Month: September 2017
With a jury panel assembled and waiting outside U.S. District Judge Lee Rosenthal’s courtroom, Buck Keenan partners John Dagley and Lesley Little, along with co-counsel Mike O’Brien, settled all property damage claims for one of the largest hotel properties in the state against its insurer. Metro Hospitality Partners v. Lexington Insurance Co. involved enough first-party insurance issues to fill a CLE seminar, including independent injury under Fifth Circuit precedent, concurrent causation, ensuing loss, and segregation of covered and non-covered claims. After Metro withstood summary judgment and motions to strike all of its experts, and after the pre-admission of over 1000 exhibits into evidence, the parties were able to close a multi-million dollar gap and settle all disputed claims. The case arose from severe hail and wind damage that occurred in 2013, and it was settled just days before Hurricane/Tropical Storm Harvey wreaked devastation across Southeast Texas.
We have received several inquiries/questions about property insurance, flood insurance, and what to do if your home, business, autos or contents have been damaged. Unlike other weather events where commercial and residential property owners and tenants have made claims to FEMA and their property and casualty insurance providers, this event will include inverse condemnation claims against county and federal agencies from certain property owners and tenants along the Buffalo Bayou. Some general information follows:
1. Residential Flooding. Standard homeowners insurance typically does not cover damage from floods. For the vast majority of homeowners, the only source of flood coverage is a separately purchased flood policy. The policies are created by federal law but they are usually administered by individual insurance companies. The maximum coverage is $250,000 for structure and $100,000 for contents. Unlike disputes with your traditional property and casualty provider, residential flood claims must be brought in Federal Court and homeowners are unable to recover attorney’s fees or other remedies for bad faith practices. Carefully document your losses regardless of whether you have flood insurance. There may be FEMA money available and/or a special fund may be set up as happened following Superstorm Sandy. Photographs and video are important. Keep all receipts and try to contact FEMA as soon as possible to get in their system. Note – fully explore whether your damage resulted from wind or other non-flooding coverage afforded your property and casualty policy. Even if you do not have flood insurance, homeowners and renters can borrow up to $200,000 to repair or replace their damaged primary residence and up to $40,000 to replace damaged personal property, including vehicles through the U.S. Small Business Administration (SBA). Contact FEMA to refer you to the SBA at https://disasterloan.sba.gov/ela/.
2. Commercial Flooding. Some non-residential insurance policies will cover flooding events. Please check your policy and notify your carrier in such event.
3. Remediation and Public Adjustors. If you need such services, we know and are working with qualified water extraction/remediation contractors and public insurance adjusters in the area and can provide such information.
4. Important Information for Homeowners Flooded after the Houston Addicks and Barker Dam Releases. If your property flooded as a result of water-release from the Addicks or Barker reservoirs, you may have claims against the various governmental entities that released the water. Arkansas Game and Fish Commission v. United States, 568 U.S. ___ (2012), is a decision by the Supreme Court of the United States holding that it was possible for government-induced, temporary flooding to constitute a “taking” of property under the Fifth Amendment to the U.S. Constitution, such that compensation could be owed to the owner of the flooded property. If your home or business first sustained flooding after the Addicks or Barker dam releases at 2 a.m. on August 28th, then there’s an important area of the law you need to be aware of called inverse condemnation. An inverse condemnation can occur when the government takes private property for a public use without any formal process or condemnation proceeding. A Texas property owner must demonstrate the government’s intentional actions resulted in property being taken, damaged, or destroyed for a public use. According to officials, the Hurricane Harvey controlled water releases were for a public use. Inverse condemnation doesn’t mean the government acted improperly or illegally. Nor does it mean the dams were poorly engineered or were past their useful life. Affected owners may be able to maintain an inverse condemnation action due to the simple fact that the government flooded their homes for a valid public reason. When the government does damage to or takes land, it is legally required to pay just compensation to the property owner. Such compensation would inure to the property owner and any tenant. In fact, if you own property damaged by the Hurricane Harvey dam releases, your best -and in some cases the only option for those without flood insurance – to repair or replace your property will be an inverse condemnation action. See the August 30 Buffalo Bayou Inundation map below.
Buck Keenan lawyers have extensive experience representing clients in condemnation and weather related property damage cases. We are accepting new clients affected by the Addicks and Barker dam releases and those requiring assistance with their insurance provider.
If you have any questions, please feel free to call Mano DeAyala or Les Little at (713) 225-4500.