In this blog series, I have written about the possibility of an insurer’s breach of contract excusing the insured’s performance with policy conditions.1 But what if there is something that renders it impracticable or impossible for the insured to perform a policy condition (e.g., an insurer’s claim handling or an act of God)? Does the insurer get to deny coverage based on the insured’s lack of performance under such circumstances?
Most policies contain a “Concealment or Fraud” condition that reads along these lines: “With respect to all persons insured under this policy, we provide no coverage for loss if, whether before or after a loss, one or more persons insured under this policy have: a. Intentionally concealed or misrepresented any material fact or circumstance; b. Engaged in fraudulent conduct; or c. Made false statements; relating to this insurance.” Insurers sometimes argue an insured’s intent to defraud should not be assessed by the court or jury in deciding whether the insurer’s fraud-based claim denial was appropriate; insurers sometimes argue that even accidental misrepresentations, mistakes, or the like bar coverage. Wrong, in my opinion.
Most policies contain an “Other Insurance” condition, which usually reads along these lines: “If a loss covered by this policy is also covered by other insurance, we will pay only the portion of the loss that the limit of liability that applies under this policy bears to the total amount of insurance covering the loss.” Let’s discuss the appropriate application of this condition by way of hypothetical:
Most policies contain language along these lines:
In case of a loss to covered property, you must see that the following are done: …
f. As often as we reasonably require: …
(3) Submit to examination under oath, while not in the presence of any other ‘insured,’ and sign the same.
A few of my previous posts in this blog series have squarely addressed or touched upon Examinations Under Oath (EUO). This post gets a bit more particular, focusing on the “while not in the presence” and “sign the same” language.
My previous seventeen posts in this blog series have discussed what you are required (or not required) to do under various post-loss / pre-suit insurance policy conditions. This post discusses the extent of “you.” Is “you” just you, or does “you” include your spouse, your family members, your public adjuster, and others? Who is “you” largely depends on the language of the insurance contract.
Most policies contain a “Loss Payment” condition that reads along these lines:
We will adjust all losses with you. We will pay you unless some other person is named in the policy or is legally entitled to receive payment. Loss will be payable 60 days after we receive your proof of loss and: (1) Reach an agreement with you; (2) There is an entry of a final judgment; or (3) There is a filing of an appraisal award with us.
Most policies contain a “Concealment or Fraud” condition that reads along these lines:
With respect to all persons insured under this policy, we provide no coverage for loss if, whether before or after a loss, one or more persons insured under this policy have: a. Intentionally concealed or misrepresented any material fact or circumstance; b. Engaged in fraudulent conduct; or c. Made false statements; relating to this insurance.
Just about every fraud-based claim denial that I have come across (at the claim and/or litigation stage) lacks specificity, i.e., fails to explain how the insured defrauded the insurer. Do not let the insurer get away with that at either the claim stage or the litigation stage.
Sometimes policyholders will assign the right to payment under an insurance policy (i.e., assign policy benefits) to a third party (e.g., a mitigation company or contractor, in the property insurance context) following a loss. During one seminar I attended at last week’s Windstorm Conference in Orlando, we discussed whether an assignee and an assignor (i.e., the policyholder) are obliged to comply with post-loss / pre-suit policy conditions after an assignment of benefits. I thought it worthwhile to make that discussion part of this blog series. So, here we go…
Under some policies, appraisal is a post-loss condition. I have written about appraisal in prior posts. This post addresses the issue of whether appraisal moots a Civil Remedy Notice (“CRN”) or tolls the CRN’s sixty day cure period, allowing an insurer to circumvent bad faith litigation in most instances.
This post expounds upon last week’s post which touched upon statute of limitations concerns in the property insurance contract context. As noted in last week’s post: “In the good ol’ days, ‘a breach of contract action on an insurance contract accrue[d] on the date the contract [wa]s breached,’ but Section 95.11(2)(e) of the Florida Statutes ‘changed this prior understanding… , designating the date of loss as the new date from which the limitations period would run.’”1 The focus of this week’s post is whether Section 95.11(2)(e) of the Florida Statutes is to be applied prospectively or retroactively.