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Greg Varga is a trial lawyer and the immediate past chair of Robinson+Cole’s Insurance + Reinsurance Group. For nearly two decades, his practice has focused on the representation of insurance companies nationally in complex insurance coverage litigation, in lawsuits seeking punitive damages and other extra-contractual remedies, and in other corporate litigation.

Greg is a frequent speaker and panelist at insurance industry and insurance bar programs, including the Property Loss Research Bureau, the Defense Research Institute, and the Federation of Defense & Corporate Counsel. He has also lectured on trial techniques to other members of the bar.

Greg earned his J.D. from Boston College Law School where he was on Moot Court and his B.A., magna cum laude, from Boston College in History.

Read Greg’s rc.com bio.

The New York Department of Financial Services has appointed the American Arbitration Association (“AAA”) in New York as the exclusive “designated organization” to handle Storm Sandy mediations pursuant to the Mediation Amendment.

The AAA contact information to be inserted into notice letters sent to insureds pursuant to the Mediation Amendment is as follows:

American Arbitration

On February 25, 2013, the New York Department of Financial Services promulgated a significant new Hurricane Sandy-related regulation that will impact nearly all insurers doing business in the State of New York. Specifically, the Department adopted the Fifteenth Amendment (entitled “Mediation) to New York’s Regulation 64 (“Mediation Amendment”).

The Fifteenth Amendment was adopted as an

A few weeks ago, we reported on the Florida appellate court’s decision in Trafalgar At Greenacres, LTD v. Zurich American Ins. Co., No. 4D11-1376 (Fla. 4th DCA, Sept. 5, 2012), in which the court permitted a policyholder to sue its property insurer for bad faith even though the trial court had ruled that the

Most commercial and personal lines property insurance policies exclude damage caused directly or indirectly by the peril of “earth movement.” The ISO version of this exclusion appears in many modern policies and provides that:

  1. [Insurer] will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.

b. Earth Movement

(1) Earthquake, including any earth sinking, rising or shifting related to such event.
(2) Landslide, including any earth sinking, rising or shifting related to such event.
(3) Mine subsidence, meaning subsidence of a man-made mine, whether or not mining activity has ceased;
(4) Earth sinking (other than sinkhole collapse), rising or shifting including soil conditions which cause settling, cracking or other disarrangement of foundations or other parts of realty. Soil conditions include contraction, expansion, freezing, thawing, erosion, improperly compacted soil and the action of water under the ground surface.

(See Causes of Loss—Special Form, CP 10 30 10 00, Copyright Insurance Services Office, Inc. 1999)

For more than a decade, courts throughout the country have wrestled with the question of whether the Earth Movement exclusion applies in all circumstances where earth movement plays some part in the chain of events that produced the loss. Most of the reported decisions address the interpretation and application of subparagraph (4) of the exclusion, quoted above. The loss scenarios that typically spawn coverage litigation involve some form of damage to a building’s structure (floor slab, foundations walls, etc.) caused by the movement or depletion of supporting or surrounding soil due to, (i) demolition, blasting or heavy construction activities at neighboring properties; or (ii) water leaking from an underground supply or drainage pipe.

A number of jurisdictions have construed the Earth Movement exclusion narrowly and ruled that it applies only to earth movement associated with “natural” causes (such as an earthquake or landslide), and not to construction or other causes involving human intervention. En route to finding coverage, those courts typically rely on the historical development of the Earth Movement exclusion or resort to the doctrine of “reasonable expectations.” In the other camp lie courts that apply the exclusionary language literally to bar coverage for all property damage associated with earth movement, regardless of what caused the ground to move. Those courts often rely upon the anti-concurrent causation language of the exclusion: “Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.”
Continue Reading “Earth Movement” Exclusion Bars Coverage for Damage Traced to Leak from Broken Water Pipe, According to Massachusetts Appeals Court

In many jurisdictions, a bad faith case predicated on a property insurer’s denial or alleged underpayment of a claim will not reach a jury if it is determined that the insurer fulfilled its obligations under the contract. The rationale is that if the insurer’s alleged conduct does not rise to the level of a breach