In a recent case, Sullivan v. Nationwide Affinity Insurance Company,1 the 10th Circuit Court of Appeals upheld a trial court’s decision finding a policy’s earth movement exclusion barred coverage for damage caused by rockfalls. On Monday, the three-judge panel found the policy’s earth movement exclusion is not limited to damage caused by soil movement, but also included rocks, concluding a “rockfall” is a type of “landslide.”
Continue Reading Rockfall Damage Not a Landslide Victory

The loss of market exclusion excludes from coverage any lost profits due to the business’s market disappearing. The loss of market could be due to economic decline, competition, or shifts in demand attributable to a dramatic occurrence. The question, as usual, is whether that exclusion applies to the claims of lost profit by policyholders that follow a covered peril.
Continue Reading Understand Business Interruption—Do Not Let the Insurance Company Deny Your Income Claim on Bogus Loss of Market Exclusions

As the year goes on, state and federal trial courts will continue to tackle legal issues brought on by COVID-19. One recent decision comes from the Middle District of Florida, which recently granted an insurance carrier’s Motion to Dismiss a dental practice’s Complaint brought under the business income and civil authority provisions of the policy.
Continue Reading Trial Court Grants Motion to Dismiss Complaint Based on Virus Exclusion in Policy

Many of the homeowner policies we review exclude water damage resulting from, “continuous or repeated seepage or leakage of water or stream, or the presence of condensation of humidity, moisture or vapor which occurs over a period of weeks, months or years.” Courts have interpreted this clause to exclude water damage that occurs over 14 days. But what happens when you have a situation where there is significant water damage caused in the first thirteen days? Aren’t coverage clauses interpreted broadly so as to afford the greatest protection to the insured, while exclusion clauses interpreted narrowly?
Continue Reading The “Continuous or Repeated Seepage or Leakage of Water” Exclusion

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?

In a previous post, I discussed a case that found that damage to a dwelling from a broken municipal water main was covered under a homeowners insurance policy. In that case,1 the New Jersey Appellate Division concluded that the term “surface water” in the insurance policy’s water exclusion was ambiguous and that the water main break’s water did not qualify as surface water under both definitions of the term.
Continue Reading Is Damage From a Broken Water Main Covered By My Insurance Policy?

Memorial Day is a special time to remember those men and women who have given their lives during service in our country’s military. A History Channel has this note about the beginning of this special holiday:

In May 1868, General John A. Logan, the commander-in-chief of the Union veterans’ group known as the Grand Army of the Republic, issued a decree that May 30 should become a nationwide day of commemoration for the more than 620,000 soldiers killed in the recently ended Civil War. On Decoration Day, as Logan dubbed it, Americans should lay flowers and decorate the graves of the war dead ‘whose bodies now lie in almost every city, village and hamlet churchyard in the land.’

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After the war Logan, who had served as a U.S. congressman before resigning to rejoin the army, returned to his political career, eventually serving in both the House and Senate and was the unsuccessful Republican candidate for vice president in 1884. When he died two years later, Logan’s body laid in state in the rotunda of the United States Capitol, making him one of just 33 people to have received the honor. Today, Washington, D.C.’s Logan Circle and several townships across the country are named in honor of this champion of veterans and those killed in battle.
Continue Reading Memorial Day and The War Clause in Property Insurance Polices

A number of media outlets, including a news broadcast, reported on Mercury Insurance Company denying its Atlanta customers’ claims caused by squirrel damage because the policy it sells excludes damage caused by “rodents.” Mercury Insurance reasoned that since “squirrels” are “rodents” and damage caused by “rodents” are excluded from coverage, the squirrel damage is not covered.
Continue Reading Squirrels Damage Your Home—Coverage or Not?

Homeowner insurance policies often contain exclusions disclaiming coverage for certain losses if an insured residence is unoccupied. These exclusions are designed to prevent extensive damage from accidents that might otherwise be avoided with early detection or simple preventative measures, as an unoccupied house presents a risk that damage will go unnoticed for some time.
Continue Reading Does the Presence of Furniture In My House Satisfy My Insurance Policy’s Occupancy Requirement?