When the National Weather Service names a storm heading in your direction, you know to expect wind and water. This can create a quandary for property insurers. Is water damage from a named windstorm caused by the flood or the storm? This distinction can mean millions. In New Jersey Transit Corp. v. Certain Underwriters at Lloyd's London, a three-judge panel from the Superior Court of New Jersey held that the New Jersey Transit Corp. was entitled to $400 million in ... Keep Reading »
Flood
Destination Arbitration: Court Holds Service-Of-Suit Clause Does Not Conflict With Policy’s Arbitration Requirement
Coverage disputes often come down to the interplay between endorsements and the body of the policy. But this tension is not limited to terms addressing coverage. It can also extend to areas such as dispute resolution. In Southwest LTC-Management Services, LLC v. Lexington Insurance Co., No. 1:18-cv-00491-MAC (E.D. Tex. Apr. 17, 2019), the court held that a service-of-suit endorsement did not supersede the arbitration clause in the policy. A group of carriers paid $2.5 ... Keep Reading »
Opening the Pandora’s Box of Flood Policies, or How Filing Suit Against Flood Insurers Can Effectively Reduce the Suit Limitations Period
When is an insurer’s “Rejection of Proof of Loss” letter for flood insurance damage, which states on its face that it “is not a denial of your claim,” nevertheless a written denial of claim? According to the Third Circuit in Migliaro v. Fidelity National Indemnity Ins. Co., No. 17-1434 (3d Cir. Jan. 29, 2018), the answer is whenever “the policyholder treats it as such by filing suit against the carrier.” If a flood policyholder treats a proof of loss rejection as a claim ... Keep Reading »
Postdiluvian Perils: Second Circuit Weighs Coverage For Losses Suffered After The Waters Recede
“[N]ow I only hear/ Its melancholy, long, withdrawing roar,/ Retreating, to the breath/ Of the night-wind, down the vast edges drear/ And naked shingles of the world.” — Matthew Arnold As this blog has reported, exclusions and limits for flood coverage have generally held up against the tide of claims arising from Superstorm Sandy. Now that the water is gone, however, new losses have been discovered, and new challenges arise. Last month, in National Railroad ... Keep Reading »
Coverage Not Limited to Schedule of Locations in Fight Over Dam Liabilities
In C. Brewer & Co., Ltd. v. Marine Indem. Ins. Co. of Am., No. SCWC-28958 (Haw. Mar. 27, 2015), the Supreme Court of Hawaii ruled that liability coverage is not limited to only those locations defined in an insurer's schedule of locations. The court found that because a causal connection could be established between the negligent decisions of a business proprietor and the liabilities stemming from those decisions elsewhere, coverage could be applied irrespective of ... Keep Reading »
A Unilateral Scrivener’s Error Can Reflect a Mutual Mistake Requiring Policy Reformation (or, Don’t Expect $20 Million in Additional Coverage Without Paying Additional Premium)
It is, of course, an indispensable part of a scrivener's business to verify the accuracy of his copy, word by word. - Herman Melville October 29 marked the second anniversary of Superstorm Sandy's assault on New York and New Jersey. Although the insurance litigation arising from this storm is just beginning, we have already seen a number of decisions out of New York that limited coverage, based on applicable flood sublimits. Last month, in Cammeby's Management ... Keep Reading »
With Sewers Backing Up, Messy Damage Claims are On the Rise
Andy crawled to freedom through five hundred yards of - - - smelling foulness I can't even imagine. Or maybe I just don't want to. Five hundred yards. The length of five football fields. Just shy of half a mile. –The Shawshank Redemption (1994) Many homeowners and other property insurance policies contain an exclusion to address one of the by-products of the increased frequency of severe weather: it bars coverage for property damage caused by "water which backs up ... Keep Reading »
A Flood by Any Other Name is Still a Flood – or Why Losses Caused by Flood Are Subject to Flood Sublimits
Lawyers are students of language, and they have a reputation for building arguments out of long-ago lessons of grammar and language arts. That reputation is not undeserved. Something as small as the placement of a comma can have a significant impact on coverage. But, at the end of the day, insurance contracts are intended to be enforced on the basis of their plain language. Two recent decisions from New York courts uphold this proposition in the context of applying ... Keep Reading »
CFPB Mortgage-Servicing Regulations will Impact Lender-Placed Insurance
Under Dodd-Frank, the Consumer Financial Protection Bureau (“CFPB”) is authorized to issue regulations that cover the servicing of consumer mortgage loans. In January, the CFPB issued new regulations (‘the “Final Rule”) that extensively amend the mortgage-servicing rules of both Regulation X (the regulation that implements the Real Estate Settlement Procedures Act of 1974 (“RESPA”)) and Regulation Z (which implements the Truth in Lending Act (“TILA”)). The Final Rule ... Keep Reading »