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Sworn Proof of Loss Is a Condition Precedent, and Presumption of Prejudice Applies: Florida’s 3rd DCA Reverses Summary Judgment for Insurer

As we have indicated in prior blog posts on the Soronson and Slominski cases, late notice issues have been cropping up consistently in the Florida appellate courts in the context of Hurricane Wilma claims being reported years after the storm.  Cooperation clauses requiring prompt notice and sworn proof of loss are implicated, and the issue, at … Continue Reading

When is an Appraisal Demand Premature? Southern District of Florida Addresses a Post-Litigation Appraisal Demand

When is an Appraisal Demand Premature?  Southern District of Florida Addresses a Post-Litigation Appraisal Demand Biscayne Cove Condominium Association, Inc. v. QBE Ins. Corp., 2013 U.S. Dist. LEXIS 5194 (S.D. Fla. Jan. 14, 2013), involved a Hurricane Wilma property coverage dispute at a condominium complex. In this case, the court denied the insurer’s (“QBE’) motion to dismiss … Continue Reading

Missouri Valued Policy Law Inapplicable to Tornado Losses: Missouri Federal Court Issues Decision of First Impression

Some jurisdictions have what is known as a valued policy law (“VPL”), which typically provides that in the case of a total loss, the insurer is required to pay the full policy limit regardless of the actual replacement cost value or actual cash value of the property at the time to the loss. Most of … Continue Reading

Storm Sandy: Delaware Requires Insurers to Submit Claim Reporting Form

On December 10, 2012, the Delaware Department of Insurance issued Bulletin No. 59, which requires all admitted, non-admitted and surplus lines carriers, including flood insurance carriers, to submit a claim reporting form on a periodic basis. The first report is due December 18, 2012 for the reporting period of October 26, 2012 through December 4, … Continue Reading

Insurers Issuing Residential Policies in Delaware Must Include Specific Notice Provision Regarding Hurricane Deductible as of January 1, 2013

On December 7, 2012, the Delaware Department of Insurance issued Bulletin No. 58 reminding insurers writing residential policies incepting or renewing on or after January 1, 2013 that policies must include a prominent and specific notice regarding applicable hurricane deductibles. The Bulletin indicates that in the wake of Hurricane Irene and storm Sandy, many Delaware … Continue Reading

Policy Language Determined Ambiguous Despite Anti-Concurrent Causation Provision: Oregon Court of Appeals Issues Decision of First Impression

Most states enforce anticoncurrent causation provisions, as we have described in our summary of such provisions. Recently, the Court of Appeals of the State of Oregon determined that a policy was ambiguous despite the fact that the insureds stipulated that collapse caused the damage, and the policy excluded loss caused by collapse with anticoncurrent preamble … Continue Reading

Storm Sandy: New York Requires Accelerated Claims Investigation, and Allows for Temporary Public Adjuster Licensing

On November 29, 2012, the Superintendent of New York State’s Department of Financial Services issued a Twelfth Amendment to Insurance Regulation 64, which amends Section 216.5(a). Most significantly, investigations of Storm Sandy claims require that the insurer commence investigation of specified claims within 6 days instead of 15, and that if an inspection is to … Continue Reading

Ensuing Loss Provision Not Triggered Where Water Damage Caused Deterioration: Second Circuit Affirms Southern District Of New York Decision

Ensuing loss clauses can be a common source of litigation when insureds argue that part or all of the loss is purportedly caused by some event occurring subsequent to the excluded cause of loss.  We provide an overview of ensuing loss clauses here.  The Second Circuit recently affirmed the Southern District of New York’s holding … Continue Reading

Attorney Fees Not Recoverable Under Bi-Economy and Panasia According To New York’s Appellate Division, Second Department

  In 2008, the New York Court of Appeals decided the companion cases of Bi-Economy Market, Inc. v. Harleysville Ins. Co., 10 N.Y. 3d 187) (2008) and Panasia Estates, Inc. v. Hudson Insurance Co., 10 N.Y. 3d 200 (2008), which held that “consequential damages resulting from a breach of the covenant of good faith and … Continue Reading

Rhode Island Issues Bulletin Requiring Insurers to Provide Regular Summary Reports of Sandy Claims, in Addition to Temporarily Suspending Vacancy Provisions

On November 5, 2012, the Rhode Island Department of Business Regulation, Insurance Division (“Department”) issued Insurance Bulletin 2012-4, which can be viewed in the list of bulletins here. The Bulletin provides that Property and Casualty insurers in Rhode Island must fill out a CAT Summary form, which tracks the number of Sandy claims received by … Continue Reading

No Hurricane Deductible in New Jersey for Damages Due to Hurricane Sandy Per Order from Governor Christie

In one of our November 1, 2012 blog posts, we indicated that news reports were advising that New Jersey would not permit the application of hurricane deductibles to insurance claims due to Sandy. Governor Christie has since issued an undated Executive Order 107, which provides the following in relevant part: it “shall be a violation … Continue Reading

New York Modifies Inspection Requirements for Hurricane Sandy Claims Under Homeowner Policies, and Imposes Liability Under Unfair Claims Settlement Practice Law for Failure to Abide

On November 5, 2012, the New York Department of Financial Services issued an Insurance Circular Letter No. 8 (“Circular”), which provides that it would be dangerous to public health and against public policy for insurers to enforce provisions of their policies that operate to bar insureds from disposing of damaged property before the insurer has … Continue Reading

New York Department of Financial Services Issues Amended Order Regarding Moratorium on Cancellation and Renewal of Insurance Policies for “Designated Counties”

On November 5, 2012 (effective October 26, 2012), the New York Department of Financial Services issued an Amended Order Regarding Suspension of Certain Insurance and Banking Law Provisions for New York, Bronx, Kings, Richmond, Queens, Nassau, Suffolk, Westchester, Rockland, and Orange Counties (“Designated Counties”), which provides the following, in relevant part: A moratorium for thirty … Continue Reading

Hurricane Deductible Inapplicable in Delaware for Damages Due to Sandy

Following Maryland, Connecticut, and Rhode Island’s leads, on November 2, 2012, the Delaware Department of Insurance issued a bulletin advising that the hurricane deductible will not apply to losses in Delaware due to Sandy. In a prior post we advised that New York and New Jersey are also reportedly advising that the hurricane deductible should … Continue Reading

Earth Movement Exclusion Bars Coverage for Loss Caused by Excavation Per New York Court of Appeals

In Bentoria Holdings, Inc. v Travelers Indem. Co., 2012 N.Y. LEXIS 3087 (N.Y. Oct. 25, 2012), Travelers denied first-party property coverage for cracking to the insured’s property that occurred due to excavation on an adjacent property. The policy excluded coverage for earth movement as follows: 1. We will not pay for loss or damage caused … Continue Reading

North Carolina Designates More “State of Emergency” Counties Due to Hurricane Sandy, Implicating Statutory Requirements

On October 31, 2012, North Carolina’s Commissioner of Insurance issued Bulletin 12-B-07, which provides an expanded list of counties previously designated (by Executive Order 129 issued on October 26, 2012) as in a “State of Emergency.” When a particular county is so designated, the Bulletin indicates that N.C.G.S § 58-2-46 is triggered, which provides the … Continue Reading

No Hurricane Deductible in New York and New Jersey For Damages Due to Sandy According to News Reports

Following Maryland, Connecticut, and Rhode Island’s leads, New York and New Jersey are reportedly advising that the hurricane deductible should not apply to claims due to Sandy. This article published on-line by NBC, indicates that the New York State Department of Financial Services has advised the insurance industry that the hurricane deductible should not be … Continue Reading

Insurance Departments of Connecticut, Maryland, and Rhode Island Issue Bulletins Regarding Hurricane Deductibles Related to Sandy

Connecticut, Maryland, and Rhode Island Insurance Departments have issued bulletins regarding hurricane deductibles with respect to insurance claims due to Sandy: Connecticut On October 30, 2012, the State of Connecticut Insurance Department issued the following Notice: Please be advised based on information received from the National Hurricane Center (NHC) and the National Weather Service (NWS) … Continue Reading

State Insurance Departments Issue Bulletins Regarding Claims Handling Related to Hurricane Sandy

Connecticut, Delaware, New Jersey, and Rhode Island Insurance Departments have issued several bulletins regarding general claims handling for Hurricane Sandy. Links to the bulletins are provided here: Connecticut Delaware New Jersey Rhode Island We will continue to monitor affected states’ insurance department websites for further bulletins regarding Hurricane Sandy.… Continue Reading

Late Notice and Prejudice: Florida’s Fourth District Court of Appeal Finds Insufficient Evidence To Rebut Presumption Of Prejudice To Insurer

Late notice issues have been cropping up consistently in the Florida appellate courts in the context of Hurricane Wilma claims being reported years after the storm.  The latest decision, Slominski v. Citizens Property Ins. Corp., 2012 Fla. App. LEXIS 16730 (Fla. 4th DCA Oct. 3, 2012) attempts to reconcile other recent Fourth District opinions. In Slominski, … Continue Reading

Louisiana Bad Faith Statutes: Louisiana First Circuit Court of Appeal Finds Violation Based Solely On Inclusion of Lienholder In Settlement Checks

Some jurisdictions impose specific requirements on insurance companies regarding timely payment of undisputed amounts or amounts due after a settlement agreement is reached. Some jurisdictions impose penalties for failure to pay undisputed amounts or amounts due pursuant to a settlement agreement within a specified period of time. In Instant Replay Sports, Inc. v. Allstate Insur. … Continue Reading

Ensuing Loss In New York: Fourth Department Addresses Exception to Water Damage Exclusion

Typically, disputes over ensuing loss provisions focus on whether the “secondary” loss complained of is actually separate and distinct from the excluded loss, or whether the “secondary” loss is separately excluded. In Platek v. Town of Hamburg, 948 N.Y.S.2d 797 (App. Div. 4th Dep’t 2012), the Fourth Department considered whether the exception to the applicable … Continue Reading

Late Notice Under Property Insurance Policy in Florida: Failure to Promptly Notify Insurer Deemed Insufficient to Warrant Summary Judgment by Florida District Court of Appeal

We have seen several recent cases in Florida addressing prompt notice requirements in property policies, many of which are related to Hurricane Wilma claims. This latest decision by the Fourth District Court of Appeal, Leben v. State Farm Florida Ins. Co. 2012 Fla. App. LEXIS 12522 (Aug. 1, 2012) seems to be contrary to the … Continue Reading