Ice dam claims are deceptively easy and routinely mishandled. Snow builds up, warmth differentials trigger melting and refreezing, water intrudes the place it shouldn’t, and injury seems shortly thereafter. But insurers typically attempt to flip these simple details into advanced engineering disputes or, worse, into exclusion scavenger hunts. A Utah federal courtroom choice involving Vacationers is a textbook instance of why that method fails. 1
The case arose from injury to elevated decks brought on by ice damming. The policyholder noticed ice dams forming, observed cracking and injury inside weeks, and confirmed the decks had been in good situation beforehand. Vacationers denied the declare. First, it stated the broken constructions had been “patios” and due to this fact excluded. Then, after greater than a yr and with out conducting a significant reinspection, it deserted that clarification and shifted to put on and tear, deterioration, seepage, settling, enlargement, and latent defect exclusions. By the point the case reached abstract judgment, Vacationers was asserting a laundry listing of exclusions with out clearly committing to any single explanation for loss.
That technique backfired.
Ice dam circumstances will not be unique. They’re timing-driven. What existed earlier than winter issues. What occurred throughout freezing circumstances issues. What modified shortly thereafter issues. These details typically come not from engineers, however from the individuals who reside within the buildings. Courts perceive this.
On this case, the insurer tried to discredit the policyholder’s testimony by arguing that he was not an professional and couldn’t opine on causation. The courtroom rejected that argument outright. A house owner doesn’t want an engineering diploma to testify that ice dams shaped, that injury appeared shortly afterward, and that the injury didn’t exist earlier than. That isn’t professional testimony. That’s private data. It’s greater than sufficient to create a real dispute of truth. One wonders why Vacationers both dismissed these details or failed to seek out them by way of a correct investigation.
Vacationers’ personal engineering report compounded the issue. The engineer by no means inspected the property and relied solely on images taken lengthy after the loss. Even then, the report concluded solely that the injury “doubtless” occurred over time and expressly couldn’t rule out ice damming. That single concession was deadly to Vacationers’ argument that the exclusions utilized as a matter of legislation. Exclusions don’t apply within the summary. They apply provided that the excluded peril truly precipitated the loss. When the insurer’s personal proof can’t eradicate the lined trigger, abstract judgment is off the desk.
The unhealthy religion evaluation is simply as instructive. Utah legislation imposes an implied obligation of excellent religion and truthful dealing requiring insurers to diligently examine claims, pretty consider them, and act promptly and fairly in denying or paying advantages. Insurers typically invoke the “pretty debatable” doctrine as if it had been a get-out-of-jail-free card. It isn’t. Utah courts have been clear {that a} declare shouldn’t be pretty debatable just because an insurer says so. The query is whether or not cheap minds may differ as as to whether the insurer met its obligations on the time of denial.
Vacationers supplied nearly no proof of what it truly did in the course of the declare course of to analyze or consider the loss. There was no significant onsite inspection past an preliminary go to tied to a special declare. There was no contemporaneous professional evaluation previous to the denial. There have been shifting explanations, lengthy durations of silence, and no clear articulation of why any explicit exclusion utilized. The courtroom accurately held that cheap jurors may conclude that this conduct fell in need of Utah’s unhealthy religion requirements. That alone required denial of abstract judgment.
The broader lesson is one I’ve seen repeated for many years. Insurers lose credibility once they change their tales. They lose once they depend on their typical forged of post-litigation consultants to justify pre-litigation choices. They lose unhealthy religion motions once they can’t present a disciplined, well timed, sincere, and clear claims course of. Many insurers now act in unhealthy religion by failing to promptly flip over all drafts of professional experiences or underwriting experiences about pre-loss circumstances of the property.
Ice dam circumstances, specifically, expose these weaknesses. They’re fact-driven, seasonal, and sometimes observable with out specialised testing. Lay witnesses matter as a result of they anchor the timeline. Public adjusters matter as a result of they doc circumstances the insurer selected to not examine. Courts matter as a result of they remind everybody that exclusions will not be weapons to be deployed opportunistically and in a shotgun method. Exclusions are contractual provisions that must be able to being confirmed on the time of denial.
Thought For The Day
“The reality doesn’t change in accordance with our means to abdomen it.”
— Flannery O’Connor
1 Andrew v. Vacationers Residence & Marine Ins. Co.No. 1:20-cv-00179, 2022 WL 2181662 (D. Utah June 16, 2022). See additionallyVacationers Movement for Abstract Judgmentpolicyholder’s Opposition to Movement for Abstract Judgmentand Affidavit of Chad Andrews.
