It’s unclear if homeowners’ insurance covers mudslide damage

Pamela Jameson Boehr and her husband own a home and two rental properties in Montecito. Each site was affected by the devastating mudslides that recently swept through the area.

Boehr, 77, told me her personal residence wasn’t significantly damaged, but one of the rental properties, a pair of duplexes, is now covered with nearly two feet of mud and debris.

“There’s major destruction to the carport,” she said. “The tool shed was wiped off the face of the Earth.”

Will Boehr’s homeowners’ insurance cover the damage?

“That remains to be seen,” she replied.

First came fire. Then mud.

Now come the lawyers.

The typical homeowners’ insurance policy doesn’t cover flood damage, which would include some mudslides. You’d need supplementary coverage for that.

But the typical home insurance plan does cover fire-related damage.

So the case many Montecito residents will be making — as evacuation orders are finally lifted and people get their first up-close looks at their properties — is that the mudslides wouldn’t have happened, or been so severe, if not for the catastrophic Thomas fire, which scorched nearly 300,000 acres last month.

In other words, homeowners’ mudslide claims will be for fire damage, not flood damage.

Whether that argument holds up in court is an open question.

“Your insurance company’s first answer is going to be, no, you’re not covered,” said Amy Bach, executive director of the advocacy group United Policyholders. “But we’re encouraging all homeowners to fight.”

As the recent fires raged, I wrote about some of the pitfalls homeowners could face in dealing with insurers. While you’d certainly be covered if your home burned down, what about if your property was affected by smoke and ash?

Lawyers told me insurers can be inconsistent on such questions, requiring property owners to be assertive in submitting claims.

Homeowners also can pay a little extra for what’s known as an extended replacement cost endorsement. This is additional coverage intended to accommodate at least a portion of any unexpected cost increases in labor or building materials.

Mudslides and mudflows are a whole other matter. And even flood insurance won’t always protect you.

It comes down to whether you’re dealing with a chocolate milkshake or chocolate cake.

According to the Federal Emergency Management Agency, “a mudflow is a river of liquid mud similar in consistency to a milkshake. Mudslides, on the other hand, are more solid and more closely resemble a cake.”

Milkshakes are usually covered by flood insurance. Cake, not so much.

Debris-laden mud apparently puts homeowners in the territory of “earth movement,” and that’s a place insurers make clear they don’t want to go.

Nearly all homeowner policies exclude coverage for earthquakes, landslides and other instances of the ground going places. Supplementary coverage, such as quake insurance, is available, but it’s pricey.

Only about 10% of California homeowners are covered for quakes.

Courts will sometimes side with homeowners if an earth movement is deemed man-made — such as a landslide resulting from a neighbor excavating a hill. But that doesn’t seem to apply in the case of the Thomas fire and Montecito mud.

On the other hand, “areas where wildfires or human modification of the land have destroyed vegetation on slopes are particularly vulnerable to landslides during and after heavy rains,” according to the Centers for Disease Control and Prevention.

That certainly seems to be the case in Montecito. The Thomas fire was followed by fierce storms, which got the mud and debris flowing.

“This is all about the fire,” Bach said.

At least one state lawmaker agrees.

Sen. Hannah-Beth Jackson, a Santa Barbara Democrat, introduced legislation in Sacramento last week requiring insurers to consider the mudslides a consequence of the wildfires, and thus covered by homeowners’ insurance.

“My bill makes it clear that current law requires coverage of these fire-caused events,” she said. “This is a question of justice and fairness.”

Armand Feliciano, vice president of the Property Casualty Insurers Assn. of America, responded that the industry is still reviewing Jackson’s bill, SB 917.

“We have initial concerns,” he told me. Not least among those concerns is a blanket acknowledgment that every insured property owner in the Montecito area has a right to compensation.

“You have earthquake insurance. You have flood insurance. You have home insurance,” he said. “These are three different things.”

I pointed out that the sequence of events — fires, then storms, then mudslides — seems to support homeowners’ contention that any damage is fire-related.

“We’re sensitive to that,” Feliciano replied. “Insurance companies will do their due diligence on a case-by-case basis to determine the predominant cause.”

Bach at United Policyholders countered that at least some well-heeled residents of Montecito likely won’t hesitate to lawyer up and force insurers to do right.

It’s worth noting that the area is home to a few rather prominent figures, including Oprah Winfrey, Ellen DeGeneres and Rob Lowe. These aren’t the sort of folk PR-minded businesses want to pick fights with.

“Insurers will probably want to settle with celebrities,” Bach said. “But you won’t hear about it because they’ll be confidential settlements.”

Yeah, I’d hate to see that getting out.

It would be like having your cake and eating it too.