Insurance Law Hawaii

Insurer's In-House Expert's Communications Are Privileged

    The Texas Supreme Court ruled that the insurer's in-house expert's draft reports and communications were privileged and need not be produced. In Re City of Dickinson, Relator, 2019 Texas LEXIS 165 (Tex. Feb. 15, 2019).

    The City of Dickinson had a commercial windstorm policy with the Texas Windstorm Insurance Association. The City suffered property damage caused by Hurricane Ike. Coverage was denied and the City sued.

    The City moved for summary judgment on the issue of causation. In response to the motion, Texas Windstorm included the affidavit of its corporate representative and senior claims examiner, Paul Strickland. The affidavit provided both factual and expert opinion testimony on Texas Windstorm's behalf. 

    In a subsequent deposition, the City learned that Strickland's affidavit had been revised in a series of emails between Strickland and Texas Windstorm. The City moved to compel the production of these email exchanges with counsel along with other documents provided to, reviewed by or prepared by or for Strickland in anticipation of his testimony as an expert. Texas Windstorm responded that the emails were protected by the attorney-client privilege. Texas Windstorm contended that Strickland served as the client's liaison with defense counsel in the lawsuit. In an apparent filing error, Texas Windstorm also e-filed fifty-five pages of emails it asserted were privileged information. Upon discovery of the error, Texas Windstorm asked the City delete or destroy the emails.

    The trial court denied Texas Windstorm's motion to withdraw the email communications that had accidently been filed and granted the City's motion to compel. Texas Windstorm sought mandamus relief in the court of appeals.

    The court of appeals granted the petition. The email exchanges and accompanying drafts of the affidavit were attorney-client communications notwithstanding Strickland's additional role as a testifying expert in the litigation.

    The Texas Supreme Court affirmed the court of appeals. While the discovery rules said that a party "may discover" testifying-expert materials, nothing in the rules permitted such discovery when the materials were attorney-client privileged. The rules regarding discovery of expert communications and materials did not otherwise waive the attorney-client privilege to withhold testifying expert materials from discovery. Therefore, these attorney-client communications remained privileged under the rule. The court of appeals also correctly found that the trial court abused its discretion when it failed to sustain Texas Windstorm's motion to retrieve the erroneously produced documents. 

Texas Supreme Court Clarifies When Insured Entitled to Bad Faith Damages Despite No Coverage

    Returning to its prior decisions addressing bad faith, the Texas Supreme Court sought to clarify when damages are available for bad faith despite there being no coverage under the policy. USAA Tex. Lloyds Co. v. Menchaca, 2017 Tex. Lexis 361 (Tex. Sup. Ct. April 7, 2017).

    After Hurricane Ike struck Galveston Island in September 2008, Gali Menchaca contacted her homeowner's insurance company, USAA Texas Lloyds, and reported damage to her home. USAA sent an adjuster who found only minimal damage. USAA declined to pay Menchaca any benefits because the total estimated repair costs did not exceed the policy's deductible. A second USAA adjuster returned about five months later, but found no additional damage and USAA again failed to pay any policy benefits. Menchaca sued USAA for breach of the policy and for unfair settlement practices in violation of the Texas Insurance Code. For both claims, the damages sought were benefits under the policy and attorneys' fees and costs.

    The jury answered three questions. Question 1 addressed the breach of contract claim and asked whether USAA failed "to comply with the terms of the policy with respect to the claims for damages by Ms. Menchaca." The jury answered "no." Question 2 asked whether USAA engaged in unfair or deceptive practices, including whether USAA refused "to pay a claim without conducting a reasonable investigation." The jury answered, "yes." The third question asked the jury to determine Menchaca's damages that resulted from either USAA's failure to comply with the policy or its statutory violations, calculated as "the difference, if any, between the amount USAA should have paid Menchaca for the damages and the amount she was actually paid." The jury awarded $11,350.

    Both parties moved for judgment in their favor based on the jury's verdict. The trial court disregarded Question 1 and entered final judgment in Menchaca's favor based on the jury's answers to Questions 2 and 3. The court of appeals affirmed.

    On appeal, the Texas Supreme Court noted that the primary question was whether an insured can recover policy benefits as actual damages caused by an insurer's statutory violation absent a finding that the insured had a contractual right to the benefits under the policy. Generally, the answer was "no," but the issue was complicated and involved several related questions. The court looked back to its prior decisions and listed five distinct but interrelated rules that governed the relationship between contractual and extra-contractual claims in the insurance context.

    First, as a general rule, an insured could not recover policy benefits as damages for an insurer's statutory violation if the policy did not provide the insured a right to receive those benefits. Here, Menchaca contended that she could recover policy benefits as damages resulting from USAA's statutory violation because that claim was independent from her claim for policy breach. The court rejected this argument. The Insurance Code only allowed an insured to recover actual damages "caused by" the insurer's statutory violation.

    Under the second rule, an insured who established a right to receive benefits under the policy could recover those benefits as actual damages under the Insurance Code if the insurer's statutory violation caused the loss of benefits.

    Third, even if the insured could not establish a present contractual right to policy benefits, the insured could recover benefits as actual damages under the Insurance Code if the insurer's statutory violation caused the insured to lose that contractual right. The court had previously recognized that an insurer who misrepresents that its policy provides coverage that it does not in fact provide could be liable under the statutes for such benefits if the insured was adversely affected or injured by its reliance on the misrepresentation.

    Under the fourth rule, if an insurer's statutory violation caused an injury independent of the loss of benefits, the insured could recover damages for that injury even if the policy did not grant the insured a right to benefits. Consequently, an insurer's statutory violation did not permit the insured to recover any damages beyond policy benefits unless the violation caused an injury that was independent from the loss of the benefits.

    Finally, the fifth rule provided that an insured could not recover any damages based on an insurer's statutory violation if the insured had no right to receive benefits under the policy and sustained no injury independent of a right to benefits.

    Having established the five rules, the court remanded the case for a new trial. The trial court erred by disregarding the jury's answer to Question 1. Although USAA did not dispute that the policy provided "coverage" for some of Menchaca's damages, it provided evidence that the amount of her loss was less than the policy's deductible, and that evidence supported the jury's failure to find that USAA "failed to comply" with its obligations under the policy.

Fence Attached to Building Covered Under Dwelling Provisions

    The Texas Supreme Court determined that a damaged fence attached to the insureds' dwelling was covered under the dwelling provisions, not the "other structure" portion of the policy. Nassar v. Liberty Mutual Fire Ins. Co., 2017 Tex. LEXIS 113 (Tex. Jan. 27 ,2017).

     The insureds' owned six acres of property. Hurricane Ike caused significant damage to the property on September 13, 2008. The insureds submitted a claim to Liberty Mutual under their homeowners' policy. Liberty Mutual paid several claims, but disputes arose over the value of various items of damaged property, including the fencing on the property. The insured's fencing spanned over 4,000 linear feet, including a white picket fence at the northeast corner of the dwelling, an ornamental iron fence in front of the dwelling, numerous cross fences, garden fences, and a larger, perimeter fence. 

    The policy offered $247,200 in coverage under the dwelling provision and $24,720 in coverage under the "other structures" provision. The policy provided "dwelling" and "other structure" coverage as follows:

We cover:

1. the dwelling on the residence premises shown on the declarations page including structures attached to the dwelling.
2. other  structures on the residence premises set apart from the dwelling by clear space. This includes structures connected to the dwelling by only a fence, utility line or similar connection. 

    The undisputed value of the damage to the fencing was $58,665. Because Liberty Mutual considered the fencing to be an "other structure," it issued payment to the insureds for $20,090.61 under the "dwelling" coverage and a separate payment of only $24,720, or policy limits, for the fencing. 

    The insureds argued they were entitled to additional amounts under the dwelling provision for the damaged fence. Under the plain language of the provisions, the insureds argued, the fencing was attached to the house at four separate points and was a "structure attached to the dwelling." Liberty Mutual argued, on the other hand, that simply connecting 4,000 feet of fencing to the dwelling by four bolts did not attach the fencing to the dwelling. Further, the only logical reading of the policy provisions together meant that a fence could not operate to connect the dwelling to other structures; therefore, the fencing had to be an "other structure." 

    The insureds brought suit and cross motions for summary judgment were filed. The trial court granted Liberty Mutual's motion, deciding coverage for the fencing was as an "other structure" under subsection (2). The court of appeals affirmed.

    The Texas Supreme Court reversed the court of appeals. The court noted that the fencing was composed of parts purposefully joined together and fastened to the dwelling by bolts or cement. 

    In subsection (2), "other structures" were clearly identified as those structures on the residence premises that were "set apart by clear space." The policy then provided, "This includes structures connected to the dwelling by only a fence, utility line or similar connection." Liberty Mutual argued that this sentence identified a fence as a "connection" and not a "structure," and as a "connection," a fence was unable to attach "other structures" to the dwelling. Liberty Mutual then concluded that this interpretation prevented a fence from being part of the dwelling. 

    The supreme court disagreed. The second sentence of subsection (2) operated to prevent a fence attached to the dwelling from causing structures attached to the fence to be covered under subsection (1). In other words, the first sentence of subsection (2) identified what was to be covered, and the second sentence limited that coverage.

    It was up to a fact finder to determine whether all of the 4,000 feet of fencing constructed of different materials and spanning six acres was part of the "structure attached to the dwelling." 

    In conclusion, the insureds' interpretation of the policy was reasonable and Liberty Mutual's interpretation was unreasonable. The case was remanded to the trial court for further proceedings.

Insured's Expert Qualified, Judgment for Coverage Affirmed

    Addressing a host of issues on appeal, the Texas Court of Appeals affirmed the trial court's judgment against the insurer for property damage caused by Hurricane Ike. Nat'l Sec. Fire & Cas. Co. v. Henriquez, 2016 Tex. App. LEXIS 11391 (Tex. Ct. App. Oct. 20, 2016), withdrawn and substituted by 2016 Tex. App. LEXIS 12766 (Tex. Ct. app. Dec. 1, 2016). 

    The insureds alleged property damage to their home caused by the hurricane. The roof was damaged, resulting in interior water damage. Sheetrock, exterior bricks, windows, walls cabinets and insulation throughout the entire home were damaged. The insureds also alleged that the home shifted during the storm, causing the foundation to not be level and the ceilings and walls to crack. Personal property within the dwelling was also damaged. 

    National denied the claim. An independent adjuster determined that the roof leaks, if any, were due to flashing that was not installed. The adjuster did not recall seeing any water damage in the house and felt he was not qualified to determine whether the cracks in the brick were due to hurricane-force winds. The independent adjuster recommended that the file be closed without any payment because the loss, estimated as $572, was less that the insureds' deductible of $1,000. Subsequently, National denied the claim.

    At trial, the insureds' expert engineer testified. The engineer had not actually visited the property, but sent another employee so that the cost would be less expensive. The employee took photographs and reported back to the engineer. Broken window panes and cracks in the brick facade of the home were found. A door was no longer functioning because the foundation had shifted.  

    After trial, the jury awarded damages of $56,700. Another $100,000 was awarded for National's knowingly engaging in unfair or deceptive practices. Further, the jury found that National filed to comply with its duty of good faith and fair dealing by failing to effectuate a prompt, fair and equitable settlement when liability became clear and by refusing to pay the claim without conducting a reasonable investigation. The jury awarded the insureds $10,000 for loss of use and enjoyment of their property caused by National's failure to comply with its duty of good faith and fair dealing. The trial court also awarded attorneys' fees.

    Several issues were appealed. One such issue was National complaint that the trial court erred by allowing the expert engineer to testify because he did not inspect the property, take any photographs, nor write his own expert report. The engineer testified that he had handled more than 150 files by sending an inspector from his office to damaged sites. He studied the photographs and read the reports of damage. This was used to calculate the range of wind pressures to which the property was exposed during the hurricane, among other things.  

    The appellate court concluded that the engineer's testimony did not merely consist of his bare opinion. Rather, it was supported by sufficient data and proper methodology and was not conclusory. National's complaint that the expert did not personally inspect the property, photograph it, or personally write the report was without merit. 

    Accordingly, the trial court properly considered the opinions of the engineer. The judgment was affirmed in all respects. 

Judgment for Insured Upheld After Insurer Rejects Claim for Hurricane Damage

   The Texas Court of Appeals affirmed a trial court's judgment as modified against Lloyds for improperly denying a claim for damage caused by Hurricane Ike. Nat'l Lloyds Ins. Co. v. Lewis, 2015 Tex. App. LEXIS 1573 (Tex. Ct. App. Feb. 19, 2015).

   Lewis sued Lloyds, alleging that, although her home and personal property were seriously damaged by Hurricane Ike, her claim was denied. At trial, Lloyds testified that the damage to Lewis' home had been previously caused by Hurricane Rita and Lloyds had already paid for repair of the roof. Nevertheless, Lewis had not used the payment for roof repairs. Lewis admitted that she used some of the payment after Hurricane Rita to purchase a generator and for evacuation expenses, but the majority of the payment was used for roof repairs. 

   Lewis' expert engineer testified that the damage to Lewis' home was caused by wind and water intrusion through a hole caused by a tree limb that fell during Hurricane Ike. The expert further opined that the cost to mitigate the damage to the home and bring it up to livable standard was $156,155. Further, the home was a constructive total loss.

   A second expert for Lewis, a general contractor, testified that the actual cash value, without including upgrades to bring the house up to code, was $34,640. 

   The jury awarded Lewis $871,738 in damages for breach of contract, bad faith, mental anguish, and punitive damages.

   Among the various issues it raised on appeal, Lloyds argued the evidence of causation was not legally sufficient. Lloyds argued three hurricanes damaged the property, but her policy only covered damage caused by Hurricane Ike. Lloyds contended that Lewis failed to show that the damages stemmed solely from Hurricane Ike. The Court of Appeal disagreed. The trial court properly allowed Lewis' experts to demonstrate causation from Hurricane Ike. Lewis also introduced legally sufficient evidence regarding mental anguish. 

   Further, the damages awarded for bad faith were upheld. The jury found that Lloyds made false representations relating the policy, misrepresented a material policy provision relating to coverage, failed to make a good faith attempt to settle the claim when Lloyds' liability had become reasonably clear, and failed to promptly provide a reasonable explanation of the basis for denying the claim.

Denial of Coverage for Bulge in Wall Upheld

   The insurer properly denied coverage for a bulge in a warehouse wall that the insured claimed was caused by Hurricane Ike. Russell v. Scottsdale Ins. Co., 2014 U.S. Dist. LEXIS 143882 (S.D. Tex. Sept. 30, 2014).

   Hurricane Ike displaced metal roof coverings on the insured's warehouse, causing interior water damage to several rooms. Scottsdale eventually paid $84,820.36 for the loss of the roof, less the deductible. The parties disagreed on whether a horizontal bulge on the north wall of the warehouse was also caused by the hurricane. The bulging portion of the wall was not cracked, but cracks were seen around the corners and windows. The insured admitted to an engineer retained by Scottsdale that the cracks in the exterior walls had been filled with caulking on several occasions prior to Hurricane Ike. 

   Scottsdale denied coverage for the damage to the north wall under exclusions for soil sinking, rising, or shifting and for damage from faulty, inadequate or defective design, construction, and repair.The insured later sent a demand for $800,000 for the damage to the wall. A suit was eventually filed by the insured.

   Thereafter, an appraisal was requested by the insured. Two appraisers agreed on an award of $112,004.99 for the damaged roof. Scottsdale tendered this amount less the deductible and the excess amount paid over the cost of the temporary roof.

   The appraisers could not agree on the amount of loss for the north wall. Scottsdale's appraiser and the umpire, however, agreed to an amount of $204,377.51.

   Subsequent investigations located pictures that showed a bulge was present prior to Hurricane Ike. Nevertheless, the insured insisted that the north wall was not damaged before Hurricane Ike. After examining the engineers' reports, the umpire and Scottsdale's appraiser agreed to an award for the north wall of $153,283.13, equal to the actual cash value of the damage to the north wall. The insured refused payment and demanded $500,000 for the north wall plus costs and fees of litigation.

   On Scottsdale's motion for summary judgment, the court found that the breach of contract claim against Scottsdale failed. When an insurer tenders the amount of the appraisal award, there is no breach of contract even if the payment is refused by the insured. Nor was Scottsdale in bad faith because it relied on expert reports in denying coverage. Summary judgment was granted to Scottsdale. 

Excess Policy Triggered Once Retention Paid, Even if Loss Not Covered By Excess

   The Fifth Circuit determined that the Umbrella policies took effect once the primary insurance was exhausted by claims not covered by the Umbrella policies. Indem. Ins. Co. of N. Am. v. W&T Offshore, 2014 U.S. App. LEXIS 11775 (5th Cir. June 23, 2014).

      W&T had primary and Umbrella/Excess coverage to protect its offshore oil rigs from hurricane damage. The primary policies covered property damage and third party claims. The Umbrella policies only covered third-party claims. All policies covered Removal of Debris (ROD). 

   In September 2008, Hurricane Ike caused damage to 150 offshore platforms in which W&T had an interest. W&T submitted over $150 million in claims for property damage to the primary carriers. The primary policies had a $10 million self-insured retention (SIR). The primary policies covered $150 million in coverage over the $10 million SIR. Anticipating that W&T would submit all of its ROD claims, which were estimated to exceed $50 million, the Umbrella carriers filed suit for a declaratory judgment.

   The Umbrella policies argued the SIR for the primary policies had not been exhausted. Instead, W&T exhausted its underlying policies, using claims that were not covered by the Umbrella policies (i.e., the $150 million of property damage claims). 

   The district court granted summary judgment to the Umbrella policies, finding that the underlying insurance could only be exhausted by claims that were also covered by the Umbrella policies. Because W&T exhausted the underlying policies with property damage claims, coverage under the Umbrella policies had not been triggered and there was no coverage for the ROD claims.

   The Fifth Circuit reversed. The insuring agreement in the Umbrella policies provided, "We will pay on behalf of the Insured those sums in excess of the Retained Limit . . ." Under this provision the Umbrella policies were obligated to pay "sums in excess of" the "total of the applicable limits of the underlying policies listed," i.e., sums in excess of the $161 million of the underlying coverage. 

   Elsewhere, the Umbrella policies provided that "when the underlying policies were exhausted by payment of claim to which this policy applies, we shall have the right and duty to defend any claim or suit covered by the policy." On the other hand, there was no explanation as to how the Retained Limit must be paid or that it must be met with claims covered under the Umbrella policies. The Umbrella policies simply stated that the Retained Limit must be met. There was no explanation about what would happen if the Retained Limit was exhausted by non-covered claims. 

   

Duty to Defend Claims Related to Hurricane Damage Despite Property Damage Exclusion

   The District Court determined there was a duty to defend directors under a Not for Profit Organizations insurance policy in one of three lawsuits filed against the insureds. Landing Council of Co-Owners v. Fed. Ins. Co., 2013 U.S. Dist. LEXIS 127989 (S.D. Tex. Sept. 9, 2013).

   The Council was a homeowners' association for "The Landing." Federal issued its Not for Profit Organizations insurance policy to the Council. The policy included directors and officers liability and entity liability coverage.

   The Landing was damaged during Hurricane Ike on September 9, 2008. The Council's Board scheduled a special meeting and vote for October 10, 2009, to determine the extent of the damage from the hurricane. On October 5, 2009, a group of "Concerned Owners" sent the Council a demand letter, which objected to the special meeting. The Concerned Owners contended that the Landing's declarations required that this type of special meeting be called within 40 days after the damage to the condominiums, and that deadline was long since passed.

   When the Council refused to cancel the meeting, three different lawsuits were filed against the Council. The first suit alleged the Council was negligent in failing to prepare for Hurricane Ike and in cleaning up and repairing the property after the hurricane. The second suit asserted claims for negligence in failing to prepare for the hurricane, failing to repair structures, and wasting assets after the hurricane rather than spending them to repair structures. In amended pleadings, gross negligence, breach of fiduciary duty and breach of contract were alleged. Finally, the third suit sought damages for the diminution in value of property and loss of rental income.

   The Council requested coverage for the three lawsuits. Federal denied coverage based on the Property Damage Exclusion which excluded coverage for any claims "based upon, arise from or are in consequence of any . . . damage to or destruction of any tangible property." 

   The Council sued and Federal moved for summary judgment, arguing that coverage for each of the underlying suits was barred under the Property Damage Exclusion. The Council argued that the exclusion did not apply to some of the underlying claims because the causation between the property damage and the underlying claims was too attenuated.

   The District Court analyzed the cases claim by claim to determine if the Property Damage Exclusion precluded coverage. While most of the allegations regarding breach of fiduciary duty arose because of the hurricane, if the Board failed to collect assessments after the hurricane due to an undisclosed interest in selling the Landing, this claim could have arisen independent of the hurricane. Therefore, a duty to defend this claim existed. 

   The breach of contract claims in the second suit for failure to collect assessments was not alleged to have arisen as a result of the property damage. Accordingly, there was a duty to defend this claim. 

   Regarding negligence, these claims related specifically to property damage occurring because of the hurricane and failure to clean up and repair the property. Consequently, these claims were subject to the Property Damage Exclusion. 

   The third suit's claim that the Council did not exercise reasonable care to preserve the value of the property arose from property damage related to the hurricane and was excluded. Therefore, there was no duty to defend this claim.

Insurer and Agent Liable for Failure to Obtain Flood Insurance

   The Louisiana Court of Appeal affirmed the trial court's finding of liability on the part of the insurer and the agent for their failure to properly procure flood insurance for the insureds. Barnett v. Fid. Nat'l Prop. & Cas. Co., 2013 La. App. LEXIS 856 (La. Ct. App. May 1, 2013).

   The plaintiffs' home was destroyed in 2005 by Hurricane Rita. After the hurricane, Travelers refused to continue providing flood insurance because the property was located within a Coastal Barrier Resource System (CBRS). 

   The plaintiffs contacted an agent at Insurance Unlimited of Louisiana, Inc., to inquire about obtaining a policy under the National Flood Insurance Program (NFIP). The plaintiff did so after hearing that a neighbor had been able to insure his property through the agency. Plaintiffs' application was completed and Fidelity issued the policy, effective July 2, 2008. 

   After the plaintiffs' house was damaged by Hurricane Ike in September 2008, however, Fidelity issued a notice of cancellation indicating that the policy was cancelled, retroactive to the policy inception date of July 2, 2008. The basis for the cancellation was the property's location within a CBRS zone. 

   The plaintiffs sued Fidelity and Insurance Unlimited, seeking damages for breach of contract, negligence, and negligent misrepresentation. The trial court entered judgment in favor of plaintiffs. It found Insurance Unlimited was negligent in failing to follow federal guidelines in processing the application. It also found that both Insurance Unlimited and Fidelity were negligent in failing to determine that the property was in a CBRS zone and that they had negligently misrepresented the validity of the flood insurance policy. Damages were awarded in the amount of $50,000.

   The appellate court first rejected Fidelity's preemption argument that only a federal court had jurisdiction over the dispute. The plaintiffs' case involved a policy procurement problem, not a claims handling matter. The matter did not involve federal question jurisdiction and the policy procurement claims were not preempted by federal law.

   Next, the court agreed that Fidelity had breached a standard of care owed to plaintiffs. An expert for plaintiffs testified that Fidelity had a duty to notify the plaintiffs that their property was potentially located in a CBRS zone. Fidelity should have informed plaintiffs of the potential that their policy was null and void due to the property's location.

   Insurance Unlimited also breached its duty in failing to follow the guidelines of the NFIP manual in processing the application and  in failing to determine that plaintiffs' property was located in a CBRS zone. The application forwarded to Fidelity was insufficient under the NFIP manual. The agent failed to consult the map to determine if the property was located in a designated CBRS area. 

   Consequently, the trial court decision was affirmed.

 

Insurer's Denial of Document Restoration Claim Improper

   The federal district court considered the applicability of a document retention clause in Amtex Bancshares v. Bancinsure, Inc., 2012 U.S. Dist. LEXIS 140557 (E.D. Tex Sept. 11, 2012).

   Hurricane Ike caused severe damage to the insured's bank on September 13, 2008. The policy issued by Bancinsure, Inc. covered the property and its contents. The insured submitted its claims to Bancinsure, which made some payments. A large amount of banking documents was damaged and had to be restored. The total cost of unpaid document restoration was $293,982. The insured sued.

   An endorsement limited coverage to "specified causes of loss" under the policy, defined, in relevant part, "to windstorm and water damage sustained due to accidental discharge or leakage of water." In its motion for summary judgment, Bancinsure argued coverage for damage to the documents did not include water damage caused by flood.

   Bank employees testified they did not know how the documents became wet. Some damaged documents were above the flood line. Bancinsure argued that even if the insured could establish that the documents above the flood line became damp or mildewed because of something other than flood, the insured had no way of segregating the costs related to flood damage separated from the costs relating to other causes.

   The court denied summary judgment on the document restoration. Based on the witnesses' testimony, it was possible that the restoration damages were due, in at least some part, to a cause other than flood. One witness testified that at least some of the documents were damaged from an excess amount of moisture due to wind and "stuff protruding through the roof." Accordingly, there was at least some evidence that the document restoration costs could be partially covered under the policy.