Work Product and Attorney-Client Privilege Concerning Documents Drafted Prior To Litigation: Eastern District Of New York Finds Insurer’s Documents Are Not Discoverable

Insurers retain outside counsel during claim investigations for a variety of reasons, including, among others, providing coverage advice, assisting in reviewing and responding to communications with insureds that have legal implications, and providing settlement recommendations. When coverage disputes arise, policyholders often seek the production of these pre-suit communications, arguing that outside counsel was merely performing an investigation that the company was required to conduct as part of the ordinary course of its business, and that such communications are therefore not privileged. These arguments have routinely been rejected by courts. Continue Reading

Late Notice in New York: Federal Court Finds No Prejudice Required In First Party Context

We have written on the topic of late notice a number of times. Typical property insurance policies require that the insured notify its carrier of a loss promptly. The purposes of such a provision include allowing an insurer to investigate a claim close in time to the occurrence so as to ensure that it is able to gather all the relevant facts associated with the reported loss and to ensure that it has adequate reserve funds in place. A federal court in New York recently determined that a four month delay in notifying an insurer of a loss was too late and that the insurer need not establish that it suffered prejudice as a result of the delay. Continue Reading

The Definition of “Reside” Under Homeowners’ Policies in Michigan and New York: Two Appellate Courts Provide Further Insight

Two appellate courts recently examined the scope of a homeowners policy’s requirement that the insured reside at the property at the time of loss. Both cases involve claims of loss involving a house fire, and in both cases, claims were denied on the basis that the homeowner was not residing at the property at the time of loss. Both court decisions agree that where the homeowners policy requires that the homeowner reside at the property, evidence of simultaneous residence in multiple houses does not necessarily defeat the insured’s claim. However, evidence of actual residence is required. Continue Reading

Eastern District of New York Magistrate Recommends Denial of a Motion to Remand and Recognizes the Application of the Fraudulent Joinder Doctrine, Even in the Face of the “Forum Defendant Rule”

Recently, in Mallek v. Allstate Indem. Co. No. 17-CV-5949-KAM-SJB, 2018 U.S. Dist. LEXIS 42171 (E.D.N.Y. Mar. 12, 2018), a federal magistrate in New York recommended that the Court deny a plaintiff’s motion to remand and suggested that removal was proper where the plaintiff “fraudulently” joined an insurance agent. Oftentimes, coverage actions involve a plaintiff suing a national insurance company, where neither are citizens of the same state, and therefore, the case may be eligible for removal under 28 U.S.C. § 1332. However, some plaintiffs have included local agents of the insurance company—like a claims professional who handled their claim—as named-defendants, along with the insurer, in an attempt to defeat complete diversity between a local plaintiff and a national insurance carrier. Continue Reading

Massachusetts Reference Award and Alleged Chapter 93A Violation Addressed By Federal District Court Opinion

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

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

Hurricane Harvey, the Texas Supreme Court, and Anti-Concurrent Causation

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

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 bulletins in the last week.

Bulletin B-0021-17: This bulletin addresses situations in which an insured has suffered a flood loss that is not covered by their property insurance policy. In such a situation, and where insurers are responding to flood inquiries and flood claims from their insureds, the Texas DOI is encouraging those insurers to provide additional information to their insureds about potential assistance from the Federal Emergency Management Agency (FEMA). The bulletin also encourages insurers to provide their insureds with contact information for FEMA, including the www.disasterassistance.gov website.

 Bulletin B-0022-17: This bulletin concerns the time limits imposed by the Texas Insurance Code on insurers responding to claims arising from Hurricane Harvey. The bulletin states that the Texas DOI has issued an order determining that “the weather-related event that occurred August 25, 2017, through August 31, 2017” in more than fifty enumerated Texas counties “is a catastrophe for the purposes of claim processing.” As a result of that determination, claims resulting from Hurricane Harvey in those counties are subject to the additional time allowed for claims processing authorized by Texas Insurance Code § 542.059. That section of the code provides, among other things, that in the event of a catastrophe, claims handling guidelines imposed on insurers are extended for an additional fifteen days.

We will provide summaries of any further bulletins from the Texas Department of Insurance relating to property insurance as they are issued.

New Texas Insurance Code Chapter 542A, Effective September 1, 2017, May Reduce The Number of Harvey Lawsuits

Recently, the Texas legislature acted to curb abusive lawsuits filed by insureds as a result of hailstorm and other property insurance claims.  According to the Executive Director of The Texas Coalition for Affordable Insurance Solutions (TCAIS), the sheer quantity of abusive lawsuits filed against insurers in Texas was affecting the “availability and affordability of homeowners insurance in [a] state where consumers suffer more loss from natural hazards on an ongoing basis than anywhere else in the country.”

In May of 2017, the Texas legislature voted to pass House Bill 1774, which provides a number of changes to the landscape for a broad range of property damage claims resulting from “forces of nature,” including “earthquake or earth tremor, a wildfire, a flood, a tornado, lightning, a hurricane, hail, wind, a snowstorm, or a rainstorm.”  The new law modifies Section 541.156(a) of the Texas Insurance Code (Settlement Offers), and adds a chapter (“Chapter 542A”) to Section 542.060 (Liability for Violation of Subchapter).  While the new law was not passed with Hurricane Harvey specifically in mind, the new law will undoubtedly be implicated in property damage claims arising from Hurricane Harvey and its aftermath, as it requires certain preconditions to filing a lawsuit against an insurer, and affects what types of damages an insured is entitled to recover.  A summary of some of the key changes imposed by Chapter 542A is provided below. Continue Reading

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 interest to property insurers.

Bulletin B-0011-17: This bulletin focuses on several portions of the Texas Insurance Code concerning claim adjustment and claim adjusters. The bulletin first notes that, in emergency circumstances such as those presented by Hurricane Harvey, insurers are permitted to use nonresident and emergency adjusters to handle claims. The bulletin then discusses Insurance Code § 4101.251, which prohibits an adjuster from handling a claim involving roofing damage if that adjuster is also involved in the roofing business. Similarly, a roofing contractor may not adjust claims for a roofing loss for which they are also providing roofing services. The bulletin also discusses the requirement that public adjusters be licensed, that public adjusters may not solicit clients during a disaster, and that public adjusters not be directly involved with the repair or rebuilding of any property for which they are providing adjusting services.

 Bulletin B-0017-17: This bulletin serves as a reminder to insurers and their employees that, under Insurance Code § 543.001, no insurer, representative, or any other person may misrepresent the terms and provisions of a policy. The bulletin also notes that those insured under a dwelling or homeowners policy are entitled to choose who repairs their property. Finally, the bulletin notes that unfair claims settlement practices are prohibited, and, that “[n]ot attempting in good faith to effect a prompt, fair, and equitable settlement of a claim submitted in which liability has become reasonably clear” constitutes a prohibited unfair claim settlement practice.

Bulletin B-0018-17: This bulletin “encourage[s]” insurers who deny coverage for wind losses to inform policyholders of potential coverage under the Texas Windstorm Insurance Association if the loss occurred in a TWIA coverage area. The TWIA is an insurer of last resort created by the Texas Legislature for certain geographic portions of the Texas seacoast where the Commissioner of Insurance has made a determination that windstorm and hail insurance is not otherwise reasonably available.

Bulletin B-0019-17: This bulletin “encourages insurers to provide relief to those residents and policyholders who have been temporarily displaced, including the suspension of any vacancy provision in the policy, to allow for continuing insurance coverage.” The bulletin further notes that it is not intended to impact the application of a vacancy provision when a policyholder has permanently moved from their home or business.

Given the extensive nature of the damage and the likelihood of coverage issues arising from Hurricane Harvey, it is likely that further bulletins will be forthcoming from the Texas DOI.  We will provide summaries of any further bulletins relating to property insurance as they are issued.

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