Katrina, Ike, Maria, Harvey: In the past several years, hurricanes have caused untold damage to entire cities and even geographic regions. The most recent such storm in the United States, Hurricane Florence, is considered extremely dangerous and is heading towards North Carolina and 300 miles of coastal areas. See, e.g., Jason Hanna, et al., “Hurricane Florence strengthens as 1 million people told to Flee East Coast,” CNN, Sep. 11, 2018, at https://www.cnn.com/2018/09/11/us/hurricane-florence-south-east-coast-wxc/index.html. In the aftermath of the damage and devastation caused by hurricanes, litigation often ensues as people attempt to rebuild their homes and lives. See, e.g., Stephen Pate, “The Imperfect Storm: Harvey Litigation Will Be Fought Under Hailstorm Bill’s Rules, While ‘Menchaca’ Looms in the Background,” Texas Lawyer, Jun. 1, 2018; See Nicole Acevedo, “Puerto Rico faces lawsuits over hurricane death count data,” NBC News, Jun. 1, 2018, at https://www.nbcnews.com/storyline/puerto-rico-crisis/puerto-rico-faces-lawsuits-over-hurricane-death-count-data-n879341. This article examines litigation pertaining to hurricanes and some of the more recent legal angles that have been at issue in such cases.
There are various avenues that victims of hurricanes may pursue once the initial damage is done, and to a certain extent, the available recourse depends on location. What follows is an overview of how certain statutes, case law, and specific details based on geography and damage may determine both what strategies hurricane victims and their attorneys may wish to pursue and how expert witnesses may be of assistance.
(1). Hurricane Harvey: Texas Legal Issues: In August of 2017, Hurricane Harvey (“Harvey”) hit Texas and Louisiana and is considered by a number of analysts to be one of the most devastating in U.S. history. See, e.g., Rachel Dottle, et al., “Hurricane Harvey’s Impact — And How It Compares To Other Storms,” FiveThirtyEight.com, Sep. 2, 2017, at https://fivethirtyeight.com/features/hurricane-harveys-impact-and-how-it-compares-to-other-storms/. Harvey was the first hurricane to hit Texas since Hurricane Ike nine years earlier, which “spawned a wealth of litigation against [insurance] carriers.” Stephen Pate, supra. By 2017, many of the lawsuits pertaining to Ike’s damage had been resolved, but litigation regarding Harvey is ongoing. See id.
To further complicate matters, an additional set of legal wrinkles exists for Texans suing insurers for losses from Hurricane Harvey. In 2017, the “Hailstorm Bill” was passed by the Texas legislature in an effort to effectuate settlements between policyholders and insurance carriers, but the bill also limited policyholders’ recourse in many respects. See, e.g., John G. Browning “HB 1774 and a Hailstorm of Controversy,” D Magazine, Dec. 2017; See Stephen Pate, supra.
While the Hailstorm Bill has been seen as a win for insurers in certain regards, a nearly contemporaneous judgment from the Texas Supreme Court in April of the same year appears to favor policyholders. See, e.g., id. That case, which was remanded and later concluded by Texas’s high court this spring, upheld an award by a jury against an insurer for exercising bad faith in failing to conduct a reasonable investigation into the damage caused by a natural disaster. See id.
Because of the enactment of the Hailstorm Bill, coupled with the Texas Supreme Court’s decision regarding litigation dealing with hurricanes and related matters, a number of questions may arise in such cases. These questions may be best addressed by expert witnesses in natural disasters, insurance coverage, and related fields. Determining, for example, whether an insurer acted in bad faith or whether the statute passed in 2017 limits certain remedies may largely turn upon persuasive expert evidence. Experts in hurricanes and Texas insurance policies may be able to provide important considerations as to whether each party acted reasonably and, if not, what damages would be appropriate.
An additional consideration in dealing with hurricane litigation distinguishes between the nature of claims resulting from Hurricane Ike versus those arising from Harvey. See id. Specifically, one seasoned insurance litigator has noted that lawsuits pertaining to Ike may be more likely to succeed because “Harvey is noted as a ‘flood event’ rather than a ‘wind event,’ at least in the vast metropolis of Houston. Many policies—both homeowners and commercial—exclude flood loss. Innovative policyholder attorneys are scratching their heads to come up with ways around the flood exclusion.” Id.
In cases where the “flood event” exclusion is at issue, experts will be invaluable in several regards. First, experts in natural disasters and meteorology may persuade courts that “flood damage is actually wind damage,” so the claims should be treated as one and the same. See id. Second, in the event that such an argument is unlikely to prevail, consulting experts can offer another avenue for redress to hurricane and/or flood victims. See id. If experts believe they cannot convince a court to accept the premise that flood and wind damages are interchangeable, they may instead advise clients and attorneys to file suit “against agents and brokers for failing to inform policyholders that they needed flood insurance.” Id.
If liability against an insurer or agent can be fixed, the question will arise of how much a damages award should be. In such instances, experts such as actuaries and those with specialization in property damage, medical concerns, economic impacts, and other consequences of hurricanes will likely be the ones who can best assist jurors in determining the amount of damages to assess. See, e.g., id.
(2). Hurricane Maria: Puerto Rico Considerations: According to a number of experts who have studied the matter, Hurricane Maria (“Maria”), which caused over $90 billion in economic damage, was also grossly underreported with respect to the number of people who died as a result of the devastation it wreaked. See, e.g., CNN Library, ‘Hurricane Statistic Fast Facts,” Aug. 31, 2018, at http://www.kpax.com/story/39003186/hurricane-statistics-fast-facts. In fact, the Puerto Rican government, and in particular the Secretary of Health and Director of the Demographic Registry, are being sued by the Puerto Rico Institute of Statistics (PRIS). See Nicole Acevedo, supra. The lawsuit alleges that the death toll from Maria is actually 70 times greater than government estimates and that such inaccurate figures render it impossible to obtain the necessary information to best address the current crisis caused by Maria and to prepare for any future events of a similar nature. See, e.g., id.
This litigation will certainly involve competing expert testimony and evidence, and the plaintiffs may rely in part on a Harvard study that “estimated Hurricane Maria’s death toll is over 4,500 instead of the official figure of 64” and “revealed that Puerto Rican officials stopped sharing available mortality data after December 2017.” Id. Both parties will require experts in hurricanes, statistics, data collection, and similar fields to prove their arguments to a court’s satisfaction. The accuracy of information relating to a hurricane’s victims is particularly important to compensate those who have suffered, provide better infrastructure for future disasters, and secure adequate funding and disaster relief in the event of another such episode.
Regardless of which part of the country a hurricane impacts, litigation is certainly a natural outcome when the lives, well-being, and basic needs of individuals are affected to such a serious degree by a major natural disaster. Different legal issues have arisen in recent years, and the types of concerns that become the subject of litigation often vary depending on where a hurricane has taken its toll. With Hurricane Florence headed for the coasts of Virginia and North and South Carolina and with evacuation orders in effect, millions of people may be affected. See, e.g., Jason Hanna, et al. supra. In addition, Florence has already been reported to have a potentially massive impact on several mid-Atlantic and southeastern states. See id. Attorneys who represent any party in the aftermath of a hurricane or related natural disaster may wish to pay close attention to some of the legal trends that have emerged of late from past storms. Experts will play an indispensable role in current and future hurricane litigation, both as consultants and in their capacity as testifying witnesses.