Saving Green by Going Green

As Kermit the Frog famously said: “It’s not easy being green.”  When it comes to property insurance, Kermit is only partially correct.  Although green buildings and commercial construction projects pose unique risks that are likely not covered by traditional commercial property policies, the insurance industry has become increasingly responsive to this issue by creating and offering products specifically tailored for green risks.

Just What is Green Construction, Anyway?

Green construction (also known as a “green building” or a “sustainable building”) is an environmentally responsible and resource efficient structure and process.  In other words, it’s not just the building itself that’s “green” – it’s the entire construction and using process.

The objective of green construction is to reduce the overall impact of the built environment on human health and the natural environment.  To do so, there is an emphasis on, among other things:

  • Energy efficiency – reducing operating energy use through high-performance windows, passive solar design, and on-site generation of renewable energy;
  • Materials efficiency – utilizing recycled materials, rapidly renewable plant resources, and locally extracted and manufactured building materials to minimize energy expended their transport;
  • Indoor environmental quality (“IEQ”) – reducing volatile organic compounds in the air, maintaining an efficient ventilation system, and controlling moisture accumulation; and
  • Waste reduction – providing on-site compost bins to reduce the amount of occupant-generated matter which is hauled to a landfill, and innovative processes such as using “greywater” (water from, e.g., dishwashers and washing machines) or rainwater for subsurface irrigation and flushing toilets.

Why “Go Green”?

There are a variety of incentives for “going green.”  The environmental incentives are perhaps the most obvious: conserving natural resources, improving air and water quality, enhancing and protecting ecosystems and biodiversity, and reducing all the bad stuff (e.g., solid waste, greenhouse gas emissions, and the dreaded carbon footprint).  There are also social incentives, like increasing the respect and strength of a brand and positively impacting the health and social well-being of the building’s occupants.

shutterstock_140934022Of course, when we’re dealing with commercial construction and property insurance, the most significant incentive for “going green” is probably economic.  Over time, green buildings can reduce operating costs, improve employee productivity and satisfaction (a happy employee is a productive employee!), enhance asset value and profits, generate a better return on the owner’s investment (e.g., higher rents, sales prices and occupancy rates), reduce liability risks, and optimize the performance of a building during its life-cycle.  There are also federal, state or local tax incentives for certain types of green construction.

There can be a conflict between the “up-front” cost and the “life-cycle” cost, as green buildings can be more expensive to construct due to, for example, the novelty of the construction process or the use of certain less common materials.  In time, the “up-front” outlay is likely to be outweighed by the building’s “life-cycle” cost.  Take-away: green construction will likely generate a greater investment return than traditional construction. Read more ›

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Posted in Business Interuption, Green Insurance, Replacement Cost

Under Texas Law, The Policyholder’s Rights to Recover For A Loss Are Not Necessarily Extinguished By A Subsequent Foreclosure

shutterstock_44006719On November 27, 2013, an intermediate level Texas court handed down an opinion addressing the extent to which a policyholder’s claims for a covered loss survive foreclosure.  Peacock Hospitality, Inc. v. Association Casualty Ins. Co., 2013 WL 6188597 (Tex.App. San Antonio) arose after the policyholder Peacock Hospitality (“Peacock”) made claim against its property insurance carrier, Association Casualty Insurance Company (“Association Casualty”), for water damage from frozen pipes at a Holiday Inn.  The loss occurred on January 9, 2010.

The policyholder had gone into default on its mortgage several months earlier, and the mortgagee (the “Bank”) sent Peacock a notice of acceleration and foreclosure on January 28th.

On February 11th, Association Casualty tendered a check made payable to Peacock and the Bank jointly for its estimation of the loss.  The policyholder refused to endorse it, contending that it represented only one-fourth of the water damage that the hotel had sustained, but Association Casualty refused to re-inspect the property or to re-adjust the amount of the loss.  Meanwhile, the Bank foreclosed on March 2nd and sold the hotel some two-and-one-half months later on May 21st. Read more ›

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Posted in Freezing, Insurable Interest, Mortgagees, Water

Arkansas’ Supreme Court Prohibits The Depreciation Of Labor Costs Under An Actual Cash Value Policy

On November 21, 2013, Arkansas’ highest court held that “the costs of labor may not be depreciated when determining the actual cash value of a covered loss under an indemnity insurance policy that does not define the term ‘actual cash value.’”  In addition, the court bottomed its decision on both  the old canard of ambiguity and on the notion that depreciating labor is both illogical and inconsistent with the principle of indemnity.  As a result, even a change in policy language to expressly provide for labor’s depreciation might not pass muster in the state.

shutterstock_77965954Adams v. Cameron Mutual Ins. Co., 2013 Ark. 475 (Ark., Nov. 21, 2013) arose after a tornado damaged the Adamses’ home in Mena, Arkansas.  Their homeowners insurance carrier, Cameron Mutual Insurance Company, depreciated the entire repair estimate including the labor-only services such as the removal of roof decking, siding, and carpet and vinyl flooring.  The policyholders asserted that the contract of insurance did not allow for such depreciation, and they brought a would-be class action against the insurer in the Western District of Arkansas.  The federal court then certified the following question to Arkansas’ Supreme Court:

Whether an insurer in determining the “actual cash value” of a covered loss under an indemnity insurance policy may depreciate the costs of labor when the term “actual cash value” is not defined in the policy. Read more ›

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Posted in Actual Cash Value, Ambiguity, Depreciation, Tornado

Florida Courts Differ On Whether The Undefined Term “Structural Damage” In A Sinkhole Case Should Be Given A Broad Or A Narrow Interpretation

Since 2005, Florida law has defined “sinkhole loss” as “structural damage to the building, including the foundation, caused by sinkhole activity.”  The term “structural damage” was long-undefined, however, leading numerous Florida courts to interpret that phrase broadly as meaning nothing more than “damage to the structure.”  In 2011, however, the Florida Legislature adopted a much narrower five-part definition of “structural damage” for application when construing policies affording coverage for sinkhole loss.  Fla. Stat. §627.706(2)(k) (2011).  The state’s federal courts have now split on the issue of whether that definition automatically applies to contracts of insurance issued after the statute’s effective date.

shutterstock_92965489The question came to the forefront in Juan Pinzon and Jaqueline Espitia v. The First Liberty Ins. Corp., 2013 WL 5487027 (M.D.Fla., Sept. 30, 2013), a breach of contract action under a homeowners insurance policy.  The insureds contended that their property had suffered damages from sinkhole activity, but First Liberty denied the claim after securing a professional engineer’s report that concluded that “none of the damage at the Pinzon & Espitia residence are [sic] structural damage as defined by the Florida Statutes.”  A lawsuit followed.  After removal, First Liberty filed for summary judgment and requested that the court apply the narrow five-part definition of “structural damage” adopted in 2011 to the insureds’ claim.

The policy tracked the 2005 enactment; it defined the covered parallel “Sinkhole Loss” as meaning “structural damage to the building, including the foundation, caused by sinkhole activity,” but it afforded no definition of the phrase “structural damage” itself.  The contract of insurance had an inception date of June 9, 2011, which was 23 days after the new five-part definition went into effect on May 17, 2011, and First Liberty therefore argued that the narrow definition applied.  The insureds countered by contending that the court “should employ standard tenants of insurance contract interpretation and give [the phrase] the broadest possible interpretation to ensure coverage.” Read more ›

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Posted in Sinkhole, Uncategorized
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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