Category: Insurance

Crisis ManagementInsuranceWeather

Hurricane Florence: Recommendations from Construction & Meteorology Expert Witnesses

Hurricane Florence has rapidly expanded in Category 4 hurricane, with a strike expected to make landfall on Thursday. How can those in the path of the storm prepare?

If you’re like me, you are always a little skeptical of meteorological reporting. With that said, I live in California and have never experienced truly catastrophic weather, so I’m not a good “barometer” for the appropriate response. I would likely be the person on top of my house because I didn’t listen to the warnings — and, for that, I apologize in advance to search and rescue for my foolishness.

Do not let that happen to you!

The 2018 Atlantic Hurricane Season is upon us. According to several reports, there are a few hurricanes brewing in the Atlantic Ocean. The one to be aware of at this moment, is Hurricane Florence. The Weather Channel has excellent coverage for those who may be in the path of the storm.

As of this writing, The Weather Channel is advising citizens to Prepare Now: Florence Explodes from Cat. 2 to Cat. 4 in Just Hours. This post did not mince words. It warns that as of today, Florence is massive and dangerous, stating “Hurricane Florence has rapidly intensified into a Category 4 major hurricane southeast of Bermuda and is likely to lash the East Coast later this week with life-threatening storm surge, destructive winds and massive inland rainfall flooding in one of the strongest strikes on this part of the East Coast on record.”

It is true, that this may change and the storm may turn and remain at sea. From everything I read this morning, now is the time to prepare and anticipate Florence making landfall, rather than count on it remaining at sea.

As we have done before, I have contacted Experts.com members and asked them for some preparation input for those facing the storm. Forgive the brevity of some of these answers, but both of these members are on the East Coast and busy preparing for the impending hurricane.

General Contractor & Construction Expert Witness – John Minor

John G. Minor, President of Complete General Contractors, is a third-generation Contractor and licensed instructor certified by the North Carolina Department of Insurance. He is a recognized expert on the costs and applications necessary to repair buildings damaged by manufacturer, builder liability, water damage or intrusion, mold, or asbestos. Mr. Minor will be on the ground with the University of Florida Hurricane Research team. You can learn more about his practice at teamcomplete.com.

My questions to Mr. Minor were as follows:

Nick: What steps should property owners take to prepare for the landfall of Hurricane Florence?

Mr. Minor: Understand that if they choose to shelter in place they must have a strong residence or shelter that will not flood. Sage advice is to hide from the wind run from the flood.

Nick: What are the most common types of property damage from a hurricane?

Mr. Minor: Wind and flood damage from this storm. As a strong cat 3 or easy 4, residential shingle damage (see SaffirSimpson scale). If the storm lingers and pulls Atlantic waters into the Carolinas, major flooding for the Tar and Cape Fear Rivers in an already swollen river system. Know your floodplain.

Nick: Is there anything homeowner’s can do to limit property damage from wind, rains, storm surge?

Mr. Minor: Remove potential projectiles and board up your home. Understand safe generator use.

Nick: Are there any preparations one should take that will benefit them in the case of a future insurance claim? For example, should a homeowner take pictures or video before leaving their home?

Mr. Minor: Document roof interior, exterior, and contents, including contents in an off site storage, with pictures and video.

Nick: What are your top recommendations to help property owners prepare for a hurricane?

Mr. Minor: TADD (Turn Around, Don’t Drown). There will be a lot of desire to move around the area after the storm. Flooding is a dangerous thing.

I had to look up the TADD acronym submitted by Mr. Minor. Take a look at this video from the NOAA and National Weather Service.

Meteorology & Weather Expert Witness – Michael Mogil

H. Michael Mogil is a Certified Consulting Meteorologist (M.S. Meteorology) with over 40 years of experience, nearly 30 of them with the National Oceanic and Atmospheric Administration (NOAA). In addition to working for the National Weather Service as a forecaster, researcher, and severe storm program manager, he also provided satellite training to many governmental agencies and hundreds of TV meteorologists. To learn more about his practice visit: weatherworks.com.

Here are the questions and answers from our meteorology expert:

Nick: Today’s reports putting Hurricane Florence at a Category 4, what type of weather should be expected if it makes landfall as a Category 4 hurricane?

Mr. Mogil: Based on coastal angle of attack, huge storm surge and water push ashore to the north of the storm’s track.  To the south of the storm, with winds coming from land to water, water levels will actually drop.

Obviously, heavy to excessive rainfall in advance of landfall, with rain continuing across large parts of the Carolinas and southern Virginia at least through Sunday night (and likely into early next week).

Nick: In your experience, what are the most common types of property damage experienced with a Category 4 hurricane?

Mr. Mogil: From winds, depending upon the type and quality of construction, anything from the loss of many roof tiles or shingles to the actual loss of the roof. Poorly constructed building will be damaged the most. Windows or patio doors, not boarded up, could easily be damaged by flying debris or suffer water intrusion as water is pushed under tracks.

From flying debris (of any type), window or building damage.

Falling trees (due to wind and water-logged soil) a high probability.

Nick: For those in the path of the storm, what do you recommend they do to prepare for the potential landfall?

Mr. Mogil: Listen to instructions of local officials. If one lives near the coast in storm surge inundation area, LEAVE!!!!!!!!! (yes, all those exclamation marks). If one lives in a mobile home or other weakly constructed structure, LEAVE!!!!!!! (more exclamation marks).

Nick: Some reports have indicated the storm may turn and remain at sea as it climbs up the East Coast. Should a citizen still be prepared to evacuate?

Mr. Mogil: Yes, those reports, as of now, are not correct.  National Hurricane Center forecasts are the ones to follow.  Reliable media sources will convey the NHC forecasts.

Nick: From a meteorological perspective, is there anything you think the public must know as the 2018 Atlantic Hurricane Season heats up?

Mr. Mogil: Today (9/10) is peak day of the season.  There are 3 Atlantic storms right now, and only one seems likely to strike the U.S.  Treat each storm as its own entity.

Nick: Please feel free to share anything additional that is not covered by the questions…

Mr. Mogil: I’d also say that if people do leave, package important papers (insurance policies, birth certificates, passports) in sealable plastic bags (Glad, Ziplock) and take these as they evacuate or go to shelter.

  • Charge appliances (cell phones, etc) and get gas before leaving.
  • Let loved ones in other places know what you are doing.
  • After the storm, deal with insurance quickly…get an attorney (and have the attorney get one or more experts onboard, if a lawsuit or mediation seems necessary).

 

There you go! Listen to the experts. Prepare, prepare, prepare! Be safe!

 

Expert WitnessInsuranceWildfires

California Wildfires: Property Damage & Restoration Expert Witness Insights

As of this writing, the Carr Fire in Redding, is considered the seventh most destructive wildfire in California history. It is just one of 17 active wildfires in the state.

In the past week, California has witnessed an intense round of wildfires. As I sit safely in my office reading the news about those being evacuated, or worse, I cannot help but empathize. The wildfires last Fall had the same impact on me. In fact, the concern for others dealing with disaster compelled me to write this piece last year. It covers topics  of evidence collection and insurance policy review, in the aftermath of a California wildfire. The only goal was to provide useful information to those impacted.

The same compulsion to provide helpful information is felt today. Smoke in the Central Valley has been an awful, constant reminder, that many are losing their homes, businesses, and lives. Just 200 miles North of our office, citizens of Redding California are experiencing the Carr Fire. Yesterday, according to USA Today, the Carr Fire was claimed to be the “seventh most destructive” fire in California history. Here is some further information about the Carr Fire from USA Today:

“Firefighters from 16 states are aiding the effort. The state Department of Forestry and Fire Protection – Cal Fire – reported promising headway Tuesday on the most devastating of the blazes: the Carr Fire in and around this city of 92,000. The death toll here is six, including two firefighters. More than 170 square miles have burned and almost 900 homes destroyed, making it the seventh-most destructive fire in state history.

While 10,000 people were allowed to return to their homes Monday, more than 25,000 people remain evacuated. And the fire was only 27 percent contained.”

According to the Cal Fire fire map, there are 17 active wildfires in California at the time of this writing. That number does not include contained fires. Firefighters throughout the state have a massive job ahead. Also, the last time I wrote about California wildfires was December, 2017, which means fire season has just begun.

These annual wildfires take an extensive toll on California. There is the emotional cost for those who lose homes, businesses, and loved ones. Before the grief subsides, individuals and families have to start putting their lives back together, and this involves significant time and financial costs. Many have to work with insurance companies and government agencies in order to rebuild their homes and businesses.

An article this morning, from the Sacramento Bee, indicated the Carr Fire destroyed “1,236 structures and damaged 225 more.” Additionally, “2,546 structures are threatened.”

I do not pretend to have answers for those dealing with catastrophic losses. What I have is a giant database of experts with whom I can consult and hopefully provide valuable information for those in a difficult position.

Seeing the number of structures destroyed, damaged, and threatened, I reached out to one of our property damage and restoration experts.

Brian Spiegel – Property Damage and Restoration Expert Witness

Brian Spiegel, of Spiegel Property Damage Consulting and Forensics, is a licensed general contractor and expert witness in property damage and restoration. He is a Master Fire & Smoke Restorer and a Certified Fire & Smoke Damage Consultant. Mr. Spiegel and his firm have addressed the aftermath of wildfires in Arizona, California, and Nevada. He has been in the property damage and restoration business for more than 40 years. You can learn more about his practice by visiting his website: spiegelexpertservices.com.

As in past publications, I have provided Mr. Spiegel with a variety of questions. Below, you’ll find the questions and Mr. Spiegel’s answers.

Nick: For those fire-damaged structures, what are the most common types of damage?

Mr. Spiegel: There are many specialized procedures for wildfire damages inside the home and outside the home. Roof damage, damaged / burned structure, electronics, all the personal contents. An engineer may be required for structural repairs. An experienced restoration contractor to evaluate what is salvageable and what is not for both structure and contents. Replacement costs; structure, painting, flooring, cabinets, landscaping, etc.

Nick: Is there a particular restoration process for structures that are damaged from a wildfire?

Mr. Spiegel: Generally speaking, wildfires can cause a variety of damages depending on the homes or commercial buildings that are in close proximity to the wildfire. Structures very close to the wildfire can burn to the ground with everything in them. Other structures will have partial burns and suffer from the smoke ash and toxic chemical residues to both the interior and exterior structure, hardscape, landscaping swimming pool and automobiles.

Other homes, miles away, can suffer from all the airborne contaminates created by the vegetation, trees, brush, etc. As well as the toxic chemicals and smoke contaminates caused by burning homes and automobiles. Smoke particulates will attach to airborne pollution particulates that were in the air previous to the fire. Wildfires produce heavy winds that also put a lot of dirt and dust into the smoke mix. I have been involved in wildfires that produced large airborne burning embers (projectiles) that will hit a roof far from the actual fire and take a house to the ground in about thirty minutes. You often see homes completely burned down and many other homes around the house that were not burned to the ground, however, the surrounding homes are impacted by all the airborne particles and will require diligent specialized restorative cleaning by restoration companies that specialize in this work.

Nick: Does a property owner have to hire a restoration company, or is that done through insurance?

Mr. Spiegel: The property owner has the right to choose whoever they want to perform the work on their home and contents. The property owner should seek an expert company to assess their damages and prepare a cost damage estimate, that expert should detail what the cost will be to return the structure and property to pre-damaged condition. This is not work the insured can do themselves or hire a maid service to do. It requires specialized equipment and expertise.

Nick: For those destroyed structures, what is the post-fire process before a property-owner is able to rebuild?

Mr. Spiegel: Obviously the insured should immediately report a claim to their insurance company. The property owner should photograph all the damage to document their damages and the impact to their neighborhood. The insured should seek a licensed contractor with fire damage experience that can determine what may or may not be salvageable.

The contractor will have to determine what the house and building materials looked like previously. This will include what the interior structure was comprised of, as the goal is to return to the home to its pre-damaged condition or establish that monetary value. The insured can help with those descriptions and if any photos are available. Often property owners try to clean themselves and do all the wrong things, such as not using HEPA filtered equipment. There are many wrong things that property owners attempt to do themselves which will make things worse.

Nick: Do you have any suggestions for those with a wildfire destroyed structure?

Mr. Spiegel: Insured should find and expert in these kind of damages as this is not just simple cleaning work. In looking for a restoration contractor find a licensed contractor with certifications and experience relating to this kind of damage. Specialized restorative cleaning requires an experienced expert and specialized equipment.

Nick: Do you have any suggestions for those impacted a by a wildfire, regarding dealing with their insurance company?

Mr. Spiegel: Again, thoroughly photograph and document all the damage to everything inside and outside the home or building.

Nick: Is there anything else the public should know? Feel free to elaborate…

Mr. Spiegel: Make sure you understand the totality of your damages. Make sure to check the credentials and experience level of people and companies rendering opinions regarding all of your property. If you receive an estimate of cost repairs from your insurance company adjuster it would be prudent for you to investigate the scope and method’s the adjuster prepared.


After answering the questions I provided. Mr. Spiegel went on to elaborate on a few additional concerns. He added a bold text to his additional information and I have provided it in full below:

IT IS IMPORTANT TO UNDERSTAND THE FOLLOWING

Dangerous emissions come from wildfires; wildfires are a conglomeration of a complex mixture of particles, liquids and gases a number of atmospheric pollutants, dirt and dust. Air pollutants in the air prior to the wildfire such as diesel & auto exhaust particles etc. which agglomerate into wildfire smoke particulate adding to the mixture that impacts homes in the path of wildfire smoke.

The smoke is comprised of particles, liquids, gases, polynuclear aromatic hydrocarbons (PAHs are carcinogenic) volatile organic compounds (VOCs)

Wildfire smoke is the worst airborne pollutant, even beyond fossil fuel emissions. Wildfires cause much particulate matter (PM) to enter homes than normal pollution. Wildfire residue can cause more air pollution in two days than an entire year of normal airborne pollution sources.


 

I hope this information is helpful to those dealing with active wildfires and the eventual aftermath. Stay safe!

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Robot Rights and Liability: Do they need legal rights? Here’s what one expert witness has to say…

Have you been following the advancements in artificial intelligence and robotics? There are some really fascinating developments in the fields. Just this week I’ve read about artificially intelligent systems used to identify people likely to commit a crime (before it happens); robotics systems being used in construction; unmanned aerial vehicles; self-driving cars; and, of course, it seems a week cannot go by without a new headline about sex robots.

Last Friday, I found some news stories that were really interesting. It appears a 2017 report from the European Commission had “a paragraph of text buried deep in a European Parliament report, that advised creating a ‘legal status for robots,'” according to this article from The Daily Mail.

I found this quite fascinating and had to dig deeper. Why would we need to develop a legal status for robots? What would be the point? An article in Futurism stated, “If a robot, acting autonomously injures or otherwise wrongs a human, who will be held responsible? Some European lawmakers think that the best way to resolve this question will be to give robots ‘electronic personalities,’ a form of legal person-hood.”

To me, there is a simple answer to this topic. The owner and/or the manufacturer would be held liable. Why would society need something beyond existing negligence, product liability, and consumer protection laws?

According to the report, the European Commission does not want to give robots legal status equal to humans. Rather, they want to give them a status similar to corporations. The concern doesn’t seem to apply to your automation-style robots, but rather those capable of self-learning.

I contend we do not need new theories of liability to address this issue. It should be handled just like owning an automobile. As the owner of a car, I must have it insured. Insurance covers personal injury and property damage caused by the vehicle if I am driving it or if another driver is covered by my policy. If the vehicle malfunctions and causes damage due to a manufacturing, design, or warning defect, then I sue the manufacturer (or another injured party may sue the manufacturer). As such, owner and manufacturer are the responsible parties. My automobile doesn’t require its own legal status.

A robot, sentient or not, does not require its own legal status. It can be insured just like an automobile and the owner should be responsible for insuring the equipment. Furthermore, if it malfunctions and causes harm, the manufacturer can be held liable for any product defects.

I have asked for some input on this topic from a couple of our Experts.com members. At the time of this writing we have received a response from one expert. Dr. Harry Direen, PhD, PE, has a wide variety of expertise including electronic systems, control systems, robotics, software, signal processing, UAV’s/drones, and more. I encourage you to check out his company DireenTech.

Several questions were posited to Dr. Direen. Please see the questions and answers below.

What the expert has to say:

Me: Do you see any need for creating a legal status for robots?

Dr. Direen: No… robots are not humans, they are machines.  Despite the hype, I do not believe robot technology is anywhere near thinking on their own or being responsible for their actions.

Me: Are there any positive reasons to create a legal status for robots?

Dr. Direen: No, not that I know of.

Me: Are there any negatives you can think of in creating a legal status?

Dr. Direen: Yes, as a society we start legally blurring the lines between humans and the machines we create.  I don’t believe we elevate humans in the process, but just the opposite.  We advance the myth that humans are little more than carbon based machines with no more value than the machines we create rather than highly valued creations of our Creator.

Me: Is there any reason damage caused by robots cannot be addressed by existing legal principles such as product liability (manufacturing, design, or warning defects)?

Dr. Direen: No. Giving robots legal status would simply be an excuse to divorce engineers, designers, and manufactures from the responsibility of their products.

Me: If a robot were to fail and cause personal or property damage, would a forensic investigation apply the same principles as any other failure analysis investigation?

Dr. Direen: Yes, a robot is just a piece of technology like any other.

So there you have it. Dr. Direen and I seem to be in agreement. Existing legal and investigatory principles should apply to robots. There is no need to provide additional legal protections to machinery.

What do you think? Feel free to comment below and let me know your thoughts. It is a fascinating topic. Robotics is a field where I anticipate a great deal of future litigation. As the topic evolves, I’m certain we’ll be discussing it in greater depth.

 

EngineeringExpert WitnessInsuranceUncategorized

California Wildfires: Personal Analysis of Expert Information

Approximately two months after the horrific fires in Northern California (Santa Rosa, Napa, etc.,) we are witnessing catastrophic wildfires tearing through the Southern California landscape. Unlike the fires in October, I have not noticed any smoke or ash in the air this week. However, I am keeping a close eye on the fire activity in the Los Angeles area and have maintained communication with friends who are being impacted by the devastation.

Watching the news and reading the articles on this matter led me to read some articles, by fire experts, on our website. I wanted to pull together some information that might prove useful for those suffering immense loss and even displacement. Here is what I learned from Experts.com members:

Collect the Evidence – Document, Document, Document:

Once the fires are extinguished, you are going to be dealing with your insurance company. Your home, office, vehicles, and other property do not need to be engulfed in flames to suffer damage. Being in the region of a fire can cause costly soot damage to both real and personal property.

For example, let’s assume your home suffered some soot damage as a result of wildfires in your region. When your insurance adjuster comes to review the damage to your property, they are going to want to know if it was a common source of residential soot or the result of regional wildfires. Here are some common causes of residential soot as described in an article by Member EFI Global.

  • Smoking
  • Candles
  • Fire Places
  • Cooking
  • Heater malfunctions
  • Wildfires nearby
  • Interior fires (cooking, appliance etc.)

The article goes on to state, “localized soot over stoves, fire places, heater vents, and used candles is explainable to those sources and is generally not a covered loss.” This is why I believe it is important to document!

If you are noticing soot damage to your home as a result of the wildfires, you should begin taking your own photos and video to properly document areas of damage you have found since the fires began. You do not want your insurance adjuster to arrive, do their own investigation, note the areas above, and claim these are the result of the soot damage in your home. Make sure you have your own documentation of these areas and other areas damaged by soot.

The documentation should take place inside and outside the home. I have seen several pictures of fire retardant found on neighborhood streets, vehicles, and homes. If the fire retardant hit your property, make sure to document the exterior of the home for fire, smoke, and other damage related to extinguishing the fire.

If you can locate pictures from before the fire. Do it! Get some before and after photos assembled to help present the damage you see to your home.

Review Policy & Contact Insurance Provider:

Granted, most articles online will probably tell you to do this first. I am assuming you’re doing this at about the same time you are collecting your own evidence to provide to the adjuster.

Upon reporting the damage to your insurance company, you should inquire as to who may be able to assist with fire restoration in your region. Remember, if flames actually reached your home and water was used to extinguish the flames, you have to be cognizant of the potential for mold. This is why you want to find someone competent with fire restoration protocols. Your insurance should be able to guide you to finding the right provider.

Separate the Good from the Bad:

It is possible portions of your home remain undamaged. If this is the case, you’ll want to separate items that are damaged from those that are undamaged.

By separating the items you prevent further harm to the undamaged portions of your home. The separate section of damaged property will actually serve as your inventory for your insurance provider. It will help you to establish what was lost and what should be covered.

Take Care of Each Other:

Do not forget, fires are life altering events. We have experienced some catastrophic wildfires in California this year. The losses are felt throughout many neighborhoods. In preparing for this post, I found this article from the Napa Valley Register. It shares the story of a man who has lost a house in Santa Rosa, only to find out that his original home (turned rental) was destroyed in the Ventura fire this week.

If you can, reach out and help your neighbor. Help someone in your community. If you are insulated from the wildfires, maybe just write a blog post providing some information for those you know who have been impacted by the devastation.

ConsultantsExpert WitnessInsurance

Insurance Expert Witness on Litigation and Selection of Experts

Andrew J. Barile, CPCU, CEO, of Andrew Barile Consulting Corporation, Inc., has over 40 years of experience in the Property Casualty Insurance and Reinsurance Industry. He is the co-founder of the first publicly held Bermuda reinsurer and is on the board of both domestic and offshore insurance companies. Mr. Barile has an MBA from Stern’s (NYU) business school, and has won the AngloAmerican Fellowship to study at Lloyd’s of London, with his thesis on the captive insurance company.

In a recent article, he writes,

“The versatile Insurance Industry Expert is being selected by insurance industry litigation law firms throughout the country. Since many cases involve millions of dollars of litigation exposure, it is important to have an experienced insurance industry expert who brings the element of persuasion and accuracy into the mix.

Insurance experts that have been retail insurance brokers, wholesale insurance brokers, excess and surplus lines insurance brokers, managing general agents, reinsurance intermediaries are very helpful in winning cases because they possess practical industry experience…”

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Expert WitnessInsurance

Expert Witness Insurance?

One question on the minds of Expert Witnesses more than ever is, “Do I need professional liability insurance?” That is not an easy question to answer.  Experts have always received  immunity from professional malpractice claims, however, there has been a trend toward allowing retaining parties to sue their Expert Witnesses for negligence.

In order to prevail, Plaintiff must prove that the testimony given is not on par with the Expert’s standard and that Plaintiff would have won the case “but for” the Expert’s negligence.  This standard is difficult to prove and requires a “trial of the Expert within the actual trial.” If found negligent, the Expert can only be held liable for the actual harm caused to Plaintiff. (Mattco Forge V. Arthur Young & Co.).

Avoiding Liability
According to the A-Z Guide to Expert Witnessing (Babitski, Mangraviti, and Babitski), the following tips will help Experts avoid professional liability.

  • Testify Truthfully
  • Be Well Prepared, Careful, Competent
  • Appear As Agreed
  • Maintain E&O Insurance
  • Understand the Daubert Test of Admissability of Testimony
  • Do Not Destroy, Misplace or Lose Evidence
  • Avoid Being “Agreed Upon” Expert To All Parties (Lose Adversarial Immunity)
  • Avoid Conflicts of Interest
  • Seek Legal Counsel In Drafting Contractual Language In Engagement Letter
  • Be Discerning As To Which Attorneys You Work For

With the absence of Expert Witness immunity, we would like to pose the following questions:

1. Should the party hiring the expert be entitled to sue the expert for malpractice?
2. Should the party that the expert testifies against be allowed to sue the expert?
3. Is professional liability insurance something that every Expert should consider?
4. What are the implications of Experts having to carry Professional Liability (E&O) insurance?

This post does not even break the surface of the case law or circumstances under which this topic could arise. It is simply intended to bring about discussion. Please leave a comment to answer the above questions, share any experiences you may have had, or opinions you hold on this subject.