In my last blog post, I wrote about the Seventh Circuit Court of Appeal’s recent decision in Windridge of Naperville Condominium Association v. Philadelphia Indemnity Insurance Company.1
There, the Seventh Circuit rejected Philadelphia’s argument that because only the south and the west elevations of siding on townhome buildings suffered “direct physical loss to covered property” within the meaning of the policy’s coverage grant, it need only replace the siding on those elevations. With respect to the phrase “direct physical loss,” the Seventh Circuit applied a common sense meaning, i.e., physical damage to tangible property causing an alteration in appearance, shape, color, or in other material dimension, which is what occurred to the siding. The Seventh Circuit also cited to its previous ruling in Advance Cable Company v. Cincinnati Insurance Company,2 where it concluded that “physical loss or damage” within the meaning of a property insurance policy’s coverage grant includes “cosmetic” denting from hail that physically alters the insured property (visible hail indentations to a metal roof). The Seventh Circuit in that case reasoned that “physical loss or damage” is not limited to damage that affects the functional integrity or diminishes the value of building components.3
As the Windridge and Advance Cable decisions establish, the Seventh Circuit has rejected a “functional damage” definition as the only definition of hail damage, which definition insurer-retained engineers consistently and routinely follow. Indeed, as the Seventh Circuit stated in Advance Cable, if an insurance company wishes to exclude cosmetic damage from coverage or if it wishes to limit hail damage to functional damage (reduction of water-shedding capability or reduction in the expected long-term service life of material), then it should write its policy that way.4
So, does an insurer act in “bad faith” if it denies coverage for a hail loss based on its retained engineer defining hail damage as limited to functional damage when the policy does not contain such a limitation? According to an Indiana federal district court in North Shore Co-Owners’Ass’n, Inc. v. Nationwide Mutual Insurance Company,5 the answer is yes. There, the insured alleged that Nationwide breached the insurance policy and acted in bad faith by failing to pay for cosmetic shingle damage. Nationwide retained Nederveld, Inc., a forensic engineering investigation and fire investigation consulting firm, to inspect the buildings’ roofs. Nederveld concluded that there was no hail damage because the shingles did not sustain functional damage; it only sustained cosmetic damage.
Nationwide moved to dismiss the bad faith claim, arguing it had a rational basis for its coverage position.6 The district court accepted as true for purpose of the motion the following allegations: Nationwide hired Nederveld, a preferred vendor, who defined hail damage to only include functional damage when the policy covered cosmetic damage; Nederveld reported to Nationwide that the roofs had no damage, even though the damage was open and obvious; and, in the course of denying the claim for cosmetic damage, Nationwide misrepresented its policy and conspired with Nederveld to deceive the insured. The district court concluded that these allegations raised an inference that Nationwide knew there was no legitimate basis for defining damage to only include functional damage and in denying coverage for the hail loss. The district court reasoned that if Nationwide conspired with Nederveld to conceal facts and to mislead the insured about the nature and the extent of the damage, then it is reasonable to infer that Nationwide’s actions were not the result of poor judgment, negligence, or a good-faith dispute; but, rather bad faith.
The district court’s ruling in North Shore Co-Owners’Ass’n, Inc. should serve as a warning to insurers to stop denying hail and wind damage claims based on an engineering definition of hail or wind damage not supported by the policy or be subjected to a bad faith claim. But nothing will surprise me, as insurers’ repeated failures to do the right thing is what has kept me in business for the past 34 years.
1 Windridge of Naperville Condominium Association v. Philadelphia Indem. Ins. Co., 2019 WL 3720876 (7th Cir. August 7, 2019).
2 Advance Cable Co., LLC v. Cincinnati Ins. Co., 788 F.3d 743 (7th Cir. 2015).
3 See also Great Plains Ventures, Inc. v. Liberty Mut. Fire Ins. Co., 161 F.Supp.3d 970 (D. Kan. 2016) (“direct physical loss or damage” includes hail indentations on a metal seam roof regardless whether the indentations caused functional damage or merely cosmetic damage).
4 The two organizations that standardize forms and policies for property insurers, AAIS and ISO, have drafted cosmetic damage endorsements excluding coverage for exterior surfacing of walls, roofs, doors and windows if wind and/or hail damage simply affects the appearance of these surfaces, and not their ability to keep weather-related or other elements from entering the property.
5 North Shore Co-Owners’Ass’n, Inc. v. Nationwide Mut. Ins. Co., 2019 WL 3306212 (S.D. Ind. July 22, 2019).
6 Under Indiana law, bad faith arises when an insurance claim is wrongfully denied and the insurer knows there is “no rational, principled basis” for denying the claim. Erie Ins. Co. v. Hickman, 622 N.E.2d 515, 519 (Ind. 1993).