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GENE
TAYLOR
2269
RAYBURN
HOUSE
OFFICE
BUILDING
WASHINGTON,
DC
2051
5—2404
4TH
DISTRIcT,
Mississippi
(202)225—5772FAX:
(202)
225—7074
COMMITTEE
ON
ARMEDSERVICES
DISTRICT
OFFICES
CHAIRMAN
(enrc
of
tljt
nttcb
‘titt
GULFPORT,MS39501
SUBCOMMITTEE
ON
SEAPOWER
AND(228)
864-7670
EXPEDITIONARYFORCES
ot
1a.tpreentattbe
701
MAIN
STREETCOMMITTEE
ON
TRANSPORTATION
HATTIESBURG,MS39401
AND
INFRASTRUCTURE
atjinton,
QE
20515—2404
(601)582-3246
2900GOVERNMENT
STREET,SUITE
B
OCEAN
SPRINGS,
MS
39554
http://www.house.gov/genetaylor
(228)
872—7950
July
1,
2009
527
CENTRALAVENUELAUREL,
MS
39440
(601)425—3905
412
HWY
90,
SUITE
8BAY
ST.LOUIS,
MS
39520
(228)469—9235
TheHonorableJanetNapolitanoSecretary
Department
ofHomelandSecurityWashington,
DC
20528
DearSecretaryNapolitano:
I
am
writing
to
bring
to
yourattentionrecentstatements
by
insurancecompanyattorneysthatshowbeyond
any
doubtthatcompaniesshiftedHurricaneKatrina
claims
to
theNationalFloodInsurance
Program
thatshouldhave
been
covered
by
their
own
homeownerspolicies.
On
June
9,
2009,
the
MississippiSupremeCourtheardoralarguments
on
the
interpretationof“anti-concurrentcausation”(ACC)
clauses
in
homeowners
insurancepolicies.Theattorney
for
Nationwide,ChristopherLandau,toldtheSupremeCourtthatNationwide
applies
the
ACCclause
to
excludecoverage
of
all
damagecaused
by
hurricane
winds
ifsubsequentflooding
was
sufficient
to
causethedamage.
In
response
to
questioning,Landauansweredthatevenif
a
house
were
95
percentdestroyed
by
windsbefore
any
flooding,Nationwidewould
owe
nothing
to
the
policyholder
iftheflooding
was
severeenough
to
havedestroyedthehouse.
JUSTICEPIERCE:
So
you’resequencing,if
95
percent
of
the
home
was
destroyed,
and
then
we
have
the
event
of
the
storm
surge,then
you
wouldnot
pay
a
dime?
MR.
LANDAU:YourHonor,if
we
prove
that
the
storm
surge
was
sufficient
to
cause
-
we
have
that
burden,
again,and
that
is
absolutelycrystal
clear.
If
we
can
prove
thatthestorm
surge
was
sufficient
to
cause
all
of
this,
itis
no
answer
then
to
say,‘Yeah,
but
I’m
going
to
show
it
--
I’m
going
to
havesomebodycome
in
and
say,
“Look,guess
what,
the
window
was
brokenbefore
the
stormsurgecame
andthenwipedawaythewholehouse.But
you
don’t
get
into
those
kinds
of
issuespreciselybecause
of
the
sequencing
of
the
damage.
JUSTICEPIERCE:
So
you
wouldn’t
pay
a
dime?
MR.
LANDAU:
If
-
again,
we
wouldn’t
pay
a
dimeforthingswhere
we
can
carryourburden,
which
is
right
there
in
the
policy,
of
showingthat
the
loss
was
causedconcurrently
—
 
JUSTICEPIERCE:
I’mgiving
you
--
theexample
is
95
percent
of
the
home
is
destroyed,
the
flood
comes
in
and
getsthe
other
five
percent,
and
you
know
that.
Doesyour
interpretationof
theword“sequence”meanyoupay
zero?
MR.
LANDAU:
Yes,yourHonor.
USAA’
s
attorneyGregCopeland
offered
a
slightlymorereasonableinterpretationofACC,but
the
effect
is
still
to
shift
some
ofUSAA’s
costs
to
NFIP.
USAAacknowledgesthat
it
must
pay
fordamagecaused
by
windactingindependently
fromflooding,
butinsiststhat
it
owes
nothing
onlosses
causedbywind
if
flooding
is
a
contributing
cause.
In
fact,
Copeland
asked
the
Court
to
mandate
instructions
to
juries
telling
themthat
if
they
conclude
that
a
loss
is
causedby
the
combinationof
wind
and
flooding,
it
is
covered
by
NFIP
and
not
by
the
homeowners
policy.
Copeland
even
claimed
that
it
was
theintentof
Congresswhen
enacting
the
National
FloodInsuranceProgramthat
thefederal
government
shouldpayfor
all
damagecausedthe
combinationof
wind
and
flooding.
JUSTICECHANDLER:
And
back
to
this
word
of“synergistic”
or
concurrent
combinedforces
of
wind
and
water,
if
the
jury
is
toldthat
if
they
believe
it
was
a
combinedconcurrentforce
of
windandwater
that
caused
the
damage,
you’re
going
tosay
that
the
Plaintiff
is
notentitled
to
damages?
MR.
COPELAND:
Yes,
sir.
JUSTICECHANDLER:
Butnow
as
I
understood
the
Plaintiff,
the
Plaintiff
is
going
to
arguethat,
if
therearecombinedforces,thentheyare
entitled
to
payment
because
the
persquare
inch
of
force
from
wateralone
is
insufficient
to
causethedamage.
MR.
COPELAND:
Yes,
sir.
JUSTICECHANDLER:
That’s
really
the
disagreementbetween
the
two
sides
thatmatters;
is
thatcorrect?
MR.
COPELAND:
Yes,
sir.
Andthat’swhat
this
second
sentence
in
this
policyaddresses.JUSTICECHANDLER:
I’mlooking
at
it.
MR.
COPELAND:
And
it
was
-
it
had
to
go
somewhere.
It
did
not
go
in
the
homeowner’s
policy.
It
went
inthe
NationalFloodInsurance.
That’swhatCongress
did.
The
NationalFlood
InsuranceAct
does
notobligate
NFIP
to
pay
foranywinddamage
that
occurs
in
combination
withflooding.
In
fact,
the
regulations
specifythatWrite
Your
Owninsurance
companies
have
a
contractual
obligation
to
represent
NFIP
and
federal
taxpayerswhenhandling
flood
claims.They
have
a
fiduciaryresponsibility
that
prohibits
them
from
placingtheir
own
corporate
interestsahead
of
NFIP’sinterests.Several
companiesblatantly
violatedthat
obligationbyinsisting
thatthe
Anti
Concurrent
Causation
clauses
in
their
homeowners
policies
excluded
coverageof
wind
of 00

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