Who in their right mind would climb onto their roof in the dead of winter in Idaho? It’s freezing outside, ice is forming, and snow piles precariously on every surface. These conditions invite some dummies to slip and fall to one’s death. At best, you will risk falling or freezing your fingers. No homeowner or business owner wants to brave those conditions to inspect their roof—and for good reason. It’s dangerous, miserable, and, quite frankly, absurd to expect anyone to balance on an icy rooftop while trying to determine whether water is sneaking its way inside. Yet, when winter weather wreaks havoc, the question of what caused damage becomes crucial, even if nobody dared climb up there to take a firsthand look.

I wonder how often Steve Badger climbs on top of his Park City ski chalet during the dead of winter to check out its condition after every snowfall or ice event? I bet as often as the other insurance executives do with their ski vacation homes—zero.

I wondered about these issues while reading the recent Idaho decision in the case of Royal Plaza Master Owners Association, Inc. v. Travelers Property Casualty Company of America.1 This case highlights the complexities of insurance disputes involving ice damming and other weather-related roof damage. The case also shows the critical role of eyewitness testimony and how it can challenge the insurance company’s expert reports and arguments, finding a cause presented by insurers that invariably supports no coverage.

Travelers’ motion for summary judgment was denied on the breach of contract claim. Travelers had argued that the policy did not cover interior water damage because no “covered cause of loss” to the roof or walls preceded the water intrusion. Specifically, Travelers relied on policy language excluding coverage for interior damage unless it was caused by a covered peril such as thawing of ice or snow.

The court found that material disputes of fact remained about whether freezing and thawing of snow and ice caused the water intrusion, triggering coverage under the policy. The policyholder, Royal Plaza, presented evidence, including testimony from its building superintendent and others, asserting that ice damming and freeze-thaw cycles contributed to the damage. This evidence raised sufficient doubt to preclude summary judgment and send the issue to trial.

Travelers asserted that the damage resulted from faulty workmanship and wear-and-tear — both excluded causes under the policy. It argued that its adjuster’s inspection and reports from roofing contractors confirmed these issues as the source of the leaks.

The policyholder contended that the damage was caused, at least in part, by freezing and thawing cycles during severe winter weather. Royal Plaza relied heavily on testimony from eyewitnesses who observed snow and ice buildup and leaking during these conditions. They also cited policy language affirming coverage for damage “resulting from thawing of snow, sleet, or ice.”

Importance of Eyewitness Testimony

Eyewitness accounts were central to Royal Plaza’s ability to contest the insurer’s narrative. Testimony from the building superintendent, who observed snow and ice accumulation and leaks corresponding to freeze-thaw conditions, contradicted the conclusions of Travelers’ experts. The court’s ruling illustrates that firsthand observations can effectively challenge even technical expert reports, particularly when factual disputes exist.

Eyewitness testimony is a powerful tool to humanize a claim and provide context that technical reports often lack. The detailed accounts of weather conditions, physical observations of leaks, and immediate actions taken can paint a vivid picture of how and why damage occurred. This contextual evidence helps courts and juries understand the real-world impact of weather events and supports policyholders’ assertions of covered causes of loss. To the extent it exists, before and after eyewitness testimony should always be developed by public adjusters and policyholders to provide a common sense explanation about the probable cause of the damage.

Eyewitness testimony can bridge gaps in documentation or investigative shortcomings. Experts should be provided this evidence for consideration when vetting against other visual and factual findings.

In this case, the observations of snow and ice buildup and the timing of leaks were critical to countering the insurer’s argument that the damage resulted solely from construction defects or wear and tear. Such testimony underscores the need for insurers to fully and honestly consider all evidence so that they investigate claims in good faith. To investigate and come to a good faith adjustment, all insurance adjusters are taught to consider all possible causes of loss, including those supported by firsthand accounts.

Key Lessons For Policyholders

Preserving evidence and testimony from individuals with firsthand knowledge of the conditions before and after the damage is crucial. These accounts can provide a counterpoint to insurer arguments focused solely on technical assessments.

Understanding policy language is essential. Policies often include nuanced language regarding what constitutes a “covered cause of loss.” Presenting evidence aligned with these provisions can be decisive in coverage disputes.

Policyholders should challenge incomplete investigations. Insurers may rely on partial or one-sided investigations. Seeking independent assessments and ensuring that all relevant factors, including weather conditions, are considered can strengthen a claim.

Policyholders should provide this information to insurers if claims are wrongfully denied, giving the insurer an opportunity to change a wrongful denial. While many insurance companies will not change decisions or will simply defer to their own retained experts without critical analysis, I have also seen many instances where insurers have a change of heart based on this new information.

Lessons for Insurers

Insurers must conduct thorough investigations, ensuring they consider all potential causes of loss, including those asserted by the policyholder. Fair presentation of policy provisions is equally important. Selective citation of policy exclusions, without addressing exceptions favorable to the policyholder, risks allegations of bad faith and weakened credibility.

We have previously written extensively about ice damming and its implications for homeowners and commercial property owners. For more insights, visit the following blog posts:

This decision reinforces the need for both policyholders and insurers to approach claims involving weather-related damage with care and diligence. The court’s emphasis on factual disputes and the weight of eyewitness testimony serves as a reminder that a thorough and balanced presentation of evidence is often the key to resolving insurance disputes. There are many examples upon which I can provide evidence that the insurance company’s expert simply ignored or was not aware of irrefutable factual and eye-witness testimony, which called for a different opinion. For any number of honest and sometimes dishonest reasons, these “new” facts only came to light in litigation but could have easily been found through more thorough fact-finding.

Travelers is represented in this case by the very experienced and fine insurance defense firm, Bullivant Houser Bailey. Doug Houser was a principal of that firm and passed away this fall. Part of his obituary noted:

His leadership skills and academic excellence set the stage for a remarkable legal career.

Doug’s legal career spanned nearly six decades at the firm that would become Bullivant Houser Bailey PC. Renowned for his expertise in insurance law, he tried 140 cases in 21 states, building a national reputation for handling complex litigation. The National Law Journal named him one of America’s outstanding defense lawyers – just one of the numerous honors, achievements and awards Doug received over his remarkable career.

One of his most notable professional achievements was his role in the establishment and growth of Nike, Inc. He incorporated the company and served on the Board of Directors for Nike for 50 years.

Doug and I were very active and opposing colleagues in the American Bar Association Property Insurance Law Subcommittee during the mid-1980s and 1990s. We hotly debated his article, Good Faith as a Matter of Law: The Insurance Company’s Right to Be Wrong, 2 which infuriated me but gained traction with many jurists and insurance company experts. I can still recall wondering and then asking him late one night in a bar why he kept representing insurance companies after having all the success he had with Nike. Doug loved being a litigation lawyer and many other life activities. If you read his obituary, Doug Houser obviously led a full life with diverse interests and passions. He was a force in the property insurance claims field and left his mark.

Thought For The Day

Winter is nature’s way of saying, ‘Up yours.’
—Robert Byrne

1 Royal Plaza Master Owners Ass’n, Inc. v. Travelers Prop. Cas. Co. of America, No. 1:22-cv-00416 (D. Id. Jan. 9, 2024).
2 Houser, Douglas G., Good Faith as a Matter of Law: The Insurance Company’s Right to Be Wrong, 27 Tort & Ins. L.J. 665 (Spring 1992).