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The case you cited may not match the facts of your claim. It may be from a different jurisdiction. You have also only given us an excerpt from the case, which outlines one of two positions and doesn't give us the court's analysis or final decision. Also we have no way of knowing if this case has been overturned on appeal, or has been superseded by a later case. I'm not trying to sound mean, but you have (again) given us limited information.

As an adjuster in California I try to be aware of case law but I also know my limitations - I am not an attorney and I don't pretend to be one. A properly written California denial letter needs to quote case law, if the denial decision is based on that law. That's a California regulation. For example, a total loss on an ACV plicy can be paid at the appraised value of the structure plus theoretical demolition costs, if that figure is less than the ACV of the repair costs. That comes from the "Jefferson decision". I have been told by the insurance companies and their attorneys that that is the relevant case law and I beleive them. But if I go fishing for case law on my own, I have no way to be sure any particular case I find is really applicable. If you look at court filings you will often see the plaintiff attorney cite four or five cases they think are applicable, and the defense will counter with four or five cases they think are relevant. Then the judge will render a decision that might cite an altogether different case. Then that judge's decision gets overturned by an appeals court that cites yet another case or makes a whole new law by making a brand new decision that is different from previous cases. So I never decide on my own that a particular case is applicable. I need the insurance company or an attorney to tell me that.

When I was researching case law regarding damagae for indoor marijuana cultivation I ran across a Colorado case that decided the marijuana growing was compensable under the peril of "Vandalism & Malicious Mischeif". I looked at the reasoning and compared it to a California claim I had for damages due to a meth lab. The Colorado case was educational, but as a non-attorney I have no way of knowing whether a California court had already made the opposite decision or if the circumstances of my claim had ever been decided by a California court. Since I am not an attorney I can find cases like the one you cite and read it for entertainment, but how could I know if it actually applies?

If you give me the link to the entire case you cite AND answer every question I can think of about the circumstances of your claim, THEN I could give you an opinion about whether your case is like the other case. But I still wouldn't know if the case you cite is binding on your claim in your jurisdiction, because I am not an attorney.

You can search for cases by going to http://scholar.google.com/ and checking the radio button that says legal opinions and journals.
http://scholar.google.com/scholar_case?case=8700386121225835077&q is the link to the case that I cited previously. You can both read the case their and also see how it has been cited in other cases.
The case is cited as Horizon III Real Estate v. Hartford Fire Ins. Co., 186 F. Supp. 2d 1000, 1004 (D. Minn. 2002).
When readily discernable, the parties intent and the "obvious purpose of the contract as a whole" must govern. Dams, 415 N.W.2d at 723 (internal alteration and quotation omitted); see also State Farm, 645 N.W.2d 169, 175.

Indiana Ins. Co. v. Liaskos, 697 NE 2d 398 - Ill: Appellate Court, 1st Dist., 3rd Div. 1998 is another case where the minimal limit endorsement was honored by the insurance company. In fact, even though the main policy denies coverage, I have not been able to find a single case where denial of the limited coverage was even attempted by the insurance company.
Not only the insured but also the insurance companies interpret the limited endorsement to provide coverage on failure of system designed to remove subsurface water which is drained from the foundation area. Of course, that is what the policy would reasonably be interpreted to do.

http://www.keidel.com/mech/sys-dwv.htm is alink with an explanationof need for venting.
The basement drain was not vented in this insurance case.
The web site states that venting "allows air in front of the water rushing through the waste pipe to be pushed out of the way, preventing back pressure (backflow))."
This is the reason for the backup and/or overflow of water drained from the foundation area in this insurance case.

I looked up Horizon v. Hartford and it does not say what Mr. W says. Here's the link:

http://scholar.google.com/scholar_c...5&as_vis=1

The decision of the court was that regardless of the back up question, the loss was due to rainfall and was excluded by the policy wording.

In fariness to Mr. Wangerin, I did find a lot of ther cases that decided water DID NOT need to flow the wrong direction to be called a back up. One case decided however, the water did need to at least ENTER the drain before causing damage.

There's a bunch of different cases, all with different facts, different policy wording, and different states.

If I understood them correctly, you don't always need water to flow the wrong way for it to be a "back up".

So I learned something new.

But we still have the challenge, as non-lawyers, to know which cases are applicable in what states to what policy language for what circumstances. It is not as simple as it looks to determine which cases are applicable to Mr. Wangerin's claim. I'm not qualified.

So I have to say once again he needs to consult with an attorney, preferably one who is familiar with this area of law.

Another possibility is for him to go to small claims court where the law is not always followed that carefully- He might win even if the case law is against him and the cost is very low.

Can Leland provide the cites for the cases that decided water did NOT need toflow the worng direction to be called a backup.
Thanks in Advance

In Hartfor v Horizon the main policy excluded the loss but the backup endorsement did cover the loss.
Likewise, I agree the loss is excluded under the main policy but covered under the backup endorsement.
I previously quoted the case:
Given this language, Hartford contends that the damage to the Howard Terrace, regardless of the course that the water followed before it flowed onto the basement floor, was covered by virtue of the "Stretch Coverage" for "Back up of Sewer or Drain Water," which it has already paid to Horizon. Beyond that "Stretch Coverage," Hartford maintains that the policy language does not cover the loss Horizon sustained, because of the plain, and unambiguous language, of Limitation A.4.a(3).

Bishops v Penn Nat'l, 984 A.2d 982 (2009) provided $5,000 covered loss under backup sewer endoresement from loss due to hurricane. The coverage was also extended to $600,000 business income coverage (even though a specific exclusion in main policy for sewer back up).

If you google "Hartford v Horizon" you can easily find many cases on the first page of the results, because many other cases cite "Hartford v Horizon". And Mr. Wangerin is correct that many attorneys wouldn't know about this area of law. But an attorney (hopefully) has the training and legal mind to sort through the various cases to make an informed decision on whether the claim has merit.

The very complexity of the case law actually could work to Mr. Wangerin's advantage, because even if this specific issue is "settled" case law in his state, a small claims court judge might not know that or have the time and expertise to figure it out. Small claims, in my opinion, is a sort of "cowboy justice" where the decisions frequently differ from the law. In my experience, a little guy with a sympathetic story has a better chance of winning in small claims than other courts. I used to bring cases to small claims that involved international freight. Very often the applicable law would be Federal or even an international treaty like the Warsaw Convention on shipping. It wasn't unusual for the judge to ignore the fine print of the contract or ignore the applicable law. Perhaps the judge felt that the contract was a "contract of adhesion" presented to the customer on a take it or leave it basis, and the judge felt it was unfair. Or maybe the judge just analyzed the case from the simplest perspective, ie. this person didn't pay the bill, they need to pay. Maybe the judge didn't want to spend hours analyzing the case. The small claims judges usually don't explain their reasoning. Many times the small claims "judges" aren't really judges anyway- they are attorneys working part time for some extra pay. That's why the court often gives either party the option of transferring the case to a real judge in a different courtroom, while still calling it "small claims".

I recommend that you not come across too smart when you go to small claims. It may work better to simply say "I paid for this coverage and the company didn't pay my claim", than to cite case law etc. If you try to use a lot of legal mumbo jumbo and cite case law the judge won't like you.

One of the problems with reading court cases is it's like reading the Bible- be careful not to look for the one sentence that justifies your position.

Mr Wangerin- you are showing an excerpt of one side's position in the "Hartford v Horizon" case. You need to read more carefully- the court spells out one side's position and then the other. Then the court give's it's opinion. You have quoted the court explaining one side, but left out the court's decision which rules against that position.

Thanks Leland. I do appreciate your input.
While it is obviously good avice for the insured to receive a legal opinion, it would obviously be just as good of advice for the claim is andjuster and/or insurer to obtain a legal opinion.
The insured memory is that the claims adjuster recorded a phone conversation where she omitted the conversation regarding the claim under the endorsement. She later stated that she explained the endorsement to the insured during the recorded conversation. She refused to proivde a copy (mp3) of the recording or a trasicript of the recording.
The original denial of the claim did not even mention the endorsement, under which claim was being made.
Misrepresentationof policy coverage is a violation of montana law (MCA 37-18-201) and subject to exemplary damages (MCA 33-18-242).
Code of ethics may require claims adjuster to provide copya of recording: "An adjuster is permitted to interview any witness, or prospective witness, without the consent of opposing counsel or party. In doing so, however, the adjuster shall scrupulously avoid any suggestion calculated to induce a witness to suppress or deviate from the truth, or in any degree affect the witness's appearance or testimony during deposition or at the trial. If any witness making or giving a signed or recorded statement so requests, the witness shall be given a copy of the statement."

Mr. Wangerin- the issues you are raising are not helping you. Even if the adjuster violated some claims handling rule and even did it on purpose, it's unlikely to get you paid.

Think of it this way- sometimes an adjuster will be so unprofessional that the behavior could be bad faith. BUT THAT IS ONLY TRUE IF THE LOSS SHOULD HAVE BEEN COVERED IN THE FIRST PLACE.

Let's say for example you make a detailed claim for your fire damaged personal property. You prepare a detailed list, including values, photos, etc. The adjuster looks at your list, laughs and throws it in the trash. You file suit for bad faith. At trial it comes out that the policy was cancelled two days before the fire. Is the adjuster's behavior bad faith? No, because there was no covered loss in the first place.

This is what lawyers understand and good claims adjusters understand. You need to understand what issues are really important.

Probably the most important question you could ask is "What happened, and does the policy cover it?"

You have written a lot of things, but I am still not sure what happened at your property.

My wife got rear ended in traffic the other day, and I had to ask her to tell the story three times before I could understand what happened. It was a hit and run. I told her to make a police report, but first write everything down so she could present an organized story. After she wrote it down I read it it and it still didn't make sense, so I made her fill in the missing pieces. It was good that she organized her thoughts, because when she made the police report the officer asked her a lot of questions and tried to discourage her from filing a report, which is normal in the LA area.

If you really want help you need to slow down and start with the basics, and tell us step by step how the house got damaged. Don't leave anything out. Where the water came from, how it traveled, how long, what happened next, every step of what happened.

If you do that you might get some real help. Going into detail about Montana rules on taking witness statements doesn't really get you where you need to go.

Mr. Wangerin
I am a public adjuster with a few years of experince in processing claims. I suggest that you determine what it will cost to restore your property to pre-loss condition. A water loss informed licensed contractor should be retained to provide you with that information.
Using copies of his paperwork as supporting documentation submit a notarized formal proof of loss form to insurers by certified mail return receipt requested. Your original submission indicating the proximate cause of the loss may have been in error so be sure and indicate the proper cause of loss on the proof of loss form. Insurers will have to respond with a payment or a denial quoting specific policy language of applicable exclusions. It is not your job to have to match wits with a qualified adjuster that may have overlooked possible coverage. Once insurers have responded to your proof of loss form, you are no longer guessing but should have issues well enough defined to move forward or shut it down. you can c0ntact me through my website claimproblems.com if you need further advices/
William S Cook
Florida Licensed Public Adjuster