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CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.  CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY THE LAWYER.

Today the Virginia Supreme Court, in answering a certified question from the federal Fourth Circuit, held unanimously that a homeowners’ insurance policy did not provide coverage for a loss caused by Chinese-made drywall. In TravCo Insurance Company v. Ward, Record No. 120347, slip op. (Va. Nov. 1, 2012), the court was asked to interpret exclusions for loss caused by: (1) latent defect; (2) faulty, inadequate, or defective materials; (3) rust or other corrosion; and (4) pollutants, defined to include any gaseous irritant or contaminant. The court held that “each of the four exclusions is unambiguous and reasonable in its form, scope and application and excludes damage resulting from the Chinese drywall from coverage.” Id. at 4. Here are a few quotes from the opinion:
Continue Reading Insurance Coverage for Chinese Drywall: Virginia Supreme Court Finds Coverage Excluded By Homeowners’ Policies in TravCo Insurance Company v. Ward

Insurers are starting to deploy adjusters to handle claims from Hurricane Sandy. An article in yesterday’s Wall Street Journal reports that “Disaster-modeling firm AIR Worldwide estimates the industry’s share of losses at $7 billion to $15 billion. At the high end of that range, Sandy would become the third-most expensive storm for insurers in U.S.…

The Texas Court of Appeals has reaffirmed established Texas law, holding that the entry of an appraisal award in favor of the policyholder does not, by itself, establish that the insurer is obligated to pay the award or that the policyholder is entitled to judgment in the amount of the award. Security National Ins. Co. …

Most commercial and personal lines property insurance policies exclude damage caused directly or indirectly by the peril of “earth movement.” The ISO version of this exclusion appears in many modern policies and provides that:

  1. [Insurer] 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.

b. Earth Movement

(1) Earthquake, including any earth sinking, rising or shifting related to such event.
(2) Landslide, including any earth sinking, rising or shifting related to such event.
(3) Mine subsidence, meaning subsidence of a man-made mine, whether or not mining activity has ceased;
(4) Earth sinking (other than sinkhole collapse), rising or shifting including soil conditions which cause settling, cracking or other disarrangement of foundations or other parts of realty. Soil conditions include contraction, expansion, freezing, thawing, erosion, improperly compacted soil and the action of water under the ground surface.

(See Causes of Loss—Special Form, CP 10 30 10 00, Copyright Insurance Services Office, Inc. 1999)

For more than a decade, courts throughout the country have wrestled with the question of whether the Earth Movement exclusion applies in all circumstances where earth movement plays some part in the chain of events that produced the loss. Most of the reported decisions address the interpretation and application of subparagraph (4) of the exclusion, quoted above. The loss scenarios that typically spawn coverage litigation involve some form of damage to a building’s structure (floor slab, foundations walls, etc.) caused by the movement or depletion of supporting or surrounding soil due to, (i) demolition, blasting or heavy construction activities at neighboring properties; or (ii) water leaking from an underground supply or drainage pipe.

A number of jurisdictions have construed the Earth Movement exclusion narrowly and ruled that it applies only to earth movement associated with “natural” causes (such as an earthquake or landslide), and not to construction or other causes involving human intervention. En route to finding coverage, those courts typically rely on the historical development of the Earth Movement exclusion or resort to the doctrine of “reasonable expectations.” In the other camp lie courts that apply the exclusionary language literally to bar coverage for all property damage associated with earth movement, regardless of what caused the ground to move. Those courts often rely upon the anti-concurrent causation language of the exclusion: “Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.”
Continue Reading “Earth Movement” Exclusion Bars Coverage for Damage Traced to Leak from Broken Water Pipe, According to Massachusetts Appeals Court

Insurance appraisal awards are frequently the subject of court decisions because of difficulties appraisal panels face when tasked with determining the amount of a loss, especially when the loss implicates potential coverage issues.  In the most recent decision coming out of the United States District Court for the Western District of North Carolina, an appraisal…