In a case of first impression in Michigan, the federal Court of Appeals determined last month that general market conditions could not be considered when calculating actual cash value. In Whitehouse Condominium Group, LLC v. Cincinnati Ins. Co., — Fed.Appx. —, 2014 WL 2743480 (6th Cir., June 17, 2014), the contract of insurance defined ACV as replacement cost less a number of factors including “obsolescence .” The Sixth Circuit held that the word connoted only functional obsolescence as opposed to both functional and economic obsolescence.
The policyholder owned a condominium building in Flint, Michigan that was heavily damaged by fire in November of 2010. The policy afforded coverage for ACV, which was defined in the contract of insurance to mean “replacement cost less a deduction that reflects depreciation, age, condition and obsolescence.” The insurance carrier, Cincinnati Insurance Company, determined that the value of the structure was $1,187,660.38, and it paid that amount to the insured. The policyholder contended that the building was actually worth $1.6 million more, however, and it demanded appraisal.
The sole issue was the meaning of the word “obsolescence.” The insured contended that it meant only functional obsolescence, which the Court of Appeals defined as “a loss in value due to something inherent in the building itself such as old technology (think an electric panel that is no longer acceptable under current codes) or bad design (think a five bedroom house that only has one bathroom).” Cincinnati, on the other hand, argued that it meant both functional and economic obsolescence – “a reduction in value due to market factors entirely external to the building, such as neighborhood factors (this might occur if the neighborhood were suddenly under a noisy flight path) or the general market (the real estate market crash appears to be the factor in this case);” The decline in property values in Flint was the reason for the difference between the two parties’ ACV numbers. Read more ›
The insureds, Peter and Susan Horvath, owned a home at the end of a cul-de-sac at the bottom of Bell Canyon Drive. On December 22, 2010, severe rainstorms led to what the husband described as a “river of water coming down the street.” The town’s drainage systems were overwhelmed, and the cul-de-sac quickly filled up, ultimately inundating the first floor of the insureds’ home with 18” of water. The couple were evacuated by firefighters, and the local municipality yellow-tagged the structure as unfit to live in.
At present, the issue will not crop up nearly as frequently as it did in the wake of the 2005 storm because Katrina taught a lesson to underwriters everywhere; virtually all of today’s policies make it crystal clear that storm surge is a type of flood. The policy at issue in this case is a good example, but the Eastern District nonetheless implied that it would have barred coverage even if that were not the case.
On October 29, 2012, the policyholder, El-Ad 250 West LLC, was converting an 11-story office building into a 12-story luxury condominium complex in lower Manhattan. Superstorm Sandy damaged the project to the tune of more than $20 million according to the insured. El-Ad had a builder’s risk insurance policy issued by Zurich American Insurance Company. The contract of insurance had a $115 million overall limit of liability, but delay in completion coverage was sub-limited to $7 million. In addition, there was a $5 million annual aggregate limit for flood loss, which was defined as follows:
The policyholder Sandra Willis’ home was damaged by a fire on June 14, 2012, and she made a claim under her homeowner’s policy with Allstate Insurance Company. The insurer then hired an attorney, David Waldrop, to provide an opinion on coverage. Waldrop did so in a letter dated February 19, 2013, and Allstate subsequently denied liability. The insured responded by filing suit for breach of contract and bad faith.
One of the two principal bones of contention was a claim for over $50,000 for a feng shui consultant. Dr. Patel utilized feng shui when she initially opened her dental practice. Prior to reopening after the fire, she did so once again, and the claim included a “Five Elements Feng Shui Invoice” in the amount of $50,275. According to her affidavits, the feng shui consultant was retained “to come in and change crystals and perform additional cures to help to restore the location to its original condition,” to “restore energy balance,” and to determine “placement of furniture and dealing with forces of Qi.” The policy insured against “direct physical loss of or damage to Covered Property,” an0d Dr. Patel contended that the consultant’s services fit within that definition because she had used him when she had originally set the office up. She also sought to invoke coverage under the contract of insurance’s extra expense provision. 
On February 16, 2006, State Farm submitted a quarterly bill for the two policies, payable on or before April 6
Richard Palkimas was insured under a homeowner’s policy issued by State Farm Fire & Casualty Company, and he sustained two losses. The first occurred in September 2006, “when workers negligently used a toilet that had been blocked off resulting in a buildup of sewage, and the breaking and rupturing of a sanitary pipe, as well as the spreading of sewage and fecal matter throughout the home.” Then in January of the following year, the policyholder discovered that “freezing temperatures caused substantial damage to [his] home, including fracturing of the plaster walls and building structure.”
The policyholder owned an apartment complex that was insured by Dryden Mutual. The structure was damaged when waste water inundated the first floor, entering the units through toilets, bathtubs, and drains. The insurer denied liability, contending that coverage was barred by two “Water Damage” exclusions. The first recited that loss caused by “water which backs up through sewers and drains” was excluded, while the second barred coverage for “loss caused by repeated or continuous discharge, or leakage of liquids or steam from within a plumbing … system.” The second of these exclusions, however, went on to state that Dryden Mutual would pay for “loss caused by the accidental leakage, overflow or discharge of liquids or steam from a plumbing … system.”
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 to the amount sought by the policyholder, and the carrier paid. Thereafter, however, the insured filed an action against the insurance company in federal court, asserting that the insurer had delayed payment in bad faith, and he requested discovery of the company’s reserve information. Seneca Specialty refused to provide the requested information, and the district court held that it was not obligated to so so. The trial court subsequently dismissed the bad faith claims in their entirety, noting that the insurer had paid the undisputed amount despite the lack of any contractual or legal obligation to do so and further that the insurer, in valuing the claim lower than the appraisal award, had relied on reasonable expert opinions. 