Those involved with Sandy claims in New York have likely become familiar with anti-concurrent cause provisions in property insurance policies. These provisions are favored by insurance carriers to support denials of coverage for hurricane losses. Assemblyman Phil Goldfeder recently proposed a bill (A07455) which would outlaw anticoncurrent policy provisions that exclude losses from occurrences where both covered and non-covered perils occur at the same time.
In my last post, I addressed the basics of concurrent causation here in New Jersey. The question that remains, however, is how New Jersey’s courts will interpret a policy containing a clause that denies coverage for a covered cause of loss when accompanied by an excluded cause of loss. Such anti-concurrent causation clauses are commonplace in contracts of insurance.
Continue Reading Anti-Concurrent Causation Clauses in New Jersey
With all of the claims arising from Hurricane Sandy, the issue of what damage is covered under an insurance policy is extremely important to most people. As with most hurricanes, the question becomes what damage was caused by flood and what damage was caused by wind. How does New Jersey law deal with multiple causes of loss when one of the causes of loss is excluded under the policy?
I have reviewed denial letters sent to policyholders in New York and New Jersey. Their business income claims have been denied because the “physical loss or damage” was caused, in whole or in part, by an excluded peril – power failure. Hurricane Sandy was a complex windstorm event that caused many perils – power outages, fire, flood, explosion and wind are among the most prevalent. Some of these perils may or may not be covered by an insurance policy, but if an insured property sustained damages caused by at least one covered peril, business income claims should not be denied.
"If you only knew what the future holds
After a hurricane comes a rainbow"1
"Read the law and weep if you are afraid of juries." That is what I will be telling insurance companies and their counsel for the next several years if they wrongfully and in bad faith deny Hurricane Sandy claims in New Jersey.
Adjusters and public adjusters should be careful not to practice law. Chip Merlin is going to write in general about New Jersey insurance law as it applies to Hurricane Sandy insurance claims. . . .…
Continue Reading Hurricane Sandy Insurance Claim Denials in New Jersey
On January 4, 2011, I discussed the case of Nat’l Fire Ins. Co. of Pittsburgh, PA v. Valero Energy Corp., 777 S.W.2d 501 (Tex.App.—Corpus Christi 1989, writ denied). Nat’l Fire taught us that an otherwise excluded peril could be covered under an insurance policy if the policyholder could demonstrate that the excluded peril itself was caused by a covered peril. However, even if the policyholder can demonstrate that an excluded peril was caused by a covered peril, the policyholder still has work to do: s/he must also show the extent of the damage attributable to the covered peril. But what does that mean? The Texas First District Court of Appeals dealt with this very issue in Travelers Personal Sec. Ins. Co. v. McClelland, 189 S.W.3d 846 (Tex.App.—Houston [1st Dist.] 2006, no pet.).
An “all-risk” insurance policy provides coverage for all fortuitous losses, less enumerated exclusions. Imperial Ins. Co. v. Ellington, 498 S.W. 2d 368, 371 (Tex. App.- San Antonio 1973, writ denied). Generally under an all-risk policy, the insured need only prove a fortuitous event resulted in a loss. Id. at 375. If the all-risk policy excludes coverage, the insurer must prove that the loss is excluded. Texas Ins. Code § 554.002.
Continue Reading Texas Judges Need to Recognize That Insurance Companies Have to Prove Exclusions: Dispelling the Myths of Insurance Texas All Risk Coverage Burdens
Relying on anti-concurrent causation clauses, several insurers have adopted a method of claims adjusting where business income claims are denied in whole if the property suffered damage attributed in part to an excluded cause of loss. In most states, this type of business practice is wrong and contrary to public policy. For an in depth analysis on the legal framework of anti-concurrent clauses, I encourage you to read Chip’s post, Anticoncurrent Causation Clause Explained in Relation to Hurricane Losses.
My past few hurricane blog posts have been discussions of the issues raised in the recent Florida state court case of Citizens Property Ins. Corp. v. Ashe, No. 1D09-1546, 2010 WL 4628915 (Fla. 1st DCA Nov. 17, 2010). To refresh your recollection, Ashe was a case in which a homeowner’s property was damaged by a hurricane, the homeowner was paid policy limits by his flood insurer, and a dispute arose as to entitlement to benefits under his wind policy. Another case in that same vein was recently before a Mississippi federal court in Penthouse Owners Assoc., Inc. v. Certain Underwriters at Lloyd’s, London, No. 1:07CV568-HSO-RHW, 2011 WL 96514 (S.D. Miss. Jan. 11, 2011).