In the first hurricane season following Superstorm Sandy, you may assume that such natural disasters donot present subrogation opportunities. However, it's critical toinvestigate subrogation potential in such losses. Natural disastersdo not automatically preclude subrogation.

Running June through November, the 2013 Atlantic hurricaneseason is predicted to be active or “extremelyactive,” according to the National Oceanic and AtmosphericAdministration (NOAA). Severe tropical storms with winds rotating counterclockwise andreaching sustained levels of at least 64 knots (74 miles per hour),hurricanes develop over warm tropical oceans and can producetorrential rains and flooding. They can also spawn tornadoes.Wind speeds can reach 160 miles per hour and extend for hundreds ofmiles causing property damage many miles from the center or eye ofthe hurricane.

Evaluating Wind Damage

The most frequent potential liability scenarios involve claims that the wind conditionswere below hurricane level and that the property in question failedto conform with code requirements. Statutes of repose willpreclude claims for older buildings.

For claims relating to wind damage from a hurricane, askyourself the following when considering subrogation:

1. Was the building, especially awnings and roof systems,inspected for integrity by a structural engineer before theloss?
2. Was the building designed and constructed according to codeoriginally or during any major renovations, which can extend thestatute of repose?
3. Were the windows protected, preferably with permanent stormshutters or with 5/8-inch marine plywood?
4. Can you obtain accurate wind data from a local NOAA or otherfacility?
5. Did other similar buildings in the immediate area sustaindamage consistent with the building under investigation and, ifnot, what was the reason?

Storm Surge and Water Damage

Hurricanes also can lead to water damage claims as a result ofthe wind-driven storm surge for properties close to the ocean, or from thetorrential rains from the hurricane and the tropical moisture whenthe hurricane is downgraded after coming ashore.

Investigate these factors when you are looking to recover fromflood claims. Be sure to determine whether:

1. The owner or developer of the property had asked the localemergency management office whether the facility was located in aflood plain.
2. The owner or developer inquired about the history of floodingin the area.
3. The owner or developer inquired about the elevation of thefacility in relation to streams, rivers and dams.
4. A flood-proofing feasibility study had beenconducted.
5. The community had engaged in flood control projects.
6. Records regarding the actual rainfall amount for the local areacan be obtained from an NOAA station to document the length andintensity of the rainfall.

The above lists are not inclusive but can assist claimsprofessionals in assessing whether there are any subrogationpossibilities in the wake of a hurricane.

Sean P. O'Donnell is a partner in the Subrogation & RecoveryDepartment at CozenO'Connor. Practicing in the Philadelphia office,he represents self-insured companies in recovery claims and relatedcommercial litigation. O'Donnell may be reached at[email protected].