Warped Siding and Solar Energy
June 10, 2014
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 an engineer's report, that the heat reflecting off of low-e windows from our insured's neighbor's home caused the damage. The insurance company denied the loss citing: We do not pay for loss resulting directly or indirectly from any of the following, even if other events or happenings contributed concurrently, or in sequence, to the loss:" (12.) by nuclear action or radiation or radioactive contamination, however caused. Nuclear action includes nuclear reaction, discharge, radiation or radioactive contamination, whether manmade or occurring naturally.
Loss caused by nuclear action is not considered loss by fire, explosion, sonic boom or smoke.
If loss by fire results, we will pay for that resulting loss." Additionally, the insurance company cited the following exclusion: We do not pay for loss: "(1.) by weather conditions if any peril excluded by this policy contributes to the loss in any way."
A few things I'd like an opinion on:
(1) Does the absence of commas in the exclusion language "by nuclear action or radiation or radioactive contamination, however caused", affect how it should be interpreted? Also, furthered in the exclusion, they defined nuclear action as: nuclear reaction, discharge, radiation, or radioactive contamination… In my estimation, here they're clearly defining radiation as nuclear radiation; which I would interpret to result from nuclear fission.
(2) Could it not be argued that the cause of loss was in fact the reflection of the solar heat from the low-e windows? The rest of the home was unaffected.
(3) If the company is going to cite the nuclear exclusion, why is it then that we will pay for losses where a hot pan damaged another surface?
Kentucky Subscriber
When terms are not defined in a policy courts go to what an ordinary insured would have available, which is a standard desk reference. Merriam Webster online defines nuclear as: of, relating to, producing, or using energy that is created when the nuclei of atoms are split apart or joined together; : having or involving nuclear weapons; used in or produced by a nuclear reaction (as fission)