Age as a Factor in Determining Depreciation Used to Calulate Actual Cash Value

In Lains v. American Family Mutual Insurance Company,1 a federal district court in Washington considered two issues involving actual cash value:

  1. whether American Family improperly considered age in depreciating the insureds’ personal property loss, and
  2. whether American Family improperly depreciated labor costs as applied to the insureds’ dwelling loss. The American Family policy defined “actual cash value” as “the amount it costs to repair or replace property with property of like kind and quality less depreciation for physical deterioration and obsolescence.”

The policy did not define the term depreciation.

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Mudslide Did Not Cause Building to Explode

Back in May of 2014, I wrote a blog post entitled: Stranger Than Fiction: Property Insurance Policies Do Not Cover...Exploding Corpses!!?! Today, I write on a more recent case out of Colorado.1 What do they have in common, you ask? Both cases deal with creative ways lawyers try to argue the losses at issue were explosions.

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When Are Older Claims Dead? A Recap of Texas Limitations Law in First-Party Claims

There are times when public insurance adjusters or lawyers representing policyholders get claims where the policyholder did not discover damage until some time after the actual date of loss. For example, property owners sometimes don’t discover their hail damage until they experience leaks and ask a public insurance adjuster or roofing contractor to inspect their roof. This may be a year after the actual hailstorm that caused the damage. Setting aside issues of prompt notice, which I have discussed in several previous blogs, what are the rules in Texas as to when the claim is dead and it is too late to file suit?

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Save the Date - Professional Public Adjusters Association of New Jersey Meeting November 3!

Professional Public Adjusters Association of New Jersey

The newly formed Professional Public Adjusters Association (PPAANJ) is holding its first general meeting on November 3, 2016, at the Molly Pitcher Inn in Red Bank, New Jersey. In addition to the meeting there will be a four hour seminar covering various topics of interest to the public adjusting community.

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Join us in Atlanta

Chip Merlin and I will be speaking on behalf of the Merlin Law Group at the Fall Georgia Association of Public Insurance Adjusters Meeting on October 4, 2016, at the Cobb Galleria Centre in Atlanta.

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Florida District Court Decision on "Your Work" Exclusion in CGL Policy Is At Odds With Law of Numerous Jurisdictions

In Essex Insurance Co. v. DiMucci Development Corp. of Ponce Inlet Inc., U.S. District Judge Roy B. Dalton Jr. recently held that Evanston Insurance Company has no duty to defend a builder in a lawsuit alleging construction defects at one of its Florida condominium complexes based on an exclusion in the policy for damage to the developer’s own work.1

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Bailee Liability in New Jersey

As Hermine made its way up the Eastern Seaboard, everyone along the New Jersey Coastline was praying this would not be a repeat of Hurricane Sandy. We in the tristate were lucky this time and the storm went out to sea with little impact, but as I read recent blog posts while preparing for the storm, I thought about what would happen to personal articles set aside in storage in preparation for the storm, and then suffered damage while in the storage unit: Who would be responsible?

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First Party Claims Conference - Warwick, Rhode Island - October 17-19, 2016

Piggy-backing on my prior blog post, Insurable Interests Defined: A Blog Series – Episode Seven, Rhode Island, the First Party Claims Conference is next month in Warwick, Rhode Island!

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Insurable Interests Defined: A Blog Series - Episode Seven, Rhode Island

In this episode we’re headed to Rhode Island, the Ocean State, to define insurable interests.

Rhode Island case law on the issue dates back to the 1800’s. In Cronin v. Vermont Life Insurance Company, the Supreme Court of Rhode Island held that to recover on an insurance policy one needed an insurable interest.1 Rhode Island also follows the principle that we’ve seen many other states follow, a “person has an insurable interest in property, by the existence of which he will gain an advantage, or by the destruction of which he will suffer a loss, whether he has or has not any title in ... the property itself.”2

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Thank you!

I want to thank everyone who helped us achieve a hard fought victory in my August 30th primary for the Florida House of Representatives. My law firm colleagues have been with me every step of this journey. They never wavered in their support and were there to offer whatever assistance I needed on my cases. In addition, my friends with FAPIA put their blood, sweat and tears into this campaign. Not only did they help me to gather the necessary resources to run a winning campaign, they personally came to Tampa and got their hands (and shoes dirty).

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Calculating Actual Cash Value, Part 20: North Carolina

In Balestrieri v. American Home Assurance Company,1 the plaintiff’s home was destroyed by a fire. At the time of trial, she had been paid over $900,000 based on the estimate of the house’s actual cash value, however she contended that the clear weight of the evidence demonstrated her entitlement to approximately $400-500k more than the insurer already paid. The jury instruction was as follows:

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Fire Claim Was Not Mischief but Other Courts Disagree

Going way back to the roots of insurance, fire was the peril that insurance was designed to protect. Fire damage and smoke are incredibly damaging and cause many injuries and fatalities. While our suppression efforts have a come a long way, there is still a long way for us to go with fire insurance claims being properly paid across the board.

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Homeless Warming Fire That Becomes Uncontrolled is Not Vandalism for Purposes of Policy Exclusion

How many of you have been faced with a fire claim where the insurer denies coverage on the grounds that the fire was the result of vandalism and therefore the claim was excluded?

Well, a recent California Court of Appeal decision has held that insurers taking this position have to actually prove that the person who set the fire intended to destroy or otherwise damage the property in order for the exclusion to apply.

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Lloyds Delaying Payment on Many Claims

Lately I have had several public insurance adjusters call me about a specific problem with Lloyds.1 The public adjuster and the Lloyds (third-party) adjuster agree on the scope and amount of damages on a claim. Then Lloyds never pays. It’s not that Lloyds refuses to pay. They just don’t pay, like for a real long time. Usually there are lots of comments about Lloyds being across the pond and time differences and things like that, but this is not 1492 when Columbus sailed the ocean blue. We are in the age of air travel, FEDEX, the Internet, bank wiring funds, etc. Hell, I went to the much-maligned US Post Office the other day to send something to the UK and even the US Post Office got it there in five days.

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Using a Motion in Limine to Exclude Evidence of Prior Fires or Prior Insurance Claims

Motions in limine are commonly used to seek a pre-trial ruling regarding excluding inadmissible or prejudicial evidence. At the federal level, Federal Rules of Evidence (“FRE”) 103(d) and 104(c),1 402,2 403,3 and 611(a)4 and Federal Rule of Civil Procedure (“FRCP”) 16(c)5 provide the underlying bases for in limine motions, though the power to rule on such motions inheres in the district court’s authority to manage the course of trials.6 Whether to grant or to deny a motion in limine falls within the broad discretion of the district court.7

The admissibility of evidence of an insured’s prior fires and prior insurance claims was the subject of a motion in limine in Chicago Import, Inc. v. American States Insurance Company,8 a case arising out of a 2007 warehouse fire alleged to have been an act of arson.

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