Hurricane Irene won't come close to reviving the wind vs. water debate that occupied the court systems of Mississippi and Louisiana for years following the devastation of Hurricane Katrina in 2005.

The wind vs. water debate and the mind-bending, tongue-tying “anti-concurrent causation clause” language within insurance policies will not be an issue.

Not by a long shot.

Flood, including storm surge, is not covered by a standard homeowners policy. Moreover, multiple forces cannot combine to cause the exact same loss. This is what the anti-concurrent causation clause debate was about. During Katrina, two events—wind and then surge—caused two different losses. But the debate after Katrina was a heck of a lot more complicated than that because all that was left of many, many homes was a concrete slab.

I covered these debates and court battles while at another publication and the only thing I know is that I don't know everything (but I learned a boatload from attorney David Rossmiller. His blogs were a life preserver when I was drowning in flood litigation.).

Court cases were intense and fought on multiple fronts, with a see-saw of positive and negative rulings, depending on the eyes you were looking through.

It was easy to side with homeowners who lost everything. But policy language—and insurers—eventually came out on top, even when lawyers tried to say levees didn't count because they were man-made.

“We're sorry. Flooding is not covered.” OK, I added the “We're sorry.” By the end of the courtroom fight(s) enough feelings were hurt, enough pockets were emptied to lawyers and enough emotions were drained that apologies weren't going to cut it anyway (Not to mention, one famous plaintiffs' attorney {coughing…Scruggs!} landed himself in the clink. Now that was fun to cover, even from New Jersey!).

The point here is that any talk about lawyers expecting disputes over wind vs. water is just that—talk…probably from plaintiffs' attorneys. The case law is plentiful.

As George Simpson, an attorney with North Carolina's Cranfill Sumner & Hartzog, tells me, “It would be hard to imagine anyone opening a Pandora's Box of issues that haven't already been addressed ad nauseum.”

Remember Hurricane Ike in 2008? I recall seeing before-and-after pictures of homes in Galveston, Texas and only the stilts they were built on after the hurricane blew through. I don't remember any wind vs. water litigation.

Flooded homes in New Jersey, New York, Connecticut, North Carolina or Vermont are still standing. Water lines are evident. So is the lack of damage from wind. “Hurricane Irene wasn't a wind event. It was a flooding event.” These lines have been uttered repeatedly by the insurance industry, weather experts and elected officials since Irene.

“This event is much more clear-cut; it's clear what caused the loss,” Simpson adds.

If you didn't have flood insurance, the cost to repair your home is coming out of your pocket.

And that stinks. I'd never deny that, or the sympathy I have for many people whose homes were flooded.

Homeowners that live in a flood plain probably have a federal flood policy. They do if they have a mortgage.

Homeowners outside flood plains probably don't have a policy.

I don't know how many homes Irene flooded fall into this category, but more and more people who aren't forced to get flood insurance seem to be in the middle of floods. I hope there is federal assistance for these people, but I hope more of them also consider flood insurance…from a seriously-in-debt federal program that is scheduled to expire Sept. 30 (Yeah, that's a different story.).

Stop with talk about wind vs. water litigation. Maybe there will be several lawsuits. But they aren't going anywhere.

Let's keep the litigation to good 'ol traditional coverage disputes over reimbursement amounts, shall we?

Special Reports /

Wind Versus Water? Not This Time

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