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Warped Siding and Solar Energy

Q: A client of ours, who has an HO5 form,recently submitted a claim for the warping of their vinyl siding,vinyl shutters, vinyl mailbox, and bubbling of the paint to a door.It was believed at the time of the loss report, and verified by anengineer's report, that the heat reflecting off of low-e windowsfrom our insured's neighbor's home caused the damage. The insurancecompany denied the loss citing: We do not pay for lossresulting directly or indirectly from any of the following, even ifother events or happenings contributed concurrently, or insequence, to the loss:” (12.) by nuclear action or radiation orradioactive contamination, however caused. Nuclear action includesnuclear reaction, discharge, radiation or radioactivecontamination, whether manmade or occurring naturally.

Loss caused by nuclear action is not considered loss byfire, explosion, sonic boom or smoke.

If loss by fire results, we will pay for that resultingloss.” Additionally, the insurance company cited the followingexclusion: We do not pay for loss: “(1.) by weather conditions ifany peril excluded by this policy contributes to the loss in anyway.”

A few things I'd like an opinion on:

(1) Does the absence of commas in the exclusion language “bynuclear action or radiation or radioactive contamination, howevercaused”, affect how it should be interpreted? Also, furthered inthe exclusion, they defined nuclear action as: nuclear reaction,discharge, radiation, or radioactive contamination… In myestimation, here they're clearly defining radiation as nuclearradiation; which I would interpret to result from nuclearfission.

(2) Could it not be argued that the cause of loss was in factthe reflection of the solar heat from the low-e windows? The restof the home was unaffected.

(3) If the company is going to cite the nuclear exclusion, whyis it then that we will pay for losses where a hot pan damagedanother surface?

KentuckySubscriber

A: When terms are not defined in a policycourts go to what an ordinary insured would have available, whichis a standard desk reference. Merriam Webster online definesnuclear as: of, relating to, producing, or using energy that iscreated when the nuclei of atoms are split apart or joinedtogether; having or involving nuclear weapons; used in or producedby a nuclear reaction (as fission) <nuclear fuel> <nuclearwaste> <nuclear energy>. Radiation is defined as a type ofdangerous and powerful energy that is produced by radioactivesubstances and nuclear reactions. No one is wearing radioactiveprotective gear when they venture outside because of nuclearradiation from the sun. While astronomers tell us that the sungenerates energy by nuclear fusion of hydrogen into helium in itscore, that fusion reaction is not an issue here on earth as a dayto day hazard; if so, life as we know it would not exist. Evensolar panels are not generating or creating dangerous amounts ofradiation. Your peril is reflection of heat caused by solar energy,and the heat warped the siding, shutters, mailbox, etc. The damageshould be covered, and since the neighbors have low-e windows thatare reflecting the sunlight, the new siding/shutters/mailbox shouldbe resistant to strong sunlight.

When an Insured's Artwork Gets Damaged

Q: I have a question on a homeowner's claim.Some artwork painted by the insured got damaged and she is quitetalented. She does not sell the artwork, so we do not have to worryabout the business limitation on the homeowner's policy. But theinsurance company only wants to pay for the materials and not herlabor. I think that they are incorrect and that she should beentitled to material and labor (even if minimum wage) for thenumber of hours to make a new painting. The insured is entitled tobe made whole and the only way that is happening is to allowmaterials and then labor hours to paint a new picture. Is thiscorrect?

New YorkSubscriber

A: The problem with artwork is that talent isvery subjective; what one person thinks is work by a talentedperson someone else thinks their cat could do better. Likewise, apiece of art may not be worth the amount of labor that went intoit, regardless of how talented the insured may or may not be. Theinsured in entitled to compensation for a picture of like kind andquality; if it's a picture of a barn, she is entitled to acompleted picture of a barn. If she chooses to recreate her workthat is up to her, but she is entitled to like kind and quality.The world is full of artists who have died whose paintings may ormay not have much value; if their pictures get destroyed theinsureds are entitled to the best likeness, but not the cost ofhaving someone paint an exact copy.

What Constitutes a Wind Event?

Q: Our policyholder was getting out of theirvehicle in a parking lot. The wind takes the door out of theinsured's hand and the door strikes the vehicle next to them. Therewas not a “Windstorm” or any unusual event. We currently set theseup under wind. Is this correct if it is not an unusual wind event?Are we negligent for damages to vehicle our door strikes because ofbeing blown out of insured hands?

New YorkSubscriber

A: This is a collision loss if the insuredcannot establish facts showing some sort of wind event.

The main problem with claims involving windstorm damage isestablishing the facts, as you alluded to in your question. In themajority of cases in which courts have held that auto damage wascaused by the force of the wind, losses were held covered bycomprehensive insurance, or some other form of insurance protectingagainst windstorm.

In a case similar to the facts you described, the insuredmaintained that his auto had been damaged by the wind, which rolledthe car out of a carport and down a hill into a tree. However, thewind on the day of the incident was described as a moderate breeze(between 18 and 23 miles per hour) – there was no unusual windevent. Thus, the court held this was a collision loss and not dueto the windstorm. This case is McCelland v. Northwestern Fire andMarine Ins. Co., 86 S.E.2d 729 (Ga. App. 1955).

Accordingly, it is our interpretation of the facts you presentedthat this claim should not be set up under wind, unless the insuredcan show that the damage did result from some unusual wind force.If the insured cannot, then this claim should be covered undercollision.