Property Insurance Coverage Law Blog : Florida Insurance Lawyer & Attorney : Merlin Law Group Law Firm : Tampa, Houston, Coral Gables, Gulfport

State Farm was the major personal lines insurance company along the Mississippi coast when Hurricane Katrina hit. At its moment of truth -- when it had to decide whether to give its customers the benefit of the doubt and pay for Slab claims, State Farm's highest claims officers decided to deny those claims. The story inaccurately says that State Farm won this battle. It lost, and its loss would have been a financial catastrophe, but for a dubious ruling by the Federal Fifth Circuit Court of Appeals, which allowed State Farm to escape punative damages.

Still, I found State Farm to be a very able opponent during the Hurricane Katrina litigation and said so in the article:

State Farm is known for taking a broader view of each disputed case than other insurers, said Chip Merlin, a Florida attorney who said he's handled hundreds of Katrina claim cases, including many State Farm customers.

"It's about what (the case) might mean not just today, but five years from now," said Merlin, who only has a half-dozen cases still pending. "They're very worthy adversaries."

The story is not quite complete because a qui tam case involving State Farm catastrophe claims adjusters is set for trial in December. In that case, State Farm allegedly overpaid flood claims to reduce payments it owed under all risk policies.

While all this nostalgia is going on, there are new dangers lurking in the Atlantic. As correctly predicted in Tropical Waves off Africa Indicate a Need for Concern, Hurricane Danielle has formed and another very strong wave seems destined to become a hurricane as well. Regarding the second wave, the National Hurricane Center has this to say:

A BROAD AREA OF LOW PRESSURE ASSOCIATED WITH A TROPICAL WAVE LOCATED ABOUT 350 MILES SOUTHEAST OF THE CAPE VERDE ISLANDS CONTINUES TO SHOW SIGNS OF ORGANIZATION. THIS SYSTEM COULD BECOME A TROPICAL DEPRESSION DURING THE NEXT DAY OR TWO AS IT MOVES WESTWARD OR WEST-NORTHWESTWARD AT ABOUT 15 MPH. THERE IS A HIGH CHANCE...60 PERCENT...OF THIS SYSTEM BECOMING A TROPICAL CYCLONE DURING THE NEXT 48 HOURS. (emphasis added)

Five years ago, I was in pretty good shape, getting ready to run a marathon in a Boston Marathon qualifying time. Today, I am again getting ready to run a marathon, but my ever aging body is heavier and losing its get up and go. Given all these sanguine memories, lost abilities, frightening anticipations, and hopes for surprising happy endings, this seems a very appropriate ending to the post:

http://www.youtube.com/watch?v=RxPZh4AnWyk

Rocco Calaci has taken time to write as a guest meteorologist on this blog. He has a web page listing sites and even tips for policyholders. Here are the sites he suggests for hurricane meteorology:

• National Weather Service
• National Hurricane Center
• Weather Underground Tropical page
• Gulf of Mexico Buoy Data
• Hurricane Tracking

The buoy data can be very revealing when a major storm is accompanied with storm surge. I was on the phone with Doug Branham of Colonial Claims before Katrina hit. He alerted me to the huge wall of water that eventually washed away parts of Mississippi, Louisiana and Alabama based on this information.

Jeff Masters WeatherUnderground Blog and Hurricane Terrapin are the two quick sites I watch. I strongly suggest that the Discussion made by the National Hurricane Center be read to better understand how the professional meteorologists are viewing the accuracy of their predictions and expectations. The Discussions are on either of these two sites.

Finally, for some off the wall fun, I have long kept bookmarked BobbiStorm's Hurricane Harbor blog. For instance, this is how she concluded last night's post:

Either she intensifies or gets downgraded... that's my guess. And, expect to see that track pulled back to the north a bit more as Bonnie is being pulled more to the north around the flow of the Upper Level Low and it's an interesting storm... that's all I'll say. Each in it's own way is interesting.

Miami is amazing. Breakfast at Bayside this morning and hunkered down for a Hurricane Party tonight... low key party, no liquor... lots of cherries and designer water ;)

Sweet Tropical Dreams... Bobbi

Speaking of a party, the weekend is almost here and this nostalgia should help get you in the mood:

Five years ago, Hurricane Cindy formed at about this same of year and from the same location. She went right through the area where the oil is currently gushing from the Gulf.

This weekend, a number of people reading this blog and throughout the coastal areas of the Gulf of Mexico will be watching for reports on Tropical Storm Alex. If it goes ever so slightly in a more northerly direction, it will disrupt and hinder the Oil Spill containment and clean-up efforts. It will be disaster for the coastal areas if it pushes oil into the estuaries. CNN noted these two scenarios in Tropical Storm Plus Oil Slick Equals More Fear and Uncertainty:
 

"The greatest nightmare with this storm approaching is that it takes this oil on the surface of the Gulf and blows it over the barrier islands into the bays and the estuaries," Sen. Bill Nelson, D-Florida, told CNN. "And that is where you really get the enormous destruction, because it's just very difficult to clean up those pristine bays."

Alex is heading is west-northwest direction and was not predicted to directly pass over the massive oil slick caused by the ruptured BP undersea well, though its path could change.

A tropical storm in the Gulf has the potential to disrupt BP efforts to collect gushing oil and drill relief wells. It would also complicate efforts to clean up miles of coastline. High winds and seas could distribute the oil -- still gushing from a blown deepwater well -- over a wider area while storm surges could wash more oil ashore, according to a fact sheet prepared by the National Oceanic and Atmospheric Administration.

While searching YouTube for a fitting and more optimistic conclusion to this post, I came across the following which shows how fortunate we are to be able to enjoy the remarkable talents and creativity of others in our age:
 
 

In 2009, the El Niño effect developed in the eastern Pacific, resulting in a very slow year for hurricanes. As of today, April 13, 2010, the eastern Pacific sea temperatures are approximately 3.5 degrees Fahrenheit warmer than normal...a moderate El Niño situation.

The temperatures in the eastern Pacific have been dropping and forecast numerical models agree that by the end of August, sea temperatures will cause a "neutral" zone, thereby having no effect on Atlantic hurricanes. Some models go as far as predicting an El Niño zone, causing Atlantic hurricanes to become stronger. Of course, it is much too early to know exactly what will occur. Remember, numerical models are only as good as the data input.

Normally when an El Niño situation occurs, the northern Gulf Coast and southern Florida should experience wetter than normal conditions. Up to today, the northern Gulf Coast is well behind in rainfall, but South Florida is above monthly averages. El Niño was also supposed to cause warmer than normal conditions along the northern Gulf Coast, yet we had a winter with much colder than normal temperatures. This goes to show that you can't rely on statistics alone.

As with previous years, I will explain in laymen’s terms what the National Hurricane Center is forecasting. I will also provide an update of the upper level weather situation and an outlook of how well the National Hurricane Center is performing.

Here are some points of interest for everyone:

1. Have a hurricane evacuation plan.
2. Review your insurance policy and determine of you have enough insurance coverage. After Hurricane Ike, I found that the majority of folks were under-insured on their properties. Don't expect the insurance companies to pay you more than what you have insured your property for. You may have to pay more for additional coverage, but it's better than not having enough to cover potential losses.
3. Inventory your belongings on paper and video, if possible. Again, my experience shows that the majority of homeowners do not take this step prior to a hurricane hitting their area.
4. Understand your responsibilities as a policyholder. Insurance companies have thousands of customers and can't spoon-feed every policyholder; policyholders should take responsibility for their own belongings and contractual obligations. You can't expect your insurance company to do its part if you don't do yours.
5. Pay attention to bulletins from the National Hurricane Center and your local authorities. In 2008, the initial thought was Hurricane Ike would strike the East Coast of Florida and it wound up in Galveston, Texas.

Everyone knows the danger and devastation that comes with a hurricane. Please protect yourselves, your families and your property.

-Rocco Calaci

The picture above tells the whole story. As long as we have a lingering cold front along the East Coast, Erika isn't going to be much of a threat. The problem arises if the front begins to dissipate, allowing Erika to move towards land.

All of the models are moving Erika straight for southern Florida, but it has to cross the Bahamas before it would hit Florida. At the moment, the threat area is from Miami northward to Melbourne.

If the front stays in place, Erika will move very close to the East Coast, but gradually move northward, skimming the coastline. If the front dissipates, then Miami to Melbourne are the prime areas at this time.

Based on the models, Erika isn't expected to be more than a Category 1 hurricane. I hate to spoil the party, but models don't always get these types of storms timed correctly.

Remember, it is still early, things can change quickly and we could have a completely different scenario within a few days.

This message is for non-operational use and is only intended to provide updates, not forecasts. Please pay attention to the bulletins issued by the National Hurricane Center (http://www.nhc.noaa.gov/).

I will begin regular distribution of messages, if and when this storm becomes Tropical Storm Erika and is a definite threat to the United States.

- Rocco

Why do some meteorologists believe they can perform an accurate analysis of what occurred at a specific location from hundreds of miles away using only available data? Aren’t such things as local topography, microscale effects, elevation, and other environmental aspects as important as the macroscale situation in determining what happened at a specific address?

Why do trees blow down with winds between 50 to 55 miles per hour with the Beaufort Wind Scale, yet aren’t affected by wind until 104 miles per hour in the Saffir-Simpson Scale? Are trees stronger in hurricane-prone areas?

Why do we use statistics to determine what occurred at a specific address? Aren’t statistics a bit over-blown?

Why did Dr. Robert Simpson (yes, he is that Dr. Simpson) state that the release of the Saffir-Simpson Scale was “premature” during a radio interview in 1991?

Why does the public continually blame the National Weather Service and the National Hurricane Center for “missed forecasts”, yet deny these same agencies the funds and manpower to do the job? If you want better weather information, write to your congress person and demand more funding for the National Weather Service and National Hurricane Center.

Why aren’t realistic wind flows and characteristics used in evaluating hurricane damage? Each situation is different, so each evaluation must be different.

Why do we make something simple into such a complicated process?

Please note how the outflowing winds create what appears to be a horizontal tornado-like vortex. This phenomena is extremely dangerous and destructive. Microbursts are a major cause of airplane accidents every year.

It is not the responsibility of the National Weather Service (NWS) or National Hurricane Center (NHC) to pinpoint every small scale feature hidden within a hurricane. The NWS and NHC do their job extremely well, but if individuals want to know what occurred at their specific address, then it is the responsibility of the property owner to acquire the expertise of a professional meteorologist. You have the responsibility to hire a meteorologist that can make a detailed analysis of the meteorological situation and determine what weather elements (if any) were present on your property. It’s your property and your responsibility.

Based on my experience as a forensic meteorologist, a homeowner needs three experts on the team in order to reach an honest and factual determination of what occurred at a specific address during a hurricane. These experts are:

1. A meteorologist – this person should be able to give you a detailed and site specific report on meteorological elements that affected your property. Be advised that this also means a meteorologist can reach a conclusion that you don’t want to hear, but facts are facts.
2. An engineer – if it is determined that high wind speeds affected your property, an engineer can calculate if the weather elements at your location were strong enough to cause the damage you experienced.
3. An experienced lawyer – if you need legal counsel, make sure you have someone that knows and understands this specific area of law. I have seen too many examples where inexperienced lawyers (inexperienced in handling weather-related cases) have moved too slowly or in the wrong direction because they are learning as they try to handle your case.

In summary, there were numerous mesocyclones, microbursts and other meteorological phenomena that occurred within Hurricane Ike with many areas widely affected by these elements. These weather events are capable of causing damage levels from minor to total destruction. Just because high wind speeds may not have been present in your area, it doesn’t mean other destructive forms of weather were not there.

Please understand that the people in the NWS and NHC are doing a great job. If you want to know what happened at your specific address, that is your responsibility.

In order to determine what caused damages which may be covered at your location, you need a team of experts; a meteorologist, an engineer and an experienced hurricane lawyer.

As a note, I am not affiliated with either the NWS or NHC in any way. My opinion is formed after being an operational meteorologist for 20 years in the military and 19 years in the commercial industry and watching these organizations perform over this span of time.

- Rocco Calaci

Everyone talks about the maximum wind speed, the highest wind gust, the storm surge and how all of it fits together as part of Hurricane Ike. What puzzles me is why aren’t more people focusing on many of the other weather elements found within Hurricane Ike (and other hurricanes) that routinely cause ground damage, most of the time hours before a storm surge hits the coastline.

Hurricanes are more than just high winds and water. Hurricanes also spawn tornadoes, microbursts, straight line winds, extreme ground turbulence and phenomena that have the definite capacity to destroy houses, rip off roofs, uproot trees and do lots of damage. There are also induced dangers such as funneling winds and wind maxima areas (an area where two wind bands converge together to form a small area of increased wind speeds). These meteorological elements occur during hurricanes, yet everyone focuses on the highest wind speeds and storm surge heights.

Some of these mentioned elements can be detected and measured by the latest weather technology, but most of what I mentioned can not be measured. That doesn’t mean that the phenomena do not occur or can not be proven. I’ll start with mesocyclones.

As defined by the National Oceanic and Atmospheric Administration's National Weather Service (NOAA/NWS), a mesocyclone is a storm-scale region of rotation, typically around 2-6 miles in diameter and often found in the right rear flank of a supercell. The circulation of a mesocyclone covers an area much larger than the tornado that may develop within it. In other words, mesocyclones have the capacity to spawn tornadoes.

Another specific point about mesocyclones as defined by NOAA/NWS - Properly used, mesocyclone is a radar term; it is defined as a rotation signature appearing on Doppler radar that meets specific criteria for magnitude, vertical depth, and duration.

This means that if all the physical characteristics of a mesocyclone are present, but it doesn’t meet ALL the specific criteria based on magnitude, vertical depth and duration, this phenomena will not be detected by NEXRAD. This is why some people state that NEXRAD may miss as many mesocyclones as it detects. The same goes for NEXRAD detected tornadoes. If NEXRAD doesn’t detect it, the meteorological event can still happen.

For example, the NEXRAD Doppler weather radar located in Houston and operated by the National Weather Service (NWS) detected numerous mesocyclones moving across Bolivar peninsula, the Sabine Pass area, northwest Houston, and along Galveston Bay. If you apply simple statistical data, 30% to 50% of all mesocyclones develop tornadoes. If there were 60 mesocyclones, they would spawn 18 to 30 tornadoes.

Just because there were no “confirmed” tornadoes doesn’t mean there were not any tornadoes. You have to understand the limitations of the NEXRAD radar, the rules, guidance and responsibilities pertaining to the National Weather Service and what you should do in the event you spot a tornado during a hurricane (or any other time). This is another subject for a later blog.

Please accept that no technology is perfect. The NEXRAD radar is a great upgrade from what meteorologists had before as the dedicated meteorological radar. NEXRAD provides all types of data and information used at all times by the NWS and National Hurricane Center (NHC), but it is not perfect. NEXRAD products are the visual results of algorithms. There is no algorithm for any meteorological event that can cover all possible scenarios. Even algorithms have limitations. Due to these limitations, NEXRAD can not detect each and every meteorological element that occurs.

Some people think the workers at NWS/NHC should be responsible for providing weather data for all people at all times. The NWS/NHC workers are already overworked, undermanned and unfunded and to have the inferred responsibility of having to provide weather information that applies to each person at any chosen time is unrealistic. This is impossible!

As for the rules and responsibilities of the NWS and NHC; these are dictated by people at high levels of government that really don’t have a clue as how a real weather situation creates more work than anyone could possibly expect. We expect miracles from the NWS/NHC and complain when miracles don’t occur.

From what I see as an impartial observer, The NWS and NHC are doing exactly what is mandated by higher headquarters and the government. Their job is to protect and warn the public, not determine the winds specifically at 123 ABC Street in Anywhere Texas.

(For further explanation of the damage caused by Ike, apart from the hurricane winds and water, please read Part Two of Rocco Calaci’s guest blog tomorrow.)