The Double Whammy

In a move that can only be described as cruel, incredibly ill timed, and unwelcome

In a move that can only be described as cruel, incredibly ill timed, and unwelcome, FEMA has announced that the release of water from the Garrison Dam in North Dakota on June 1, 2011 was the official start of this government-initiated, intentional “flood in progress” [sic], thereby invoking an exclusion in the National Flood Insurance policy which precludes coverage for flood losses if the policy was not in effect prior to the government’s arbitrarily picked date for the “flood in progress.” In other words--whether you knew it or not--you were officially flooded on June 1, 2011 by government fiat. Put simply, the Corps set folks up for the sucker punch and FEMA has now delivered it. The Corps has decided to release record amounts of water which promise to inundate a good chunk of the Missouri basin, with little or no notice to the tens of thousands of folks down stream (“Oh, by the way folks we are increasing the volume of the river to 1.6 times its normal flow--thought you would want to know--and it is coming in a week.”) And FEMA says you should have had flood insurance by June 1, 2011 because, after all, you were flooded on that date. Officially. If you happen to be downstream hundreds of miles from the Garrison Dam, and

1. did not learn about the impending release of the Noah-like flood waters prior to the arbitrary deadline set by FEMA;
2. have no water lapping at your door or even the prospect of it;
3. do not live in a flood zone;
4. the river was not even at flood stage when you applied and
5. you have absolutely no “losses in progress” at the time

FEMA maintains that you cannot be insured if you did not act before the arbitrary deadline, based on an event hundreds of miles upstream on June 1, 2011. There is a thirty day waiting period before the policy takes effect, in the normal situation, so even if your application is accepted you are not going to have coverage immediately--and everyone understands this. But to tell the public that they cannot get coverage if they did not know of the impending release on the arbitrary trigger date and obtain a policy prior thereto, seems like one more cruel joke on the public compliments of Uncle Sugar. I can certainly understand that FEMA would deny coverage to someone who lives in a house with water running through or around it at the time the policy is applied for. That does seem fair and reasonable and the NFIP would be right to deny such claims. Note that at least two examples illustrate this situation. In one case, an insured applied for flood insurance on his “camp house,” when, before and after his policy was issued, flood water was already lapping three to four feet up the stilts on which his house rested. Three days after the policy was issued, a levee broke and flooded the living quarters of his house as well. In that case, the NFIP denied coverage on the basis of the “loss-in-progress” exclusion. That is both understandable and reasonable. See, Drewett v. Aetna Casualty and Surety Co., 539 F. 2d 496 (5th Cir. 1976) Likewise, coverage was denied a business owner who applied for flood insurance on the very day his business was flooded, during a torrential rainstorm and while under a flood warning. See, Mason Drug v. Harris, 597 F. 2d 885 (5th Cir. Ala. 1979). But these cases--which illustrate the spirit of the loss in progress doctrine--are a far cry from the case in which a downstream property owner prudently applies for coverage at a time when there is no flood and the river is not even at flood stage--all as a precautionary measure. He or she may be doing so out of an abundance of caution, not believing any threat was imminent, and doing so with the knowledge that they may be denied coverage for damage during the thirty day waiting period. But for the government to arbitrarily suggest that if you did not secure such coverage in advance of an arbitrary date memorializing the release of waters that in many cases no one was told about in advance, is unreasonable. FEMA should address any and all claims under the NFIP on a case by case basis, rather than issue a blanket proclamation denying coverage to anyone who did not have advance knowledge of the Corps decision to drown everyone downstream, or act by the arbitrary date by which FEMA now says any policy must have been issued. It is enough to drown folks with little or no warning; but to expect them to anticipate this flood and punish them when they fail to do so, is doubly and inexcusably cruel. © William Kevin Stoos for Canada Free Press