Denials and delays with Superstorm Sandy commercial claims are “as inevitable as death and taxes,” an attorney says, noting that Sandy is a complicated loss event, requiring policyholders to be proactive.

“You have to be prepared for delays and denials,” said Finley T. Harckham, an attorney with Anderson Kill & Olick during the firm's 2^nd annual policyholder conference on Property Damage and Business Interruption Losses held here last Tuesday.

Harckham said commercial policyholders must take control of their claims and actively work with their broker and the insurer.

“Be helpful and get the information together, and push your claim,” he said.

Harckham said getting an adjuster in place to advocate on the policyholder's behalf is the first step. If the claim does not work out in the insured's favor, at that point the broker needs to enter the picture.

Documentation plays a “huge and necessary role” and is essential to everything that takes place during the process, said Harckham.

The losses from Sandy are unprecedented in the New York tri-state area the Anderson Kill attorneys said. Power outages were widespread, affecting more than 8 million people. Tunnels and bridges closed. Civil authorities ordered evacuations in flood zones prior to the storm's landfall. The New York City MTA called it the worst disaster in its 108-year history.

The extensive civil disruptions from the storm impacts time-element insurance policies such as business interruption and contingent business interruption.

Business interruption coverage keeps a business' profits intact when there is income disruption, says Anderson Kill attorney Joshua Gold. Contingent business interruption extends coverage to disruption caused by failure of suppliers to provide services.

Anderson Kill attorney Dennis J. Artese said business interruption is “pretty straightforward” in its coverage. Damage to premises that results in loss of income is a covered event. Typically, a business needs to close for a period in excess of 30 hours before coverage kicks in. In some policies, he says, even a slowdown caused by an event can trigger coverage.

One common element of litigation under this policy, he said, is when the policy reads that the coverage period extends to when the business “should be opened” and not when it actually does re-open for business.

Good records and documentation are critical in determining contingent business interruption losses, said Gold. Because the coverage involves a partner, it is critical to get information from the other party to back up the claim.

In an event like Sandy, “causation” is a term insureds should know, said Rhonda D. Orin. While Sandy generated a great deal of flooding, the storm also caused damage from wind.

Orin says insuredss believe the commercial-insurance policy should cover any damage, but insurers do not see the storm as a single event. Instead, insurers view it “as a series of discreet events that happen at the same moment,” she said.

Often, carriers leave it up to the policyholder to explain what happened and to prove how the event took place.

Orin noted there is often little agreement between the parties. “It is a mess,” she said

Orin said state courts that adopt the doctrine of efficient “proximate cause,” which is a determination of what the primary cause of loss is, typically benefit the policyholder.

On the other hand, federal courts are more likely to side with insurers under the doctrine of “anti-concurrent causation,” policy language that states an insurer will not pay a loss if an excluded event occurs along with other covered events.

New York courts, Orin said, are “not as refined as other parts of the country” on these issues. She said New Jersey appears more favorable to the insured.

Attorney Marshall Gilinsky said the typically confusing insurance-policy language could benefit insureds. This is especially true when it comes to limits and sub-limits on a loss, which can at times be contradictory.

“Policy language is the key,” he said. “If the policy does not say somewhere that [it] takes away the coverage, then it doesn't.”

Ultimately, said Harckham, as insureds go through the claim process, they need to prepare to file a lawsuit, but still remain cooperative and work to mitigate the loss.

“We try to resolve these claims through negotiation, but some of these thorny issues need to be brought to litigation,” he said.

Special Reports /

Attorneys: Commercial Insureds Should Prepare for Delays, Denials on Sandy Claims

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