Insurance policies are designed to indemnify an insured by putting the policyholder in the same position he or she would have been in had no loss occurred. In the context of property insurance policies, damaged property is typically valued based on its estimated actual cash value (ACV) if it is not repaired or replaced. In order to calculate ACV, an insurer will often calculate the replacement cost (RCV) based on the cost to repair or replace the property with materials ... Keep Reading »
Damage/Loss
Florida Legislature Passes Sweeping Assignment of Benefits Legislation
Significant changes appear to be in the pipeline for Florida property insurers after the Florida legislature passed sweeping assignment of benefits (AOB) reform legislation last week. If the legislation is signed into law (Governor DeSantis has indicated it will be), it will take effect on July 1, 2019. The legislation applies to residential and commercial property insurance policies and includes new restrictions on AOBs, changes to the fee-shifting framework for AOB ... Keep Reading »
Break Out Your Crystal Ball: New York’s First Department Relies on Policy’s Mitigation Provision as Support for Allegation That Consequential Damages Were Foreseeable
An insured sought coverage under its commercial property insurance policy for property damage incurred after construction work was performed in an adjoining building. Contending the insurer’s “investigatory process has taken so long and become so attenuated that the structural damage to the building has worsened,” the insured brought suit for breach of contract for failure to pay a covered loss under its insurance policy and breach of the implied covenant of good faith ... Keep Reading »
When a Nightclub Is Forced to Say Goodnight: California Appellate Court Applies Broad Reading of “Loss of Use” Provision
The frustration property owners must feel when the actions of another cause them to no longer be able to use their property as originally intended is certainly palpable, but when the property is not damaged and still can be used for other purposes, is there a covered loss of use of tangible property? The California Court of Appeal answered this question affirmatively in Thee Sombrero, Inc. v. Scottsdale Insurance Company, No. E67505 (Cal. App. Ct. Oct. 25, 2018). Thee ... Keep Reading »
SEC-ordered Disgorgement is an Uninsurable “Penalty,” not a Covered “Loss”
A New York intermediate appellate court has ruled that a $140 million “disgorgement” payment ordered by the SEC in resolution of an investigation into securities laws violations was a “penalty” that was not covered by insurance rather than a covered “loss.” The case, J.P. Morgan Securities, Inc. v. Vigilant Ins. Co., 2018 NY Slip Op. 06146 (App. Div., 1st Dept. Sept. 20, 2018, stemmed from a 2003 investigation into claims that Bear Stearns employees knowingly ... Keep Reading »
Crime Policy Won’t Cover Strip Club That Overcharged for Undressing, Says Nevada District Court
In CP Food & Beverage, Inc. v. United States Fire Insurance Company, No. 2:16-cv-024210APG-GWF (D. Nev. Aug. 6, 2018), the U.S. District Court in Nevada found that a commercial crime policy’s coverage for loss “resulting directly” from employee theft did not cover the insured’s liability to reimburse its customers who were overcharged by employees. Instead, the court followed the “direct means direct” approach and ruled that the policy provided coverage only for the ... Keep Reading »
Defining Indemnity in the Context Of Actual Cash Value Calculations
“The basic premise of traditional property insurance is the concept of indemnity. The insured who suffers a covered loss is entitled to receive full, but not more than full, value for the loss suffered, to be made whole but not be put in a better position than before the loss.” In re: State Farm Fire & Cas. Co., 872 F.3d 567, 573 (8th Cir. 2017). The concept of indemnification for loss is at the core of property insurance reimbursement. Insurance policies are ... Keep Reading »
Look Beneath the Surface: No Coverage for DC Row House Collapse Under Builder’s Risk Policy
The interpretation of a property insurance policy may seem like a dull endeavor, but courts sometimes face fundamental questions about what words mean, or how we conceptualize cause and effect. In Taja Investments LLC v. Peerless Ins. Co., No. 16-1854 (4th Cir. Oct. 11, 2017), the Fourth Circuit Court of Appeals confronted both issues to determine that two exclusions in a builder’s risk policy applied to bar coverage for the collapse of a row house under renovation in ... Keep Reading »
Georgia Federal Court Rules on Questions of Efficient Proximate Cause, Manifestation/Continuous Trigger and Pro Rata Allocation of Damages
In ACE American Ins. Co. v. Exide Technologies, Inc. and The Wattles Co., No. 1:16-CV-1600-MHC (N.D. Ga. Sept. 20, 2017), the Federal District Court for the Northern District of Georgia applied a continuous trigger theory to an all risk property policy and declined to allocate damage, resulting in a single first-party property carrier being responsible for several years of damage. This case demonstrates that courts in some jurisdictions may require that policy language ... Keep Reading »
New York Court Upholds Suit Limitation Period, Ruling Appraisal is Not a Condition Precedent to Filing Suit
Courts will generally uphold reasonable suit limitation periods in property insurance policies, if the insurer does not affirmatively waive or extend them. In MZM Real Estate Corp. v. Tower Ins. Co. of New York, No. 452741/2015 (N.Y. Sup. Ct. April 11, 2017), a New York court followed the general rule. In enforcing a suit limitation period, the court was unpersuaded by the insured’s argument that once appraisal is demanded it becomes a condition precedent to filing ... Keep Reading »
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