What is a Wind Driven Rain Exclusion?
Will My Claim be Denied Due to a Wind Driven Rain Exclusion?
Hurricane Florence brought a mix of strong wind and rain, causing flooding and significant damage to property throughout North Carolina, particularly along the coast. In the aftermath of the storm, home and business owners have been filing claims with their insurance providers, hoping to receive payments sufficient to cover the repairs needed to rehabilitate their property.
However, before receiving payment from an insurance provider, the claim must be evaluated to determine whether the damage claimed is covered under the policy. Insurance policies are better-known for their exclusions than for their actual coverage, and many policyholders do not fully understand the actual effect of those exclusions until they receive a denial of their claim from their insurance provider. While every insurance policy contains different exclusions, the wind driven rain and storm created opening exclusions seems to be the most used by insurers to deny coverage, and the most contested by insureds.
In connection with windstorm or hail coverage, wind driven rain and storm created opening exclusions typically includes language similar to this:
This peril does not include loss to the inside of a building or the property contained in a building caused by rain, snow, sleet, sand or dust unless the direct force of wind or hail damages the building causing an opening in a roof or wall and the rain, snow, sleet, sand or dust enters through this opening.
If you live in a coastal region, you likely purchased your insurance policy specifically to cover your property in the event of a hurricane, and hurricanes necessarily bring wind driven rain, right? Unfortunately, wind driven rain can be very problematic in the event of a hurricane. Many insurance companies will deny coverage, unless the wind from the storm caused a breach or opening in the structure itself that then allowed water to infiltrate the interior of the home and cause damage. This exclusion is precisely why many North Carolinians are receiving denial letters from their insurance providers pertaining to their Hurricane Florence related claims.
As a result of the storm, insurance companies are facing billions of dollars in claims, and policyholders are typically not insurance experts. Therefore, insurance companies are in a position to give policyholders the runaround and deny claims by concluding that the damage claimed is excluded by a wind driven rain or storm created opening exclusion. Conveniently, this saves the insurance companies millions of dollars, but it certainly does not benefit the policyholders who are relying on receiving payment for their claims to repair their homes and businesses.
Insurance companies must face the facts.
Hurricane Florence was a major Category 4 hurricane, with maximum wind speeds reaching 140 mph. When Hurricane Florence made landfall over Wrightsville Beach, North Carolina, it was still a Category 1 hurricane with sustained winds of 90 mph. Hurricane Florence slowed down when it made landfall, moving as slow as 3 mph along its course, causing the wind and rain to continuously batter the area for 3 full days. Certain areas even experienced tornados that caused additional damage to property.
In the aftermath of Hurricane Florence, roofs and windows were damaged, homes and businesses were destroyed, and many properties inevitably incurred water damage. How can the insurance companies confidently conclude that the damage to your property is not covered due to a wind driven rain or storm caused opening exclusion, when the wind was necessarily a significant contributing factor, and some storm caused “openings” are undetectable to the naked eye? It is hard to believe that the wind was not the primary cause of most of the damages caused by the storm.
If a dispute arises with your insurance provider and it becomes necessary to bring your claim to court, you need to be aware that these exclusions are part of a contract. The courts will give reasonable interpretation to the language in the contract, unless the language is deemed ambiguous by the court. Generally, if an exclusion is ambiguous, any ambiguities will be held against the insurer. However, what may appear ambiguous to a policyholder may not be found to be ambiguous by a court of law. Importantly, many courts throughout the country have held insurer’s wind-driven rain exclusions to be unambiguous, giving them full effect.
If you find yourself in litigation over a wind driven rain exclusion (or other water related exclusion under your policy, i.e. surface water, tidal wave, high water, overflow or flooding), your best bet at success is having your supporting evidence ready to go. To prove that a wind driven rain or other water related exclusion does not bar recovery under your claim, it is typically necessary to prove that the windstorm itself was the “dominant and efficient cause of the damage,” including situations where the wind created a breach or hole in the building that subsequently caused water damage to the interior of the building. If the wind can be proven to have caused the initial damage to the property, and rain—driven or not—caused subsequent damage, it is likely that an insured will recover under the claim, on the basis that but for the wind damage, the wind driven rain damage would not have occurred. However, if the damage is capable of being apportioned to wind damage and wind-driven rain (or other water) damage, an insured may recover only the portion of damages proven to be attributable to the wind.
Some courts have chosen not to apportion damages caused by both a covered peril (i.e. wind) and an excluded peril (i.e. wind driven rain), finding the wind to be a significant cause of the damage, justifying full recovery under the claim. However, every court is different and every case is different. If the wind damage and wind driven rain (or other water) damage cannot be apportioned, or the covered peril and excluded peril are determined to have caused the damage concurrently, the insured may be barred from recovering under the claim. This is why it is especially important to have your supporting evidence ready.
Some evidence that may help you succeed in your litigation over a wind driven rain or other water related exclusion in your insurance policy are as follows:
- Factual evidence supporting the strength and direction of the winds associated with the windstorm causing damage to your property;
- Pictures or videos documenting the damage to your property as it occurred or immediately after, showing that the wind damage occurred prior to and facilitated the water related damage to your property;
- Eye-witnesses who saw the wind damage occur prior to the water related damage to your property;
- Independent evaluations by professional contractors that determine the wind damage to your property occurred prior to and facilitated the subsequent water damage to your property;
- Expert witnesses who can testify that the damages to your property likely occurred in a certain order—wind damage first, then water damage that would not have occurred but for the wind damage.
If you decide to initiate litigation against your insurance provider to receive recovery under a claim that was denied due to an exclusion in your policy, it is important to retain an attorney who is experienced in handling insurance litigation. While court decisions arising under these exclusions go both ways, making it difficult to guarantee success, an experienced insurance attorney knows the ins and outs of the exclusions your insurer relies upon, has been up against these exclusions and insurance companies before, and knows how to best advocate your claim.