Hail Claims And Discovery

Lawyers who handle hail and storm claims need to read this 2016,case from the Beaumont Court of Appeals.  It is styled, In Re Windstorm Association, Brush Country Claims, Ltd., and David Guitierrez.

This is a mandamus proceeding wherein the parties named above allege the court abused it’s discretion by compelling them to produce all photographs and damage estimates on Hurricane Rita claims that they adjusted or investigated on property located within a one mile radius of the property that is the subject of the unfair claims settlement suit.  The real parties in interest here are, David and Sue James.  The James’s argue that the documents would likely include a significant number of homes similar in age and construction to their home and that it would be reasonable to expect that other houses in the immediate vicinity would be subject to wind and rain of similar intensity for a similar time period, and the homes would have sustained similar interior water damage.  The Court granted the mandamus relief.

In it’s ruling the Court states that discovery requests must not be overbroad because overbroad requests for information are improper whether they are burdensome or not.  The James’s submitted supplemental affidavits from their experts.  Both experts stated that it would be beneficial to review historical photographs and estimates of real property damaged by Hurricane Rita within a one mile radius.  Both experts opined that such information, photos, and data would be reliable, credible and objectively verifiable evidence for them to review in order to render opinions and conclusions regarding the extent and severity of damage sustained by the property at issue.

However, the lack of relevance of the requested discovery is illustrated by the initial report of one of the James’s experts.  The expert explained that neighboring structures would experience different wind speeds:

Downbursts (microbursts) and tornados within the hurricane bands gust at speeds much higher than the measured wind speeds at any particular monitoring station.  Highly variable winds, such as tornados and downbursts, are likely responsible for a particular structure being totally demolished or severly damaged while a neighboring structure is left intact.  Excessive wind damage is sporatic and these high winds are short lived and unpredictable.  Therefore, this phenomenon is often not measured at monitoring stations nearest the property.  Direct observation is rare, since occupants are either gone or inside.  Also, note that adjacent buildings channel winds between the homes and may also accelerate wind velocity.  Accordingly, new damage is the best indicator of this wind force.

The Court has in the past recognized that insurance claims are unique due to the many variables associated with a particular claim, such as when the claim was filed, the condition of the property at the time of filing, and the type and extent of damage inflicted by the covered event.

Thus, the trial court abused its discretion by ordering discovery of irrelevant information.