The property damage and injury attorneys at Parr Richey are continuing to monitor the aftermath of the devastating fire at the plastics recycling facility in Richmond, Indiana that started on April 11, 2023 and continued for an extended period of time to cause large volumes of toxic, hazardous materials to spew into the air.
As has been widely reported, the EPA has collected samples and has found dangerous chemicals and even asbestos in debris widely distributed by the huge fire. As reported by the Associated Press (Flesher, April 14, 2023), “[m]onitors in the evacuation zone detected hydrogen cyanide, benzene, chlorine, carbon monoxide and volatile organic compounds” in the debris from this fire.
Property owners and citizens who have been or may later be affected by this preventable disaster should not delay in contacting legal counsel to help them protect their rights. In some cases, it will be critically important to document and preserve evidence, give timely notice of claims, and take other steps to make certain that victims of this fire have the best chance of securing fair and just compensation.
For updated information, the U.S. EPA has set up a website for the My Way Trading Warehouse Fire – available at this link.
The recent riots in Minneapolis, Atlanta, Detroit, Indianapolis and elsewhere have caused some business owners and homeowners to be concerned about insurance coverage for losses caused by violent acts of destruction of property. The short answer is that many standard insurance forms do include coverage for such losses, but determining exactly what is covered is a matter of reviewing each individual policy in light of the circumstances of the actual loss and damage.
If your home or business (or auto) is damaged by a riot or “civil commotion”, there is usually coverage for such losses subject to important limitations contained in standard policy forms. In one standard business coverage form, for example, “riot and civil commotion” are included within the definition of “Specified Causes of Loss”, and coverage for things like building damage and business interruption are available accordingly.
The same policy does not define what constitutes a “riot”. Courts have reached differing conclusions on what constitutes a “riot” or “civil commotion.” A riot is defined by Black’s Law Dictionary (9th ed. 2009) as:
An assemblage of three or more persons in a public place taking concerted action in a turbulent and disorderly manner for a common purpose (regardless of the lawfulness of that purpose).
An unlawful disturbance of the peace by an assemblage of usually three or more persons acting with a common purpose in a violent or tumultuous manner that threatens or terrorizes the public or an institution.
The main thing to remember is that most business policies will provide coverage for building damages, business losses and extra expenses incurred as a result of a riot. In the event of such losses, it is important to have your policy reviewed carefully by an insurance coverage professional.
On February 19, 2020, the Indiana Court of Appeals issued an opinion that clarified whether plaintiffs can recover damages for the inherent diminished value of personal property caused by the negligence of a tortfeasor. In Shield Global Partners-G1, LLC v. Lindsay Forster, the defendant rear-ended a pickup truck and admitted the accident was her fault. The truck was repaired after the accident occurred and was appraised twice in order to determine its diminished value. The plaintiff then filed a negligence action against the defendant to recover damages for the inherent diminished value of the truck following repairs.
The trial court initially denied the plaintiff’s claim for damages for the diminished value of the truck by equating these damages to “stigma” damages, which are not recoverable unless the property is permanently damaged. However, the Indiana Court of Appeals interpreted the case relied on by the trial court, Wiese-GMC, Inc. v. Wells, to reach a different conclusion.
The Wells case established, among other things, that diminished value damages are recoverable when “repair will not restore the item of personal property to its fair market value before the causative event.” The Indiana Court of Appeals therefore read this case to mean that, “even if the repair restores the property to its previous condition, damages may still be recovered if there is a resulting loss of fair market value to the property as a result of it having been damaged and then repaired.”
The Court of Appeals went on to discuss how property that has been damaged is likely to have a lesser fair market value even if repaired. In other words, recovering the cost of repair is not always sufficient to make an injured party whole again. Even after repairs, an owner may not be able to sell the vehicle at its fair market value before the accident. The Indiana Court of Appeals therefore clarified that when the cost of repair will not restore personal property to its fair market value, the diminution in value may be recovered as well.