Last month, the Big “I” Virtual University “Ask an Expert” service had a question from a South Dakota agent whose lake-dwelling homeowners customer wanted to know if he would have coverage under his policy for damage caused by ice flows this spring when the lake begins to thaw. If not, would he have coverage under the NFIP flood policy?
This reminded me of a similar issue that arose in 2013 based on an inquiry from an agent who saw this video:
In this scenario, wind-driven water forced ice flows onto the land, damaging buildings and other property. In some cases, damage from ice is caused simply by the expansion of ice onto land and is not wind-related. When the VU faculty discussed this in 2013, the coverage consensus was “probably not, but maybe” based on these policy forms:
ISO HO 00 03 05 11 Homeowners Form
The ISO HO-3 water damage exclusion applies to “overflow of any body of water…whether or not driven by wind” and includes “Waterborne material carried or otherwise moved by any of the water….” This exclusion applies to all property covered by the policy.
An argument FOR coverage might be that damage of this type is not due to liquid “water” but rather H20 in a solid state, so we need to refer to any exclusions that specifically address “ice.” That would lead us to this exclusion:
Freezing, thawing, pressure or weight of water or ice, whether driven by wind or not, to a:
(a) Fence, pavement, patio or swimming pool;
(b) Footing, foundation, bulkhead, wall, or any other structure or device that supports all or part of a building, or other structure;
(c) Retaining wall or bulkhead that does not support all or part of a building or other structure; or
(d) Pier, wharf or dock;
Since the damage is caused by the pressure of ice, it is arguable that there IS coverage for any property not included in this list of excluded property such as nonstructural portions of the dwelling like vinyl siding, windows, etc.
NFIP Dwelling Policy
The NFIP policy language says, “We do not insure for direct physical loss caused directly or indirectly by any of the following…The pressure or weight of ice….” According to an NFIP rep, without “flood” damage as defined in NFIP policies, there is no coverage under their forms for wind-driven ice.
This consensus is based on the causation described in news accounts and not on a forensic examination of the facts of the event. Was the ice actually blown by the wind or was it pushed on a lubricating layer of water from the lake? Or was it simply the expansion of the ice itself? If blown by the wind, independent of lake or surface water, could there be coverage, especially in proximate cause jurisdictions where windstorm is a factor? Could much of the ice have formed from water frozen by the wind as it moved across land?