While an insurer group praised language in a Mississippi federal court ruling last week that it said upholds rejections of flood claims, a close reading of the decision indicates carriers might still have their hands full winning their post-Katrina suits.

Language in the March 24 decision by U.S. District Court Judge L.T. Senter Jr., in Gulfport, Miss. suggests that the industry will still have to deal with many other points of law in state court to win a flood damage case.

Judge Senter's findings came in a decision denying a motion by Allstate to dismiss the case of Buente v. Allstate.

In a press release, the Property Casualty Insurers Association of America said “While we would have preferred that the motion for judgment on the pleadings be granted at this stage, the underlying opinion is good because it strongly suggests that the court understands that the explicit water damage/flood exclusion in this policy does exclude coverage for hurricane driven water (also known as “storm surge”).

“This part of the decision is positive for insurers and other businesses that rely on the integrity of their contracts in Mississippi because it recognizes this contract provision is valid, enforceable and applicable in this case,” said the statement.

PCI said the decision also demonstrates that “notwithstanding the challenges and devastation” confronting the family that brought suit and the entire Gulf Coast, “contracts can still get a fair reading in the courts. That fact should encourage the entire business community, not merely insurers and their policyholders, to remain committed to the state.”

But while Judge Senter's decision says, “similar policy terms have been enforced with respect to damage caused by high water associated with hurricanes in many reported decisions,” it does not end there.

The judge wrote that because the case involved “an exclusion from coverage in a comprehensive homeowners insurance policy, and because the exclusion constitutes an affirmative defense, Allstate would bear the burden of proving that the exclusion applies to the plaintiffs' claims.”

The judge added that there would still be questions of fact to be decided under provisions of Mississippi law, such as whether a loss was attributable to wind or rain-induced flooding.

The plaintiffs in the case, Elmer and Alexa Buente, make other claims in the case, including an allegation that “one of the employees” of their insurance agent told them in response to a question that because they lived outside a flood plain, it was not necessary for them to buy additional flood coverage. “Much depends on the evidence that may be adduced in support of the allegations of the complaint,” the judge wrote.

Special Reports /

Flood Case Ruling Mixed For Insurers

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