On November 26th, a unanimous panel of Florida’s Second District Court of Appeals held that a trial judge had erred in placing the burden of showing that loss was caused by covered sinkhole activity on the shoulders of the insured. In Mejia v. Citizens Prop. Ins. Corp., 2014 WL 6675717, 2014 Fla. App. LEXIS 19526 (Fla.Dist.Ct.App., Nov. 26, 2014), the court stated that the policyholder under an all-risk contract of insurance has met his burden by showing that the insured property suffered a loss while the policy was in effect; the burden then shifts to the insurance carrier to prove that the cause of the loss was excluded from coverage. Alfredo Mejia owned a home that was insured by Citizens…
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Florida Court: Under All-Risk Policy, Insured Does Not Bear Burden of Showing Loss Was Caused by a Sinkhole
Tagged with: Bias, Florida
Posted in All Risk, Burden of Proof, Experts, Homeowners Coverage, Sinkhole
Posted in All Risk, Burden of Proof, Experts, Homeowners Coverage, Sinkhole
Seventh Circuit: Under Wisconsin Law, “Continuous or Repeated Exposure” Language Means That a Continuous Trigger Theory Applies
Yesterday, in Strauss v. Chubb Indem. Ins. Co., – F.3d – , 2014 WL 6435314, 2014 U.S. App. LEXIS 21794 (7th Cir., Nov. 18, 2014), the Court of Appeals held that the use of the phrase “continuous or repeated exposure” in a Wisconsin first-party property policy’s definition of occurrence meant that the contract of insurance contemplated that the continuous trigger theory determined whether loss was covered. As a result, a claim for 11 years of gradual water damage under a series of insurance policies was held to be timely even though it was first presented when the damage was initially discovered, five years after the last contract of insurance had expired. The Strausses had constructed a home in Mequon, Wisconsin…
Tagged with: Continuous or Repeated Exposure, Continuous Trigger, Manifestation, Wisconsin
Posted in Ambiguity, Homeowners Coverage, Trigger, Water
Posted in Ambiguity, Homeowners Coverage, Trigger, Water
Pennsylvania Court Addresses What Is a Coverage Dispute for Appraisal Purposes
Last month, a Pennsylvania federal court rejected the notion that a dispute over whether an admittedly covered occurrence necessitated repair of certain discrete portions of the damaged structure was a coverage dispute, characterizing it instead as merely a dispute over the extent of loss. As a result, Currie v. State Farm Fire & Cas. Co., 2014 WL 4081051, 2014 U.S. Dist. LEXIS 117970 (E.D.Pa., Aug. 19, 2014) held that the insurer could not refuse appraisal and stated that it was being “disingenuous” in arguing otherwise. The Curries were the owners of a home in Langhorne, Pennsylvania. When Superstorm Sandy struck on October 29, 2012, the structure took a direct hit from a tree on the property. The insurer, State Farm…
Tagged with: Pennsylvania
Posted in Arbitration and Appraisal, Bad Faith, Homeowners Coverage, Loss Adjustment, Superstorm Sandy
Posted in Arbitration and Appraisal, Bad Faith, Homeowners Coverage, Loss Adjustment, Superstorm Sandy
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…
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…
