I’ve been watching the number of insurances cases filed in the Southern District Federal Court during August and was surprised to find Nationwide in the lead last time I checked with over 20 new cases filed this month – now, up to 30 as of a moment ago.
Since all new cases may not be Katrina related, I was also surprised the two I randomly plucked from the list for review were both Katrina related and virtually identical in key issues. Plaintiff’s in both had policies with Hurricane Coverage and Deductible Provision Endorsement – and, in yet another surprise, plaintiff’s claims had also been denied on the same basis in both cases:
Ultimately, Nationwide denied the Plaintiffs’ claim not because it determined Plaintiffs’ home and property were completely destroyed by an allegedly excluded peril, but because Nationwide determined it could not find evidence of wind damage…
However, the more compelling reasons for my surprise at seeing so many newly filed suits against Nationwide are two-fold. First, my research has lead me to understand there are two states of ambiguity at play in these wind and water cases. Secondly; Nationwide was the Defendant in one of the landmark Katrina cases, Leonard, successfully appealed to the Fifth Circuit – a ruling it appears everyone but Nationwide understood was flawed.
The validity of the ACC clause is the key interpretive battleground of this appeal…
…Before trial, Nationwide moved for partial summary judgment, arguing that: (1) the ACC clause and water-damages exclusion unambiguously precluded coverage for any damage not solely attributable to wind…
…The district court’s unsupported conclusions that the ACC clause is ambiguous and that the policyholder can parse out the portion of the concurrently caused damage that is attributable to wind contradict the policy language. (emphasis mine)
David Rossmiller posted the Leonard decision and comment on his insurance law blog. However, it was not Rossmiller’s post on the wind and water issues of Leonard that I found most enlightening on the ACC clause; but his post on a Canadian case where the issue was mold damage. It’s a shame the Fifth Circuit Continue reading “With two states of ambiguity, whose side is Nationwide on?”