New Jersey Supreme Court Holds that a Person Violates the Insurance Fraud Statute Even if Insurer is Not Duped Into Paying a Fraudulent Claim

shutterstock_949171In the recent case of State of New Jersey v. Robert Goodwin, 224 N.J. 102, 129 A.3d 316 (N.J. 2016), the Supreme Court of New Jersey held that a person violates the insurance fraud statute, N.J.S.A. 2C:21-4.6(a), even if he or she does not succeed in duping an insurance carrier into paying a fraudulent claim. In doing so, the Supreme Court reinstated Robert Goodwin’s conviction for insurance fraud.

At trial, it was established that Goodwin and “Stacey” were involved in a romantic relationship since 2004 and living together in Newark, New Jersey. In April 2009, Stacey purchased an SUV for over $6,000, financed by Goodwin co-signing the loan. Insurance was procured from Progressive Insurance Company. Goodwin was the primary operator of the SUV.

While still in a relationship with Stacey, Goodwin secretly dated “Linda” who lived in an apartment located a few blocks away from Goodwin and Stacey’s apartment. On September 13, 2009, following an argument with Stacey, Goodwin drove the SUV to Linda’s apartment and parked it nearby. Linda’s trial testimony established that between 6:30 a.m. and 7:00 a.m. she and Goodwin walked to the SUV so that he could drive her to work. They found the vehicle severely damaged by fire. Goodwin then went to Stacey’s apartment and told Stacey that the SUV had been stolen and “burnt up.” Read more ›

Posted in Fraud

Recent Washington Decisions Illustrate Need to Handle Property Claims in Timely Manner

calendar-graphicAn issue that often arises in the context of property insurance is whether a carrier’s delay in adjusting a claim can create a basis for a viable bad faith claim.  The law in each state is different and the prudent practice is to consult a practitioner specializing in the law of the state in question.  This article focuses on Washington law and discusses two recent cases which illustrate the need to adjust property claims promptly. Failure to do so may expose a carrier to viable bad faith allegations sufficient to survive summary judgment and permit the policyholder to get its case before a jury.

First, in Hays v. State Farm Ins. Co., No. 46679–1–II, 191 Wn. App. 1053, 2015 WL 9435153 (Dec. 23, 2015), Division Two of the Washington Court of Appeals held that a roughly seven-month delay in responding to the insureds’ communications could amount to bad faith under Washington law. The court held this determination was an issue of fact for the jury.

In Hays, a February 2010 accidental fire totally destroyed the insureds’ home. The insurer acknowledged that this was a covered loss, and eventually paid the claim. However, the insurer and insureds had divergent accounts of the facts surrounding claims handling. According to the insureds, they received a check—without further explanation—in May 2010, and between June 2010 and October 2010 made repeated attempts to contact the insurer regarding the status of their claim, but received no response. In late October 2010, the insurer sent a more detailed response—including an updated appraisal of the insureds’ home requested by the insureds—but sent it to the insureds’ old address. It was not until December 2010 that the insureds alleged they actually received the correspondence to their correct address. Read more ›

Posted in Uncategorized

Virginia Federal Court Underscores Distinction Between a Loss and an Occurrence for Purposes of Notice Conditions

shutterstock_295330793 (2)In Clarabelle Wheeler v. The Standard Fire Insurance Company, 2016 WL 1164651 (W.D. Va. Mar. 23, 2016), the insurer argued that the insured failed to give “prompt notice” of the loss as required by the policy’s notice condition because she waited six-months to report five large trees had fallen on her barn. In support of this argument, the insurer offered evidence that the insured’s delay in providing notice prejudiced it by depriving it of an opportunity to investigate the claim and mitigate the resulting damage to the barn. Summary judgment in favor of the insurer as to whether there is coverage for the insured’s claim under the policy would often be granted on these facts.

But, the United States District Court for the Western District of Virginia denied summary judgment in this case based on the distinction between a “loss” and an “occurrence.” Read more ›

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Posted in Notice

Do Fidelity Policies Issued to Individual Partners Provide Coverage for Theft of Partnership Earnings?

shutterstock_198307964The Eighth Circuit is set to decide this question in 3M Company, et al. v. National Union Fire Insurance Company of Pittsburgh, Pa., et al., Appeal No. 15-3495. The answer will likely determine whether a blanket crime policy and multiple excess policies cover $176 million in partnership earnings 3M lost because of its partners’ massive Ponzi scheme.

Between 1999 and 2009, 3M invested over $100 million of its Employee Retirement Income Security Act (“ERISA”) plan assets and the earnings on those investments with an entity named WG Trading Company, L.P. Stephen Walsh and Paul Greenwood controlled WG Trading and were its general partners. 3M and two of its ERISA plans were limited partners in WG Trading. Unbeknownst to 3M, Walsh and Greenwood were fraudsters. They diverted hundreds of millions of dollars from WG Trading and another partnership for their personal use and to conceal the fraud. Read more ›

Posted in Theft or Dishonesty

Colorado Court Finds Legal Marijuana Insurable Under Commercial Property Policy and Orders Trial on Claim for Damaged Buds

shutterstock_75267472ArcView Group, which tracks the legal marijuana markets, recently estimated that legal U.S. pot sales could reach $6.7 billion in 2016. As the legal marijuana economy has grown, insurance coverage for this emerging industry has become a hot topic. The U.S. District Court for the District of Colorado in The Green Earth Wellness Center, LLC v. Atain Specialty Insurance Company, No. 13-cv-03452-MSK-NYW, 2016 WL 632357 (D. Colorado Feb. 17, 2016) was recently faced with determining the extent of coverage under a commercial property policy for damage sustained to marijuana plants at a growing facility and addressing whether legal marijuana was even insurable.

Green Earth operates a retail medical marijuana business and an adjacent growing facility in Colorado Springs, Colorado. Green Earth contended that smoke and ash from a wildfire overwhelmed its ventilation system and intruded into its growing operation, causing damage to Green Earth’s marijuana plants. Green Earth made a claim for the damage under a commercial property and general liability insurance policy issued by Atain, seeking more than $200,000 for damage to its grow operation, specifically its “mother plants” and “clones,” and approximately $40,000 in damage to buds and flowers that had been harvested and were being prepared for sale. Atain denied the claim and Green Earth filed suit. Read more ›

Posted in Uncategorized

Common Sense Prevails: State of Collapse Nonexistent Thirteen Years before Discovery of Decay

shutterstock_309231059For years, property insurance policies that exclude rot damage have been called upon to cover rot because the policies extend coverage to “collapse”—an undefined term—caused by hidden decay, even if the structure remains standing and in use.

The Homeowners Association of the Queen Anne Park Condominium in Seattle discovered decay within the walls of its buildings in 2011. State Farm insured the Association with policies effective between 1992 and 1998. The policies excluded coverage for rot, but covered “collapse” caused by hidden decay. The Association argued that its buildings were in a state of collapse in or before 1998 and that State Farm covered the decay damage. State Farm denied the claim and the Association sued in federal court in Washington. The trial court granted summary judgment to State Farm and the Association appealed to the Ninth Circuit Court of Appeals.

Finding the meaning of “collapse” undefined in the policies and in Washington law, the Ninth Circuit certified the question of its meaning to the Washington Supreme Court. In Queen Anne Park Homeowners Ass’n v. State Farm Fire & Cas. Co., 183 Wn.2d 485, 352 P.3d 790 (2015), the Washington court held that “collapse” means a “substantial impairment of the structural integrity of a building or part of a building that renders such building or part of a building unfit for its function or unsafe.” The collapse must be “more than mere settling, cracking, shrinkage, bulging, or expansion.” 352 P.3d at 794. (See our Observer blog entry of June 23, 2015.) Read more ›

Posted in Uncategorized

“Insanity Defense” Fails To Preserve Coverage For Insured’s Arson

Missouri resident James Roller set fire to his garage in an attempt to commit suicide.  When smoke and fumes surrounded him he changed his mind, fled the garage, and alerted his wife of the fire.  Mrs. Roller called 911.  A sheriff’s deputy escorted Mr. Roller to “protective custody” and obtained a 96-hour mental health detention order from the court.  Mr. Roller was treated at a hospital.

The garage sustained severe fire damage.  Mrs. Roller notified the Rollers’ homeowners’ insurer, American Modern Home Insurance Company (AMHIC).  An independent adjuster inspected the damage, took photographs, obtained a statement from Mrs. Roller, and estimated the replacement cost of the garage to be $21,240.  AMHIC’s adjuster reserved the company’s rights and continued to investigate.  Over the course of eight months, AMHIC repeatedly requested that the Rollers submit to an examination under oath and provide certain documents.  The Rollers demanded that AMHIC produce documents to them.  The Rollers refused to appear at an examination under oath, and when AMHIC failed to provide the documents they requested, they commenced a declaratory judgment action in Missouri state court.

After a bench trial, the court entered judgment for the insurer, finding that the Rollers’ claim was not covered by their policy.  On appeal, the Rollers sought reversal and argued these reasons: Read more ›

Posted in Uncategorized

Texas Rule Change: Supreme Court Holds Loss of Use Damages Are Recoverable Where Property Total Loss

In J & D Towing, LLC v. American Alternative Insurance Corporation, No. 14-0574, 2016 WL 91201 (Tex. Jan. 8, 2016), the Texas Supreme Court considered J & D Towing, LLC’s (“J & D”) claim for loss of use damages under its underinsured motorist insurance policy, after J & D’s only towing vehicle was totally destroyed in an accident.  After discussing decades of Texas case law limiting loss of use damages to cases involving partial destruction, the Court held that the owner of totally destroyed personal property may recover loss of use damages, in addition to the property’s fair market value immediately before the injury.  The Court’s holding reverses over 60 years of prior case law prohibiting recovery of loss of use damages in total destruction cases, and brings Texas in line with the majority of jurisdictions.

J & D is a vehicle towing company located in Huntsville, Texas. On December 29, 2011, an accident with a third party rendered J & D’s only truck a total loss.  J & D claimed the value of the truck exceeded $19,000, and also sought its loss of use damages based on its inability to conduct business.  Although the third party’s insurer offered to pay the truck’s value, the third party insurer refused to pay for any loss of use damages.  After nearly two months, J & D settled its claim for the third party’s policy limits of $25,000. Read more ›

Posted in Uncategorized

Vermont: First-Party Pollution Exclusions Are Not Confined to Traditional Environmental Pollution.

shutterstock_277850258Courts in a number of American states, notably California, have found that pollution exclusions in first-party policies are “inherently ambiguous” and that the purpose of such provisions is “to address liability arising from traditional environmental pollution, and not ‘ordinary acts of negligence involving harmful substances.’ ” On December 11th, the Vermont Supreme Court unanimously refused to follow that line of jurisprudence in Whitney v. Vermont Mut. Ins. Co., 2015 VT 140, 2015 Vt. LEXIS 120, 2015 WL 8540432 (Vt., Dec. 11, 2015), holding instead that a standard form pollution exclusion was unambiguous in nature and clearly operated to bar coverage after the spraying of a pesticide chased the policyholders out of their home.

The insureds had a house in Rutland, and they served as foster parents for the state’s Department of Children and Families (DCF).  In April 2013, a new foster child infected their home with bed bugs, and the DCF arranged for an exterminator to treat the residence.  Unfortunately, the exterminatoir employed a pesticide known as chlorpyrifos – a toxin that can cause “nausea, dizziness, confusion, and, and, in very high exposures, respiratory paralysis and death.”  The substance is banned for residential use by the Federal EPA.  To make matters worse, the exterminator sprayed “corner to corner, wall to wall,” including even “the inside of the oven and the ductwork of the forced hot air heating system,” leaving walls and surfaces “visibly dripping with the pesticide.”  Read more ›

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Posted in Ambiguity, Contamination, Pollution

Arkansas Bars Depreciation of Labor When Calculating Actual Cash Value

Over the last few years, courts have disagreed over whether labor — as opposed to materials — can be depreciated when determining actual cash value (ACV); two of our 2015 posts addressed cases in which the District of Kansas said yes while a Kentucky federal court said no.  On Thursday of last week, in a split decision, Arkansas’s highest court sided with the naysayers in Shelter Mut. Ins. Co. v. Goodner, 2015 Ark. 460, 2015 WL 8482788 (Ark., Dec. 10, 2015).  Two of the justices filed a vigorous descent.  At the present time, the case has no LEXIS citation.

shutterstock_184363022The insureds owned a mobile home in Texarkana that sustained a covered loss in July of 2012.  The policy provided that the company would pay the ACV, which was defined to mean “total restoration costs less depreciation.”  Depreciation itself was then defined, and the contract of insurance expressly stated that when paying ACV, the carrier would “include the depreciation of the materials, the labor, and the tax attributable to each part which must be replaced[.]”  In accordance with that, the amount paid by the insurer depreciated both materials and labor. Read more ›

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Posted in Actual Cash Value, Depreciation, Homeowners Coverage
About The Property Insurance Law Observer
For more than four 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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