Hurricane devastation has left millions trying to rebuild their
homes and lives. But flood-damage lawsuits against insurance
companies now threaten the industrys solvency across the country,
and the broadcast media are helping make the case against industry.
According to reporters on CBS and NBC, the fact that
some homeowners didnt have flood insurance is an ugly surprise
and a hard lesson for people who thought their insurance
companies would pay for the wreck they used to call home.
Reporters have given the impression that Gulf Coast
homeowners didnt understand their insurance policies and that that
might give them the legal standing to demand money they werent
contracted to receive.
CBSs Harry Smith introduced trial lawyer Richard
Scruggs, famed for his $250 billion settlement from tobacco
companies, on the October 5 Early Show. Scruggs has indicated
plans to file suit against three private insurers for coastal
clients, accusing insurance companies of misleading them and denying
coverage for hurricane losses.
The New York Times reported on October 5 that Scruggs
first suit, filed on October 4, centers on one Mississippi couple
who did not have flood insurance. They say their insurance company
misled them into thinking they had protection that they didnt.
Scruggs has said he might file more than 1,000 similar suits,
avoiding a class-action suit.
Smith began the Early Show segment saying, As
hurricane victims head home to clean up, many are learning a hard
lesson, that damage caused by flooding is not covered under most
homeowners insurance policies. Scruggs has admitted he already
knew that lesson, as he had both homeowners and flood insurance
on his waterfront Mississippi home.
The foundation of any insurance policy, and of many
industries, is the contract. Both parties enter into it voluntarily,
and both sign off stating that they agree to its terms. In an
October 3 American Enterprise Institute panel on the issue, Martin
Grace lamented what he called the tortification of contract law.
Grace is the associate director of the Center for Risk Management
and Insurance Research at Georgia State University. Tort law is the
arena where plaintiffs seek restitution for harm, as in Scruggs
tobacco suit. But contract law is based on documents that both
parties agreed on beforehand. Confusing the two is creating a legal
circus.
Insurance policy language is a result of litigation
and regulatory processes, Grace said. It is not a spur of the
moment contract. In Mississippi, where the lawsuits originated, the
language of insurance policies must be approved by state regulators.
But like Smith, many journalists have promoted the idea
that homeowners are ignorant of what is in their policies.
CBSs Bill Whitaker said on the September 14 Evening
News that People on the Gulf Coast are facing an ugly surprise.
He reported about one Biloxi, Miss., family: when they called to
make a claim on the insurance theyd paid diligently for two
decades, they found their nightmare just beginning. They were
covered for natural disasters, just not flooding.
Zeleder Barnes, the homeowner, referred to what was and
wasnt in her insurance contract. But Whitaker still described the
contracts consequences as a surprise and added that The Barnes
family calls the insurance industry stance unconscionable. Barnes
said, Honor the contracts that you have signed with these people,
who have paid you for 20 years. Ironically, thats exactly what the
companies were doing. An insurance representative was allowed to
inject just one sentence into Whitakers two-minute report, and he
said, We cant invent coverage where it doesnt exist
In keeping with Business & Media Institute findings in a
previous study and ongoing analysis of litigation coverage,
broadcasters often turned to plaintiffs or those similarly situated
for their stories perspective, giving the insurance industry little
time to address the attacks.
In a two-and-a-half minute story on the September 16
World News Tonight, ABCs Jim Avila allowed two insurers to speak
for a combined 8 seconds. They were pitted against flood plaintiff
Paul Leonard and Scruggs, his lawyer. Avila contended that most
homeowners dont realize that government-subsidized flood insurance
the only source of flood insurance has a payout cap of $250,000
for a house. And people are trying to get their private homeowners
insurance companies to cover damages not specified in their
policies.
We cant, unfortunately, confuse compassion with
contracts, said Julie Rochman of the American Insurance Association
on World News Tonight. But thats exactly what media reports have
done by focusing on the anti-insurer, anti-contract side of the
story.
The September 20 NBC Nightly News covered a similar
lawsuit brought by Mississippi Attorney General Jim Hood, who is
suing private insurers to get money for excluded flood damages. Anne
Thompson told the story from the perspective of two hurricane
victims whose lives are at the curb, and she included a comment
from Hood. Again, only one insurer provided just two sentences on
the other side.
Thompson said the insurance industry was blasting the
lawsuits as politics, but she failed to explain the simple legal
argument behind the suit that private insurers should not be
allowed to exclude flood damages in policies. Thompson didnt point
out that such a reversal would mean insurers must pay damages for
which they did not collect premiums. Such an argument has massive
implications for the industry and for homeowners, but Thompson
didnt explain that. In fact, Grace said that if Hood and Scruggs
win, and insurers contracts are declared void, itll destroy
private insurance markets.
About $70 billion of the $170 billion in hurricane
damages was insured, according to estimates presented at AEI by
Robert Klein, director of Georgia States Center for Risk Management
and Insurance Research. Of that $70 billion, $10 billion will be
owed by the federal flood insurance program and $60 billion falls on
private insurers. Of the uninsured losses, The New York Times
reported on September 24 that at least $15 billion of that could
land on private insurers backs if the plaintiffs lawsuits are
successful.
Whether insured or uninsured, Americans can count on
the fact that they will pay for others losses, said law professor
Adam Scales, another speaker on the AEI panel. As Congress pours
money into the region, insurance rates nationwide will rise to cover
the losses.
We have a very difficult time in this country making
people adhere to their decisions, said Scales, who teaches law at
Washington and Lee University and is also a visiting professor at
the University of Connecticut School of Law. He later added that
Historically, we do not let losses come to rest where they
initially fall. The question is whether were going to pay as
taxpayers or as policyholders.
Compassion over Contracts
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