Feng shui is a Chinese philosophical system that supposedly orients buildings and their contents in an auspicious manner. Last month in Patel v. American Economy Ins. Co., — F.Supp.2d —, 2014 WL 1862211 (N.D. Cal., May 8, 2014), however, a California court rejected the notion that it was compensable under a first-party property insurance policy as either a legitimate expense to repair direct physical loss or damage or a necessary extra expense to avoid additional business income loss. On October 14, 2009, a fire filled the dental offices of Dr. Namrata Patel with smoke. Dental and electronic equipment was damaged, and she incurred costs for cleaning and repair, inventory replacement, and lost business income during a one-month closure after the…
Yearly Archives: 2014
Connecticut Holds that When a Lapsed Policy is Reinstated, Coverage is Only Restored Prospectively
In a case of first impression in the Nutmeg State, an intermediate level court in Connecticut recently held that reinstatement of coverage after a lapse for non-payment of premiums does not operate to restore coverage retroactively. In Brown v. State Farm Fire & Casualty Co., 150 Conn.App. 405 (May 27, 2014), the court held that coverage is only restored on a prospective basis, and it barred the insured from recovering for a fire loss that took place between the time of the lapse and the reinstatement. The insured, Ralston Brown, owned a home in Bridgeport, and he purchased a homeowner’s insurance policy from State Farm on September 16, 2004. One year later, the policyholder secured a business policy from the…
Failure to File a Proof of Loss is Fatal, and the Defense Does Not Require a Showing of Prejudice
On June 3, Connecticut’s intermediate level appellate court held that the failure of a policyholder to file a sworn statement in proof of loss was fatal to his claim. Palkimas v. State Farm Fire & Casualty Co., 150 Conn.App. 655, 2014 Conn.App. LEXIS 244 (June 3, 2014) rejected the insured’s arguments that prejudice need be shown, holding that while the insurance company may well need to make a showing of prejudice in cases involving the belated submission of a proof, its burden to make such a showing never arises in cases in which the insured has never submitted such a document. Richard Palkimas was insured under a homeowner’s policy issued by State Farm Fire & Casualty Company, and he sustained…
New York Holds Water Which Backs Up Is Covered If It Originated On The Insured Premises
Last week, in Pichel v. Dryden Mutual Ins. Co., — N.Y.S. 2d —, 2014 WL 1923736 (May 15, 2014), an intermediate level appellate panel in New York brought the state into line with the interpretation of water backup adopted by a number of other jurisdictions. The decision held that policy references to a “plumbing system” mean the plumbing system on the insured premises itself. As a result, a loss caused by water which backs up through sewers and drains is covered if the overflow originated within the insured’s property but excluded if the backup originated off site, as from a clogged municipal sewer system for example. The policyholder owned an apartment complex that was insured by Dryden Mutual. The structure…
Third Circuit Says No to Insured’s Request for Reserve Information
In a victory for insurers, the United States Court of Appeals for the Third Circuit recently rejected an insured’s discovery request for reserve information in a first-party bad faith action. In its April 29, 2014 decision in Mirarchi v. Seneca Speciality Insurance Company, — Fed.Appx. —, 2014 WL 1673748 (3d Cir., April 29, 2014), the Court of Appeals upheld the district court’s denial of the policyholder’s request for the reserves and, in doing so, endorsed the numerous district court decisions that have previously held such information to be non-discoverable. In Mirarchi, a fire damaged the insured’s property. The insurer paid the entire undisputed amount, and the parties proceed to appraisal on the remainder of the claim. An umpire entered an award close…
Congress Moves Towards Reauthorization of TRIA
Congress returned last week from an extended spring recess with few legislative days left on the calendar before the mid-term elections and a long list of must-do legislation. One piece of legislation that seems certain to get attention will be a bill reauthorizing the Terrorism Risk Insurance Act (TRIA). In testimony presented over the last year before committees in the House of Representatives and the Senate, insurance industry representatives have made it clear that the federal backstop provided under TRIA is still relevant and essential to ensuring that terrorism risk insurance is both widely available and affordable. This has led to bipartisan and bicameral support for a reauthorization of TRIA that now seems certain to happen. Only two questions remain:…
California Court Holds an Adjuster May Be Personally Liable for Misrepresentations Made to the Insured
Earlier this month, an intermediate level California court rejected arguments that an insurance company’s adjuster owes no independent duty to the policyholders and cannot be liable even for “appalling” misconduct if he is acting within the course and scope of his employment. According to the panel, the adjuster occupies the same “special relationship” with the insured as the insurance carrier does, and he can, therefore, be independently liable for the tort of negligent misrepresentation during the adjustment. In Bock v. Hansen, — Cal.Rptr.3d —, 2014 WL 1315314 (Cal. App. 1st Dist. Apr. 2, 2014), Michael and Lorie Bock submitted a claim to their insurerafter a 41-foot, 7,300 pound tree limb crashed onto their home. The insurer assigned an adjuster, Craig Hansen,…
Posted in Investigation, Loss Adjustment
Florida, Georgia and Texas Appraisal Update: Is Causation A Coverage Question For The Court or A Damages Question for The Panel?
In most jurisdictions, underlying coverage issues must be resolved prior to invoking appraisal in a first-party property claim. The question of what constitutes a coverage issue (typically reserved for a court’s judicial determination) and what constitutes a damage issue (appropriate for an appraisal panel’s consideration), however, is not always readily apparent. A routine subject of this particular appraisal debate is whether causation is a coverage or a damages inquiry, and recent decisions under Florida, Georgia and Texas law are evident of two things: (1) the determination of the issue is, in large part, factually dependent; but (2) the debate is far from over. In a recent appellate decision, Citizens Prop. Ins. Corp. v. Denetrescu, 2014 WL 1225124, — So.3d —…
Posted in Arbitration and Appraisal, Causation, Preservation and Protection, Wear and Tear
Tenth Circuit Holds That Two-and-One-Half Years and Two-and-One-Half Million Dollars Do Not Constitute Prejudice
In BSC Holding, Inc. et al. v. Lexington Ins. Co., — Fed.Appx. –, 2014 WL 929194 (10th Cir., March 11, 2014), the Tenth Circuit recently underscored how difficult it can be for an insurer to demonstrate prejudice as a result of late notice. The District of Kansas had granted summary judgment to Lexington, but the Court of Appeals reversed and sent the matter back to the lower court, holding that “substantial prejudice” had not been shown despite the fact that the policyholder had waited two-and-one-half years to notify the carrier and had spent $2.5 million dollars before doing so. Lyons Salt Company owned a salt mine in Kansas. In January 2008, mine workers detected an inflow of water into the…
Social Media — The Possibilities Are Endless!
Facebook. Instagram. YouTube. Twitter. LinkedIn. SnapChat. Flickr. Google+. Tumblr. WeChat. MySpace. WhatsApp. Reddit. The list of social media and networking sites goes on and on. It’s fairly common knowledge these days that a defendant can use social media and networking sites such as those to investigate personal injury claimants. In addition, more and more companies are using these types of sources to research potential employees. You may be surprised to learn, however, that social media can be an extremely useful tool for the investigation of property damage and business interruption losses. Consider some scenarios: An insured submits a claim for damage to a roof, asserting that it was the result of a recent storm. However, using the “Historical Imagery” capability…
