Corban Mississippi Supreme Court Case Decided, Part 2
My initial impression is that this is a huge win for policyholders because the decision correctly defines the burdens of proof in an all-risk insurance situation. The Court correctly noted what I have been advocating regarding the burden of proof since the date I first landed at Stennis Airport outside Waveland a week after Hurricane Katrina:
With respect to the “all-risk” coverage of “Coverage A - Dwelling” and “Coverage B - Other Structures,” the Corbans are required to prove a “direct, physical loss to property described.” Thereafter, USAA assumes the burden to prove, by a preponderance of the evidence, that the causes of the losses are excluded by the policy, in this case, “[flood] damage.” USAA is obliged to indemnify the Corbans for all losses under “Coverage A - Dwelling” and “Coverage B - Other Structures” which USAA cannot establish, by a preponderance of the evidence, to have been caused or concurrently contributed to by “[flood] damage.” “Contributed to” comes into play only when “[flood] damage” is a cause or event contributing concurrently to the loss. Pursuant to the policy language, only if proof of a “concurrent” cause is presented to a jury for consideration would the jury receive an instruction including the policy phrase “contributing concurrently.
This ruling confirms State Farm’s Wind/Water Protocol is the wrong test under Mississippi law because it improperly shifted the burden upon the policyholder to prove that the wind caused the damage rather than the insurer having to prove that the damage was excluded. Corban undermines the Fifth Circuit reversal of Judge Senter in Broussard vs. State Farm and as I suggested in Broussard's Bad Faith Decision Impaired by the Mississippi Supreme Court.
There is one important mistake the Court did make in its decision when it held:
With respect to the “named perils” coverage of “Coverage C - Personal Property,” the Corbans are required to prove, by a preponderance of the evidence, that the “direct physical loss” to the property described in Coverage C was caused by wind.
There is no named peril of “wind.” Policies have always required the policyholder to prove damage by the named peril of “windstorm.” In insurance lore and law, there is a big distinction. The most significant for Katrina victims is that a hurricane is a “windstorm.” The policyholder can easily prove that.
Hey Chip. I see on SLABBED where you said this was a win, but wish it had come earlier when there were more active claims. Well, better late than never, right? Policyholders have to take what they can get.
I have a question:
How about all these ads I see (both from law firms and public adjusting firms) saying that if the insured thinks they got ripped off (which they probably did) they can have their claim "re-reviewed" for FREE? I mean I know that this decision isn't probably going to be retroactive or anything, but most people won't know that and HOPEFULLY they will come forward NOW w/their settled claims, ask if they got the shaft, seek help and HOPEFULLY get it (and I'm talking about mistakes made during the clms process unrelated to the Corban case).
SHIRLEY HEFLIN
It does no harm to have the case reviewed.
Legally, public adjusters can only do so much. Yet, if it is a damage issue, many law firms are not very good at damage determination and seeing a public adjuster is the way to go.
On the other hand, many public adjusting firms charge what an experienced attorney does in these matters on re-opened claims and cannot make any legal arguments.
Most Hurricane Katrina claims in Mississippi cases are four years old and are settled without the possibility of being revived. This decision would have had a great impact if made two or three years ago.
Still, better late that never.
Well then that settles what I was really wondering about...if the 2 year statute applies those people are....what's a nice word for it.....they're "out of luck."
That's ashamed. I really wonder about Mississippi - such a small state w/alot of corruption - and now the "timing" of this decision. Obviously it was one of great public importance that should have been "fast tracked."
I used to have a bumper sticker on my car that said: WELCOME TO FLORIDA, NOW GO HOME. I'm so glad to be home!
My boss didn't like it so I finally removed it....not immediately though.
SHIRLEY HEFLIN