A Look Into California’s Wildfire Insurance Denial Problem

Wildfire Damage Lawyer Los Angeles

About 26 million residents in the states of California and Arizona are under red flag warnings because of the recent wildfires in the area, according to CNN’s most recent coverage of these events. These fires have scorched acres of natural, residential, and commercial land and continue to threaten thousands of California homes as they spread.

While these blazes pose severe threats to human life and properties, some insurance companies may be backing off their services for residents in the state. Know all about these fires and why insurance claims for them are being denied.

State of the Wildfires

As of late November, there have been 6,402 wildfires in California for 2019. Here are the most significant ones in the year.

  • The Kincade Fire – This was the state’s largest wildfire in 2019, with over 77,758 acres of land razed in Sonoma County, and destroyed or damaged more than 120 structures. It started in late October and was declared 100% contained in early November.
  • The Maria Fire – This started in late October and burned 9,999 acres of land. The Ventura County Fire Department contained it on November 7th.
  • The Tick Fire – The Tick Fire charred 4,615 acres of land in the Santa Clarita area and raged from October 24th to 31st. One of the properties it completely destroyed was a family farm. The owners were only able to save 20 animals from their burnt-down property.
  • The Cave Fire – This brush fire in Santa Barbara County has threatened several residential communities, prompting evacuations. It has been mostly contained by rain and the efforts of the fire crews. At the time of this posting, it is still ongoing, and has already damaged 4367 acres.
  • The Getty Fire – This started in late October and took eight houses in Los Angeles. The Los Angeles Fire Department fully contained the blaze on November 5th, after it burned 745 acres of land.

Denied Claims

Despite eight wildfires ravaging the state this year, causing an estimated $80 billion worth of damage, a lot of Californians are still having their insurance claims denied. A report by CBS News found that insurance companies refuse to protect over 350,000 property owners in the state.

And the 33,000 people who were successfully insured before were barred from having their contracts renewed.  Insurers don’t want to provide coverage because they deemed the properties as too much of a fire risk.

These conditions are unacceptable, especially if you’ve lost thousands of dollars in property, or worse, your loved ones in a wildfire. This is why it’s crucial to hire a law firm that handles wrongful death and bad faith insurance claims. Companies that may have unwittingly started some of the fires with their equipment ,and insurers who deny claims or protection from wildfires must be held accountable.

Conclusion: The Way Forward

Wildfires are often unavoidable natural occurrences. As such, people who live in wildfire-prone areas must have their properties insured. Those who were denied coverage are now getting the Fair Access to Insurance Requirements (FAIR) Plan to protect their valuable homes. FAIR was explicitly created for individuals who are denied insurance because they live in high-risk areas. While this plan is only seen as a last resort, it gives owners peace of mind knowing that they’ll receive compensation for the items and properties they may lose in the event of another fire.

Get the Compensation You Deserve

If you’re one of the residents or business owners whose wildfire insurance claims were denied, speak with an experienced lawyer immediately. Haffner Law provides representation for those who were injured, lost their loved one, or had their property destroyed because of other people’s negligence. We offer our legal services in Los Angeles and neighboring cities.

Contact us at 1-844-HAFFNER or 213-514-5681 today for a free, no-obligation case review from an experienced lawyer.

(This is an attorney advertisement by Joshua Haffner)

Property Damage Recovery for Partial Loss Can Exceed the Fair Market Value

California has codified how to calculate what an insurance company must pay as policy benefits in the event of fire damage to a house under a homeowner’s insurance policy. But what happens when two provisions of the insurance code seem to conflict?

In California Fair Plan Association v. Marlene Garnes, (2017) 11 Cal.App.5th 1276, the California Court of Appeal recently addressed an apparent conflict in the Insurance Code regarding calculating damages for a partial loss.

Marlene Garnes’ house suffered extensive fire damage as a result of a kitchen fire. Her home was covered by fire insurance with a $425,000 policy limit. Ms. Garnes made a claim that she had suffered a partial loss to the structure. According to California Insurance Code section 2051(b)(2), the measure of the cash recovery for partial structure loss is the amount it will cost to repair the house, less depreciation, or the policy limit—whichever is less. (See Ins. Code § 2051(b)(2).) Both sides agreed that under this calculation, the amount due to Garnes would be $320,549. (Garnes at 1282.)

However, the insurer took the position that Ms. Garnes had suffered a total loss to the structure, and therefore, the calculation of the recovery was the fair market value or the policy limit, whichever is less. (See Ins. Code § 2051(b)(1).) The fair market value at the time of the fire was only $75,000.

Thus, the value of the claim depended on whether Ms. Garnes had suffered a total or partial loss to the structure within the meaning of Insurance Code section 2051. The insurer argued that the loss was total because the amount to repair the property exceeded the fair market value of the home at the time of the fire. (Id. at 1283.)

The California Court of Appeal found in favor of Garnes based on its interpretation of the language and the intent of the Insurance Code section 2051 coupled with sections 2070 and 2071. The Court of Appeal held that where the Insurance Code and policy conflict, as they did in this case regarding the definition of “total loss,” it is the Insurance Code’s definition that prevails. (Id. at 1309.)

The insurer argued that even in the event of a partial loss to the structure, the fair market value of the property serves as a cap as to the total recovery. (Id. at 1284.) That is to say it was the insurer that argued that an insured could not recover more than the fair market value of the property, even if the costs of repair would be greater than the fair market value.

The Court of Appeal rejected that position. The court pointed out that if the legislature had intended to cap or limit the recovery for a partial loss to the structure, it would have included fair market value as an express limitation in subsection 2051(b)(2), just as it did for subsection pertaining to total loss to the structure (Id. at 1294; see Ins. Code §2051(b)(1).)

Furthermore, the insurer’s interpretation of the partial loss subsection would render it redundant to the total loss subsection, and statutes are to be interpreted in a way to produce harmony and avoid redundancy. (Id. citing Pacific Legal Foundation v. Unemployment Ins. Appeals Bd. (1981) 29 Cal.3d 101, 114.)

Under this recent decision, if your home has suffered a partial loss to the structure due to fire damage, you are entitled to the full repair costs, less depreciation, up to the policy limit, even if that amount would be more than the fair market value of the home.

(This is an attorney advertisement by Joshua Haffner)

A New California Court Of Appeal Decision Protects Coverage Where The Dominant Cause Of Loss Is Covered

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When an accident occurs there are often several events that caused or contributed to it.  This is often referred to as the “chain of causation.”  Some causes in that chain may be covered under an insurance policy, while others may be excluded.  The situation arises in a variety of circumstances.  Where multiple causes contribute to a loss, whether the loss is covered depends upon the “efficient proximate cause” of the loss.  (Garvey v. State Farm Fire & Casualty Co. (1989) 48 Cal.3d 395, 406-08.)

On December 11, 2015, in Vardanyan v. AMCO Insurance Company (2015) — Cal.App.4th —, the California Court of Appeal, Fifth Appellate District, issued a favorable decision for insureds relating to the efficient proximate cause doctrine.  In Vardanyan, a rented residence was damaged by water leaks and intrusion, and the insured claimed coverage for collapse of part of his building, asserting it was caused by hidden decay or insect damage, which would be covered.  (Vardanyan, supra, at *1-2.)  Defendant relied on a host of exclusions, including for plumbing leaks, deterioration, mold, decay, wet or dry rot, settling, earth movement, construction defects and others, claiming they were the cause of loss, and the claim was excluded.  (Id. at *2.)

Analyzing the coverage, Vardanyan observed the efficient proximate cause doctrine applies to resolve coverage disputes over “losses caused by multiple risks or perils.” (Id. at *3.)  Vardanyan explained the efficient proximate cause is “the predominant cause or most important cause of the loss.”  (Id. at *4.)  The insurer took the position that if excluded perils contributed to the loss “in any way or to any degree” the claim was excluded.  (Id. at 5.)  Vardanyan rejected this position, and confirmed that “exclusions are unenforceable” if they conflict with the efficient proximate cause doctrine.  (Id. at 4.)  This means that insurers cannot “contract around” the doctrine by using policy language to “give broader effect to its policy exclusions” than permitted by the efficient proximate cause doctrine.  (Id.Vardanyan stated the insurer’s position was incorrect because it would preclude coverage whenever an excluded peril “contributed to the loss, even minimally.”  (Id. at *7.)  Vardanyan also noted that, where a case is litigated, insurers have the burden to “prove the most important or predominant cause” was excluded.  (Id. at *11.)

Vardanyan makes clear that insurance companies cannot write policies that give broader effect to exclusions than allowed under the efficient proximate cause doctrine.  This means that exclusions, regardless of how written, cannot be interpreted to preclude coverage where the predominant or most important cause is covered.  Exclusions that purport to preclude coverage where an excluded peril “contributes” or “combines” with any other causes of loss, whether covered or not, likely exceed the scope of the efficient proximate cause.  This is because they claim to exclude coverage whenever an excluded cause is present in the chain of causation, regardless of whether a covered peril was the predominant cause.

Insureds who suffer a loss caused by multiple perils, some covered and some excluded, and have their claim  denied, should carefully scrutinize whether the insurance company can meet its burden to show that an excluded peril was the predominant or most important cause.  Often a denial of a claim where there are multiple causes of loss can be successfully challenged using the efficient proximate cause doctrine and the insurance company’s burden to prove the most important cause of loss was an excluded cause.

Better Late Than Never: California Law Regarding Reporting Your Claim To Your Insurer

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Insurance policies generally require prompt notice to be provided by the insured to the insurance company when they have suffered a loss or event and want to make an insurance claim.  Timely notice is a basic condition in all or nearly all kinds of insurance.  Indeed, one California insurance statute provides that the insured must give the insurance company “written notice . . . of any loss without unnecessary delay.” (California Insurance Code §2071(a).)   Failure to provide timely notice of a claim alone can result in a denial, and the loss of otherwise payable benefits. (Earle v. State Farm Fire & Cas. Co. (N.D. Cal. 1996) 935 F. Supp. 1076, 1082.)

There are many reasons that insurance claims are not immediately reported after a loss or event for which insurance coverage may be available.  These include not understanding the severity of damage, not understanding that a policy provides coverage for a loss, or confusion over which policies provide coverage.  The good news is that the notice requirement is liberal in many circumstances under California law.  A denial of a claim based on lack of notice is suspect unless the circumstances are egregious.

First, the notice requirement is not triggered until there is “appreciable damage.”  (Prudential-LMI Com. Ins. v. Superior Court (1990) 51 Cal. 3d 674, 685.)   Appreciable damage is more than “wear and tear,” and what constitutes enough damage to trigger the notice requirement is a question of fact for a jury.  (Id. at 687.)  There is often room for debate as to when the duty to provide notice of an insurance claim is triggered.

Even where an insured makes a late claim, in order to deny the claim based on untimeliness, the insurance company must prove it suffered “substantial prejudice” from the late notice. (Campbell v. Allstate Insurance Co. (1963) 60 Cal.2d 303, 305.) This is a very high burden which insurance companies are frequently unable to meet. Moreover, the question of whether the insurer suffered substantial prejudice from late notice “is ordinarily one of fact” for the jury.  (Northwestern Title Sec. Co. v. Flack(1970) 6 Cal. App. 3d 134, 141.)  Thus, practically speaking it is very difficult for an insurance company to defeat a case before it reaches a jury on the assertion that the claim was reported late, and that warrants denial.

In addition, where an insurance company denies a claim based on a lack of coverage, “it waives any claim that the notice provisions of the policy have not been complied with.” (Comunale v. Traders & Gen. Ins. Co. (1953) 116 Cal.App.2d 198, 202-203.)  This means once an insurance company denies a claim for lack of coverage, it cannot later go back and complain of late notice if its coverage position turns out to be incorrect.

Late notice is a frequently cited reason, usually among others, for denial of a claim.  It is among the weaker grounds for denial, and there are many viable grounds under California law to challenge it.

What If PG&E Is Responsible For The Butte Fire — Insurance Claims And Third Party Liability Under California Law

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The Butte fire has destroyed more than 500 homes in Calaveras and Amador counties. According to a recent lawsuit, the fire may have been started by a Pacific Gas & Electric Co. power line coming into contact with a tree. This gives rise to the prospect that PG&E could haveliability for damages caused by the Butte fire. However, the fire damages are also likely covered, at least in part, under homeowners’ insurance policies. When a wildfire like the Butte fire, or any event that causes loss, occurs because of the fault of a third party, and the loss is also covered by insurance, questions often arise regarding the interplay between obtaining policy benefits from your insurer, and damages from the responsible third party.

It is entirely proper to present an insurance claim for damages from the Butte fire, obtain available insurance policy benefits, and also sue the responsible third-party, which in this case may be PG&E. There are many items of damage people can suffer from a wildfire that are not covered by insurance. For instance, shrubs, trees, and vegetation are often subject to a low sub-limit in insurance policies. However, under California law, a third-party tortfeasor who injures someone’s “timber, trees, or underwood” is responsible for three times the full value of the trees and vegetation. (California Civil Code §3346.) In addition, many homes are often underinsured, and a homeowner cannot collect beyond the limits of the insurance policy. However, there is no limit on the liability of a third-party like PG&E for the damages its conduct causes. Further, people can recover for emotional distress against a responsible third-party, but do not get policy benefits for emotional distress. In addition, PG&E, because it operates a utility line, may be liable for inverse condemnation, which provides for attorney’s fees that would not be available an insurance policy.

A third-party like PG&E is not entitled to deduct the amount you were paid by your insurance company from its liability for the damages they caused. This is known as the collateral source rule, and provides that where a person who suffers a loss receives “some compensation for his injuries from a source wholly independent of the tortfeasor” then the amount received is “not be deducted from the damages” the third-party wrongdoer owes. (Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725, 729.) However, practically speaking, your insurance company has a right of “subrogation” for the amount they paid for the loss against the culpable third-party, which in this case allegedly is PG&E. (21st Century Ins. Co. v. Superior Court (2009) 47 Cal.4th 511, 518.) Thus, in all likelihood, an insured can only obtain from the responsible third-party damages above and beyond what the person received from their insurance company.

In a wildfire, homeowners often suffer significant losses which are often not fully recoverable under insurance, but are obtainable in a suit against the entity responsible for causing the fire. Persons who have suffered damage as a result of the Butte fire have every right to make an insurance claim, and seek recovery from any culpable third parties responsible for starting the fire.