Blog Archives

Pennsylvania Court Orders Production of Underwriting Files On Similar Claims By Other Policyholders

Carriers routinely resist efforts to compel production of the underwriting and claims files on other policyholders on the basis of relevance.  Early last month in H.J. Heinz Co. v. Starr Surplus Lines Ins. Co., 2015 WL 5781295, 2015 U.S. Dist. LEXIS 138080, (W.D.Pa., Oct. 1, 2015), an insurer lost that fight when a federal court in Pennsylvania required it to produce the files.  The case is noteworthy, but arguably limited in terms of its application to other disputes.  A Phase One trial was directed solely to the insurer’s efforts to rescind the policy because of material misrepresentations in the application, and discovery addressing whether the insured was being treated the same way as other similarly-situated policyholders was uniquely important given

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Posted in Contamination, Contamination and Product Recall, Discovery, Rescission

Georgia Court: Policy Does Not Require Insured to Produce Recordings of Her Conversations With the Carrier

On May 20th, a federal court in Georgia held that the standard “requirements in case of loss” language compelling the insured to turn over her books and records during the adjustment process did not require the production of recordings that she had secretly made of her telephone calls with the insurer’s representatives.  In Armstead v. Allstate Prop. & Cas. Ins. Co., 2015 WL 2408049, 2015 U.S. Dist. LEXIS 66030 (N.D. Ga., May 20, 2015), the court rejected arguments that the policyholder’s refusal to disgorge the tapes was a violation of the “no action” clause that precluded her breach of contract and bad faith action because it held that the carrier had not shown that they were material to the adjustment

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Posted in Cooperation, Discovery, Examinations Under Oath, Fire, Homeowners Coverage, Investigation, Loss Adjustment

Indiana Court Nixes Requests for Reinsurance and Reserves

Early last month a federal court in Indianapolis barred a policyholder from seeking the claims and underwriting files of the defendant carrier’s reinsurer in Indianapolis Airport Auth. v. Travelers Property Cas. Co. of Amer., 2015 WL 1548959, 2015 U.S. Dist. LEXIS 45123 (S.D. Ind., Apr. 7 2015).  Several months ago, the same court also shot down the policyholder’s requests for the insurer’s reserves. The insured operated the Indianapolis International Airport, and it began construction on the $1 billion Midfield Terminal Project in 2005 and secured a builder’s risk policy from Travelers to cover the work.  On January 24, 2007, temporary shoring towers collapsed, damaging the building, disrupting the original construction schedule, and generating claims by consultants and contractors.  The policyholder

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Posted in Builders' Risk, Collapse, Discovery, Reinsurance, Reserves

If You Post It, Your Opponent Can Probably Discover It

In March we ran a post on how important videos, photographs, and statements on social media sites can be when investigating a property loss.  A picture is literally worth a thousand words.  Earlier this month, a Florida court explained that such material is also discoverable – even in situations where the policyholder employs privacy settings that prevent the general public from having access to his or her account – because the user’s privacy interest in such a site is “minimal, if any.”  Nucci v. Target Corp., – So.3d –, 2015 WL 71726, 2015 Fla. App. LEXIS 153 (Fla.Dist.Ct.App., Jan. 7, 2015) involved a slip-and-fall, but it applies with equal force to discovery in a first-party matter. Maria Nucci filed a

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Posted in Discovery, Investigation, Reasonable Expectations

With Respect to Discoverability, Indiana Federal Court Distinguishes Between Pre-Suit and Post-Suit Reserves

In May, we reported on a Third Circuit decision holding that loss reserve information was generally irrelevant and not discoverable.  In October, a federal court in Indiana came to the same conclusion with respect to post-suit reserves.  In G & S Metal Consultants, Inc. v. Continental Casualty Co., 2014 WL 5431223, 2014 U.S. Dist. LEXIS 151431 (N.D.Ind., Oct. 24, 2014), the court agreed that reserves established after litigation were irrelevant because of the multiplicity of factors that were necessarily considered in establishing them.  The opinion suggests that pre-suit reserves are discoverable unless they have been set in anticipation of litigation and consultation with counsel, however. G & S Metal Consultants filed suit for property damage and business interruption loss after

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Posted in Discovery, Explosion, Privilege, Reserves

Third Circuit Says No to Insured’s Request for Reserve Information

In a victory for insurers, the United States Court of Appeals for the Third Circuit recently rejected an insured’s discovery request for reserve information in a first-party bad faith action.  In its April 29, 2014 decision in Mirarchi v. Seneca Speciality Insurance Company, — Fed.Appx. —, 2014 WL 1673748 (3d Cir., April 29, 2014), the Court of Appeals upheld the district court’s denial of the policyholder’s request for the reserves and, in doing so, endorsed  the numerous district court decisions that have previously held such information to be non-discoverable. 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

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Posted in Discovery, Reserves, U.S. Legal System
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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