Nicholas Conklin

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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

While appraisal can be used by an insurance company as a method of delaying claims and avoiding complete payment, there are circumstances when entering appraisal is in the best interest of the insured. Whatever the reason for seeking this cost-efficient procedure, it is important to consider what the courts view as prerequisites to utilizing their discretion to compel appraisal.
Continue Reading How to Force an Insurer into Appraisal in Florida – Satisfaction of Post-Loss Obligations

Initially, it is beneficial to define just what exactly is meant by the phrase “regulatory estoppel” in the context of insurance policies. This theory is a form of equitable estoppel whereby insurers are prevented, or “stopped,” from asserting an interpretation of an insurance policy provision that is contrary to the insurer’s explanation of that provision to state insurance regulators when the insurer originally sought approval of the policy form from the state department of insurance. In layman’s terms, the insurance company is prevented from arguing that a specific policy provision has a different meaning than the meaning originally presented to an insurance agency or during a judicial proceeding.
Continue Reading Regulatory Estoppel – What is it and How Can it be Successfully Pleaded in New York?

The loss of market exclusion excludes from coverage any lost profits due to the business’s market disappearing. The loss of market could be due to economic decline, competition, or shifts in demand attributable to a dramatic occurrence. The question, as usual, is whether that exclusion applies to the claims of lost profit by policyholders that follow a covered peril.
Continue Reading Understand Business Interruption—Do Not Let the Insurance Company Deny Your Income Claim on Bogus Loss of Market Exclusions

Building officials play a substantial role in ensuring that zoning codes, local ordinances, and building codes are met. It is not uncommon for insurance companies to challenge the policyholder’s engineers, contractors, and even the building officials about the applicable building codes to lower or prevent payment of insurance benefits owed under Ordinance or Law Coverage. While the rest of this post will discuss this issue with an emphasis on Florida law, please join me this afternoon for a livestream at 2 pm EST when we will discuss Ordinance or Law Coverage and how to combat a more frequently raised issue.
Continue Reading The Insurer Disagrees With the Building Official and Will Not Pay Ordinance or Law Coverage—Find Out What To Do By Watching Tuesday at 2 With Chip

One tactic consistently used by defense attorneys on behalf of insurance companies is to complicate the issues, relying on complexity, confusion, and ambiguity to successfully defend against claims by policyholders. The purpose of confusing the issues is to prevent the judge and jury from considering the insurer’s conduct and instead turn their attention to the policy’s ambiguous language and Florida statutory law.
Continue Reading Rules of the Road: Simplifying the Process for Plaintiff’s Property Attorneys to Ensure Effective Advocacy

Every state has some general rules to follow when interpreting insurance contracts. While New York is often thought of as a state whose laws favor insurance companies, there are very good examples of New York following most of the standard insurance contract laws of interpretation.
Continue Reading New York Insurance Contract Interpretation—General Rules to Follow

Picture this. You have retained counsel to assist in enforcing your claim under your insurance policy. After a favorable appraisal, and payment of that award by the insurer, you receive a notice of nonrenewal stating that the insurer is electing not to renew the policy as “the risk no longer complies with underwriting guidelines.”…
Continue Reading Policyholders’ Potential Bad Faith Claim for a Retaliatory Nonrenewal

In May of 2019, a decision made by a panel of Florida’s Fifth District Court of Appeals sparked an important debate that could have consequences for policyholders and their insurers throughout the state of Florida. The Florida Supreme Court will soon end that debate, and its decision could impact how attorneys choose to approach advocating for policyholders when delays in payment directly result in lost income for insureds.
Continue Reading Consequential and Foreseeable Damages: Recovery of Lost Rent Directly Attributable to the Insurer’s Breach of Contract