Which storm caused it: attributing damage across several storm days

A claim is argued inside a window of years, not on a day

When several storm days sit in the record near a property, damage is attributed to a storm by showing which days carry hail on the record, how strongly each is attested, how far each sits from the roof and which fall inside the policy, and then by giving a reader a reasonable basis to allocate the damage among them. The record cannot do the allocating. It can make sure the allocating is done against the right list.

The window is wider than it looks. A claim names one date, but the argument about it reaches back to the oldest storm a carrier can point to and forward to the inspection. A roof that has stood for years in hail country has a calendar of storm days behind it, and each of those days is a candidate for any mark on it. The carrier's file lists them. The policyholder's usually does not.

The free pages draw the window for a place as a calendar: every day with hail on record within 10 miles of the city's centre, placed on its year, measured days as filled marks and detected-only days as hollow ones. The date-of-loss finder draws the same calendar for an address over the last 2 years. Both are an index of the argument to come. The report draws it from the roof.

Prior storms are the carrier's first question

Merlin Law Group's account of hail adjusting, paraphrased here, opens with the checklist: near the top of the list an adjuster works through before paying a claim is whether there have been prior hailstorms at the loss location, and the answer a policyholder most often hears is that much of the damage came from a previous one. Sometimes the carrier is right. A roof that has been hit before and never claimed carries marks from both storms, and the policyholder, who did not go up on the roof after the first, is learning of it from the carrier.

The question is legitimate and answerable, and the answer is the record. A prior storm is a day; it either carries hail on the public record near the property or it does not; where it does, its reports have sizes, sources and distances like any other day's. A file that can say, day by day, what the record holds for every storm the carrier might raise has turned the carrier's first question into a list it wrote itself. A file that cannot is arguing from the roof alone, and the roof, as the engineers in Lowen Valley View put it, has weathered the evidence away.

What a prior storm cannot do is make the later one disappear. The policy period is a pair of dates, and a storm inside it that the record supports is a covered occurrence whatever fell before it. The dispute is about how much of the damage is that storm's, which is a question of segregation, not of existence.

Segregation of damages is the insured's burden where causes combine

Texas has said it plainly for decades: when a covered cause and an excluded one combine, the insured recovers for the covered portion and has to give the factfinder a way to find it. The Supreme Court of Texas in McKillip, a case about a poultry house, required evidence affording a reasonable basis for estimating the proportion of the damage the covered risk caused; Lyons restated the rule for a windstorm claim argued against a foundation exclusion; the Fifth Circuit applied it to hail across a policy period.

[W]hen covered and excluded perils combine to cause an injury, the insured must present some evidence affording the jury a reasonable basis on which to allocate the damage.

Lyons v. Millers Casualty Insurance Co. of Texas, 866 S.W.2d 597, 601 (Tex. 1993), as quoted in Certain Underwriters at Lloyd's of London v. Lowen Valley View, No. 17-10914 (5th Cir. 2018)

The rule treats a storm outside the policy period as an excluded cause and a storm inside it as a covered one, so a record with storms on both sides of the inception date is a concurrent-causation record by definition. The burden sits with the insured, and it is met with evidence, not with a better-written date of loss. In Lowen Valley View the engineers listed the days on which both surface reports and radar placed large hail at the hotel; only one fell inside the policy period; the insured offered nothing that let a jury say how much of the roof was that day's, and the court treated the silence as fatal. Other states allocate the burden differently, and some shift it to the carrier once a covered cause is shown. The record the insured needs is the same in each.

Concurrent causation

Two or more causes, at least one excluded, producing one loss. In a multi-storm hail claim the excluded cause is the storm outside the policy.

Segregation

Separating the part of the loss the covered cause produced from the part it did not, with evidence a factfinder can reason from.

Reasonable basis

The Texas standard for that evidence: not certainty, but enough that an allocation is an estimate rather than a guess.

A pre-existing damage argument is an argument about dates

Pre-existing damage is what a carrier calls the marks it attributes to a day before the policy. Wear, age and prior hail are bundled under the phrase, and the bundling is the problem: wear is not a storm and has no date, while prior hail is a storm and has one. Separating the two is the first move. An inspection report that says the roof shows hail damage of more than one age is making a claim about at least two days, and each of those days either appears on the public record near the property or does not.

Where a prior day does appear, the argument is about allocation, and the record supports both sides evenly: the sizes on each day, the sources that carried each, the distance from the roof to each report. Where it does not appear within the contributing band, the carrier's attribution rests on the roof alone, and the file can say so with the search stated. A denial that names a prior storm the record does not hold carries a date that cannot be cited.

None of this says what hit the roof. The record attests that hail of a given size was reported at a given distance on given days. Whether a particular mark belongs to one of them is the inspection's question, and the inspector answers it better with the calendar in hand.

How an appraisal panel or an umpire reads a multi-storm record

Appraisal decides amount, not coverage, and in a multi-storm claim the line between the two is where the panel spends its time. The Dallas Court of Appeals in Richland Trace dealt with an association whose roofs had been under storms in consecutive years, insured under consecutive policies, with an appraisal award issued under the later one. The carrier read the award as settling everything. The court read it as the appraisers had written it.

The Appraisal Award reflects the loss caused by a singular hailstorm, the 'subject hailstorm,' and subject to a singular policy, the listed 2017 Policy.

In this case, the specific occurrence is the 2017 hailstorm, and the appraisers determined the amount of loss caused by that storm as opposed to the amount of loss caused by everything else, including prior hailstorms.

Richland Trace Owners Association v. Landmark American Insurance Co. (Tex. App., Dallas), as quoted by Merlin Law Group

An appraisal award is a statement about one occurrence under one policy, and a panel asked to value hail damage has to know which storm it is valuing and what else is on the roof. A panel handed a calendar of the storm days at the property, with the measured and detected sizes and the source counts on each, can write an award that says what it covers and what it leaves. A panel handed one date writes an award the carrier will later read as covering everything. An umpire breaking a deadlock over which storm did what is in the same position with less time. The record does not tell the umpire how to allocate. It tells the umpire what the candidate days are and how well each is attested, which is the part of the dispute that should not be in dispute.

The calendar of record belongs on the table before the argument

Every party to a multi-storm claim is working from a list of days, and the lists usually differ: the carrier's from its vendor's product and its claim history at the address, the policyholder's from memory and the roofer, the engineer's from whichever weather history was ordered. The argument about which storm did what cannot start until the lists agree, and a list built from the public record, with its method stated, is the one nobody has a reason to reject.

Such a list has properties a date does not. It shows every day, so a storm the claim did not name is already on it. It shows corroboration, so a day one source carried is visibly weaker than a day several did. It keeps measured apart from detected, so a day on which an analysis produced a size and nobody reported a stone reads as what it is. And it states what was searched, so an absence on it is an absence rather than an oversight. Put it on the table first and the which-storm argument becomes an argument about allocation among known days, which is the argument the law asks the parties to have.

A day on those pages counts as severe when the largest hail reported reached 1.00″, the National Weather Service criterion, and a day whose largest size was detected and not measured is drawn hollow on every calendar.

What the report shows

For a multi-storm claim, the document is compiled for the address over a window the reader chooses, wide enough to include the prior storms a carrier can raise. It lists every storm day in the window with hail reported within 10 miles of the roof, each with its largest measured size, its largest detected size, the number of reports and the number of independent sources, in date order, so the days inside and outside the policy period stand on one page. For each day, the reports within 3 miles are listed with their source, their time as filed, their size, whether measured or detected, and their distance and bearing from the roof, with the contributing band below. A day a carrier names that the record does not hold near the property is shown as nothing on record, with the search stated.

The document does not allocate the damage among the days and does not say which storm marked the roof. It gives the appraiser, the engineer or the attorney the same list of days, attested the same way, so the allocation can be argued on the evidence.

Questions this guide answers

How is damage attributed when several storms hit the same roof

By listing every storm day the record holds near the property, how strongly each is attested, how far each sits from the roof and which fall inside the policy, and then giving a factfinder a reasonable basis to allocate the damage among them. The record supplies the list; the allocation is argued from it.

What is segregation of damages

Separating the part of a loss a covered cause produced from the part it did not, with evidence a factfinder can reason from. In a multi-storm hail claim the excluded cause is the storm outside the policy period.

Does a prior storm defeat a claim for a later one

No. A storm inside the policy period that the record supports is a covered occurrence whatever fell before it. The dispute is about how much of the damage is that storm's, which is a question of segregation rather than existence.

What should an appraisal panel be handed in a multi-storm claim

A calendar of the storm days at the property, with the measured and detected sizes and the source counts on each, so the award can say which occurrence it values and what it leaves.