Overview

A Legal Guide to Recovering for Flood Losses is a first-of-its-kind compendium of strategies for recovery from flood damages. It explains the component parts of the standard water/flood exclusion in property policies and identifies potential remedies. It has four parts: • The First Section begins with an analysis of the components parts of the standard water/flood exclusion in property policies. That is followed by a discussion of discrete clauses in property policies that provide limited coverage for flood losses. • The Second Section explores coverage under private flood insurance—both primary and excess—and under the Federal Emergency Management Agency Standard Flood Insurance Policy (SFIP). Discussion of the SFIP examines in depth the requirements for proofs of loss as deficient or untimely proofs of loss is the most common reason policyholders are denied coverage. • The Third Section highlights when recovery may be obtained under other types of coverages: business interruption; builder’s risk; equipment breakdown; commercial general liability; Directors & Officers; and automobile insurance. For each type of insurance policy, the treatise explains the coverage generally and then focuses on policy language that either covers or excludes flood losses. • The Fourth and Final Section concerns recovery from tortfeasors: insurance agents and brokers; landlords and tenants; governments; meteorologists and businesses providing inaccurate information about flooding dangers or failing to warn customers about known dangers.

Full Product Details

Author:   Douglas Scott MacGregor ,  American Bar Association
Publisher:   American Bar Association
Imprint:   American Bar Association
Dimensions:   Width: 17.80cm , Height: 4.10cm , Length: 25.40cm
Weight:   1.338kg
ISBN:  

9781639052578

ISBN 10:   1639052577
Pages:   780
Publication Date:   12 September 2023
Audience:   General/trade ,  General
Format:   Paperback
Publisher's Status:   Active
Availability:   In stock  
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Table of Contents

Preface xxiii About the Author xxv 1 Introduction 1 1.1 The Flood Crisis 1 1.2 What Is a Flood? 3 1.3 Topics Covered 4 2 The Standard Water Damage Exclusions and Limitations 7 2.1 Introduction 7 2.2 The Water Damage Exclusion: Flood, Surface Water, Waves, and Tides 8 [1] Generally 8 [2] Defining the Terms of the Exclusion 9 [a] Indirectly 9 [b] Flood 10 [c] Surface Water 22 [d] Waves, Tides, and Tidal Waves 33 [e] Overflow of Any Body of Water 35 [f] Spray 38 [g] Wind-Driven 39 2.3 The Water Damage Exclusion: Mudslide or Mudflow 44 2.4 The Water Damage Exclusion: Back Up or Overflow of Water 45 [1] Generally 45 [2] “From” and “Through” Defined 46 [3] “Water” Defined 48 [4] “Backup”/“Back Up” Defined 51 [a] Generally 51 [b] Ambiguity 52 [c] Necessity that Water Enter Drain 53 [d] Location of Blockage 54 [e] Broken Water Main 55 [5] “Overflow” Defined 55 [6] “Sewer” Defined 56 [7] “Drain” Defined 58 [8] “Sump” and “Sump Pump” Defined 59 [9] “Related Equipment” Defined 60 [10] “Otherwise Discharged” Defined 61 [11] Endorsement Deleting Exclusion 62 2.5 The Water Damage Exclusion: Water under the Ground Surface 62 2.6 The Water Damage Exclusion: Waterborne Material 67 2.7 Objects Propelled by Water 69 [1] Introduction 69 [2] Boats and Docks 69 [3] Determinative Policy Language 71 [4] Object Directing Water 71 2.8 Miscellaneous Terms Used to Describe Water 72 [1] Introduction 72 [2] Flash Flood 72 [3] Tsunami 73 [4] Seiche 75 [5] Break, Breach, or Leak of a Levee, Dam, or Canal 76 [a] Introduction 76 [b] Break or Breach 76 [c] Levee 77 [d] Dam 78 [e] Canal 78 2.9 The Continuous Seepage or Leakage Exclusion 78 [1] Generally 78 [2] “Continuous” and “Repeated” Defined 79 [3] “Seepage” Defined 81 [4] “Leakage” Defined 82 [5] Distinguishing “Seepage” from “Leakage” 83 [6] Temporal Requirement 84 [7] Application of Temporal Requirement 85 [8] Sudden Occurrence of Breach 86 [9] The Vermin Exclusion 86 [10] Rain Exclusion 87 2.10 Frozen Pipes or Equipment Exclusion 88 2.11 Explosion Limitation 90 2.12 Rain, Snow, Sleet, or Ice Limitation 92 2.13 Weather Conditions Exclusion 92 2.14 Other Exclusions 94 2.15 The Wind and Water Conundrum 95 3 Recovering under Standard Property Policies 99 3.1 Introduction 99 3.2 Limited Water Damage Coverage 99 [1] Introduction: Standard Policy Language 99 [a] Commercial Property Policies 99 [b] Homeowners Policies 100 [2] Interpretation of Standard Policy Terminology 101 [a] Accidental Discharge or Leakage 101 [b] Plumbing Systems 102 [c] Other Systems or Appliances 104 [d] Breaking Apart or Cracking 107 [e] Described Premises 108 [3] Continuous or Repeated Seepage or Leakage Exception 108 [4] Frozen Pipes or Appliances Exception 109 [a] Introduction 109 [b] Meaning of “Frozen” Pipes 111 [c] Standards of Care 112 [d] Maintain Heat, Shut Off Water, and Drain Pipes 116 [e] Reliance on Third Parties 118 [f] Vacant, Unoccupied, or Under Construction 120 [g] Protective Safeguard Endorsement 125 [h] Evidence 125 3.3 Sprinkler Leakage 127 [1] Generally 127 [2] Standard Coverage Language 128 [3] Application of Sprinkler Leakage Provision 129 [4] Location of Sprinkler System 129 [5] Vacancy Clause 130 [6] Exclusion by Endorsement 131 3.4 Backups and Overflows 131 [1] Introduction 131 [2] Water Damage Coverage: Overflow or Discharge from a Plumbing System 133 [3] Endorsements Adding Coverage for Backups and Overflows 136 [a] Standard Residential Endorsement 136 [b] Standard Commercial Endorsement 137 [c] Endorsement Covering “Other” Systems 140 [d] Source of Water 141 [e] “Backup” Distinguished from “Overflow” 142 [f] Damage Caused “Solely” by Backup 142 [g] Anti-Concurrent Causation Clause in Policy Exclusion Section 142 3.5 Damage to Roof or Walls through Which Water Enters 144 [1] Policy Language 144 [a] All-Risk Policies 144 [b] Named Risk Policies 145 [c] Non-Standard Language 146 [d] Definition of Key Terms 147 [2] Burden of Proof 152 [3] Entry Points 156 [a] Windows or Doors 156 [b] Rooftop Air-conditioning Units 158 [4] Reason for the Opening 158 [a] Intentionally Created 158 [b] Wind-Propelled Projectiles 158 [c] Rainfall 159 [d] Temporary Roof 160 [e] Contractor Negligence 164 [5] Duty of Insured to Protect Property from Further Damage 164 [6] Exclusions 164 [a] Flood or Surface Water 164 [b] Windstorm and Hail Exclusion Endorsement 166 [c] Wear and Tear 167 [d] Faulty Workmanship 167 [e] Long-Term Leaks 168 [f] Building Upgrades 170 3.6 Thawing of Snow, Sleet, or Ice on a Building or Structure 170 3.7 Water Damage as a Consequence of Fire 171 3.8 Vandalism and Water Damage 173 [1] Introduction 173 [2] Definition of “Vandalism” 174 [3] Theft Exception 175 [4] Change in Temperature Exception 176 [5] Vandalism and Water Damage Exclusion 177 [6] Location of Vandalism 178 [7] Proof and Evidence 178 3.9 Explosion and Water Damage 180 3.10 “Ensuing” Water Damage 182 [1] Introduction 182 [2] Burden of Proof 184 [3] Direct Physical Loss 185 [4] Water Damage 185 [5] Not Otherwise Excluded 187 [6] Water Damage Sublimit 189 [7] Tear Out to Repair 189 [a] Plumbing System Leaks 189 [b] Exterior Stucco 190 [8] Sprinkler Leakage 190 4 Recovering under a Private Flood Insurance Property Policy 193 4.1 Introduction 193 4.2 Forms of Primary Coverage 194 [1] Introduction 194 [2] Stand Alone Policy 195 [3] NFIP-Compliant Policies 195 [a] Introduction 195 [b] Private Carrier Policies 197 [c] Advantages of NFIP-Compliant Policies 198 [4] Differences in Condition Policy 198 [5] Parametric Insurance 200 [6] Flood Endorsements to Property Coverage 202 [a] Introduction 202 [b] Endorsement Adding Flood Coverage 202 [c] Endorsement Overriding Flood Exclusion 202 [d] Endorsement Deleting Flood Exclusion 204 [e] ISO Standard Flood Coverage Endorsement 205 4.3 Definitions of “Flood” in Policies 210 4.4 Physical Loss or Damage 213 4.5 Exclusions to Primary Coverage 213 [1] Flood Zone Exclusion 213 [2] Rain 214 [3] Building Ordinance or Law Exclusion 215 [4] Artificially Generated Electrical Currents 216 [5] Named Storm 216 [6] Land Exclusion 217 [7] Vacancy 219 4.6 Limitations to Primary Coverage 221 [1] Introduction 221 [2] Limits of Insurance 221 [3] Sublimits 223 [a] “Sublimit” Defined 223 [b] Applicability Generally 224 [c] Statement of Values 226 [d] Ensuing Loss Clause and Sublimits 226 [e] Direct Physical Loss or Damage 227 [f] Loss Caused by Windstorm 228 [g] Multiple Insurers and Quota Share Programs 229 [4] Deductibles 230 [a] Generally 230 [b] Applicability of Windstorm Deductible 231 [c] Buyback Deductible 232 4.7 Additional Coverages 233 [1] Introduction 233 [2] Increased Cost of Compliance 233 [3] Debris Removal 236 [a] Introduction 236 [b] “Debris” Defined 238 [c] Limits of Coverage 238 [d] Exception for “Pollutants” 240 [4] Loss of Residential Use Coverage 241 [5] Claim Preparation Expenses 242 4.8 Excess Flood Insurance 242 [1] Introduction 242 [a] Inadequacy of the Standard Flood Insurance Policy 242 [b] Excess Insurance Defined 244 [c] Layered Coverage 246 [d] Umbrella Coverage Distinguished from Excess Coverage 246 [2] Stand Alone or Follow Form 247 [3] Coincidental Excess Insurance 250 [4] SFIP as Excess Insurance 252 [5] Maintenance of Underlying Insurance Clause 253 [6] Available Excess Coverage 254 [a] Generally 254 [b] Standard Excess Flood Insurance Endorsement 255 [c] Pacific Specialty Insurance Company Excess Flood Coverage 256 [7] Policy Contents 257 [a] Definitions Follow Form 257 [b] Exclusions Follow Form 257 [c] Deductibles Follow Form 258 [d] Special Deductibles 259 [e] Sublimits 259 [f] Limits of Liability 259 [8] Exhaustion of Primary Coverage 260 [a] Generally 260 [b] Functional Exhaustion 261 [c] Actual Exhaustion 262 [d] Payment by Primary Insurer Must Be for Flood Loss 264 [e] Coverage for an “Occurrence” 266 [f] Application of Sublimit 267 [g] Burden of Proof 267 [9] Insolvency of Primary Insurer 268 [10] Service of Suit Clause 269 5 Recovering under a FEMA Standard Flood Insurance Policy 271 5.1 Introduction 271 [1] The National Flood Insurance Program 271 [2] The “Write Your Own” Program 271 [3] The Standard Flood Insurance Policy 273 [a] Generally 273 [b] Insurable Interest 273 [c] Dwelling Form 275 [d] General Property Form 275 [e] Residential Condominium Building Association Policy 276 [f] Scheduled Building Policy 277 [g] Judicial Interpretation of the SFIP 277 [4] Manuals and Handbooks 278 [5] The Role of Private Attorneys in SFIP Claims 280 5.2 The Definition of Flood 281 [1] Generally 281 [a] Statutory Definition 281 [b] FEMA Rule Definition 281 [c] Policy Definition 282 [2] Proof of Flood 283 [a] Burden on Policyholder to Show a Flood 283 [b] Evidence of Flood 284 [3] Aspects of “Flood” 284 [a] Mudflow 284 [b] Inundation 285 [c] Surface Water 286 [d] Two or More Acres or Properties 286 [e] Collapse or Subsidence 288 [f] Erosion 289 [4] Direct Physical Loss 290 [a] Generally 290 [b] Exposure to Moisture 291 [c] Structural Damage Related to Flooding 291 5.3 Coverage 292 [1] Building Coverage 292 [a] Building and Additions 292 [b] Fixtures, Machinery, and Equipment 294 [c] Construction Materials 294 [d] Building Under Construction 294 [e] Manufactured Home or Travel Trailer 294 [f] Property below Lowest Elevated Floor in Some Buildings 296 [2] Personal Property 298 [a] Generally 298 [b] Property below Lowest Elevated Floor in Some Buildings 299 [c] Special Limits 300 [d] Tenants and Condominium Unit Owners 300 [3] Debris Removal 300 [4] Loss Avoidance Measures 301 [a] Sandbags, Supplies, and Labor 301 [b] Property Removed to Safety 302 [5] Pollution Damage 302 [6] Increased Cost of Compliance 302 [a] Generally 302 [b] Limits of Coverage 303 [c] Eligibility 303 [d] Conditions 304 [e] Exclusions 305 [7] Property Not Covered 306 [8] Exclusions 307 [a] Losses That Are Not Direct Physical Loss By or From Flood 307 [b] Flood in Progress 307 [c] Earth Movement 310 [d] Water 311 [e] Losses That May Be Covered by Other Insurance 313 [f] Property Located on Land Leased from the Federal Government 313 5.4 Notice of Loss 314 [1] Requirement to Give Notice of Loss 314 [2] The Meaning of “Prompt” Notice 314 [3] Justified Delays 315 [4] Notice-Prejudice Rule 316 [5] Notice to Insurance Agent 316 5.5 Claims Adjustment 317 [1] Generally 317 [2] Claims Adjusters 317 [a] Generally 317 [b] Adjuster Conduct 318 [c] Adjuster Authority 320 [d] Inspection of Property 320 [e] Remote Claims Adjusting 321 [f] Claims Adjustment Guidance for Adjusters 324 [g] Non-Waiver Agreements and Reservation of Rights Letters 331 [h] Guidance to Adjusters on Claims for Specific Property 331 [i] Direction on Identification of Certain Property 335 [j] Preliminary Report 335 [k] Policyholder Representatives 337 [l] Closing and Interim Reports 339 [m] Proof of Loss 339 [3] Use of Outside Professional Services 340 [a] Generally 340 [b] Engineers 341 [c] Financial Accounting Professionals 342 [4] Payment of Claim 342 [a] Payment and Paying the Undisputed Loss 342 [b] Claim Closed without Payment Reasons 343 [c] Requests for Additional Payment 343 [5] Claims Examiners 345 [6] Direction to Policyholders on Documenting Claims 346 [7] Advance Payments 346 [a] Generally 346 [b] Advance Payments before and after Inspection 346 [c] Advance or Partial Payment for Increased Cost of Compliance 348 [d] Procedure for Issuing Advance Payment 349 [e] Payment Exceeding Loss 350 [8] Subrogation 351 5.6 Proof of Loss 351 [1] Generally 351 [2] FEMA Proof of Loss Form 352 [3] Sworn, Signed, and Notarized 353 [a] Sworn 353 [b] Signed 354 [c] Notarization 355 [4] Timeliness 356 [a] Generally 356 [b] Notice-Prejudice Rule 357 [c] Meaning of “Date of Loss” 357 [d] Calculation of 60-Day Period 358 [5] Amount of Claim 358 [6] Documents to be Submitted with Proof of Loss 359 [a] Building Repair Estimate 359 [b] Inventory of Damaged Personal Property 360 [7] Multiple and Supplemental Proofs of Loss 363 [8] Substantial Compliance with Proof of Loss Requirement 363 [9] Waivers and Extensions 364 [a] Waiver 364 [b] Extensions of Deadline 365 [10]Rejected Proof of Loss 367 5.7 Denial of Claim 368 5.8 Claim File 369 [1] Generally 369 [2] Contents of Claim Files 370 [3] Release of Claim File Information to Policyholders 370 [4] Representative of Policyholder Obtaining Claim File 371 5.9 Dispute Resolution 372 [1] Appraisal 372 [a] Generally 372 [b] Pre-Conditions to Appraisal 373 [c] Appeals or Litigation 374 [2] Appeal 375 [a] Generally 375 [b] Limitations on Appeal 376 [c] Procedures 376 [d] Resolution of Appeal 378 [e] Judicial Review 380 [3] Litigation 380 [a] Right to File Suit 380 [b] Burden of Proof 381 [c] Compliance with Policy as Pre-Condition to Suit 381 [d] Claim Limited to Breach of Contract 382 [e] Limitation Period 383 [f] Exhaustion of Administrative Remedies 389 [g] Service, Jurisdiction, and Venue 390 [h] Proper Defendant 393 [i] Jury Trial 394 [j] Preemption 394 [k] Damages 396 [l] Fees, Costs, and Interest 397 [4] Declaratory Judgment Actions 399 6 Recovering under Business Interruption and Related Coverages 401 6.1 Introduction 401 6.2 Business Interruption Coverage 401 [1] Introduction 401 [2] Coverage 405 [a] Standard Policy Language 405 [b] The Meaning of “Direct Physical Loss or Damage” 413 [3] Covered Causes of Loss and the Flood Exclusion 414 [a] Coverages and Flood Exclusion 414 [b] Avoiding the Flood Exclusion 417 [4] Policies Covering Flood Loss 418 [5] Other Exclusions 420 [a] Ordinance or Law Exclusion 420 [b] Idle Periods Clause/Exclusion 421 [c] Cancellation of Contracts Exclusion 422 [d] Acts and Decisions 422 [6] Additional Coverages 423 [a] Civil Authority 423 [b] Alterations and New Buildings 427 [c] Extended Business Income 428 [d] Utility Services 428 [e] Contingent Business Interruption Coverage 430 [f] Loss of Ingress or Egress 431 [7] Limits of Insurance 432 [a] Generally 432 [b] Sublimits 432 [c] The Meaning of “Occurrence” 434 [8] Loss Conditions 434 [a] Appraisal 434 [b] Duties in the Event of Loss 435 [c] Amount of Loss 436 6.3 Extra Expense Coverage 447 [1] Introduction 447 [2] Coverage 447 [a] Standard Policy Language 447 [b] Flood as a Covered Cause of Loss 454 [c] Direct Physical Loss or Damage 454 [d] Disaster Relief and Insurance Recovery 456 [e] Covered Extra Expenses 456 6.4 Expediting Expense 460 6.5 Preservation of Property Clause 462 7 Recovering under Builder’s Risk Insurance 465 7.1 Introduction 465 7.2 Insurable Interest 469 7.3 Builder’s Risk Policies: Coverages and Flood Exclusions 470 [1] Introduction 470 [2] Insurance Service Organization Policies 472 [a] Introduction 472 [b] ISO Commercial Property Builder’s Risk Coverage Form 473 [c] ISO Commercial Inland Marine Builder’s Risk Coverage Form 476 [3] American Association of Insurance Services Builder’s Risk Coverage Scheduled Jobsite Form 478 [4] Progressive Insurance Contractors’ All-Risks Policy Form 479 7.4 Water Damage/Flood Exclusion and Added Coverage 481 7.5 Contractual Requirement for Coverage 483 7.6 Deductibles 484 7.7 Covered Property 486 7.8 Coverage Limit 487 7.9 Soft Cost Coverage 487 [1] Introduction 487 [2] Definition of “Soft Costs” 488 [3] Limitations 490 [4] Deductible 491 [5] Covered Cause of Loss 492 [6] Exclusions 492 [7] Civil Authority Coverage 493 [8] The Means for Determining the Amount of Loss 494 7.10 Expediting Expense 494 7.11 Faulty Workmanship Exclusion 495 7.12 Exclusions for Extremes of Temperature or Freezing 496 7.13 Ensuing Loss 497 7.14 Termination of Coverage 498 8 Recovering under Boiler and Machinery or Equipment Breakdown Insurance 501 8.1 Introduction 501 8.2 Covering a Property Insurance “Gap” 502 8.3 Policy Forms 503 8.4 Declarations Page 504 8.5 Coverage 506 [1] Generally 506 [2] Covered Equipment 506 [3] “Accident” as Covered Cause of Loss 507 [a] Generally 507 [b] Typical Policy Language 508 [c] Occurrences That Are Not Accidents 511 [d] “Flood” as an Accident 513 [4] “Breakdown” as the Covered Cause of Loss 513 [5] Coverage 515 [a] Property Damage 515 [b] Business Interruption 515 [c] Extra Expense 517 [d] Expediting Expense 518 [e] Ordinance and Law 518 [f] Demolition 520 [g] Utility Interruption 520 [h] Errors and Omissions 521 [i] Consequential Loss 521 8.6 Exclusions 522 [1] Generally 522 [2] Water/Flood 523 [a] Generally 523 [b] FEMA Standard Flood Insurance Policy 525 [c] Backup or Overflow of Sewer, Drains, or Drainage Piping 526 [3] Explosion 527 [4] Fire 528 [5] Deterioration, Corrosion, and Wear and Tear 529 [6] Earth Movement 530 [7] Ordinance or Law 530 [8] Perils Covered by Other Insurance 531 [9] Neglect 532 [10] Equipment Being Repaired or Tested 532 [11] Lack of Power 532 8.7 Limits of Insurance 533 8.8 Deductibles 534 8.9 Conditions 536 [1] Generally 536 [2] Duties in the Event of Loss or Damage 537 [3] Reducing Loss 539 [4] Valuation 539 [5] Appraisal 542 [6] Coinsurance 542 [7] Joint or Disputed Loss 543 [a] Generally 543 [b] Clause Contents 544 [c] Comparable Clause in Commercial Property Policy 545 [d] ISO Endorsement 546 [8] Privilege of Insurer to Adjust with Owner 547 [9] Defense of Insured 547 [10] Transfer of Rights of Recovery against Others to Insurer 547 [11] Suspension 548 8.10 Endorsements 548 8.11 Successive Insurers 549 9 Recovering under Commercial General Liability Insurance 551 9.1 Introduction 551 9.2 The Underlying Claim 553 9.3 Definition of “Property Damage” 555 9.4 Known Loss 556 9.5 Coverage for an “Occurrence” 557 [1] Introduction 557 [a] “Occurrence” as an “Accident” 559 [b] Intentional Act, Accidental Injury 561 [c] Prior Experience 563 [d] Rainfall 565 [e] Expected or Intended from the Standpoint of the Insured 565 [2] Construction Defects as an Occurrence 566 [3] An Occurrence during Roof Repairs 571 [4] Multiple or Single Occurrence 574 [a] Introduction 574 [b] Multiple Events 574 [c] Multiple Injuries 575 9.6 Act of God Defense 576 9.7 Standard CGL Policy Exclusions 579 [1] Introduction 579 [2] Expected or Intended Injury 579 [3] Contractual Liability 579 [4] Pollution 584 [5] Property Damage Exclusions 588 [a] Ongoing Operations Exclusion 588 [b] “Your Work” Exclusion 591 [c] Damage to Your Product Exclusion 595 [d] Your Completed Work Exclusion 595 9.8 Non-Standard Exclusions 598 [1] Water Damage Liability Exclusion 598 [2] Weather-Related Damage to Work in Progress 600 [3] Interference with Natural Drainage Exclusion 601 [4] Residential Construction Work Exclusion 601 [5] Contractor’s Professional Liability Exclusion 603 10 Recovering under Directors and Officers Insurance 607 10.1 Introduction 607 10.2 Directors & Officers Insurance Generally 608 10.3 Coverage 610 [1] Insuring Agreement 610 [2] Loss 610 [3] Claim 611 [4] Insured Person 612 [5] Wrongful Act 613 10.4 Exclusions 614 [1] Generally 614 [2] Dishonesty/Intentional Conduct 614 [3] Construction 615 [4] Property Damage 616 10.5 Other Insurance 619 10.6 No Action Clause 620 10.7 Conclusion 621 11 Recovering under an Automobile Policy 623 11.1 Introduction 623 11.2 Policy Language 623 11.3 “Direct” and “Accidental” Loss 624 11.4 “Colliding” with Flood Waters 625 11.5 Loss Caused by Water or Flood 630 [1] Generally 630 [2] Loss Caused by Water or Flood 630 [3] Loss Caused by Flood 631 [4] Loss Caused by Flood Meaning Rising Waters 632 [5] Loss Caused by Flood Meaning Rising Streams or Navigable Waters 632 [6] Loss Caused by Flood or Rising Waters 632 [7] Loss Caused by Water but Not Caused by Rain, Sleet, Snow, or Flood 633 [8] Loss Caused by External Discharge or Leakage of Water 633 11.6 Exclusions 634 12 Recovering from an Insurance Producer 637 12.1 Introduction 637 12.2 Agents Distinguished from Brokers 638 12.3 Liability of Agents and Brokers Generally 639 [1] Basic Principles 639 [2] The Narrow Duty of Agents and Brokers 640 [3] Broader Duty of Agents and Brokers 642 [4] Negligent Misrepresentation 644 [5] Defenses 644 12.4 Liability When the Coverage Sought Is Flood Insurance 646 12.5 Liability When the Coverage Sought Is a FEMA Standard Flood Insurance Policy 648 12.6 Liability When the Coverage Sought Is Excess Flood Insurance 650 12.7 Waiver/Checklists 652 12.8 Damages 653 12.9 Reformation 654 [1] Generally 654 [2] Reformation of a FEMA Standard Flood Insurance Policy 655 [a] Generally 655 [b] The Exception 656 [c] Reformation Prior to Loss 657 [d] Reformation after Loss 658 [e] Examples of Situations Requiring Reformation 658 13 Recovering from a Commercial Landlord or Tenant 661 13.1 Introduction 661 13.2 Lease Covenants Regarding Repairs 661 13.3 Destruction of Leased Premises 663 13.4 Landlord’s Duty to Warn Tenant of Flood Risk 666 [1] Generally 666 [2] Tenant’s Duty to Examine Public Record 667 [3] Duty to Warn of Specific Circumstances 668 13.5 Agreements to Insure 669 13.6 Subrogation Claims against Tenants 671 13.7 Allocation of Insurance Proceeds 672 [1] Generally 672 [2] Tenant as Sole Insured 673 14 Recovering from a Governmental Entity or Regulated Lender 675 14.1 Introduction 675 14.2 The United States 675 [1] Generally 675 [2] Flood Control Act 676 [a] Generally 676 [b] Specific Instances of Immunity from Flood Loss 678 [c] National Flood Insurance Act and Section 702c Immunity 679 [3] Waiver of Sovereign Immunity 681 [a] The Federal Tort Claims Act Generally 681 [b] The Federal Tort Claims Act and Flood Damage 683 [c] Limited Waiver under the National Flood Insurance Act 689 [4] Takings or Inverse Condemnation 691 14.3 State Governments 695 [1] Generally 695 [2] Sovereign Immunity 695 [3] Waiver of Immunity 696 [4] Tort Claims for Flood Losses 699 [a] Generally 699 [b] Pertinent Tort Law Principles 700 [c] Road Construction and Maintenance 705 [d] Failure to Make Improvements 706 [e] Flood Forecast 707 [5] Takings or Inverse Condemnation 707 14.4 Local Governments 710 [1] Generally 710 [2] Sovereign Immunity 710 [3] Tort Claims for Flood Losses 711 [a] Generally 711 [b] Negligent Design 712 [c] Lack of Maintenance or Inspection 713 [d] Flood Control and Water Control Structures 715 [e] Water and Sanitary Sewer Systems 718 [f] Permitting 726 [4] Takings or Inverse Condemnation 728 14.5 Regulated Lender Liability 728 15 Recovering from Weather Forecasters and Those Who Fail to Warn of Weather Dangers 731 15.1 Introduction 731 15.2 Private Weather Forecasters 732 [1] Generally 732 [2] Media Forecasters 733 [3] Consulting Forecasters 734 15.3 State and Local Agencies 735 [1] Negligent Forecast 735 [2] Failure to Warn or Alert 736 15.4 Federal Government Agencies 739 [1] Generally 739 [2] Weather Forecast Liability 740 [3] Aviation Weather Forecasts 743 15.5 Failure of Private Business to Alert Patrons to Weather Dangers 745 15.6 Establishing Duty, Breach, and Proximate Cause 747

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Douglas Scott MacGregor is a graduate of Eckerd College and the Levin College of Law at the University of Florida and also earned an M.S.W. at the University of South Florida. He is the author of more than 20 books and the chapter on flood insurance in the New Appleman on Insurance Law Library Edition. He lives in the town of Gulfport on Florida’s West Coast.

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