Between the Lines

A Discussion of Case Law and Statutory Law Affecting Commercial Lines of Insurance

Article

Sorry, Your Property Policy Doesn’t Cover Removal of Snow From Your Roof

Court Rejects Policyholder’s Argument That Coverage For “Risks of Direct Physical Loss or Damage” Includes Preventive Measures. 

image credit: Renate Dodell

Typical commercial property policies state that the policy covers “risks of direct physical loss or damage.”  Does this mean that the policy covers not only property damage but the threat of property damage?  A Massachusetts Superior Court judge recently rejected this argument on a motion to dismiss.

The policyholder, a supermarket chain, spent over $800,000 removing snow from store roofs during the infamous winter of 2015.  After its insurer denied coverage for this expense, the policyholder sued the insurer, arguing that the accumulation of snow created the potential for property damage.  Therefore, the insured argued, there was a “risk” of direct physical loss or damage and the expense incurred to alleviate the risk was covered.  The court disagreed, holding that the only reasonable interpretation of the policy language is that direct physical loss and direct physical damage are the risks that the policy covers.  The court observed that the policyholder did not report the accumulation of snow under the policy before clearing the roofs, suggesting that it did not consider the risk of damage from the snow to be covered, and that the policy’s valuation clause did not include any provision for valuing a claim for preventive maintenance.

Although not noted by the court, it should also be observed that property policies generally require the insured to take reasonable measures to prevent further damage in the event of a loss, and provide that expenses for such measures may be covered, but will not increase the policy limits.  This provision (along with the absence of a provision for valuation of a claim for preventive maintenance) suggests that preventive measures intended to prevent additional damage may be covered only after physical loss or damage.  In addition, property policies generally exclude coverage for losses caused by faulty, inadequate or defective maintenance, suggesting that maintenance prior to a loss is the policyholder’s responsibility (although a policyholder might argue that the removal of record amounts of snow from a roof is not “maintenance” as that term is used in the policy).

The case is Roche Brothers Supermarkets, LLC v. Continental Casualty Co., Suffolk Superior Court No. 2017-0159-BLS1 (Kaplan, J.).

About the Author

Harvey Nosowitz – Counsel

Harvey helps clients with commercial litigation, in particular insurance coverage, personal injury and products liability cases.

Please contact him with any questions:
hnosowitz@andersonkreiger.com
(617) 621-6555.


Posted In: Property Coverage

Find an Attorney