As noted yesterday, last month saw an intermediate level appellate panel in Florida address whether the attorney for the policyholder could serve as that party’s appraiser. It was a case of first impression in the Sunshine State. In Florida Ins. Guar. Assn. v. Branco, 2014 WL 4648208, 2014 Fla. App. LEXIS 14602 (Fla.Dist.Ct.App., Sept. 19, 2014), the panel held that it was impermissible to select one’s own lawyer to act in that capacity when the contract of insurance called for a “disinterested” appraiser. The Brancos’ home was damaged by a sinkhole in April of 2010, and they made claim under a homeowner’s policy issued by Homewise Preferred Insurance Company. The insurer denied liability, asserting that what had happened did not…
Blog Archives
Florida Court: Your Own Attorney is Simply Not a “Disinterested” Appraiser
Tagged with: Disinterested Appraiser, Florida
Posted in Arbitration and Appraisal, Loss Adjustment, Sinkhole
Posted in Arbitration and Appraisal, Loss Adjustment, Sinkhole
Florida Court Holds “Retained Rights” Provision Does Not Render an Appraisal Clause Unenforceable
In a pair of sinkhole cases, different panels of Florida’s intermediate level appellate court recently compelled appraisal, and the decisions are instructive because they address both challenges to the procedure and also the question of who is qualified to serve as an appraiser. Today’s post will discuss Cincinnati Ins. Co. v. Cannon Ranch Partners, Inc., – So.3rd –, 2014 WL 5286519, 2014 Fla. App. LEXIS 17033 (Fla.Dist.Ct.App., Oct. 17, 2014) where the panel rejected arguments that the appraisal clause was unenforceable because it permitted the carrier to deny the claim even after an appraisal had taken place. Tomorrow’s post will then address who constitutes a “disinterested” appraiser. The case involved sinkhole damage to a piece of property owned by Cannon…
Tagged with: Florida, Retained Rights
Posted in Arbitration and Appraisal, Loss Adjustment, Sinkhole
Posted in Arbitration and Appraisal, Loss Adjustment, Sinkhole
Fourth Circuit: Twenty-Seven Days of Inaction Enough to Waive Right to Rescind for Violations of Protective Safeguards Clause
The marriage liturgy in the Anglican Book of Common Prayer contains the well-known line “speak now or forever hold your peace,” and the take-away from a recent Fourth Circuit decision out of North Carolina is clearly “act now or forever lose your rights.” In Colony Ins. Co. v. Peterson, — Fed.Appx. —, 2014 WL 4179962, 2014 U.S. App. LEXIS 16320 (4th Cir., Aug. 25, 2014), a divided panel of the Court of Appeals held that an insurer had to pay a $2.5 million fire loss even though the policyholders had made material misrepresentations in their application and violated a protective safeguards endorsement. The carrier was deemed to have waived its right to rescind and to be estopped from denying coverage…
Tagged with: Fourth Circuit, North Carolina
Posted in Arson, Arson and Fraud, Fire, Inspection, Protective Safeguards, Rescission, Waiver
Posted in Arson, Arson and Fraud, Fire, Inspection, Protective Safeguards, Rescission, Waiver
Texas Limits Scope of Anti-Technicality Statute and Material Breach Doctrine in Vacancy Clause Case
Last week, the Texas Supreme Court handed down an opinion that involved two unique (and somewhat troublesome) creatures of state law – the so-called “anti-technicality” statute and the material breach doctrine – and in Greene v. Farmer’s Ins. Exc., 2014 WL 4252271, 2014 Tex. LEXIS 758 (Tex., Aug. 29, 2014), it effectively limited the scope of both. The court thereby gave effect to a provision in a homeowners policy that suspended coverage if a dwelling was allowed to remain vacant for more than sixty days. The case arose after Lewayne Greene moved into a retirement community, vacating her home in Irving, Texas and placing the structure on the market. She notified her insurer of the move, but she did not…
Tagged with: Anti-Technicality, Material Breach, Texas
Posted in Causation, Fire, Prejudice, Vacant or Unoccupied
Posted in Causation, Fire, Prejudice, Vacant or Unoccupied
Current Florida Sinkhole Statute Held to Apply Even Though Policy Used Prior Statute’s Formulation
Florida adopted a stringent, five-part definition of what constitutes a covered sinkhole loss in 2011, but many policies continue to employ the 2005 statutory formulation which merely defined “sinkhole loss” as “structural damage to the building, including a foundation, caused by sinkhole activity” and importantly left the term “structural damage” undefined. The result was that Florida courts split into conflicting camps with respect to how such a contract of insurance should be read; the Middle District for example, held for policyholders in two cases and for the carrier in a third, as reported in a prior post that can found here. When one of the former decisions recently reached the Eleventh Circuit, the Court of Appeals determined that the language…
Texas Court Lays Out a Useful Roadmap of the Defenses to a Hailstorm Claim
Hailstorm claims for damage to roofs often involve belated notification that an already old or damaged structure has been further compromised. In a recent Texas case, the court provided a primer for carriers confronting such claims, addressing a trifecta of defenses available – lack of causation, late notice, and prejudice. The case is Hamilton Properties v. American Insurance Company, 2014 WL 3055801, 2014 U.S. Dist. LEXIS 91882 (N.D.Tex., July 7, 2014). Plaintiff Hamilton Properties acquired the Dallas Plaza Hotel in 2006 and mothballed the structure in February of 2009. The hotel was insured by American Insurance Company (AIC) from February through September of 2009. In 2012, the policyholder notified AIC that it was making claim for roof and water damage…
South Carolina: Admission of Cause & Origin Testimony by Fire Chief Was Prejudicial Error
In James D. Fowler v. Nationwide Mutual Fire Ins. Co., 2014 WL 3844215, 2014 S.C. App. LEXIS 209 (S.C. App., Aug. 6, 2014), South Carolina’s Court of Appeals recently held that it was prejudicial error to allow the jury to consider either the report of a volunteer fire chief or his testimony on the issue of cause and origin if he does not qualify as an expert. The take away is that if a firefighter can’t testify as an expert, any opinion he or she has on causation is simply not a datum that the fact-finder is entitled to know about. The insured’s home was destroyed by fire in January of 2007. His homeowner’s carrier, Nationwide Mutual Fire Insurance Company,…
Tagged with: South Carolina, Volunteer Firemen
Posted in Arson, Arson and Fraud, Experts, Fire, Investigation
Posted in Arson, Arson and Fraud, Experts, Fire, Investigation
Vermont: There is No Cause of Action for Negligence in Adjusting a Property Loss
Last week, the Vermont Supreme Court firmly rejected the notion that an insured can bring a cognizable claim for negligence against his or her carrier in connection with the inspection and handling of a first-party property insurance claim. In Helena G. Murphy v. Patriot Ins. Co., 2014 VT 96, 2014 WL 3965639, 2014 Vt. LEXIS 101 (Vt., Aug. 14, 2014), the court recognized that the relationship was “fundamentally contractual” in nature and that a policyholder’s rights flowed solely from the insurance policy and the covenant of good faith and fair dealing implied in that instrument. In July of 2007, the insured, Helena Murphy, reported damage to the roof of her house and interior water damage to her homeowner’s carrier, Patriot…
Florida Insurer Waives Two-Year Requirement by Waiting That Long to First Raise It
In Axis Surplus Ins. Co. v. Caribbean Beach Club Assn., 2014 WL 2900930 (Fla.Dist.Ct.App., June 27, 2014), a Florida court recently held that the insurer could not rely on a policy requirement that conditioned recovery of the cost of complying with current building codes during reconstruction on having completed the work within two years of the loss. The insurer waived the two-year requirement by failing to raise it until the entire two years had elapsed and choosing to spend that time cooperating with the policyholder’s efforts to determine the necessary scope of repair instead. The insured, Caribbean Beach Club Association, owned a time-share condominium building in Fort Myers that was heavily damaged by fire in April 2003. It had property…
In Iowa, Rain is What Gene Kelly Sang In – Not Water From a Burst Drain Pipe
Earlier this year, an Iowa court recognized that rain becomes rainwater once it has fallen, and it held that policy language excluding loss caused by “rain” – without more – will not operate to bar coverage for water from a burst drain pipe that ruptured during a rainstorm. The decision is reported at Amish Connection, Inc. v. State Farm Fire & Cas. Co., 847 N.W.2d 237, 2014 WL 1234161 (Iowa Ct. App., March 26, 2014). The insured, Amish Connection, Inc., leased space in a mall in Waterloo, Iowa, and its merchandise was damaged after a 4” cast iron drain pipe above the ceiling burst during a rainstorm. The pipe carried water from the roof drains to a storm sewer. The…
