Hurricanes and windstorms place significant stress on windows and doors. These types of damages are easy to prove if something smashes through them or they fail so badly that they are completely pulled away from the structure. Many policyholders have overlooked this aspect of a hurricane loss because they do not realize how significant wind speeds permanently change the windows and doors. Measurements and analysis by experts are often required to determine if, and the degree of, the damage to windows and doors that has occurred as a result of a hurricane.
This blog title came to mind as I read a recent Hurricane Michael case decided last week where the insurance company won at the trial level because attorneys for the policyholder did not hire and disclose the experts needed to prove the hurricane caused window and door damage.1
For hurricane and windstorm cases, my experience is that a policyholder generally needs at least three types of experts to win a window and door case:
- A meteorologist
- An engineer or window/door damages causation expert
- Costs experts who can provide replacement costs and actual cash values of the window and door damage.
Some insurance company attorneys know this, and they hate when I hire these experts. It is a costly and intensive process. I personally think that their insurance company clients should do this immediately after the loss. Still, few insurers will spend the money to do so and hope this common damage is overlooked or too expensive for the policyholder to retain these experts. Many attorneys will not front the considerable costs or don’t have experience with how difficult it is to prove.
For example, the recent case order noted the problems of the proof presented by the policyholders:
Defendant’s experts opined that Plaintiffs’ windows and doors do not require replacement due to damage from Hurricane Michael and that the water intrusion and interior damage that was observed in and around some of the windows was caused by design and construction defects and not the hurricane.
Plaintiffs did not present any conflicting expert opinions, but rather they attempt to establish causation through lay testimony of Plaintiff Vicki McPherson and a handyman who performed work on the house before the hurricane. The handyman testified that he did not recall Plaintiffs complaining about ‘leaky windows’ before the hurricane, and Mrs. McPherson testified that she ‘believe[d]’ that ‘the majority’ of the windows and ‘all exterior doors’ suffered hurricane damage because she ‘[h]ad no issues with [her] windows and doors prior to Hurricane Michael’ and she ‘know[s] what [the] windows looked like before Hurricane Michael, and [she] know[s] what they look like now.’
Plaintiffs also did not present any expert testimony on damages, but they did disclose two repair estimates during discovery—one for almost $720,000 (from LJB Restoration Services) and the other for more than $802,000 (from CMR Construction and Roofing). Both estimates are replacement cost value (RCV) estimates, not actual cost value (ACV) estimates, and both estimates are for replacing all the windows and doors in the house. Neither estimate is supported by an expert’s report or other admissible evidence showing which of the windows and doors listed in the estimate actually suffered hurricane damage.
In its analysis, the court further noted how this lack of evidence caused the policyholders to lose their case:
It is undisputed that some of Plaintiffs’ windows and doors were damaged by Hurricane Michael and that Defendant fully paid Plaintiffs for the windows and doors that it determined to have suffered hurricane damage. Plaintiffs contend that they are entitled to additional payments under the policy because other windows and doors also suffered hurricane damage. Plaintiffs have the burden of proof on this claim.
Expert testimony is generally required to establish the cause and scope of damage in a case like this. See Porben v. Atain Specialty Ins. Co., 546 F. Supp. 3d 1325, 1330 (S.D. Fla. 2021) (‘In insurance coverage disputes such as this, it is well- settled that expert evidence is generally necessary to establish the cause and scope of damage.’); cf. Morales v. Citizens Prop. Ins. Corp., 2022 WL 790294 (Fla. 3d DCA Mar. 16, 2022) (reversing summary judgment in favor of insurer because the evidence presented by the insured’s ‘expert’ contractor created a factual dispute regarding the cause of the damage to the insured property); Fredrick v. Citizens Prop. Ins. Corp., 314 So.3d 539 (Fla. 3d DCA 2020) (reversing summary judgment in favor of insured because the inspection report and deposition testimony of the insured’s general contractor—an expert—established a factual dispute regarding the cause of the damage to the insured’s property).
Here, Plaintiffs failed to present any evidence from which a jury could find that Defendant did not pay all that Plaintiff was due under the policy for hurricane damage to their windows and doors. Significantly, Plaintiffs presented no expert testimony refuting the opinion of Defendant’s expert that the ‘windows and doors at [Plaintiffs’] property do not require replacement due to any damage from Hurricane Michael.’
When I said that these cases can be complex and can even go to a very expensive exact window and door analysis, the court stated what the policyholders had to prove:
Plaintiffs have not presented any evidence as to which specific windows and doors were damaged by the hurricane beyond those already paid for by Defendant, nor did they present any evidence as to the extent of the damage to those windows and doors. Without such evidence, there would be no basis for the jury to find that Plaintiffs have not received what they are due under the insurance policy.
Hurricane and windstorm damage claims to windows and doors are very common. They can lead to significant damage—especially to commercial buildings, apartment complexes, and condominiums. These types of damages are often not claimed because no investigation is done to determine the extent of the damage. The investigation is often very expensive, and the insurance companies will not generally pay for it until the policyholder does such an investigation and claims that damage has occurred. Accordingly, these types of benefits often go unclaimed.
Policyholders should hire experts that know what to do when faced with these types of damages. If you have any questions on these types of claims and what to do when faced with proving them, never hesitate to call me or another attorney at Merlin Law Group.
Thought For The Day
Notice that the stiffest tree is most easily cracked, while the bamboo or willow survives by bending with the wind
1 McPherson v. Lexington Ins. Co., No. 5:20-cv-00318 (N.D. Fla. July 6, 2022).