There is a good writeup on the Nationwide Katrina case in today’s Wall Street Journal, starting on the front page. (Subscriber link: here.)
If you have an interest in the subject, the entire article is worth reading. A sample:
Wind vs. water cases existed before the flood program, but its creation helped set the stage for the current legal battles. With insurers on the hook for wind damage, they have an incentive to argue that water is to blame. When flood policies don’t cover the damage, homeowners will cite the wind. In some cases, insurers that cover floods have battled insurers that cover wind.
At the heart of many of these cases are questions of timing, cause and effect. What came first, the wind or the water? Was the flooding enabled by the wind? Can flooding damage be distinguished from that of heavy rain?
Many insurance policies, including that of Judge Guirola, contain an obscure clause that subtly widens insurers’ exclusions and in effect could pre-empt wind vs. water arguments. It essentially says insurers don’t have to pay when flooding happens along with other forces.
The debate over such “anti-concurrent causation” clauses intensified after Katrina destroyed and drenched the Gulf coast. Every hurricane spawns wind vs. water cases, says Randy Maniloff, an attorney for insurance companies at Philadelphia’s White and Williams LLC, “but not on this scale.”[.]
The question of the enforceability of concurrent causation clauses in Mississippi was presumably mostly resolved in a ruling against State Farm a few months ago, where their clause was deemed too vague to be enforceable.