Although we cover a wide variety of topics and issues on this blog, one issue that recurs with some frequency is the appropriate application of suit limitation provisions that are found in most property policies. The latest case to confirm that suit limitation provisions are valid and enforceable, and to highlight the peril an insured may encounter by not recognizing or addressing those provisions during the course of a claim, is Consolidated Rail Corp. v. Aspen Spec. Ins. Co., et al., 2019 WL 2417704 (D.N.J. June 10, 2019). That case involved a dispute between Consolidated Rail Corporation, otherwise known as “Conrail,” and Hudson Specialty Insurance Company (among other defendants), one of Conrail’s three excess layer insurance carriers.
Continue Reading The District of New Jersey Affirms Application of Suit Limitation Provision in Train Derailment
J. Tyler Butts
J. Tyler Butts is an associate in Robinson+Cole’s Litigation Section and an active member of the firm’s Appellate and Insurance + Reinsurance Groups. He focuses his practice on insurance coverage and bad faith litigation, white-collar defense, class action litigation, and antitrust litigation.
Prior to joining Robinson+Cole, Tyler worked with a national law firm on securities and probate litigation as well as on complex class action matters. He is a member of the American Bar Association, Connecticut Bar Association, and Hartford County Bar Association.
Eastern District of New York Upholds Flood Exclusion in Superstorm Sandy Case
Nearly five years after Superstorm Sandy, some consistent themes are beginning to emerge from the increasingly robust body of property coverage case law related to the storm. A recent decision from the Eastern District of New York addresses a topic that this Blog has covered before – the application of flood exclusions in traditional open peril policies.
The Madelaine Chocolate Company was a manufacturer of seasonal foil-wrapped chocolates insured under an “open peril” business policy issued by Great Northern Insurance Company. Purported to be one of the largest private employers in Queens, New York, Madelaine Chocolate conducted its business in three buildings located in Rockaway Beach. During Superstorm Sandy, the facility was inundated with four feet of water from both Long Island Sound to the north and the Atlantic Ocean to the south. After the storm, Madelaine Chocolate made a $40 million property damage claim and a $13.5 million business income/extra expense claim. Great Northern paid Madelaine Chocolate $4 million and denied the remainder of the claim based on the policy’s flood exclusion.
Continue Reading Eastern District of New York Upholds Flood Exclusion in Superstorm Sandy Case
Texas Department of Insurance Issues Additional Bulletins Relating to Hurricane Harvey
Last week, we wrote a post about a number of bulletins of potential interest to property insurers issued by the Texas Department of Insurance concerning the appropriate conduct of those involved in the insurance claims process in the aftermath of Hurricane Harvey. The Texas DOI has continued its response to Hurricane Harvey, issuing two new…
Texas Department of Insurance Issues Bulletins Relating to Hurricane Harvey
With flood waters yet to fully recede, and the cleanup and recovery efforts from the damage caused by Hurricane Harvey and its aftermath in southeast Texas just beginning, the Texas Department of Insurance issued a number of bulletins on August 26, 2017 relating to the storm. Several of those bulletins, summarized below, are of particular…
Connecticut Supreme Court Reaffirms Court’s Limited Power To Review Appraisal Awards
The Connecticut Supreme Court recently handed down an important decision reiterating the high bar to overturning arbitration awards while, at the same time, clarifying a portion of the applicable statute providing for vacating an arbitration award as well as a prior ruling concerning the timing of payment of heldback depreciation.
In Kellogg v. Middlesex Mutual Assurance Company, the plaintiff insured her historic property under the defendant’s restorationist policy. Unlike traditional homeowners policies, the restorationist policy had no policy limit; rather, if repairs were completed, it provided for the full replacement or restoration cost of the property without deduction for depreciation. The insured property was damaged when a large tree fell on the roof and chimney during a storm. When the parties could not agree as to the amount of the loss, the insured submitted the dispute to appraisal. Following seven site visits, the submission of voluminous materials, and hearings with multiple witnesses concerning the correct amount of the claim ($1.6 million v. $476,000), the umpire and the insurer’s appraisal awarded the insured nearly $580,000 on a replacement cost basis. The insured filed an application with the Connecticut Superior Court to vacate the arbitration award under Conn. Gen. Stat. § 52-418. Following an eight day trial that covered the entirety of the claim and appraisal process, the court vacated the award and ordered a new arbitration hearing.
Continue Reading Connecticut Supreme Court Reaffirms Court’s Limited Power To Review Appraisal Awards
New Jersey Appellate Division Applies Anti-Concurrent Causation Clause to Bar Combined Flood/Sewer Backup Claim
Frequent readers of the blog will appreciate that disputes involving the application of anti-concurrent causation language in the context of claims for flood or water damage have appeared with some frequency in recent years. This increased level of cases is due in large part to the damage caused by Hurricane Irene in 2011 and Hurricane Sandy in 2012. One frequently-litigated issue concerns what, if any, coverage is available under a policy with anti-concurrent causation language when a single indivisible loss is caused by a covered peril and an excluded peril. Recent decisions in New Jersey suggest a solid consensus that such a claim is not covered.
Continue Reading New Jersey Appellate Division Applies Anti-Concurrent Causation Clause to Bar Combined Flood/Sewer Backup Claim
What Is Prompt Notice? Second Circuit Analyzes Late Notice In New York
Property insurance policies typically require that, once an insured suffers a loss, the insured report the loss to the insurance carrier promptly. The purpose of such a provision is to allow an insurer to investigate a claim close in time to the occurrence so as to protect itself from fraud, take early control of the direction of the claim to anticipate where that claim might lead, and to ensure that it has adequate reserve funds in place. Naturally, the question often becomes how much time may elapse after a loss to make a delay in reporting unreasonable, and whether an insured may be excused from compliance with such late notice provisions by pleading lack of prejudice to the insurer, lack of sophistication, or some other, similar, mitigating factor. In Minasian v. IDS Prop. Cas. Ins. Co., 2017 U.S. App. LEXIS 1079 (2d Cir. Jan. 19, 2017), the Second Circuit found that a reporting delay of three months ran afoul the policy’s reporting requirement, and resoundingly rejected the insureds’ arguments that certain extenuating circumstances should excuse their compliance with the policy’s post-loss notice requirements.
Continue Reading What Is Prompt Notice? Second Circuit Analyzes Late Notice In New York
Hurricane Sandy, Flood, and Sewer Backup: New Jersey Federal Court Confirms Anti-Concurrent Causation Bars Insured’s Claim
As we have written about before on this blog, the water damage caused by Hurricane Sandy in October 2012 gave rise to important questions concerning the applicability of so-called “anti-concurrent causation” clauses. Such was the case in the recently-decided matter of Carevel, LLC v. Aspen American Ins. Co., 2016 U.S. Dist. LEXIS 157919 (D.N.J. Nov. 15, 2016).
In Carevel, the insured’s building in Jersey City, New Jersey suffered interior water damage during Hurricane Sandy. The relevant insurance policy excluded damage caused by flood. The flood exclusion included an anti-concurrent causation preamble with the familiar language excluding flood damage “regardless of any other cause or event that contributes concurrently or in any sequence to the loss.” Importantly for the legal issues raised in this case, the policy did cover, via endorsement, damage caused by water that backed up through sewers or drains. Following an investigation into the loss, Aspen obtained a report indicating that the interior water damage was caused by street-level flooding that had infiltrated the building during the storm. Aspen denied the claim based on the flood exclusion. The insured filed suit, claiming that the damage was caused by water that had entered the building through the basement’s sewers or drains.
Continue Reading Hurricane Sandy, Flood, and Sewer Backup: New Jersey Federal Court Confirms Anti-Concurrent Causation Bars Insured’s Claim
A State Law Wolf in Federal Common Law Clothing: The Third Circuit Rejects Insured’s Attempt to Expand Causes of Action Under the Standard Flood Insurance Policy
Courts across the country (and particularly since Super Storm Sandy in 2012) have consistently held that, in litigation involving a dispute concerning the investigation, adjustment, or payment of a flood claim under the Standard Flood Insurance Policy, policy holders are limited to breach of contract causes of action against their Write-Your-Own insurance carriers. Those courts…
Missing Millions, An Armored Car Conspiracy, And A Fraudulent Connecticut Insurance Application
In determining whether or not to provide insurance to a particular applicant, one thing that insurance companies typically rely on is the insurance application submitted by the prospective insured. The application is designed to provide the insurance company with, among other things, a comprehensive overview of the risk to be insured. Given the importance of…