Chip Merlin posted about the Wear and Tear Exclusion just last month in Wear and Tear Exclusions Versus Depreciation For Resulting Damage To Worn and Torn Older Parts of a Structure. Explaining about wear and tear, Chip gave this example: The judge made up his own example of ten old bolts giving way and then … Continue Reading
Buy Bill Wilson’s book! This is the least I can say after quoting him about “resulting” or “ensuing” loss provisions following “wear and tear” exclusionary language. I am certain his book helped a judge understand how the coverage works.… Continue Reading
Homeowners and commercial property owners may find themselves in situations where a contractor or subcontractor performed construction on the property that was defective or faulty and may have resulted in additional loss to the property. Are these damages covered by insurance?… Continue Reading
A public adjuster called with a common situation—a property loss occurred during repair and the insurance company had initially denied the claim, saying that the loss was from defective construction. The smart public adjuster thought the property damage caused in part by defective construction could lead to coverage under an ensuing loss provision. The policyholder … Continue Reading
A recent case out of Massachusetts examined an ‘ensuing loss’ clause and found that there was not coverage provided for the loss at issue.1 Abbott, a manufacturer of a milk-based product, entered into a contract packing agreement with Hood to produce 40 million bottles of Myoplex. Hood was required to conduct specific quality control testing. … Continue Reading
If there is a design defect to a part of your property, then most insurance policies will contain exclusions for those design defects. Depending on the type of policy that you have and it’s wording, if a separate loss occurs as a result of a design defect, it may be covered under your policy. Well … Continue Reading
In my experience, an insurer oftentimes acts differently than its lawyers. What I mean is that the way in which an insurance claim is handled changes dramatically once it is handed off to a defense lawyer. Insurance defense lawyers oftentimes argue different reasons for the denial of a claim than its client wrote in its … Continue Reading
Property policies usually include a mold exclusion. Water damage, however, is a commonly covered “cause of loss.” Mold growth and water infiltration have a close causal tie, and there has been a raging dispute in the industry over whether property policies respond to mold losses when water infiltration, a covered cause of loss, caused or … Continue Reading
Herb Albert and the Tijuana Brass produced an album, Whipped Cream and Other Delights, which has been on my mind lately. While a number of my less academic colleagues would simply be interested in the album cover and the music– –my insurance coverage nerd personality drove me to research insurance coverage cases involving whipped cream or honey.… Continue Reading
The chicken or the egg causality dilemma is commonly stated as “which came first, the chicken or the egg?” To ancient philosophers, the question about the first chicken or egg also evoked questions of how life and the universe began. Similarly, yet minus the philosophical dilemma, in first party property insurance policy interpretation, parties are … Continue Reading
Ambiguities in policies often prompt litigation. In Certain Interested Underwriters at Lloyd’s London v. Chabad Lubavitch, No. 4D10-762, (Fla. 4th DCA June 8, 2011) litigation arose over a potential ambiguity in a windstorm exclusion.… Continue Reading
Oftentimes after a windstorm, flood, or plumbing leak, mold develops in a home. There are several standard insurance policies issued in Texas, and they all have some language that deals with mold. For example, a standard Texas Dwelling Policy—Form 3 specifically excludes mold damage, but covers an “ensuing loss” caused by water damage. These clauses … Continue Reading
The Texas Supreme Court released an interesting ruling recently. Many were intrigued by it because it appeared to be counterintuitive at first glance. In State Farm Lloyds et al. v. Page, No. 08-0799, 2010 WL 2331460 (Tex. June 11, 2010), the Court decided that mold damage to a woman’s personal property was covered in a … Continue Reading
I am always looking for "an edge." Just something to get a better chance of winning for my client–like all good litigators. This morning’s post, Chinese Drywall Losses Covered Under First Party Property Insurance Policy, mentioned how going to a NAPIA Conference can give a policyholder’s advocate that type of "edge." Let me explain how … Continue Reading
The insurance industry is probably calling and writing the editors of the FC&S Bulletin because the June 2009 edition correctly notes that Ensuing Loss Damage is covered under the ISO form policies for typical Chinese Drywall losses. I recently noted various coverage issues related to Chinese Drywall. A number of these cases are coming to our … Continue Reading
The coverage questions regarding problems with Chinese drywall are becoming ever more frequent in our firm. I will caution everybody that I am not giving a definitive answer. I can say that the analysis is complex, depending on which state law you are applying. As usual, the policy and the factual problems associated with the … Continue Reading
"Ensuing loss" provisions are the "Lazarus" clauses in property insurance policies. Property damage claims otherwise excluded from coverage, are raised from the dead and paid as a result of them. They are difficult to understand and the court decisions seem inconsistent. However, when there seems to be an event that is excluded, many times a … Continue Reading