Court Says Builder’s Risk Policy Limited Coverage for Additional Insureds

In BCC Partners, LLC v. Travelers Prop. Cas. Co. of America, 2024 WL 1050117 (E.D. Mo. March 11, 2024), the Court determined that the plaintiff property owner, as an additional insured, was not entitled to the same insurance coverage as the named insured where the builder’s risk policy limited the scope of recovery for soft costs and rental income.

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What’s in a Name (Insured)? Pennsylvania Federal Court Holds Homeowners’ Insurance Policy’s Requirement to Submit to Examination Under Oath Applies Only to Named Insured

A federal court recently held that an insurer could not deny coverage under a homeowner’s policy based upon the failure of the named insured’s son, an “insured person,” to submit to an examination under oath (“EUO”). In Michelle Adeola v. Allstate Vehicle and Property Insurance Company, Civil Action No. 23-cv-4643 (E.D. PA February 16, 2023), the Eastern District of Pennsylvania denied defendant-insurer’s motion for reconsideration of the lower court’s denial of its motion for judgment on the pleadings, and held that the defendant-insured did not present any errors of law or fact, or new evidence, or a change in controlling law that would preclude coverage based upon the named insured’s son’s failure to submit to an EUO. Specifically, the Court affirmed that the duty to submit to an EUO, as included in the insurance policy, applied only to a “named insured” and not an “insured person” and, as such, the named insured’s son failure to comply did not constitute a material breach of the insurance policy.

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Court Differentiates Vandalism from Theft in First Party Insurance Policy

The United States District Court for the Western District of Washington decided an insurance coverage case involving Plaintiffs Benny and Guangying Cheung and Defendant Allstate Vehicle and Property Insurance Company.  Cheung v. Allstate Vehicle & Prop. Ins. Co., No. C22-1174 TSZ, 2023 WL 9000432 (W.D. Wash. Dec. 28, 2023). The Court considered whether the Plaintiffs’ loss was caused by theft or vandalism, as neither term was defined in the policy.

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Court Finds No Coverage for Loss Caused by Water Back Up Through a Storm Drain

In Carrico v. Stillwater Ins. Co., 23-CV-349-RAJ, 2024 WL 308106 (W.D. Wash. Jan. 26, 2024), the Western District of Washington considered competing motions for partial summary judgment in a property damage case involving a winter storm, where large amounts of rain and melted snow backed the drain up and the force of the water pushed through the exterior door causing damage to the entire basement level. At issue in the case was the application of the policy’s wear and tear exclusion and its exceptions. 

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Court Finds Policy Term, “Windstorm,” to be Ambiguous in Coverage Dispute Involving Tornado

In Mankoff v. Privilege Underwriters Reciprocal Exchange (2024 WL 322297 (Tex. App.—Dallas Jan. 29, 2024)), the Court determined that the term “windstorm” was ambiguous as utilized in the subject insurance policy.

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Court Issues First LEG3 Defects Exclusion Decision

Introduction

In a case of first impression, the United States District Court for the District of Columbia (applying Illinois law) rejected a LEG3 exclusion as ambiguous.  See S. Capitol Bridgebuilders “SCB” v. Lexington Ins. Co., 2023 U.S. Dist. LEXIS 176573 (D.D.C. Sep. 29, 2023).  The London Engineering Group (“LEG”) is a consultative body for insurers of engineering class risks.  Nearly 30 years ago, LEG introduced a series of defects exclusions, including LEG1, LEG2, and LEG3 (which was revised in 2006).  Each provides increasing levels of coverage, with LEG3 being the broadest.  Generally, while preserving some coverage, LEG3 purports to exclude costs incurred to improve defects of “material workmanship, design, plan, or specification.”  Until now, despite frequent usage in builder’s risk policies internationally, there has been a clear lack of judicial guidance relative to LEG3.

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There’s No Place Like Home! Kansas Federal Court Holds Homeowner’s Policy Coverage Requires Policyholder to Physically Reside at Residence

A federal court recently held that an insurer may deny coverage under a homeowner’s policy for a “residence premises” when the insured never actually lived at the premises. In Sina Davani v. Travelers Personal Insurance Company and Geico Insurance Agency, LLC, Case No. 22-1244 (D. Kan. October 26, 2023), the District of Kansas granted defendant-insurer’s motion for summary judgment holding that the plaintiff-insured never resided at the insured premises and residence in the context of an insurance contract requires an insured’s physical presence at a certain location and an intent to remain at the location for an indefinite period of time.

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Southern District of Texas Holds that Appraisal Award is Inconclusive of Whether a Loss is Covered

The Southern District of Texas recently held that an appraisal award did not establish liability for a covered loss under the policy. In Hoff v. Meridian Sec. Ins. Co., 2023 WL 5192013 (S.D. Tex. Aug. 11, 2023), Meridian Security Insurance (“Meridian”) insured Flemming Hoff (“Hoff”). After filing suit, Hoff requested an appraisal pursuant to the following policy language:

If you [Hoff] and we [Meridian] disagree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent and impartial appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the choice be made by a judge of a court of record in the state where the “residence premises” is located. The appraisers will separately set the amount of loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of loss.

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Florida Enacts Broad Insurance Reforms Focusing on Bad Faith

From 2019 to 2022, the Florida Legislature enacted four separate property insurance reforms that sought to rein in abusive property insurance litigation fueled by one-way attorney’s fee shifting and an army of professional plaintiffs filing lawsuits pursuant to assignments of benefits. In its latest reform, the Legislature has shifted its focus to the broader insurance market and to tort reform. For many years now, Florida has significantly led the nation in tort costs per household.  This metric has been driven by a high octane litigation environment, ever growing personal injury verdicts, and a gradually sharpened focus on setting up insurers for bad faith claims.

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Louisiana Supreme Court Reverses a Rare State Court of Appeals Win for COVID-19 Business Interruption Claimant

COVID-19 business interruption claimants have had few state appellate court decisions upon which to rely.  Louisiana produced one such decision in Cajun Conti, LLC v. Certain Underwriters at Lloyd’s, 2022 La. App. LEXIS 939 (La. App. 4 Cir., June 15, 2022).  The insurer prevailed in the trial court in a dispute over whether coronavirus constituted “direct physical loss of or damage to” insured property.  The insured restaurant appealed.  Louisiana’s Fourth Circuit Court of Appeal reversed the trial court.  The Court of Appeal’s opinion became widely-cited by other COVID-19 business interruption claimants.  The insurer appealed to the Louisiana Supreme Court and Cajun Conti became a widely-followed dispute.  As discussed below, the Court of Appeal’s analysis was out of step with the analysis undertaken by courts across the country.

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About The Property Insurance Law Observer

For more than five decades, Cozen O’Connor has represented all types of property insurers in jurisdictions throughout the United States, and it is dedicated to keeping its clients abreast of developments that impact the insurance industry. The Property Insurance Law Observer will survey court decisions, enacted or proposed legislation, and regulatory activities from all 50 states. We will also include commentary on current issues and developing trends of interest to first-party insurers.

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