Implicit in every property insurance policy is the concept that a loss will only be covered if it is “fortuitous,” also referred to as “accidental” or “unexpected.” The fortuity requirement is based on the concept that it would be against public policy to allow an insured to benefit from an insurance policy if the insured knew or expected a loss to occur.
The more obvious scenario where fortuity is implicated is where the insured deliberately causes a loss. For instance, if the insured intentionally starts a fire at insured property, the loss would not have been caused by an accidental cause of loss, and would not be covered.
Fortuity is also implicated in cases where the loss is inevitable. For instance, paint peeling from a home after twenty years is not a fortuitous loss.
In addition, in cases where it is established that the insured had control over the loss that occurred, fortuity is implicated. For instance, if the insured was aware of a condition that caused property damage in the past, and is able to make proper adjustments in order to avoid future damage, but does not, the resulting loss may not be a covered loss based on the doctrine of fortuity.
Closely related to the fortuity doctrine are the “known loss” and “loss in progress” doctrines. The known loss doctrine precludes coverage for losses that the insured was aware of prior to inception of the policy. The loss in progress doctrine precludes coverage for losses that began prior to the policy period but continued into the operative policy period.
In insurance fraud cases involving actual or alleged destruction of evidence by the insured, an issue often arises regarding whether an adverse inference instruction is appropriate, and, if so, what form it should take. The Second Circuit recently approved a “light” form of adverse inference instruction that allowed the jury to make an adverse inference … Continue Reading