Professor Jay Feinman

Gaps in Insurance coverage are an increasingly significant issue. The Rutgers Center for Risk and Responsibility and the Rutgers Law School will hold a conference on The Protection Gap in Property Insurance, on Friday, March 29. This conference will address the protection gap in residential and commercial property losses and related types of losses in the United States.
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A common theme I have noticed lately is the tendency of homeowners, having just weathered a major natural disaster, to compare their ability to recover insurance proceeds to that of their neighbors. Wondering if you can recover alternative living expenses? Curious to know if you can recover for your sewage back-up claim? Rather than looking to your neighbor’s recovery for answers, make sure to check your homeowners insurance policy.
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I have been involved in several commercial property claims where the insurer has agreed to pay the cost to remove and to replace roof shingles damaged by hail, but has refused to pay the cost to remove and to replace the decking, even though the condition of the decking is such that it no longer is in a suitable condition for application of the new shingles. The insurer’s reasons for refusing to pay for the costs of the decking removal and replacement are two-fold: (1) no coverage is afforded for the decking because it was not directly damaged by hail and (2) replacement of the decking is a code upgrade, and in my claims there was limited ordinance or law coverage. So, is the insurer right? Is replacing roof decking as part of replacing hail-damaged shingles a coverage or a scope issue? In my opinion, it is a scope of repair/replacement issue.
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In Florida, you can rely on three things with certainty—death, taxes, and high property insurance premiums. The reason for the latter is the subject of an intense debate that plays itself out in the halls of Tallahassee and on the editorial pages of our leading newspapers. I will not rehash the debate; our blog archives are full of articles on that subject. However, I want to highlight an article in the Sun-Sentinel I recently came across: Insurers widening lists of things they won’t cover.


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Floods do all sorts of damage. One aspect of damage often overlooked is when the flood removes property from one property owner’s land and deposits it on another’s land. Depending on where your property is located and the severity of the flood event, the debris on the policyholder’s property can be extensive and expensive to clean up. The question naturally becomes, is this a covered loss under the Standard Flood Insurance Policy?


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The words on the page of the insurance policy matter and are very important to both parties to the agreement. Since the insurance company drafts the policy, if there is any ambiguity in the terms it writes and selects, ambiguity and interpretation will be resolved in the policyholder’s favor and in favor of coverage. However, some Florida courts have allowed insurance carriers to present extrinsic evidence, such as internal operating guidelines, to clarify or explain ambiguous policy language.


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Insurance claims people handling first party property insurance claim appraisals in New York may be experiencing responses from insurance carriers informing them appraisal is inappropriate because there are coverage issues involved in the claim. Some are getting this response even where partial payment has been made on the claim. If that is your case, you may find some reassurance in a trial court opinion from New York on appraisal.


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