Closely related to the fortuity doctrine, are the doctrines of known loss or loss in progress. Known loss is fairly simple and can often lead to allegations of fraud by the insured. If an insured knows of a loss and then procures insurance to cover it by concealing material information from the insurance company, the insurance company likely can raise the defense of fraud stemming from the insured’s concealment.
When fortuity issues arise in insurance disputes, courts make a determination about the fortuity of the loss (as I wrote about in my previous post) and look to see how much control the insured had over the loss or damage. As one might expect, the general rule is the more control the insured has over the loss or damage, the less likely it is that a court will find coverage. In other words, if the insured makes every reasonable attempt to prevent a loss, but that loss ultimately still occurs, the loss is likely fortuitous.
Last week, in continuing my deconstruction of the all-risk policy, I wrote about the fortuity doctrine. This week, I want to begin looking at how courts apply the fortuity doctrine in certain circumstances.
In my last post, I mentioned that the fortuity doctrine creates many legal issues. Before going into those legal issues, it is important to understand exactly what the fortuity doctrine is.
After spending the past several weeks looking at common exclusions to the all-risk policy, this week’s blog will focus on more basic requirements that must be met in order for coverage to exist. Some will seem very straightforward, but others actually raise interesting legal issues when the right circumstances arise.
This week’s review of common exclusions found within all-risk insurance policies focuses on the latent defect or inherent vice exclusion. While other exclusions are somewhat more straightforward – we all may have a good idea of what mold is – this exclusion first raises the question: What is a latent defect or inherent vice?
Last week I wrote about the smog, smoke, vapor, or gas exclusion and gave an example of how some courts hold that invisible vapors are not included in the common definition of “smoke.” As promised, this week’s post illustrates that other courts feel invisible vapors are included in the definition of “smoke.”
Continuing my breakdown of common all-risk insurance policy exclusions, I turn this week, to the smog, smoke, vapor or gas exclusion. While one might think that this type of exclusion would apply only to industrial or commercial properties, it can apply to homeowners’ claims as well, and it is important for all policyholders to understand.
Recently, I wrapped up the discourse of mold exclusions commonly found in all-risk policies. This week I am writing about another extremely common exclusion: the “wear and tear” exclusion.
After writing about mold exclusions the past two weeks, I intended to move on to a different topic. However, a discussion I had this past week with an insurance defense attorney convinced me that the mold exclusion deserved one last post.