Chip Merlin | Property Insurance Coverage Law Blog | May 25, 2016
Hailstorms are wreaking havoc as noted in Brandee Bower’s post yesterday, Greetings From Hail Alley. After contacting their insurance companies, some policyholders unfortunately find their insurance companies deny the claims based on exclusions in the insurance contract involving wear and tear as well as inadequate maintenance.
To be fair, roofs get older and there is always wear and tear on older roofs. Rarely are close up pictures taken of roofs taken just before a hailstorm occurs. Accordingly, changes in the condition of some roofs caused by the winds and hail in a hailstorm versus pre-existing wear and tear become an issue.
My impression is that many insurers are increasingly claiming exclusions caused by wear and tear as well as inadequate maintenance. Indeed, insurance company engineering firms are increasingly advertising their services for these issues. There is nothing unethical about this, but the trend is landing many hailstorm losses into denials and subsequent litigation.
An excellent case regarding these issues is Monterra Apartments Ltd. Liability Partnership v. Sequoia Insurance Company.1 Sequoia denied that the hailstorm damaged the roof and claimed that the damage was wear and tear or inadequate maintenance. Regarding these issues, this is what the court found:
The policy clearly and unambiguously excludes coverage where wear and tear is the sole cause of damage. The last sentence quoted above clearly states, however, that the exclusion of coverage in Section I.B.2.1 does not apply—in other words, the policy provides coverage—where an “excluded cause of loss” results in a “specified cause of loss.” The phrase “specified cause of loss” is defined in Section I.H.11 to include “hail.” Therefore, replacing “excluded cause of loss” with “wear and tear,” and “specified cause of loss” with “loss from hail,” the clause reads: “if [wear and tear] results in [loss from hail], we will pay for the loss or damage caused by that [hail].”Thus, when wear and tear contribute to damage by a hailstorm, the policy provides coverage for the hail damage. Further, the policy covers any ensuing damage from the hail, such as water penetrating the roof as a result of the hail.
…The “Covered Cause of Loss” can be stated as “hail” or “loss from hail” because hail presents a “risk of physical loss” and is not excluded by the policy….Using these substitutes, the key provision reads: “if [inadequate maintenance] results in [loss from hail], we will pay for the loss or damage caused by [the hail]. This produces the same result as the wear and tear exclusion discussed above. Thus, when inadequate maintenance permits hail damage to occur, the policy provides coverage for the hail damage.
The parties dispute whether hail or inadequate maintenance damaged the roof or resulted in moisture penetrating the roof. This factual issue is for the jury.
The bottom line is that the insurance company better be prepared to show that all the damage was caused by pre-existing wear and tear or that all the damage resulted from inadequate maintenance. Sometimes that is the case. But in many cases, older roofs having wear and tear are also torn up by the winds and hail stones which are occurring much more often today.