Five Steps for Leveraging Insurance to Recover from Severe Weather

Financial losses caused by recent storms, fires, hurricanes, and other natural disasters are a significant and urgent problem. Insurance industry observers predict that such extreme weather may result in losses of over $100 billion this year alone. From the fires blazing through the Pacific Northwest and California to the destruction caused by Tropical Storm Henri and Hurricane Ida across the South and Northeast, every sector of the economy has been impacted by severe weather events. Most recently, Tropical Storm Nicholas left over half a million customers without power across Texas alone. After responding to the initial, often substantial, concern for securing public safety, companies must evaluate what to do next to recover.

Insurance is a key asset that must be maximized to help rebuild after a severe weather event. Understanding how to do so can be a complex process filled with hidden challenges, but leveraging all available insurance coverage and effectively pursuing claims are crucial first steps towards recovery. Here are five key steps to help preserve and maximize insurance recoveries following a natural disaster.

1. Identify all available insurance policies. Locating and carefully reviewing all potentially applicable insurance policies is a critical first step in seeking recovery for a policyholder’s losses. The most likely source of coverage will come from a company’s first-party commercial property and business interruption policies. These policies, which can be marketed under a variety of different names by different insurers, typically contain the following key coverages:

• Property Damage typically covers physical loss or damage to business premises and other property owned/leased by the policyholder.
• Time Element/Business Interruption insurance refers to coverage for losses resulting from the inability to use damaged property for its normal uses, including, for example, loss of earnings or profits.
• Contingent Time Element coverage insures against business interruption or extra expense losses caused by physical loss, damage, or other disruptions to a supplier, customer, or other party in a supply chain.
• Extra Expense covers additional expenses incurred in excess of regular operating costs to continue or resume normal operations or mitigate losses while the loss or damage to property is ongoing or being repaired, replaced, or otherwise addressed.
• Service Interruption generally covers damage to property and goods as well as income losses caused by interruption of utility services to covered premises, often requiring physical loss or damage at the utility service provider’s premises.
• Ingress/Egress insurance provides coverage for losses incurred when access to and from an insured property is prevented by physical damage, i.e., flooding or fallen tree prohibiting entrance.
• Civil Authority usually covers losses resulting from a governmental authority order that interferes with normal business operations.

These coverages often have different applicable limits of liability or time limits, and different deductibles may also be applicable.

2. Document damage and maintain records. Evaluating the full extent of loss and damage following a hurricane, flood, storm, or fire takes time; however, as soon as possible a business should begin documenting and quantifying any damage or business interruptions caused by the extreme weather event. This may involve collaboration among the business’s operational, finance, and accounting personnel.

• Separate any damaged property from undamaged property.
• Photograph or video the damage, including structural damage, affected objects, and standing floodwater levels.
• Itemize damaged or lost items, their date of purchase and value, and collect receipts.
• Track extra or expediting expenses needed to continue business operations such as (1) overtime pay, (2) costs of emergency gear and protective equipment, (3) added freight charges for quicker delivery of emergency supplies, (4) relocation costs, (5) advertising or notification costs, (6) costs associated with maintaining lost power, e.g., generators, or (7) costs for water or other impacted utilities.
• Locate business accounting records relevant to financial performance and loss of earnings or revenue.
• Obtain copies of fire, police, or other relevant reports.
• Keep crisis response, evacuation, and other recovery-related purchase orders, invoices, receipts, and other documentation.

3. Comply with Notice, Proof of Loss, and Suit-Limitation Clauses. Providing adequate notice is a crucial step in preserving rights under an insurance policy. Requirements for how and when to give notice or file a claim vary by policy and state law and need to be carefully examined. However, many policies require notice of a loss as soon as practicable. Because of these often strict notice requirements, insurance recovery counsel, brokers, and agents should be involved immediately to assist with claims.

Generally, commercial property policies will require that a sworn proof of loss be submitted within 60 to 90 days, or sooner, absent written agreement by the insurer. Given the hardships facing policyholders after severe weather strikes, it is important to consider and be prepared to seek an extension from insurers for submitting any initial proofs of losses, as necessary.

In addition, many policies contain a requirement that any suit under the policy be filed within one or two years after inception of the loss. Insurers are often amenable to tolling agreements to permit an orderly claim evaluation, but such agreements need to be negotiated as early as possible. And as always, these timing and other requirements may be affected by applicable state law.

4. Cooperate with your insurance company. Many insurance policies require that the policyholder cooperate with the insurer’s investigation of a claim. Cooperation does not mean capitulating to unreasonable requests by the insurer or responding to requests that are irrelevant to a coverage determination or designed to limit or deny coverage or to increase the burden on the policyholder, but reasonable cooperation is generally required.

5. Engage an experienced team. In the aftermath of a severe weather event, hundreds of tasks need attention. Many businesses are not only managing their own losses and damages but are also working around the clock to meet the needs of their employees, customers, consumers, and other stakeholders. Given these concerns, it is important to think proactively and critically about assembling an insurance recovery team.

Morgan Lewis can assist ahead of the storm with insurance coverage preparedness and after the storm with claim notification and presentment, loss assessments, information gathering, proofs of loss, claim negotiation, and, if necessary, coverage litigation to enforce a policyholders’ insurance rights and maximize insurance recoveries.

ADDITIONAL RESOURCES

After the Storm: Maximizing Insurance Assets to Recover from Natural Disasters (09/15/2021)
Maximizing Insurance Assets Amid Extreme Weather Conditions (02/24/2021)

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Washington, DC
Daniel E. Chefitz
Gerald P. Konkel
Sergio Oehninger
W. Brad Nes
Lauren Burke
Teri J. Diaz

Los Angeles
Charles Malaret
David Sean Cox
Christopher Popecki

Chicago
Scott T. Schutte

Philadelphia
Harvey Bartle IV
Gregory T. Parks
Franco A. Corrado

Pittsburgh
Katherine A. Vaky

San Francisco
Jeffrey S. Raskin

Boston
Jeffrey W. Moss
Ariane Baczynski
Dana N. Bach

Houston
Brady Edwards
Nancy L. Patterson
Lauren A. McCulloch Semlinger
Claire Kugler
Lingzi Hu

London
Peter Sharp
Paul Mesquitta