The Certified Question: On July 2, 2020, a Ninth Circuit court of Appeals panel certified the following three-part question to the Nevada Supreme Court:

  1. Whether, under Nevada law, the burden of proving the applicability of an exception to an exclusion of coverage in an insurance policy falls on the insurer or the insured?
  2. Whichever party bears such a burden, may it rely on evidence extrinsic to the complaint to carry its burden, and if so, [3] is it limited to extrinsic evidence available at the time the insured tendered the defense of the lawsuit to the insurer?

The case out of which this certified question arises is Zurich American Insurance Co. v. Ironshore Specialty Insurance Company.1 Continue Reading Who Has the Burden to Prove an Exception to an Exclusion of Coverage in an Insurance Policy?

Indiana House of Representative member and National Council of Insurance Legislators (NCOIL) Matt Lehman announced today in a webinar hosted by Rutgers University that NCOIL would oppose any retroactive legislation changing the business income and civil authority portions of the commercial property insurance policies. Lehman is an insurance agent:

Matt has been with Bixler Insurance, Inc since 1991 and became a partner in 1995. He specializes in commercial insurance ranging from main street merchants, to large manufacturing. He also works closely with small and large agribusiness exposures, as well as all aspects of personal lines insurance. He received his Certified Insurance Counselor certification in 1995. Matt also currently serves in the Indiana House of Representatives and currently chairs the House Insurance Committee…. Continue Reading Coronavirus Insurance Coverage Update April 24-–NCOIL Against Retroactive Insurance Legislation and Small Business Policyholders Are Stupid, Stupid, Stupid

Larry Bathgate was my co-counsel on 23 municipal insurance claims Following Superstorm Sandy and countless commercial and residential claims as well. We spoke on Friday evening and Saturday morning about our former clients, the rebuilding of the Jersey Shore and our law practices. From my view, there has been an amazing transformation and it was gratifying to see the American patriotism in Bay Head, New Jersey, with hundreds of American flags everywhere.

Continue Reading Reflections on Superstorm Sandy Along the Jersey Shore Almost Seven Years After the Catastrophe

I often receive calls from policyholders asking how an insurance company can deny their claim based on an exclusion that isn’t defined in the policy. One of these terms is “surface water,” a common exclusion found in most policies. Recently, I had a client whose home’s gutter system malfunctioned during a rainstorm. Rather than channeling water to run from his roof, through the gutter system and out to the street, water was redirected at the side of the home. The water filled up a planter built in to the side of the house and eventually made its way into the home, damaging his flooring. Continue Reading When Can My Property Insurance Claim Be Denied Due to War or Other Undefined Terms?

Recently, my fiancé and I watched the Season 3 premier of Divorce on HBO. It’s sort of a guilty pleasure. I admit, at first, I was hesitant when my fiancé recommended I watch. But, one episode in and I was hooked. It’s funny, witty, snarky, and overall relatable for many people. If you haven’t watched this show yet, I recommend it. Albeit, HBO has now announced this is the final season of the show so try and not get too attached. Continue Reading Life Mimics Art or Is It the Other Way Around? Insurable Interest and Risk of Loss Are Always Part of Insurance Coverage

As the Category 4 Hurricane Michael approached Florida, many areas evacuated in preparation for the storm. During a catastrophic event, such as Hurricane Michael, governmental authorities often order evacuation and prohibit access to certain areas due to public safety. The evacuation orders in Florida forced many businesses to shut down their operations until further notice. As a result, the businesses affected by the evacuation orders may bring a claim for business interruption claim under coverage provisions for Civil Authority. Continue Reading Hurricane Michael May Trigger Civil Authority Coverage For Businesses In Florida Panhandle

Having undertaken to write about “all things Menchaca,” this month is a review of five cases post-Menchaca which contradict one another in deciding whether the independent injury rule is dead or alive. Looking at the first set of cases post-Menchaca, it appears that the answer to that question is a long way off. Continue Reading Post-Menchaca: Is the Independent Injury Rule Dead or Alive?

Since Superstorm Sandy, many of our New Jersey condominium associations clients and others are working closely with their brokers these days to review the terms of attachment for their excess insurance coverage policies. The current trend we see in the trigger language for excess insurance policies is designed to circumvent the established majority rule1 first articulated in 1928 in Zeig v. Massachusetts Bonding & Insurance Company,2 which allowed an insured to fill the gap between a settlement amount and an insurer’s policy limits. Continue Reading Roads to Exhaustion