|Tom Toll (Tom)
|Posted on Monday, February 12, 2001 - 11:26 pm: |
Herb, thank you very much. This is what I and a lot of other adjusters would like to see on the CADO forums. You obviously are a person with insight and knowledge of this profession. Congratulations on your posts above and keep up the good work.
|Herb Carver (Herbcarver)
|Posted on Monday, February 12, 2001 - 9:45 am: |
Afterthought: there is a difference between Ice, Sleet, and Hail.
Like windstorm, the Extended Coverage Endorsement does not define “hail”, so we must turn to the common language definition. Webster’s Encyclopedic Unabridged Dictionary defines hail as “precipitation of small pellets of ice and hard snow.” This definition, however, does not provide any basis for distinguishing hail, a named peril, from sleet, which is generally excluded. As originally drafted, the Extended Coverage Endorsement did not specifically exclude damages caused by sleet even though such damage was not originally intended to be covered. Some courts even held that damages caused by sleet fell within the coverage provided for the peril of hail. As a result, the form was revised to provide a specific exclusion for damages causes by sleet.
Even so, questions of interpretation continue to arise. Take for example Commonwealth Lloyds Ins. Co. v. Downs, 853 SW2d 104 (Tex. App. 1993), a case involving a policy that provided coverage for hail but did not address ice or sleet. The insured’s roof collapsed due to an accumulation of ice, and coverage was sought for the collapse by arguing that that the accumulation of ice pellets fits within the commonly understood definition of hail. During the trial, an expert meteorologist testified as to the fact that no actual weather condition known as “sleet” exists. Although it is a popular name for a mixture of rain and snow, the term “ice pellet” is the correct scientific term for a frozen raindrop. He further went on to define hail as “many, many raindrops that are frozen in successive trips up and down the clouds.” The court therefore concluded that ice pellets, which may appear hail-like, are not similar enough to hail to allow for the coverages considered.
Interesting. This may or may not apply to your comment, it was just an afterthought I felt like sharing.
|Herb Carver (Herbcarver)
|Posted on Monday, February 12, 2001 - 9:39 am: |
T, there is no one answer to your question concerning wind speed. (Thank you for the “heads up”, Ron) The named peril in your example is actually “windstorm”, a term not defined in the policy. In fact, courts have not been consistent in determining how much wind is necessary to qualify as a windstorm. 15 mph? 25 mph? 40 mph? There is no correct answer here. Some courts, such as the Missouri Court of Appeals in Schaeffer v. Northern Assurance Co., 177 SW2d 688 (1944) have taken a more literal definition of the term, saying:
“The term as used in a policy of insurance such as that with which we are here concerned means a wind of unusual violence. It is something more than an ordinary gust of wind or current of air no matter how long it continued. It need not have the violence or the twirling or whirling features of a cyclone or tornado, but it must assume the aspects of a storm, that is, an outburst of tumultuous force.”
Other courts, such as the Wisconsin court in Gerhard v. The Travelers Fire Ins. Co., 18 NW2d 336 (1945), have taken a broader stance by concluding:
“We think that a windstorm must be taken to be a wind of sufficient violence to be capable of damaging the insured property either by its own unaided action or by projecting some action against it. This is especially true where as here the more violent forms of windstorm are especially named as something different from a mere windstorm. Any other view would work an imposition upon the insured. If [the Insurer] wishes to adopt some scale which establishes the velocity of wind necessary for a windstorm, or if it desires to limit its liability beyond the point that we have indicated, it should incorporate its proposed standard into the policy by clear terms and such ambiguities as are left in this policy should be resolved against it.”
Given the diversity of considerations for “windstorm” represented by these two opinions, the issue as to whether or not physical damage can be attributed to windstorm is factual and depends on the particular circumstances of each loss. Nonetheless, with the existence of a windstorm, the physical damage must be proximately caused by the peril of wind to qualify for coverage. Although the legal doctrine of “proximate cause” is often misapplied or over-used, if the first event (windstorm) in an unbroken chain of events leads to a loss, then it can be said that the windstorm was the proximate cause. I myself am not a great fan of this logic since it encourages endless chains of events. However, in the example you provided, windstorm appears to be the proximate cause.
Keep in mind that under a specified perils policy, the insured has the burden of proof in establishing the cause of loss.
|Posted on Saturday, February 10, 2001 - 2:33 pm: |
Falling limb(s) damaged roof, speed of wind is not relevant
|Posted on Saturday, February 10, 2001 - 1:26 pm: |
This will be a good one for you, Herb.
|Posted on Saturday, February 10, 2001 - 5:49 am: |
Under HO-A and TDP-1 Forms policies. These are Named Peil policies.
When does the speed of wind come into play.
In other words, Ice/Sleet(which is hail!) and then 25 Knot gusts of wind and tree limbs fall.
If the situation is as I described, would not Wind or even Hail be considered as the peril?
Don't kill me just looking for some answers!!