deductibles
[a] Generally
[b] Applicability of Windstorm Deductible
[c] Buyback Deductible
4.7 Additional Coverages
[1] Introduction
[2] Increased Cost of Compliance
[3] Debris Removal
[a] Introduction
[b] "Debris" Defined
[c] Limits of Coverage
[d] Exception for "Pollutants"
[4] Loss of Residential Use Coverage
[5] Claim Preparation Expenses
4.8 Excess Flood Insurance
[1] Introduction
[a] Inadequacy of the Standard Flood Insurance Policy
[b] Excess Insurance Defined
[c] Layered Coverage
[d] Umbrella Coverage Distinguished from Excess Coverage
[2] Stand Alone or Follow Form
[3] Coincidental Excess Insurance
[4] SFIP as Excess Insurance
[5] Maintenance of Underlying Insurance Clause
[6] Available Excess Coverage
[a] Generally
[b] Standard Excess Flood Insurance Endorsement
[c] Pacific Specialty Insurance Company Excess Flood Coverage
[7] Policy Contents
[a] Definitions Follow Form
[b] Exclusions Follow Form
[c] Deductibles Follow Form
[d] Special Deductibles
[e] Sublimits
[f] Limits of Liability
[8] Exhaustion of Primary Coverage
[a] Generally
[b] Functional Exhaustion
[c] Actual Exhaustion
[d] Payment by Primary Insurer Must Be for Flood Loss
[e] Coverage for an "Occurrence"
[f] Application of Sublimit
[g] Burden of Proof
[9] Insolvency of Primary Insurer
[10] Service of Suit Clause
5 Recovering under a FEMA Standard Flood Insurance Policy
5.1 Introduction
[1] The National Flood Insurance Program
[2] The "Write Your Own" Program
[3] The Standard Flood Insurance Policy
[a] Generally
[b] Insurable Interest
[c] Dwelling Form
[d] General Property Form
[e] Residential Condominium Building Association Policy
[f] Scheduled Building Policy
[g] Judicial Interpretation of the SFIP
[4] Manuals and Handbooks
[5] The Role of Private Attorneys in SFIP Claims
5.2 The Definition of Flood
[1] Generally
[a] Statutory Definition
[b] FEMA Rule Definition
[c] Policy Definition
[2] Proof of Flood
[a] Burden on Policyholder to Show a Flood
[b] Evidence of Flood
[3] Aspects of "Flood"
[a] Mudflow
[b] Inundation
[c] Surface Water
[d] Two or More Acres or Properties
[e] Collapse or Subsidence
[f] Erosion
[4] Direct Physical Loss
[a] Generally
[b] Exposure to Moisture
[c] Structural Damage Related to Flooding
5.3 Coverage
[1] Building Coverage
[a] Building and Additions
[b] Fixtures, Machinery, and Equipment
[c] Construction Materials
[d] Building Under Construction
[e] Manufactured Home or Travel Trailer
[f] Property below Lowest Elevated Floor in Some Buildings
[2] Personal Property
[a] Generally
[b] Property below Lowest Elevated Floor in Some Buildings
[c] Special Limits
[d] Tenants and Condominium Unit Owners
[3] Debris Removal
[4] Loss Avoidance Measures
[a] Sandbags, Supplies, and Labor
[b] Property Removed to Safety
[5] Pollution Damage
[6] Increased Cost of Compliance
[a] Generally
[b] Limits of Coverage
[c] Eligibility
[d] Conditions
[e] Exclusions
[7] Property Not Covered
[8] Exclusions
[a] Losses That Are Not Direct Physical Loss By or From Flood
[b] Flood in Progress
[c] Earth Movement
[d] Water
[e] Losses That May Be Covered by Other Insurance
[f] Property Located on Land Leased from the Federal Government
5.4 Notice of Loss
[1] Requirement to Give Notice of Loss
[2] The Meaning of "Prompt" Notice
[3] Justified Delays
[4] Notice-Prejudice Rule
[5] Notice to Insurance Agent
5.5 Claims Adjustment
[1] Generally
[2] Claims Adjusters
[a] Generally
[b] Adjuster Conduct
[c] Adjuster Authority
[d] Inspection of Property
[e] Remote Claims Adjusting
[f] Claims Adjustment Guidance for Adjusters
[g] Non-Waiver Agreements and Reservation of Rights Letters
[h] Guidance to Adjusters on Claims for Specific Property
[i] Direction on Identification of Certain Property
[j] Preliminary Report
[k] Policyholder Representatives
[l] Closing and Interim Reports
[m] Proof of Loss
[3] Use of Outside Professional Services
[a] Generally
[b] Engineers
[c] Financial Accounting Professionals
[4] Payment of Claim
[a] Payment and Paying the Undisputed Loss
[b] Claim Closed without Payment Reasons
[c] Requests for Additional Payment
[5] Claims Examiners
[6] Direction to Policyholders on Documenting Claims
[7] Advance Payments
[a] Generally
[b] Advance Payments before and after Inspection
[c] Advance or Partial Payment for Increased Cost of Compliance
[d] Procedure for Issuing Advance Payment
[e] Payment Exceeding Loss
[8] Subrogation
5.6 Proof of Loss
[1] Generally
[2] FEMA Proof of Loss Form
[3] Sworn, Signed, and Notarized
[a] Sworn
[b] Signed
[c] Notarization
[4] Timeliness
[a] Generally
[b] Notice-Prejudice Rule
[c] Meaning of "Date of Loss"
[d] Calculation of 60-Day Period
[5] Amount of Claim
[6] Documents to be Submitted with Proof of Loss
[a] Building Repair Estimate
[b] Inventory of Damaged Personal Property
[7] Multiple and Supplemental Proofs of Loss
[8] Substantial Compliance with Proof of Loss Requirement
[9] Waivers and Extensions
[a] Waiver
[b] Extensions of Deadline
[10] Rejected Proof of Loss
5.7 Denial of Claim
5.8 Claim File
[1] Generally
[2] Contents of Claim Files
[3] Release of Claim File Information to Policyholders
[4] Representative of Policyholder Obtaining Claim File
5.9 Dispute Resolution
[1] Appraisal
[a] Generally
[b] Pre-Conditions to Appraisal
[c] Appeals or Litigation
[2] Appeal
[a] Generally
[b] Limitations on Appeal
[c] Procedures
[d] Resolution of Appeal
[e] Judicial Review
[3] Litigation
[a] Right to File Suit
[b] Burden of Proof
[c] Compliance with Policy as Pre-Condition to Suit
[d] Claim Limited to Breach of Contract
[e] Limitation Period
[f] Exhaustion of Administrative Remedies
[g] Service, Jurisdiction, and Venue
[h] Proper Defendant
[i] Jury Trial
[j] Preemption
[k] Damages
[l] Fees, Costs, and Interest
[4] Declaratory Judgment Actions
6 Recovering under Business Interruption and Related Coverages
6.1 Introduction
6.2 Business Interruption Coverage
[1] Introduction
[2] Coverage
[a] Standard Policy Language
[b] The Meaning of "Direct Physical Loss or Damage"
[3] Covered Causes of Loss and the Flood Exclusion
[a] Coverages and Flood Exclusion
[b] Avoiding the Flood Exclusion
[4] Policies Covering Flood Loss
[5] Other Exclusions
[a] Ordinance or Law Exclusion
[b] Idle Periods Clause/Exclusion
[c] Cancellation of Contracts Exclusion
[d] Acts and Decisions
[6] Additional Coverages
[a] Civil Authority
[b] Alterations and New Buildings
[c] Extended Business Income
[d] Utility Services
[e] Contingent Business Interruption Coverage
[f] Loss of Ingress or Egress
[7] Limits of Insurance
[a] Generally
[b] Sublimits
[c] The Meaning of "Occurrence"
[8] Loss Conditions
[a] Appraisal
[b] Duties in the Event of Loss
[c] Amount of Loss
6.3 Extra Expense Coverage
[1] Introduction
[2] Coverage
[a] Standard Policy Language
[b] Flood as a Covered Cause of Loss
[c] Direct Physical Loss or Damage
[d] Disaster Relief and Insurance Recovery
[e] Covered Extra Expenses
6.4 Expediting Expense
6.5 Preservation of Property Clause
7 Recovering under Builder's Risk Insurance
7.1 Introduction
7.2 Insurable Interest
7.3 Builder's Risk Policies: Coverages and Flood Exclusions
[1] Introduction
[2] Insurance Service Organization Policies
[a] Introduction
[b] ISO Commercial Property Builder's Risk Coverage Form
[c] ISO Commercial Inland Marine Builder's Risk Coverage Form
[3] American Association of Insurance Services Builder's Risk Coverage Scheduled Jobsite Form
[4] Progressive Insurance Contractors' All-Risks Policy Form
7.4 Water Damage/Flood Exclusion and Added Coverage
7.5 Contractual Requirement for Coverage
7.6 Deductibles
7.7 Covered Property
7.8 Coverage Limit
7.9 Soft Cost Coverage
[1] Introduction
[2] Definition of "Soft Costs"
[3] Limitations
[4] Deductible
[5] Covered Cause of Loss
[6] Exclusions
[7] Civil Authority Coverage
[8] The Means for Determining the Amount of Loss
7.10 Expediting Expense
7.11 Faulty Workmanship Exclusion
7.12 Exclusions for Extremes of Temperature or Freezing
7.13 Ensuing Loss
7.14 Termination of Coverage
8 Recovering under Boiler and Machinery or Equipment Breakdown Insurance
8.1 Introduction
8.2 Covering a Property Insurance "Gap"
8.3 Policy Forms
8.4 Declarations Page
8.5 Coverage
[1] Generally
[2] Covered Equipment
[3] "Accident" as Covered Cause of Loss
[a] Generally
[b] Typical Policy Language
[c] Occurrences That Are Not Accidents
[d] "Flood" as an Accident
[4] "Breakdown" as the Covered Cause of Loss
[5] Coverage
[a] Property Damage
[b] Business Interruption
[c] Extra Expense
[d] Expediting Expense
[e] Ordinance and Law
[f] Demolition
[g] Utility Interruption
[h] Errors and Omissions
[i] Consequential Loss
8.6 Exclusions
[1] Generally
[2] Water/Flood
[a] Generally
[b] FEMA Standard Flood Insurance Policy
[c] Backup or Overflow of Sewer, Drains, or Drainage Piping
[3] Explosion
[4] Fire
[5] Deterioration, Corrosion, and Wear and Tear
[6] Earth Movement
[7] Ordinance or Law
[8] Perils Covered by Other Insurance
[9] Neglect
[10] Equipment Being Repaired or Tested
[11] Lack of Power
8.7 Limits of Insurance
8.8 Deductibles
8.9 Conditions
[1] Generally
[2] Duties in the Event of Loss or Damage
[3] Reducing Loss
[4] Valuation
[5] Appraisal
[6] Coinsurance
[7] Joint or Disputed Loss
[a] Generally
[b] Clause Contents
[c] Comparable Clause in Commercial Property Policy
[d] ISO Endorsement
[8] Privilege of Insurer to Adjust with Owner
[9] Defense of Insured
[10] Transfer of Rights of Recovery against Others to Insurer
[11] Suspension
8.10 Endorsements
8.11 Successive Insurers
9 Recovering under Commercial General Liability Insurance
9.1 Introduction
9.2 The Underlying Claim
9.3 Definition of "Property Damage"
9.4 Known Loss
9.5 Coverage for an "Occurrence"
[1] Introduction
[a] "Occurrence" as an "Accident"
[b] Intentional Act, Accidental Injury
[c] Prior Experience
[d] Rainfall
[e] Expected or Intended from the Standpoint of the Insured
[2] Construction Defects as an Occurrence
[3] An Occurrence during Roof Repairs
[4] Multiple or Single Occurrence
[a] Introduction
[b] Multiple Events
[c] Multiple Injuries
9.6 Act of God Defense
9.7 Standard CGL Policy Exclusions
[1] Introduction
[2] Expected or Intended Injury
[3] Contractual Liability
[4] Pollution
[5] Property Damage Exclusions
[a] Ongoing Operations Exclusion
[b] "Your Work" Exclusion
[c] Damage to Your Product Exclusion
[d] Your Completed Work Exclusion
9.8 Non-Standard Exclusions
[1] Water Damage Liability Exclusion
[2] Weather-Related Damage to Work in Progress
[3] Interference with Natural Drainage Exclusion
[4] Residential Construction Work Exclusion
[5] Contractor's Professional Liability Exclusion
10 Recovering under Directors and Officers Insurance
10.1 Introduction
10.2 Directors & Officers Insurance Generally
10.3 Coverage
[1] Insuring Agreement
[2] Loss
[3] Claim
[4] Insured Person
[5] Wrongful Act
10.4 Exclusions
[1] Generally
[2] Dishonesty/Intentional Conduct
[3] Construction
[4] Property Damage
10.5 Other Insurance
10.6 No Action Clause
10.7 Conclusion
11 Recovering under an Automobile Policy
11.1 Introduction
11.2 Policy Language
11.3 "Direct" and "Accidental" Loss
11.4 "Colliding" with Flood Waters
11.5 Loss Caused by Water or Flood
[1] Generally
[2] Loss Caused by Water or Flood
[3] Loss Caused by Flood
[4] Loss Caused by Flood Meaning Rising Waters
[5] Loss Caused by Flood Meaning Rising Streams or Navigable Waters
[6] Loss Caused by Flood or Rising Waters
[7] Loss Caused by Water but Not Caused by Rain, Sleet, Snow, or Flood
[8] Loss Caused by External Discharge or Leakage of Water
11.6 Exclusions
12 Recovering from an Insurance Producer
12.1 Introduction
12.2 Agents Distinguished from Brokers
12.3 Liability of Agents and Brokers Generally
[1] Basic Principles
[2] The Narrow Duty of Agents and Brokers
[3] Broader Duty of Agents and Brokers
[4] Negligent Misrepresentation
[5] Defenses
12.4 Liability When the Coverage Sought Is Flood Insurance
12.5 Liability When the Coverage Sought Is a FEMA Standard Flood Insurance Policy
12.6 Liability When the Coverage Sought Is Excess Flood Insurance
12.7 Waiver/Checklists
12.8 Damages
12.9 Reformation
[1] Generally
[2] Reformation of a FEMA Standard Flood Insurance Policy
[a] Generally
[b] The Exception
[c] Reformation Prior to Loss
[d] Reformation after Loss
[e] Examples of Situations Requiring Reformation
13 Recovering from a Commercial Landlord or Tenant
13.1 Introduction
13.2 Lease Covenants Regarding Repairs
13.3 Destruction of Leased Premises
13.4 Landlord's Duty to Warn Tenant of Flood Risk
[1] Generally
[2] Tenant's Duty to Examine Public Record
[3] Duty to Warn of Specific Circumstances
13.5 Agreements to Insure
13.6 Subrogation Claims against Tenants
13.7 Allocation of Insurance Proceeds
[1] Generally
[2] Tenant as Sole Insured
14 Recovering from a Governmental Entity or Regulated Lender
14.1 Introduction
14.2 The United States
[1] Generally
[2] Flood Control Act
[a] Generally
[b] Specific Instances of Immunity from Flood Loss
[c] National Flood Insurance Act and Section 702c Immunity
[3] Waiver of Sovereign Immunity
[a] The Federal Tort Claims Act Generally
[b] The Federal Tort Claims Act and Flood Damage
[c] Limited Waiver under the National Flood Insurance Act
[4] Takings or Inverse Condemnation
14.3 State Governments
[1] Generally
[2] Sovereign Immunity
[3] Waiver of Immunity
[4] Tort Claims for Flood Losses
[a] Generally
[b] Pertinent Tort Law Principles
[c] Road Construction and Maintenance
[d] Failure to Make Improvements
[e] Flood Forecast
[5] Takings or Inverse Condemnation
14.4 Local Governments
[1] Generally
[2] Sovereign Immunity
[3] Tort Claims for Flood Losses
[a] Generally
[b] Negligent Design
[c] Lack of Maintenance or Inspection
[d] Flood Control and Water Control Structures
[e] Water and Sanitary Sewer Systems
[f] Permitting
[4] Takings or Inverse Condemnation
14.5 Regulated Lender Liability
15 Recovering from Weather Forecasters and Those Who Fail to Warn of Weather Dangers
15.1 Introduction
15.2 Private Weather Forecasters
[1] Generally
[2] Media Forecasters
[3] Consulting Forecasters
15.3 State and Local Agencies
[1] Negligent Forecast
[2] Failure to Warn or Alert
15.4 Federal Government Agencies
[1] Generally
[2] Weather Forecast Liability
[3] Aviation Weather Forecasts
15.5 Failure of Private Business to Alert Patrons to Weather Dangers
15.6 Establishing Duty, Breach, and Proximate Cause

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