The title of this publish was a query posed to me yesterday by one of many crew whereas racing within the Transpac to Hawaii. Due to Elon Musk and Starlink, I used to be capable of achieve pretty low-cost entry to the web and present him the case I’m sharing with you.¹ 

The information of the case present the reply to the query:

The excess strains insurance policies offered to Plaintiffs and the Class contained an exclusion that precludes protection for ‘the peril of lava and/or lava stream inflicting direct or oblique bodily injury or lack of use of the insured property’ (the ‘Lava Exclusion’)… This even if Plaintiffs allegedly sought house owner’s insurance coverage that would come with lava protection, given the character of the placement of their properties. Plaintiffs allege that they relied on Defendants’ ‘information, expertise, and experience concerning the appropriateness and availability of coverages within the Hawaii insurance coverage market,’ and that Defendants ‘knew and understood’ that Plaintiffs’ properties have been positioned in high-risk lava zones—making protection for damages attributable to lava stream obligatory—but nonetheless offered them insurance policies containing the Lava Exclusion. Whereas Plaintiffs don’t declare that they interacted straight with Underwriters or Monarch, the Amended Grievance alleges that Monarch (Underwriters’ agent) used its retail brokers (Moa and Aloha) to coordinate within the procurement of the insurance policies and that Monarch and Underwriters would or ought to have been conscious of the actual want for lava protection based mostly on the placement of Plaintiffs’ properties. Now that Plaintiffs’ properties have allegedly suffered damages ensuing from the latest eruption, Plaintiffs declare that Defendants must be held liable for putting Plaintiffs with inappropriate protection with out complying with sure statutory necessities and with out advising them of different obtainable insurance coverage that may have included lava protection.

Plaintiffs allege that Defendants didn’t adjust to the statutory necessities in Part 301 for putting surplus strains protection, which require a ‘diligent search’ to find out whether or not ‘[t]he full quantity or form of insurance coverage’ can’t be obtained from ‘licensed’ insurers. Defendants, in line with the Amended Grievance, knew or ought to have identified that Plaintiffs lived in high-risk areas, but they nonetheless didn’t advise Plaintiffs that they might have certified for extra complete protection (together with volcanic eruption) by different channels. The Amended Grievance focuses particularly on protection by the Hawai’i Property Insurance coverage Affiliation (‘HPIA’ or the ‘Affiliation’). The HPIA is a statutorily-created affiliation of licensed insurers who problem protection for 16 perils, together with hearth and volcanic eruption. The HPIA was established to make property insurance coverage obtainable to ‘individuals who’re unable to acquire fundamental property insurance coverage within the personal market from a licensed insurer.’ The legislature when creating the HPIA described the aim underlying this system:

The legislature finds that the latest Kilauea volcano eruption and lava flows have induced a significant issue for residents of sure areas of the Massive Island. The precise and potential losses attributable to the volcanic exercise has additionally resulted within the unavailability of fundamental property insurance coverage for individuals having insurable pursuits in properties within the neighborhood which has induced nice private struggling and monetary hardship and has contributed to uncertainty locally. The legislature finds it’s within the curiosity of the State to foster stability for folks adversely affected by main pure disasters, and this goal might be served by making fundamental property insurance coverage obtainable to such individuals.

The aim of this Act is to create an entity which is able to present appropriately priced fundamental property insurance coverage for house owners and occupants of property in excessive danger areas for main pure disasters. This extraordinary motion is being taken to offer restricted reduction to satisfy the distinctive and urgent wants of those individuals who’re at the moment unable to acquire any property insurance coverage.

 … The legislative historical past displays the intent to determine a program that may guarantee property protection for people whose properties are at nice danger of damages due to their proximity to energetic volcanoes on the Massive Island and the continual eruption thereof.

In line with the Amended Grievance, Plaintiffs’ and the Class’s properties would have certified for HPIA insurance coverage, however Defendants represented to Plaintiffs that the Underwriters’ insurance policies have been the one obtainable property insurance coverage protection. The Amended Grievance additionally means that Plaintiffs might have certified for different Lloyd’s insurance policies inside the voluntary market that may not have contained a Lava Exclusion. Plaintiffs allege that such insurance policies would solely have been obtainable by a unique dealer—in different phrases, not Monarch. 

Plaintiffs allege that every Defendant violated varied duties owed to them when putting Plaintiffs and the Class in surplus strains insurance coverage with out advising them of the supply of HPIA insurance coverage or different insurance policies that may have included lava protection. They declare that Underwriters and Monarch commonly conduct enterprise promoting insurance coverage on the Hawai’i islands, and so they due to this fact ought to have been cognizant of the distinctive geographical considerations—together with the eruption historical past—in addition to of the existence of the state-established HPIA program. Plaintiffs allege that Underwriters are chargeable for their very own conduct and that they’re vicariously chargeable for the conduct of their agent,

Simply as insurers attempt to exclude hurricane and wind injury from areas which have hurricanes, earthquakes from California, and restrict roof injury in hail susceptible states, insurers in Hawaii have tried to exclude lava injury. However there may be lava protection in Hawaii. 

The wind is mild and the race is sluggish. The crew of Merlin appears anxious that the rum rationing with quickly begin. If you want to see the place I’m, simply click on on this hyperlink. 

Thought For The Day 

Not like most main American cities, Honolulu is geographically insulated from the remainder of the nation. When catastrophe strikes we can’t name on neighboring states for help.

—Daniel Akaka

¹ Aquilina v. Sure Underwriters a Lloyd’s, 465 F. Supp. 3d 1088 (D. Haw. 2020).