Merlin Law Group Attorney Sean Shaw is Running for Attorney General

Sean Shaw, Chip Merlin, and Leander Shaw

Sean Shaw is a practicing attorney resolving legal issues for people and it is only fitting that he is running to become Florida’s Attorney General. Do you want an honest person that sees both sides of the aisle, wants to seek practical resolutions, and still rise up against obvious wrong? Sean Shaw is your candidate. Continue Reading

Hurricane Harvey FEMA Claims vs. Inverse Condemnation Claims: Do You Know Your Recovery Rights? (Part II)

Hurricane Harvey flooding impacted Texas property owners (i) with sufficient flood insurance to cover the loss, (ii) with insufficient flood insurance to cover the loss, and (iii) without flood insurance. This three-part series outlines the differences in the rights of these property owners and the different avenues to recovery. My previous post was Hurricane Harvey FEMA Claims vs. Inverse Condemnation Claims: Do You Know Your Recovery Rights? (Part I), where I discussed one avenue of recovery for property owners with flood insurance under the National Flood Insurance Act of 1968. This post focuses on a wholly separate recovery avenue for property owners with or without flood insurance under the Takings Clause of the Fifth Amendment to the United States Constitution. Continue Reading

Absent a Specific Definition, Leakage Generally Refers to Low Volume or Gradual Event

Water damage from a broken water supply line is one of the most frequent homeowner’s insurances claims. Quite often, an insurance carrier will assert there is no coverage for the resulting damage by citing to a “leakage” exclusion. In one such instance, while the policyholder was living in Ohio, the water line separated from the wall in an upstairs bathroom in his Michigan home causing a significant amount of water to flow into his home for 27 days.1 The carrier denied any coverage based on this exclusion:

1. “We” do not insure “physical loss” caused by:

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h. Constant or repeated seepage or leakage of water or the presence or condensation of humidity, moisture or vapor, over a period of weeks, months or years unless such seepage or leakage of water or the presence or condensation of humidity, moisture or vapor and the resulting damage is unknown to all “insured” and is hidden within the walls or ceilings or beneath the floors or above the ceilings of a structure.

The insurance policy did not define the term “leakage” or “seepage.” The parties were unable to resolve their differences and the matter proceeded to litigation.

The trial court explained that “seepage” and “leakage” were more akin to a slow release of a small amount of water consistent with “humidity, moisture and vapor” and reasoned that weeks, months, or years were the periods of time it would take for a small discharge of water to cause damage. The appellate court agreed and likewise concluded that the commonly used meaning of “leak” refers to a gradual or low volume water event. The appellate court explained:

For the exclusion to apply, the “leakage” or “seepage” is required to be “constant” or “repeated” “over a period of weeks, months or years.” This time requirement of weeks, months, or years is necessary for a low volume gradual water “leakage” or “seepage” to cause significant damage to a home. As the trial court found, the terms of the exclusion demonstrate [the insurance carrier’s] intent to avoid coverage for losses that are caused by a homeowner’s neglect, failure to maintain, and failure to occupy a home.

The appellate court concluded that the exclusion did not apply because the amount of water that was released into the policyholder’s home would have caused significant damage within hours or days because the separated pipe essentially caused flooding.

While each case has its own distinct facts, if there are concerns about the denial of a water-related or other type of claim, policyholders should seek the advice of a competent professional.
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1 Cincinnati Ins. Co. v. Kaeding II, No. 332559, 2017 WL 3090600 (Mich. App. July 20, 2017).

Denver’s Green Roof Initiative Could Bring Expensive Consequences for Unwary Policyholders

Initiated Ordinance 300 – better known as the Denver Green Roof Initiative – was passed in November 2017 with a total of 137,917 votes. The ordinance requires that all buildings within the City and County of Denver in excess of 25,000 square feet, must now dedicate a percentage of the building’s roofing area to a combination of vegetative space and solar. Unlike larger cities with similar requirements, such as San Francisco or Toronto, Denver’s Initiative applies both to new buildings as well as existing buildings at the time of roof replacement or major repair. While certain limited exemptions do exist,1 all exempted buildings are required to provide a cash-in-lieu payment to the Denver Office of Sustainability equal to the cost of constructing the green roof. Continue Reading

An Adjuster is not an Insurer But Can Violate the Texas Insurance Code

In what sounds like a simple and obvious statement, an adjuster sent by the insurance company to perform an inspection and write an estimate of damages can be liable for violating the Texas Insurance Code. The Western District of Texas recently held that while an adjuster cannot be held liable as an insurer under the insurance code, the plaintiffs could have a valid claim against the insurance adjuster under Texas Insurance Code section 541.060.1 Continue Reading

California Mudslides, Mudflows, and the Merlin Law Blog Search Function

This morning’s post by Jennifer Van Voorhis about California mudslides and mudflows made me think, “we’ve written about mudflow and mudslide issues before.” So, I did something that I suggest others do when researching topics on the Merlin Property Insurance Coverage Law blog—use the search function on the upper right side of the blog to find relevant posts. Continue Reading

Mudslide in California—Are You Covered?

As everyone watching the news knows, there were horrific mudslides in Santa Barbara County this week caused by flash flooding in the fire-scarred Santa Ynez Mountains. Due to the fires that have ravaged Southern California in the past month, the scorched earth—lacking shrubs that can absorb water—is especially susceptible to mudslide when there is a heavy rain. Continue Reading

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