Monthly Archives: October 2014

Second Circuit Affirms a Southern District Decision Construing “Covered Location” Narrowly

In January, the Southern District rejected an insured’s $2 million claim for a generator destroyed by Superstorm Sandy.  The unit was in the basement of an office building in lower Manhattan, but the contract of insurance defined “covered location” to mean the 33rd floor of the structure.  The district court rejected the policyholder’s argument that language insuring personal property “in buildings or structures at a ‘covered location’ “ extended coverage to the entire building including its basement.  On October 16th, a panel of the Court of Appeals affirmed this carrier-friendly interpretation in Jane Street Holding, LLC v. Aspen American Ins. Co., — Fed.Appx. –, 2014 WL 5287051, 2014 U.S. App. LEXIS 19905 (2d. Cir., Oct. 16, 2014). Jane Street Holding,

Tagged with: , , ,
Posted in Flood, Insured Premises, Superstorm Sandy, Water

Oklahoma Supreme Court Reconciles Sewer Backup Exclusion With Accidental Discharge Coverage Grant

In May, we reported that a New York court had found that a policy containing both an exclusion for water that backs up through sewers and drains and a coverage grant for accidental discharge or overflow from a plumbing system was neither internally inconsistent nor ambiguous in nature.  The post can be found here.  On June 17th, Oklahoma’s highest court agreed, albeit without citing the New York case, and it held that the two provisions were fully reconcilable and enforceable.  The case in question is Porter v. Oklahoma Farm Bureau Mut. Ins. Co., 330 P.3rd 511, 2014 Okla. LEXIS 72 (Okla., June 17, 2014). Justin and Brandy Porter owned a home that was damaged when raw sewage entered the premises

Tagged with: , ,
Posted in Ambiguity, Flood, Seepage or Leakage, Water

Pennsylvania Court: Inaction When Damage is Known to Be Likely is Enough to Render the Loss Non-Fortuitous

On September 19th, a federal court in Pennsylvania held that a wall collapse was not fortuitous because the insureds knew that the wall was unstable and likely to fall and yet took no steps to correct the problem.  No one could say the loss was certain to happen, but the court effectively held that the insureds’ inaction was enough to make the collapse non-fortuitous given the likelihood that the wall would fail if it wasn’t repaired or braced.  The decision is Fry v. Phoenix Ins. Co., 2014 WL 4662481, 2014 U.S. Dist. LEXIS 131504 (E.D.Pa., Sept. 19, 2014). The Frys owned a home in Fleetwood, Pennsylvania.  The house was a wood-frame structure with a stone veneer, and they noticed that

Tagged with:
Posted in Collapse, Fortuity, Water, Wear and Tear

Florida Court: Your Own Attorney is Simply Not a “Disinterested” Appraiser

As noted yesterday, last month saw an intermediate level appellate panel in Florida address whether the attorney for the policyholder could serve as that party’s appraiser.  It was a case of first impression in the Sunshine State.  In Florida Ins. Guar. Assn. v. Branco, 2014 WL 4648208, 2014 Fla. App. LEXIS 14602 (Fla.Dist.Ct.App., Sept. 19, 2014), the panel held that it was impermissible to select one’s own lawyer to act in that capacity when the contract of insurance called for a “disinterested” appraiser. The Brancos’ home was damaged by a sinkhole in April of 2010, and they made claim under a homeowner’s policy issued by Homewise Preferred Insurance Company.  The insurer denied liability, asserting that what had happened did not

Tagged with: ,
Posted in Arbitration and Appraisal, Loss Adjustment, Sinkhole

Florida Court Holds “Retained Rights” Provision Does Not Render an Appraisal Clause Unenforceable

In a pair of sinkhole cases, different panels of Florida’s intermediate level appellate court recently compelled appraisal, and the decisions are instructive because they address both challenges to the procedure and also the question of who is qualified to serve as an appraiser.  Today’s post will discuss Cincinnati Ins. Co. v. Cannon Ranch Partners, Inc., – So.3rd –, 2014 WL 5286519, 2014 Fla. App. LEXIS 17033 (Fla.Dist.Ct.App., Oct. 17, 2014) where the panel rejected arguments that the appraisal clause was unenforceable because it permitted the carrier to deny the claim even after an appraisal had taken place.  Tomorrow’s post will then address who constitutes a “disinterested” appraiser. The case involved sinkhole damage to a piece of property owned by Cannon

Tagged with: ,
Posted in Arbitration and Appraisal, Loss Adjustment, Sinkhole
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.
Stay Connected

Email:

Topics
Cozen O’Connor Blogs