Archives: Property Insurance

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The 5th Amendment and Insurance Coverage

When a property is destroyed by fire, the property owner’s property insurance likely will cover the loss all things being equal.  But if the fire was intentionally set, coverage likely will be denied.  In the case of a residential property, policies often condition coverage on occupation of the premises.  In a recent case before the … Continue Reading

No Point in “Wining” About It — No Coverage for Missing Wine

In an interesting case about wine and wine collectors, purchasers of fine wines sought coverage for wine they ordered from a seller but never received.  Turns out the seller was running a wine Ponzi scheme and hundreds of customers never received thousands of bottles of wine ordered.  The case reached the Tenth Circuit Court of … Continue Reading

Forum Selection Clause in Excess Policy Overrides Appraisal Clause in Primary Policy

When primary and excess polices cover the same property many assume that the excess policy will follow the form of the primary policy.  That is not always the case, which is a good reason why reading the actual terms of both policies is important.  In a recent case involving hurricane damage to a Florida development, … Continue Reading

To Match or Not to Match, That Is the Question

After Hurricane Sandy, I found some shingles missing off my roof.  My contractor said the entire roof should be replaced.  My insurer would only pay for replacing the missing shingles.  The type of shingle was readily available.  But what happens if the damage to the roof, siding, facade, floor occurs to only parts of those … Continue Reading

War (Exclusions), What Is It Good For?

Back in the day, policyholders and insurers (and maybe everyone) understood what war was.  War was a military action between government forces of sovereign nations.  Today, not so much.  With the proliferation of terrorism and armed groups controlling various jurisdictions like pseudo-governments, it is often difficult to know when an attack is war or terrorism.  … Continue Reading

Faulty Excavation Support Not Covered By Contractor Controlled Insurance Plan

Construction projects are often subject to myriad claims.  Subcontractors can cause damage to third-parties and their property, the project can be delayed by municipal inspections or citations, workers can get injured, and property can be damaged by fire, collapse or weather.  To organize construction projects, sometimes insurance is purchased through a plan.  A contractor controlled … Continue Reading

Breach of Cooperation Clause Shields Carrier From Duty to Indemnify

The cooperation clause in an insurance policy is an essential part of the insurance bargain.  If the policyholder does not cooperate in the reporting or investigation of a claim, the coverage the policyholder paid for may be lost.  In a recent case, a policyholder whose employees lied to investigators was found to have breached the … Continue Reading

When a Loss Falls Within Policy Exclusions as a Matter of Law the Complaint Cannot Survive

The policyholder bears the burden of demonstrating that a loss suffered falls within the terms of the insurance policy.  In other words, the existence of coverage is an essential part of a policyholder’s claim.  Where the insurance company raises an exclusion, the initial burden is on the insurer to show that all the allegations within … Continue Reading

Late-Notice Defense for Insurance Coverage Is Still a Thing

Notice provisions in insurance policies are there to inform an insurer of a claim in a timely manner so that the insurance company can properly investigate and address the claim.  Most notice provisions are conditions precedent to an insurer’s liability. While there has been some erosion to the defense of late-notice to coverage, a recent … Continue Reading

Crumbling and Cracking Is Not a Collapse Under an All-Risks Policy

Intuitively, an all-risks policy is supposed to cover all risks.  But we know that even all-risks policies have exclusions.  Sometimes, however, an exclusion is reinstated in part to provide coverage for a limited species of the excluded item.  For example, an all-risks policy may exclude “collapse,” but may write back that coverage to a limited … Continue Reading

Windstorm, Storm Surge, Flood Exclusion and Anti-Concurrent Causation Confusion

Back in October, the U.S. Court of Appeals for the Second Circuit issued a Summary Order (no precedential effect) in a Hurricane Sandy storm surge coverage dispute.  The court reversed summary judgment in favor of the insurer and remanded the case back to the district court to assess whether an endorsement’s anti-concurrent causation clause conflicts … Continue Reading

New York Court of Appeals Looks to Policy Language Again to Allocate Risk Proportionately to Insurers

On March 27, 2018, New York’s highest court finally brought closure to an appeal of a 2014 decision denying an insurer’s motion for partial summary judgment in its coverage litigation with its policyholder.  The Court of Appeals’ decision in Keyspan Gas East Corp. v. Munich Reinsurance America, Inc. is available here.  In affirming the Appellate … Continue Reading

Failure to Comply With Protective Safeguards Endorsement Results in Loss of Coverage

A Protective Safeguards Endorsement (“PSE”), as defined by my friends at IRMI, is “[a] property insurance endorsement that makes it a condition of coverage that the protective safeguards cited in the endorsement (such as an automatic sprinkler system or night watch guard) be in operation at all times except when the insurer has been notified of … Continue Reading

Property Damage Found Despite Growing Crack Originating Prior to Policy Period

A recent case from a New York intermediate appeals court sheds some light on how the courts interpret property and business interruption coverage for power-generating equipment.  The case raised two interesting issues.  First, whether a pre-existing crack in a power-generating turbine precludes coverage.  The second, whether time-element coverage was available for a loss of future … Continue Reading

Florida Office of Insurance Regulation Issues Emergency Order Post Hurricane Irma

On September 4, 2017, Florida’s Governor, Rick Scott, declared a state of emergency in every county in Florida in anticipation of Hurricane Irma, through Executive Order No. 17-235, triggering Insurance Commissioner David Altmaier’s related emergency authority. Fla. Stat. § 252.63(1). On September 13, 2017, Commissioner Altmaier issued the Office of Insurance Regulation’s (the “Office”) Emergency … Continue Reading

Will the Upsurge in Cat Bonds Weather the Storm(s)?

As yet another hurricane bears down on the US, the insurance press is reporting a surge in Cat Bonds and other alternative capital.  Cat Bonds and the amounts reinsured are apparently at a high.  Cat bonds, as we know, respond to catastrophic loss events.  Cat Bonds exist for various types of large property loss events, … Continue Reading

Hurricane Harvey: Anticipating a Flood of Claims and Litigation

The aftermath of Hurricane Harvey will include a surge in insurance claims by homeowners and commercial entities.  Property and casualty insurers should be aware of a Texas insurance reform law relating to claims dispute litigation and recent directives issued by the Texas Department of Insurance. INITIATING CLAIMS DISPUTE LITIGATION – TEXAS HOUSE BILL 1774 House … Continue Reading

Breasting Dolphin Piles and Fortuity Under All-Risk Policies

An all-risk policy is meant to cover a loss triggered by any conceivable cause not excluded under the policy. While the burden is on the policyholder to establish a prima facie case for coverage, the policyholder need only show (1) the existence of an all-risk policy, (2) an insurable interest in the subject of the insurance contract, and … Continue Reading

How To Void an Insurance Claim By Really Trying

Nearly every insurance policy has a clause that requires the insured to cooperate with the insurer in the investigation of the claim. Most insurance policies also provide that the insured should do everything necessary to secure, and do nothing to impair, the insurer’s subrogation rights. This is especially important when property damage is alleged. These … Continue Reading

Florida Property Insurers Must Pay All Losses If Any “Concurrent Cause” Is Covered

In the latest of a string of recent decisions adverse to insurers, the Florida Supreme Court held that, where a residential property incurs damage due to the cumulative or combined effects of multiple “concurrent” causes, any of which a homeowners policy covers, the insurer must pay the entire loss even if its policy expressly excludes … Continue Reading

New York Appeals Court Holds No Allocation of Environmental Losses to Insurers for Uninsured Years

In a case of first impression, a New York intermediate appellate court has held that the policyholder, rather than existing insurers, must be allocated  environmental cleanup costs for periods of time when environmental cleanup insurance was not available in the marketplace. The decision reverses the denial of the insurer’s partial motion for summary judgment.… Continue Reading
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