Now That Insurers Can’t Legally Enforce Their $5,000 Wildfire Smoke Damage Caps, What Have They Done To Make Up For Their Unanticipated Losses?

Many insurance companies thought they would have to pay no more than $5,000 for each California wildfire claim but are ending up paying hundreds of thousands if not millions.

These companies sought to reduce their exposure to wildfire losses by capping their liability for wildfire smoke, soot, char, and ash claims to $5,000. These carriers include CSAA, Mercury, Farmers, and others. (See an example of these provisions on United Policyholders’ website.¹) So why can’t these insurance companies enforce this limitation, and what are they doing about it?

The limitation violates California law. Under Insurance Code sections 2070 and 2071, insurers can only have a dollar limit for the total amount they will pay for damage caused by the peril of fire. This rule prevents carriers from dissecting the various fire perils, including smoke, char, soot, ash, and odor, and applying separate, smaller sub-limits.

This law has been in place for many, many years. But despite the law, carriers sold their policies with the endorsement in attempt to limit their exposure. The fun ended for these insurance companies when California courts ruled the endorsements were unenforceable.² In a class action suit on the subject, Mercury argued that “the endorsement is not governed by sections 2070 and 2071 because damage from smoke is not covered by those sections and is permitted ‘extended coverage’ for a peril separate from fire, i.e., wildfire smoke.” The court disagreed and held that California law clearly prohibits an insurer from setting a sub-limit for the certain fire perils, including smoke damage.

What happens when some of the biggest wildfire insurers planned to pay no more than $5,000 per claim, but end up paying hundreds of thousands if not millions for each of several thousand claims? Like all insurance companies, they used complex formulas and models to determine how much money to collect from their customers (through policy premiums) to survive a potential catastrophic disaster like a wildfire. In situations like this, where insurers are often paying more than 100 times the expected amount for each claim, profitability goes out the window and their survivability comes into question.

In our experience, the average home impacted by wildfire smoke, soot, char, ash, and odor claim will cost hundreds of thousands of dollars to remediate. These costs are the product of high real estate prices, extremely limited labor after a wildfire, costly experts, and the remediation of soft and porous goods which trap smoke particles behind walls, under floors, within ceilings, HVAC units, and the like.

Unfortunately, our experience tells us that the carriers who thought they’d only be paying $5,000, but are now paying a lot more, are trying to reduce the amounts rightfully owed to customers, such as relying on unqualified experts in order to reduce their losses.

If you are experiencing similar treatment for an insurance company, this may be a reason why. We have attorneys that cover all of California.
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¹ https://www.uphelp.org/sites/default/files/blog/farmers_wildfire_damage_exclusion_1.pdf
² See Marrufo v. Automobile Club of Southern California, Case No. BC597839 (Cal. Super.  May 10, 2018).