You have managed to find employment as a soldier, but does that mean you have any expertise?
Forty Years as an Adjuster Does Not an Admissible Opinion Make
Experience may make you qualified to testify as an expert. But only laying a proper foundation by translating that experience into knowledge of accepted industry practices will get your opinion into evidence.
The District of Massachusetts recently allowed an insurer’s motion to strike a policyholder’s claims handling expert because he did not adequately link his opinion to industry standards. Continue reading
Is the end nigh? Or will its settlement offer
be deemed reasonable?
Insurer Misses the Boat and Court Denies Summary Judgment in Claimant’s Unfair Settlement Practices Suit
A recent Massachusetts Superior Court ruling tells of a journey fraught with peril for a liability insurer trying to reach the safe harbor of Massachusetts General Laws Chapter 93A. This statute permits a judge to award double or treble damages if an insurer sued for unfair claims settlement practices refuses to settle when liability is reasonably clear. However, the statute shields a defendant from the threat of multiple damages if he or she makes a reasonable settlement offer in response to the plaintiff’s pre-suit demand letter.
In Boyle v. Zurich American Insurance Company, the insurer’s seemingly reasonable settlement offer fell short of the mark needed to win summary judgment. This case has important warnings for insurers seeking to rely on the safe harbor, as well as pitfalls to avoid when learning of a default against an insured. Continue reading
Clam lovers, Beware!
Businesses are also going to feel
the pain of NFIP’s redrawn flood maps
The National Flood Insurance Program’s redrawing of flood maps and roll-back of flood insurance subsidies for some properties have caused an uproar from homeowners in coastal and other areas where flood insurance is required by mortgage lenders. It may be less commonly known that NFIP is also phasing out subsidies for business properties. So if you notice the price of a clam roll starting to climb, your favorite seaside eatery may be passing along its rising insurance costs. If it’s your premiums that are rising, grants may be available for implementing flood mitigation measures (picture your clam shack on stilts), and implementing those measures may lower your flood insurance premiums.
For more on this see http://www.fema.gov/hazard-mitigation-assistance.
About Harvey: I specialize in Insurance Law and Litigation at Anderson & Kreiger. My most recent post for Between the Lines analyzed a case indicating that D&O policies may cover lying during negotiations.
Photo credit: snowpea&bokchoi
This guy’s D&O policy has him covered
D&O Policy May Cover Judgment Against Company for Intentional Misrepresentations During Negotiations Leading To Asset Purchase Agreement
Rhode Island District Court Denies Insurer’s Motion to Dismiss
After a jury found that Versyss was liable to TranSched for breach of contract and intentional misrepresentation, TranSched sued Versyss’ directors and officers liability insurer, Federal, to collect on the judgment. Federal moved to dismiss in reliance on the D&O policy’s contract and fraud exclusions. It may sound like those policy exclusions would bar coverage, but, as often happens, a closer reading of the policy led to a different conclusion. Continue reading
When your roof looks like this at the end of a construction project, what resulting damage will your GL policy cover?
I recently wrote about the Connecticut Supreme Court’s decision addressing the often-contested question of whether the standard form CGL policy covers damage caused by defective construction. Connecticut found that where faulty workmanship causes physical damage to non-defective property, CGL policies cover that damage, but not the defective construction itself or any non-physical, non-tangible damage that the faulty workmanship caused. Since the Connecticut decision, the Alabama and Georgia supreme courts addressed the same question, and each answered it slightly differently.
Both courts focused on the threshold issue of whether faulty workmanship constitutes an “occurrence,” which the CGL policy defines as an “accident.” The Alabama court concluded that faulty workmanship is not necessarily an “occurrence,” but it may qualify as one if it results in damage to personal property or parts of the structure outside the scope of the construction project. If, for example, you hire a contractor to replace your roof and the new roof leaks, resulting in water damage to your furniture and walls and floors, you have an “occurrence” under Alabama law. On the other hand, if you hire a contractor to build a house, and the roof leaks, resulting in water damage to other parts of the house, there’s likely no “occurrence” under Alabama law, because the damage is to property that was within the scope of the construction project. Continue reading
Does this water even have an
efficient proximate cause?
Just as Eskimos are said to have many words for snow, property insurance policies have many words for water. Consider, as the First Circuit recently did, the water collecting on the roof of a five-story mixed-use rental building in Clinton, Massachusetts during a storm. Is it “rain”? (Covered under the insured’s all risk policy only if it enters the building due to damage from a covered cause). “Surface water”? (Excluded in the policy form, but covered under a flood endorsement if a normally dry land area is inundated by an unusual or rapid accumulation or runoff). “Overflow” from the small and inadequate drain at the center of the roof? (An exclusion for overflow from a drain is deleted by the flood endorsement). Does its character change as it overtops two old and leaky skylights and cascades into the building? Continue reading
May one day be in a position to sue for damages
Earlier this week I attended a Boston Bar Association presentation on climate change and insurance. The speaker was Lindene Patton, Chief Climate Product Officer at Zurich Insurance Group. It should come as no surprise that a property and casualty insurer is engaged in thinking about the predicted catastrophic impacts of climate change and the role insurance may have in addressing them. Continue reading
Hard to make you whole
after you’ve paid a deductible
This summer, the Connecticut Supreme Court held in a pro-insurer decision that insureds may not rely on the “make whole” doctrine to recoup amounts they pay to satisfy deductibles. An insurance broker and its errors & omissions carrier, Fireman’s Fund, paid $354,000 to settle a malpractice claim arising from problems with a builder’s risk policy that the broker placed for a construction project. The broker paid $150,000 of the settlement, its per claim deductible under the E&O policy. After resolving the malpractice claim, Fireman’s Fund, as the broker’s subrogee, sued two other insurers who wrote policies for the same construction project and recovered $208,000. Continue reading