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Part 1:Introduction-
The laws of evidence have particularly complex provisions regarding OPINION EVIDENCE.
Lay persons may offer opinion testimony only on issues based directly upon facts they observed , as in “As I watched the storm approach, the water rose higher and higher, and eventually flowed into my windows”. In my opinion water then damaged my furniture within the home”
Expert witnesses, on the other hand, once qualified as experts, may offer an opinion based upon their expertise and experience, as applied to the presumed set of facts.
In insurance storm-damage lawsuits, this will be our reality for years to come: Persons with flood insurance can collect for flood damage , while persons with typical homeowners insurance will be able to claim damage limited to wind and water {no flood water} damages.
Where the only surviving part of the home is a foundation slab of concert, expert testimony will be needed to determine how best to establish which type of causation happened, and in what order, etc.CAUSATION issues will determine insurance coverage!
This is an impossibly complex task! As we will discuss in detail, there is a special test, called the Daubert Hearing, by which a court can determine whether a person is an expert ( in the area of his/her proffered testimony), and, further whether the opinion evidence to be offered is necessary to enable the court or jury to understand better the legal issue at trial.
ASSIGNMENT—SUBMIT A THREE PAGE PAPER, no later than 5pm Monday, October 17, to discuss the (1) the Daubert rule and how it is applied to proferred expert testimony and (2) the complexities of hurricane damage litigation and how Daubert Hearings will likely be needed in many contested claim cases.
Below are some article and uploaded pdfs on hurricane damage litigation generally, and then a focus on Daubert.
https://onlinelibrary.wiley.com/doi/abs/10.1111/1556-4029.12740
https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1556-4029.2008.00771.x
https://www.law.com/dailybusinessreview/2020/03/05/daubert-six-months-later-the-sky-is-not-falling
Part 2: (Please make a separate document/ upload)
Recall our class discussion this week about the complexities of insurance contract litigation concerning the ‘causation’ of hurricane damage: water damage caused by hurricane surge/rising ground water is ‘flood water damage’, covered only by flood insurance; wind-driven water damage, such as water intrusion from hole in the roof or blown out windows caused by wind, is water damage caused by wind, which would be covered by the typical homeowner’s policy.
This reading/ writing damage assignment will introduce you to a new damage issue, with insurance contract implications—pollution damage.
Boats, vehicles, structures have gasoline/diesel tanks, and industrial/commercial businesses have chemicasl which, when ‘discharged’ or ‘released’ into the environment, will need environmental cleanup/remediation. Insurance pays for such claims when pollution is ‘sudden and unexpected’, but there will likely be numerous claim causation issues.
Read the sources below and upload a 1 page (2-3 Paragraphs) discussion to the assignment already given on the complexities of Hurricane damage insurance coverage issues. Simply attach this assignment to the pending assignment due with the subtitle:” Environmental Damage Issues.”
Sources:
https://content.naic.org/cipr-topics/environmental-insurance
https://content.naic.org/cipr-topics/environmental-insurance
