When courts speak about “wind-driven rain,” one thing delicate however essential has already gone fallacious. The phrase sounds authoritative. It appears like an outlined peril. It rolls simply off the tongue. However within the overwhelming majority of economic property insurance policies, together with the one at difficulty right here, “wind-driven rain” doesn’t seem anyplace within the contract. It’s neither outlined nor excluded. The time period is insurance coverage lingo and a shortcut for what the coverage really says. Shortcuts have penalties.
The coverage on this case didn’t exclude “wind-driven rain.” What it did was impose a sequencing requirement for inside water harm. Rain harm to the inside is roofed provided that a Coated Reason for Loss first damages the roof or partitions in a way that enables the rain to enter. That’s not a peril-based exclusion. It’s a conditional protection limitation. These two issues are sometimes conflated, and when they’re, policyholders normally lose.
Why does the excellence matter a lot? As a result of framing drives protection outcomes. When property adjusters, attorneys, and consultants begin utilizing the phrase “wind-driven rain,” the evaluation quietly shifts away from what the coverage really requires. The actual query is now not whether or not the storm induced water harm contained in the constructing. The query turns into whether or not the insured can show, with competent proof, that wind induced a bodily opening to the constructing envelope and that this harm created the pathway by means of which the water entered. If that gateway reality will not be confirmed, the declare fails no matter how violent the storm was or how actual the inside harm could also be.
Within the current Opinion and Order that prompted this dialogue, 1 the policyholder’s knowledgeable repeatedly used the phrase “wind-driven rain.” That language could also be frequent in insurance coverage and with some engineers, however it isn’t coverage language. Courts don’t resolve protection based mostly on insurance coverage and engineering shorthand. They resolve protection based mostly on contract phrases.
The knowledgeable’s report acknowledged that no wind harm was noticed to the roofing floor. As soon as that sentence appeared within the document, the insurer had a straight line to abstract judgment. An affidavit filed later, which tried to elucidate how water could be pushed by means of seams or elements with out seen membrane harm, was handled as hypothesis slightly than proof tied to this particular constructing. Courts are cautious of after-the-fact explanations that try and fill gaps left by the unique report. This one was no exception.
That is the place public adjusters and policyholder counsel have to pause and replicate. If inside water harm is being claimed below a coverage that requires a storm-created opening, the file should include proof of that opening. Not theoretical explanations nor normal statements about what hurricanes can do. Precise, building-specific proof displaying the place the roof or wall was broken by wind and the way that harm allowed water to enter. Pictures, contemporaneous observations, testimony from those that noticed the harm earlier than repairs, and knowledgeable opinions that determine the exact failure level matter. With out that, the phrase “wind-driven rain” turns into a lure.
The case additionally affords a painful however obligatory lesson on valuation. The general public adjusters submitted an estimate through which the alternative value worth and precise money worth have been similar as a result of depreciation was listed as zero. Many courts have made clear that merely labeling a quantity “ACV” doesn’t make it so. Precise money worth, as most insurance policies and courts perceive it, is alternative value minus depreciation. Except the constructing is really model new or the adjuster can clarify, with proof, why depreciation is legitimately zero, RCV and ACV shouldn’t be the identical worth.
That mistake alone can doom a declare. Underneath most insurance policies, insurers are required to pay ACV first. If the one estimate supplied reveals no depreciation and mirrors RCV, courts more and more deal with it as an RCV-only estimate, even when an ACV column seems on the web page. Later makes an attempt to repair the issue with a brand new estimate ready after go well with is filed might come too late. If the file didn’t include a correct ACV dispute within the first estimate, abstract judgment turns into very arduous to keep away from.
None of this implies the insurer was “proper” in some ethical or trade sense. It means the policyholder didn’t meet the evidentiary burden imposed by the contract and the procedural guidelines. Insurance coverage protection circumstances are received and misplaced not simply on what occurred, however on how clearly and exactly protection is confirmed inside the 4 corners of the coverage. Phrases and labels matter.
For public adjusters, the lesson is easy however unforgiving. Don’t collapse coverage necessities into handy phrases. Don’t assume a declare adjuster will translate trade shorthand into protection language. Doc the storm-created opening. Separate ACV from RCV with actual depreciation evaluation. Construct the file to point out a protection story that meets the coverage phrases.
It is a essential reason for loss that property insurance coverage adjusters want to review. I recommend studying Shaun Marker’s Wind-Pushed Rain Versus Wind-Created Opening in a Constructing and Potential Protection Implications. I additionally recommend Contractor Testimony About Wind Inflicting Injury Permitting Rain to Enter a Constructing Is Essential, Wind-Pushed Rain: What Is It and Does Your Insurance coverage Cowl It, and A Onerous Lesson About Proving Wind-Brought about Openings When Water Enters a Constructing.
Thought For The Day
“Water is the driving drive of all nature.”
Leonardo da Vinci
1 Mulas v. Westchester Surplus Traces Ins. Co., No 2:24-cv-534 (M.D. Fla. Jan. 30, 2026). See additionally, Defendant’s Movement for Abstract Judgment and Plaintiff’s Response in Opposition to the Movement for Abstract Judgment.