Defining what constitutes a “collapse” under modern policy provisions is a highly litigated issue in Florida. Insurers have repeatedly amended/revised the definition of collapse to more precisely constrict coverage, leading to constantly evolving judicial interpretations of those provisions. Many exceptional blogs have been written seeking to clarify this confounding coverage, including Court Defines “Collapse” by Merlin Law Group attorney Shane Smith, and What Constitutes an “Abrupt Collapse”? by Merlin Law Group attorney Edward Eshoo. Continue Reading Partial Collapse – Collapse Coverage Does Not Require “Total Destruction”

In his August 10, 2021, blog, Chip Merlin discussed the recent FC&S Bulletin addressing the relationship between replacement cost coverage and the increase in construction costs. For background on this discussion and to better understand the significance of the FC&S bulletin, I suggest reading his blog post, Can You Get Paid More on Your Insurance Claim When Prices Rise After a Loss? Continue Reading Replacement Cost Coverage: Why You Can Get Paid More on Your Insurance Claim When Prices Rise After a Loss

Virtually every property insurance policy has a specific section regarding the post-loss obligations of the insured. Whether it be expressly stated in its own policy provision or implied from the wording of other post-loss obligation provisions, it is almost universally agreed that an insured has a duty to mitigate their damages after a loss. Continue Reading Conflicting Policy Provisions Regarding the Duty to Mitigate in Business Interruption Claims

It is no secret that insurance adjusters will not hesitate to cite multiple policy provisions justifying a claim denial. I refer to this method as the “kitchen sink” approach, as it accurately describes the attempt to utilize every conceivable exclusion/condition remotely applicable in various insurance claims. It is quite common for an insured to receive a denial letter citing a laundry list of excluded causes of loss. Continue Reading Denying Claims Based Off Conflicting Policy Provisions Violates Florida Law

In my initial blog on the Assignment of Benefits (AOB) reform statute, I described the 20th Judicial Circuit Court’s decision finding that §627.7152 cannot retroactively change substantive rights.1 This holding found that the law in effect when the subject policy was entered into applied to the assignment of benefits contract at issue in subsequent litigation. While the holding in that case focused on both pre-suit requirements and attorney’s fees and costs as the substantive rights being considered, another Florida court has recently discussed a similar concept regarding the retroactive applicability of the statute. Continue Reading Florida Assignment of Benefits Reform Statute Does Not Retroactively Apply: Part 2

Although intervention is a legal procedure that does not often arise in property insurance claims, one can easily imagine circumstances where a party might seek to intervene in a pending lawsuit for insurance proceeds. Whether a contractors seeking payment from the insurance company for work performed at the insured’s property or another interested party attempting to protect their interests, the law governing intervention in Florida is well established. The following represents a fairly comprehensive resource on the law of intervention in Florida. Continue Reading Intervention in Florida – When Can a Nonparty Intervene in a Pending Lawsuit?

(NOTE: There will not be a Tuesday @ 2 With Chip today due to the Windstorm Conference. Tuesday @ 2 will return next week)

While there are many issues that consistently form the basis of a dispute between insurers and insureds in property insurance claims (coverage issues, causation, notice requirements, etc.), one universal principal is generally accepted on both sides: The insured, if capable of doing so, has the duty to reasonably mitigate damages to reduce their loss. Continue Reading Can an Insurer Rely on an Insured’s Mitigation Efforts to Deny Coverage or Preclude a Business Interruption Claim?

Massachusetts has adopted a version of the model Unfair Claims Settlement Practices Act and recognizes a cause of action for bad faith against a first-party insurer.1 Mass. Gen. Laws Ch. 93A § 9 establishes a statutory cause of action for any person who has been injured by another person’s use or employment of any method, act, or practice declared to be unlawful by Mass. Gen. Laws Ch. 176D § 3(9), a violation of which may give rise to civil liability under 93A § 9.2 While each state generally has their own specific bad faith statute outlining what constitutes a “unfair” or “deceptive” act by an insurer, Massachusetts law includes conduct typically found throughout the country. Continue Reading Bad Faith Conduct and Foreseeable Damages in Massachusetts