California’s Storms Are Not California Dreaming

by Pillsbury Winthrop Shaw Pittman LLP
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Pillsbury Winthrop Shaw Pittman LLP

Takeaways

- It is essential to keep track of deadlines mandated under policies.
- Keep in mind that several types of insurance—not just property insurance—may cover flood and storm-related losses (such as property damage, loss of use and business interruption).
- Critical infrastructure non-profits should explore possible federal grants that can cover disaster losses.

After years of drought, California is currently experiencing record rains that can be as much a curse as a blessing. While reservoirs across the state are full for the first time in years, the deluge has also caused costly water damage in areas unprepared for the dramatic change in weather. Insurance claims will follow these storms as surely as the sun follows the rain.

While business and property owners face business interruption and scramble to deal with the physical damage from flooding, storm winds, rain and mudslides, they should also prepare for the process of recovering from their insurance companies. As they take stock of losses, plan their response, and examine their insurance policies and their recovery options, they are going to face many questions. Can I recover any of the profits I lost when my business was closed or while my customers or suppliers were unable to access it? Are there any government funds, such as Federal Emergency Management Agency assistance, available to aid my recovery?

Securing insurance proceeds and other assistance is crucial to the recovery process. This alert offers a step-by-step guide for identifying issues likely to arise in recover

1. Obtain and Review Your Insurance Policies.

As a first step, it is crucial to obtain, review and evaluate all potentially applicable insurance policies for coverage. Understanding your rights and obligations requires a thorough review of the policies to determine what coverages may apply. (As a general rule, it is always better to know your coverage before a loss actually occurs.) Property insurance is the most obvious source of coverage, but do not overlook auto policies, marine cargo policies, pollution policies and, for those facing potential third-party claims, liability policies. Also be aware that your policies may be subject to other requirements, such as statutory requirements, that could impact the terms of your coverage.

When reviewing your insurance policies, note any deadlines and calendar those dates with reminders set several weeks before the deadline. First, calendar the policy deadlines for you to give notice, file a sworn proof of loss and file suit if you disagree with the insurance company’s coverage determination (note the deadline to file suit might be years in the future). Any tasks that must be completed within a “reasonable” amount of time should be done as soon as practicable. Missing deadlines can be fatal to an insurance clai

2. Assess All Possible Coverages.

With respect to water and storm-related damages, “first-party” policies such as commercial property policies are the most likely to provide coverage for business or property owners’ own losses. Although residential policies, for example, frequently exclude earth movement and flood losses, both may be covered under commercial policies. But even when earth movement, flood or other storm damage is not an insured peril, there may be coverage when another, covered cause (such as wind or a power outage) contributes to or ensues from the loss, as in a fire caused by a flood-related transformer explosion.

In addition to providing coverage for physical damage to an insured’s property, many commercial property policies also include coverage for losses from the interruption or “suspension” of the insured’s normal business activity due to damage to utilities, customers, suppliers, infrastructure and other critical, or dependent, properties, civil authority and ingress/egress. These extended coverages may apply even if the insured’s own property was not physically damaged. For example, depending on policy wording, damage to certain suppliers or customers may result in covered “contingent business interruption” losses. This may be critical to businesses whose supply and customer chains are disrupted as a result of damage to and closure of transportation infrastructure, including roads, railroads and even waterways. California has seen a number of such closures, ranging from the Historic Pfeiffer Canyon Bridge in Big Sur, which is closed indefinitely due to storm damage, to mudslides that closed roads throughout Ventura County and Monterey County. 

Similarly, disruption of power and other utilities may trigger losses insured by service interruption coverage. Curfews, prohibition against entry—like the evacuation surrounding the Oroville Dam and the evacuation of residents in the city of Duarte—and physical obstructions to roads may trigger civil authority or other loss of ingress/egress coverage. Under California law, as long as there is a “causal link” between the order of the civil authority and the loss (e.g., a complete loss of access to the property), coverage may be available. A thorough review of the insuring provisions is critical to determine whether, and the extent to which, such coverage may apply

3. Place All Insurers on Notice.

Even if you have not yet identified all of your losses, or determined that a policy might apply, provide notice as soon as possible to any insurance company under whose policy you might seek coverage. Do not assume you do not have coverage. Give notice anyway. Notice is just that: notice to your insurance company that you might have a claim. It does not need to be too detailed at first, so there is no reason to delay in providing notice. Be sure to precisely follow the directions in each insurance policy regarding notice, and be aware that different policies might have different notice requirements. Pay close attention to your notice deadline, the person or organization you have to notify, and the required form of notice. Insurance brokers may be best positioned to provide the notice, so consider consulting with your broker for assistance.

4. Document and Mitigate Your Losses.

Carefully documenting losses, especially before you undertake any cleanup efforts, is critically important for evaluating the loss. This includes not only property that was damaged, but also property rendered unusable—for example, inventory exposed to moisture. Take notes and photographs. Keep a log of all actions taken. Track expenses for professional fees, mitigation and clean-up costs. Establish separate accounts to track losses. Save all repair receipts and other records of additional expenses made necessary by the damage. Remember: Most phones have pretty good cameras in them; take pictures and otherwise document your losses. (But also remember: If you rely on your phone, make appropriate copies—make a backup of your records. Those photos won’t do any good if you lose them.)

You might also have an obligation to preserve and protect the property from further losses, including mitigating additional damage. Because such steps are mandatory, mitigation expenses are covered under property insurance policies. For example, if a building is flooded, policies require the insured to take necessary steps to dry out flooded areas, and they therefore provide for reimbursement of such mitigation expense, subject to certain limits. Lastly, the insurer may have salvage rights to damaged property and stock, so it is important to preserve any salvageable property to the extent possible.

5. Detail Your Business Interruption and Contingent Business Interruption Claims.

Business interruption coverage reimburses insureds for lost profits during the time that the business was interrupted because of an event (like rain and flood). Contingent business interruption provides coverage for business interruption losses due to damage to customers or suppliers. The biggest challenge in securing coverage for either of these types of insurance is valuing and documenting the loss. It is crucial to keep detailed records documenting when and how your business was interrupted.

6. Engage Experts.

It is usually prudent to engage professional claim consultants, such as forensic accountants, particularly when you have business interruption loss. Additional experts may be needed to model the unique financial aspects of your business. Their professional fees and other mitigation expenses are frequently covered under property policies, subject to sub-limits. Public adjuster fees, however, usually are not covered.

It is also a good idea to retain an experienced insurance coverage lawyer, not just for when you need an advocate, but also to help you protect the privileged nature of your communications and to avoid many of the traps for the unwary in presenting your insurance claim. Counsel can work in the background, without revealing their involvement to the insurance company. Insurance companies typically do the same thing. Cooperate with the insurance company’s adjuster, but don’t forget that the adjuster works for the insurance company—not for you. If you need an advocate, hire your own.

7. Follow the Policy to Preserve the Claim.

After notice of loss, most property policies also require that the insured later submit a sworn “proof of loss” to catalogue the damages. Although this is usually done after reaching agreement with the insurer on the amount of the insured claim, policies sometimes require the insured submit a proof of loss within a fairly short time after the event. Insurers are usually amenable to extending these deadlines if requested, but make sure that any extensions are memorialized in writing. In addition, insureds must also preserve and protect the property from further losses, including taking steps necessary to mitigate (or minimize) additional damage, including business interruption.

8. Government Funds Might Be Available For Non-Profits Providing Critical Infrastructure and Essential Services.

Most people know that FEMA frequently provides funds to state and local governments and individuals. But FEMA and other government-based programs are also potentially available for certain not-for-profit organizations that provide critical infrastructure and essential services. Critical infrastructure and services include: hospitals and other medical treatment facilities; fire, police and other emergency services; power, water and sewer utilities; educational institutions; libraries, museums and zoos; community centers; senior citizen centers and day-care centers. The program and application process can be complicated and daunting—and strict time limits apply. But a successful applicant can see FEMA reimburse no less than 75 percent of eligible costs incurred for emergency protective measures and permanent restoration costs, including debris removal and infrastructure repair or replacement. FEMA does not, however, pay for business interruption losses, and grant recipients must reimburse FEMA for any benefits that are duplicated by other sources, such as insurance.

As destructive and disruptive as heavy rains, flooding and mudslides may be, business and property owners could, by following these tips, be well-placed to recover.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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