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

A recent case out of Massachusetts examined an ‘ensuing loss’ clause and found that there was not coverage provided for the loss at issue.1 Abbott, a manufacturer of a milk-based product, entered into a contract packing agreement with Hood to produce 40 million bottles of Myoplex. Hood was required to conduct specific quality control testing. Some testing was so Myoplex remained contaminant free, others so it remained hermetically sealed. A secure seal test involved puncturing bottles under pressure, so it was a destructive test.

Continue Reading Ensuing Loss Clause – What is it and Does it Provide Coverage?

The systematic process of analyzing a property insurance policy has been a topic in my last three seminars before public adjusting groups. I am suggesting a methodology so issues are uncovered early following a loss. After having all paperwork in place, I suggest that the first item to consider is "who" is insured under the policy.

Continue Reading Analyzing the Insurance Policy: “Who” is Insured Should Be the First Determination

Last year, my learned colleague, Shaun Marker, wrote a series of blogs on the ongoing litigation between El-Ad 250 West LLC and Zurich over Superstorm Sandy flood damage and delays in construction under a builders’ risk policy. You can read his articles here.

Continue Reading Flood Sublimit Applies to Delay in Completion Claim Where Delay is Caused by Flood

As I stated in yesterday’s post, Chip Merlin Speaking at the Insurance Appraisal and Umpire Association September 18 Meeting, umpires better show up so they to learn from me and not lose business. The question of bias for umpires was answered in Zurich American Insurance Company v. Omni Health Solutions.1

Continue Reading Umpire is Biased Based on His Firm’s Work for a Party—Are Appraisers Subject to this Rule?

An insurance appraisal award will typically not be vacated unless it clearly appears that it was made without authority or was the result of fraud, mistake or misfeasance of the appraisers. An appraiser is expected to provide an independent and unbiased opinion on the value of a loss. The persons appointed as appraisers must be impartial or disinterested. The same goes for umpires in the appraisal process.

Continue Reading Setting Aside an Appraisal Award for Bias or Conflict of Interest

In a recent case in Tennessee, homeowners suffered a fire loss and filed a claim with their insurance company, Anpac.1 The insurance company investigated the loss and found that the homeowners intentionally set the fire and denied coverage. It then filed a declaratory judgment action. The homeowners filed counterclaims for breach of contract, unfair claims practices and bad faith. They alleged that the insurance company ignored evidence that showed they did not set the fire. In Tennessee, a statute allows insureds to seek a penalty of up to 25% of the total liability where a claim is denied in bad faith.2 When an insurance company refuses to pay a claim within 60 days of a demand, it must pay an additional 25% if the refusal was not in good faith and caused the insureds additional damages.

Continue Reading Litigation Does Not End the Continuing Duty of Good Faith