In an opinion that borders on the bizarre, a split Dallas Court of Appeals panel has held that a homeowners insurance policy with a special deductible for damage caused by a “windstorm” does not apply to damage caused by a tornado.
That was the dispute in Jeff Mankoff and Staci Mankoff v. Privilege Underwriters Reciprocal Exchange (No. 05-22-00963-CV; January 29, 2024). After a 2019 tornado damaged the Mankoffs’ home, they filed a claim for nearly $750,000 in damages. The insurer paid the claim less the windstorm deductible, which came to about $87,000. The Mankoffs filed suit against the insurer seeking a declaration that the deductible did not apply, recovery of the deductible, and attorney’s fees. The parties filed competing summary judgment motions. The trial court granted the insurer’s motion and denied the Mankoffs’. The Mankoffs appealed.
In an opinion by Justice Partida-Kipness, joined by Justice Reichek, the court reversed and rendered judgment in favor of the Mankoffs. It further remanded to the trial court for consideration of their attorney’s fees claim. The majority determined that the undefined policy term “windstorm” was ambiguous and equally amenable to the parties’ competing interpretations. Relying primarily on scientific classifications of “windstorm” and “tornado” published by the American Meteorological Society, as well as on a scattering of statutory references that separately list “windstorm” and “tornado” along with other weather conditions or risks, the majority concluded that the Mankoffs’ interpretation was “reasonable.” Consequently, on the principle that when policy language is ambiguous, it must be construed in favor of the insured if the insured’s interpretation is reasonable, the insured wins.
Justice Miskel dissented. First, she pointed out that nothing in the policy indicated that it intended to define “windstorm” in technical, meteorological terms. Instead, the policy must be interpreted according to the plain meaning of the term. For that purpose, she turned to a long string of dictionary definitions of “windstorm” and “tornado” that, although slightly variable, “consistently describe the key feature of a tornado as a violent wind.” Next, she examined the statutory references cited by the majority and concluded that, “[w]hile listing the two weather events separately may imply that they are not identical phenomena, it does not necessary weigh against an interpretation that a tornado is a subtype of a windstorm—just as not all rectangles are squares, but all squares are rectangles.”
Perhaps the strangest aspect of the majority opinion, and one Justice Miskel politely but utterly refutes, is the plain fact that in every case cited by either side in which windstorm coverage and which involved tornado damage, the insurer admitted coverage. Put another way, nothing in the record of this case indicates that an insurer has ever taken the position that a tornado is not a windstorm. Additionally, as Justice Miskel points out, TDI’s own website explicitly informs homeowners that “[w]indstorm insurance pays to repair or rebuild your house if it’s damaged by hail or wind, from a tornado, thunderstorm, or hurricane . . . .” Thus, a policy with a special deductible for “windstorm” would seem to include a “tornado.” Finally, as Justice Miskel notes but should be emphasized, the 2017 reforms to weather-related claims involving TWIA and commercial insurers broadly define “forces of nature” to include wind, tornadoes, hurricanes, and other types of storms. There is not a single member of the Legislature who when he or she voted on HB 1774 did not understand “windstorm” to encompass “tornado.” Would anyone define a “hurricane” as something other than a windstorm? It looks like at least two justices of the Dallas Court of Appeals would.
Justice Miskel made the absurdity of the majority opinion manifest in this way: “All of the dictionaries and other sources can be read congruously if a tornado is a subtype of windstorm. The majority’s analysis risks further ambiguities: is a squall a windstorm? A gale? A nor’easter? A downburst? [n.b. We would add a “blue norther” to the list.] A variety of colorfully named subtypes of storms could still be windstorms. I conclude that the plain, ordinary understanding of the term ‘windstorm’ includes the various kinds of windstorms and specifically includes a tornado.”
We hope that the insurer sticks to its guns and ask SCOTX to review this case and correct this opinion. The majority has created an ambiguity where there didn’t used to be one and has undoubtedly opened the door to breaking the term “windstorm” into smaller and smaller pieces in the future. As always, who will pay for the mess? You know the answer.
