Hurricanes and windstorms put significant stress on windows and doors. These types of injuries are easy to prove if something strikes them or if they fail so severely that they are completely removed from the structure. Many policyholders have overlooked this aspect of a hurricane loss because they do not realize how significant wind speeds permanently change the windows and doors. Measurements and analyzes by experts are often required to determine if, and the degree of, the damage to windows and doors that has occurred as a result of a hurricane.
This blog title came to mind when I read a case of Hurricane Michael recently that was settled last week where the insurance company won at trial level because lawyers for the policyholder did not hire and reveal the experts needed to prove that the hurricane caused window and door damage.1
For hurricane and windstorm cases, my experience is that a policyholder generally needs at least three types of experts to win a window and door case:
- A meteorologist
- An engineer or expert on window / door damage
- Costs experts who can provide compensation costs and actual cash values for the window and door damage.
Some insurance company lawyers know this, and they hate it when I hire these experts. It is a costly and intensive process. I personally think that their insurance company customers should do this immediately after the loss. There are still few insurance companies that will spend the money to do so and hope that this common damage is overlooked or too expensive for the policyholder to retain these experts. Many lawyers will not bear the high costs or have no experience of how difficult it is to prove.
For example, the recent decision noted the problems with the evidence presented by policyholders:
Defendant’s experts considered that the plaintiffs’ windows and doors did not need to be replaced due to damage from Hurricane Michael and that water intrusion and internal damage observed in and around some of the windows were caused by design and construction defects and not the hurricane.
The plaintiffs did not present any conflicting expert opinions, but they try to establish causal links through lay testimonies from plaintiff Vicki McPherson and a handyman who performed work on the house before the hurricane. The accomplice testified that he did not recall the plaintiff complaining about “leaking windows” before the hurricane, and Mrs. McPherson testified that she “believes[d]that “most” of the windows and “all the exterior doors” got hurricane damage because she[h]ad no problem with [her] windows and doors before Hurricane Michael “and she” knows[s] What [the] windows looked like before Hurricane Michael, and [she] know[s] what they look like now. ‘
The plaintiffs also did not present an expert opinion on damage, but they revealed two repair estimates during the discovery – one for almost $ 720,000 (from LJB Restoration Services) and the other for more than $ 802,000 (from CMR Construction and Roofing). Both estimates are estimates of replacement cost value (RCV), not estimates of fair cost value (ACV), and both estimates are for replacing all windows and doors in the house. Neither the estimate is supported by an expert opinion nor other acceptable evidence showing which of the windows and doors listed in the estimate were actually affected by hurricane damage.
In its analysis, the court further noted how this lack of evidence caused policyholders to lose their case:
It is common ground that some of the plaintiffs’ windows and doors were damaged by Hurricane Michael and that the defendant paid the plaintiffs in full for the windows and doors which it had determined had suffered hurricane damage. The plaintiffs claim that they are entitled to additional payments under the policy because other windows and doors also suffered hurricane damage. The plaintiffs have the burden of proof for this claim.
Expert opinions are generally required to determine the cause and extent of the damage in a case such as this. Looks Porben v. Atain Specialty Ins. Co., 546 F. Supp. 3d 1325, 1330 (SD Fla. 2021) (‘In insurance policy disputes such as this, it is well established that expert evidence is generally necessary to determine the cause and extent of the damage.’); cf. Morales v. Citizens Prop. Ins. Corp.2022 WL 790294 (Fla. 3d DCA Mar. 16, 2022) (reverse summary judgment in favor of the insurer because the evidence presented by the insured’s “expert” contractor created a factual dispute regarding the cause of the damage to the insured property); Fredrick v. Citizens Prop. Ins. Corp.314 So.3d 539 (Fla. 3d DCA 2020) (reverse summary judgment in favor of the insured because the inspection report and deposit testimony from the insured’s main contractor – an expert – established a factual dispute about the cause of the damage to the insured’s real estate).
Here, the plaintiffs failed to present any evidence from which a jury could establish that the defendant did not pay all that the plaintiff owed under the policy of hurricane damage to their windows and doors. It is essential that the plaintiffs did not present any expert testimony which refuted the defendant’s expert opinion that “windows and doors on [Plaintiffs’] property does not need to be replaced due to damage from Hurricane Michael. ‘
When I said that these cases can be complex and can even go to a very expensive exact window and door analysis, the court found what the policyholders had to prove:
The plaintiffs have not provided any evidence as to which specific windows and doors were damaged by the hurricane other than those already paid for by the defendant, nor have they provided any evidence as to the extent of the damage to those windows and doors. Without such evidence, there would be no basis for the jury to find that the plaintiffs have not received what they owe under the insurance.
Hurricane and storm damage to windows and doors are very common. They can lead to significant damage – especially to commercial buildings, apartment complexes and condominiums. These types of damages are often not claimed because no investigation is made to determine the extent of the damage. The investigation is often very expensive and the insurance companies will generally not pay for it until the policyholder makes such an investigation and claims that damage has occurred. Consequently, these types of benefits often remain unclaimed.
Policyholders should hire experts who know what to do when faced with these types of claims. If you have any questions about these types of claims and what to do when faced with evidence of them, never hesitate to call me or another attorney at Merlin Law Group.
Today’s thoughts
Note that the stiffer tree breaks most easily, while the bamboo or arrow survives by bending with the wind
-Bruce Lee
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1 McPherson v. Lexington Ins. Co.No. 5: 20-cv-00318 (ND Fla. July 6, 2022).
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