Photo of Jonathan Small

Jonathan Small focuses his practice on complex litigation in federal and state courts. He has defended class actions in a variety of substantive areas; represented insurers in coverage, unfair claims settlement practices, and bad faith litigation; defended law firms in professional liability cases; and represented developers in litigation concerning real estate transactions and land use disputes.

Read Jonathan's rc.com bio.

The Massachusetts reference process is a creature of statute designed to provide an expeditious method to resolve disputes over the amount of loss covered by a property insurance policy. While a reference panel cannot decide coverage issues, its calculation of the amount of loss is “conclusive and final” under the governing statute, and courts have concluded that such an award is not subject to challenge except on grounds such as fraud, collusion, or bias. The United States District Court for the District of Massachusetts recently affirmed the finality of a reference award in Bearbones, Inc. v. Peerless Indemnity Ins. Co., Civil Action No. 3:15-cv-30017 (KAR) (D. Mass. Oct. 17, 2017).

Bearbones involved a burst water pipe at a commercial bakery in Pittsfield, Massachusetts that caused physical damage to the bakery’s building and business personal property and interrupted its business operations. After receiving notice of the loss, Peerless conducted an investigation and issued payments totaling $32,496.08 for building and business personal property losses.
Continue Reading Massachusetts Reference Award and Alleged Chapter 93A Violation Addressed By Federal District Court Opinion

Many commercial and residential property insurance claims arising from major hurricanes like Hurricane Harvey present damage caused by multiple causes of loss, some of which may be covered (e.g., wind) and some of which may not (e.g., flood). One of the recurrent legal issues in these multiple causes of loss claims is the treatment of anti-concurrent causation clauses under the applicable state law.

The Texas Supreme Court addressed the enforceability of an anti-concurrent causation clause for the first (and to date, only) time in JAW the Pointe, LLC v. Lexington Ins. Co., 460 S.W.3d 597 (Tex. 2015) (“JAW”). The anti-concurrent clause at issue in that case provided that: “We 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.” JAW, 460 S.W.3d at 604 (emphasis added).
Continue Reading Hurricane Harvey, the Texas Supreme Court, and Anti-Concurrent Causation

The Eleventh Circuit Court of Appeals recently explained that under Florida law a policyholder who fails to provide prompt notice of a claim faces an uphill battle defeating the resulting rebuttable presumption of prejudice to the insurer. The court also affirmed an award of attorneys’ fees to the insurer under Florida’s offer of judgment statute.