"Jury’s Smoke Damage Award to CJ Couple may be Unprecedented"

Attorney Robert E.L. Bonaparte recently received a jury verdict in Southern Oregon and The Grants Pass Daily Courier wrote a story about it.

Jury’s Smoke Damage Award to CJ Couple may be Unprecedented

By Jeff Duewel of the Daily Courier

A Cave Junction couple who challenged their insurance company over damage claims from a brush fire in 2015 won a possible precedent-setting $10,000 verdict last week in Josephine County Circuit Court after a three-day jury trial.

Bob Bonaparte, attorney for Greg and Ronda Nelson, said his clients were originally given a check for $2,743 from Liberty Mutual, then eventually given $28,000 more by the company two years after filing suit in 2017.

The jury award was on top of that.

The Nelsons also settled out of court in 2018 for an undisclosed amount with Rough & Ready Lumber, the sawmill where the Krauss Lane Fire was sparked by discarded hot ash from electricity generating boilers.

Rough & Ready, which shut down the mill in 2016, eventually paid $364,000 to the Oregon Department of Forestry for suppression of the fire, which threatened 125 homes.

Bonaparte said his clients' case against Liberty Mutual is unique because while the Nelsons lost heavy equipment, classic cars, fencing, firewood and landscaping outside their home, the flames didn't hit the house.

"I think this case may be the first in Oregon to litigate the issue of smoke damage from a wildfire, where the wildfire does not physically come into contact with the home," Bonaparte said. "The insurance company fought this case tooth and nail because it was worried about the case spawning copycat claims. During closing argument it warned that an award in our case could open the floodgates to thousands of claims by Southern Oregon homeowners who experienced any degree of wafting smoke from the many wildfires in the area.

"I've done dozens and dozens of fire cases, and I've never had a case involving drifting smoke," he said.

Attorneys for Liberty Mutual did not respond to a request for comment.

The Nelsons own a logging company and Greg Nelson is a firefighter. He was in California fighting a wildfire there when the Krauss Lane Fire hit.

Ronda Nelson said she drove to their property and saw flames approaching the house and shop before the fire made a last-second turn with the wind. She grabbed a hose and also saved dogs and horses.

"A helicopter stopped the flames 20 feet from the house," she said.

She said while most of the heavy equipment was covered by another policy, the money offered by Liberty Mutual wouldn't have covered the wood pile.

"They didn't want to pay. I spent three days in Grants Pass with a jury trial," she said. "You would have thought they were trying a murder. It was ridiculous they spent so much money. The top dollar we asked was $23,000."

Nelson and Bonaparte said the home was filled with soot, and carpets and other fabric had to be cleaned, and the smell lingered. The smoke damage was estimated at $25,000.

Lawsuits like this could become more common, said Amy Bach, executive director of San Francisco-based United Policyholders, a national organization that helps consumers with insurance matters.

Bach said smoke damage claims have been a sensitive point between homeowners in wildfire areas and insurance companies for several years.

It seems to be ramping up, following the recent heavy fire seasons. Smoke blanketed large areas in California after devastating wildfires in Santa Rosa and Napa in 2017 and Redding and Paradise in 2018. Thousands of homes were lost.

Grants Pass had its worst-ever smoke year in 2018, with 22 days of an air quality index that reached unhealthy for sensitive groups or worse.

"In the last couple of years we've seen insurance companies issue new language that tries to distinguish wildfire smoke from fire damage," Bach said. "As soon as we saw that we brought it to the (California) Department of Insurance and said, 'You can't do this.' The department hasn't taken an official position."
"In our opinion an insurance company should not be allowed a different standard of coverage for wildfire smoke or any other kind of smoke damage," Bach said.

"The insurance companies got away with cutting flood and earthquake out of basic home insurance, but they can't be allowed to cut out fire. What do you have left?"