Yesterday’s post, Mere Possibility of Physical Damage Is Not Enough To Trigger Coverage, stated that “direct expert testimony is often required to prove the existence of physical damage to the insured property. Courts will normally require more than a mere possibility of damage.” The operative word is “normally” because there are exceptions.

Continue Reading Some Courts Find That Loss of Use, Functionality or Reliability Constitute Physical Loss or Damage

One of the craziest chapters ever written regarding insurance litigation involves Covid-19 first-party insurance cases. Judges, often without accepting any scientific evidence, simply ruled that Covid-19 does not cause physical damage. The Catch-22 issue is that the insurance industry wrote an endorsement to exclude Covid-19, and some insurers admitted that a covid type of scenario would be covered without a specific exclusion. 

Continue Reading Did a Major Insurer Admit in Its Claims Manual Coding That Covid-19 Causes Physical Loss?

Robert Rutter Argues That the Term “Physical Loss or Damage To” Was An Expanding Coverage Concept Before the Covid Coverage Controversy 

One of the pleasurable aspects of my practice is meeting passionate, intelligent, and experienced colleagues in different parts of the country who have similar issues and problems. I learn a lot from them and enjoy the camaraderie. One of those attorneys is Robert Rutter of Ohio.  

Continue Reading Robert Rutter Argues That the Term “Physical Loss or Damage To” Was An Expanding Coverage Concept Before the Covid Coverage Controversy

Yesterday’s post, Ohio Justices Obviously Do Not Have an Electrical Engineering Degree When They Rule Software Cannot Have a Physical Presence, resulted in a number of private emails to me. Some believe that this case is a result of the fallout caused by Covid coverage cases where many cases found that Covid does not cause physical damage. As I see it, the trend for property insurers is to limit coverage by arguing that a loss or parts of a loss are not “physical” in nature and also spread the myth that “loss of use” is not a physical loss but an “economic” one.  

Continue Reading The Property Insurance Industry Is Pushing to Limit the Concept of Physical Damage or Physical Injury

A brief filed by the State of North Carolina1 acting through its Attorney General recited a number of basic insurance contract interpretation rules. Public policy supporting these rules is not often reflected in briefs, but North Carolina made a point of discussing those.
Continue Reading North Carolina Insurance Contract Interpretation and Philosophies of Insurance As Explained By The State of North Carolina

Insurance companies should prove the reason for not paying a claim under an all risk insurance policy. The denial should not stand on false opinions of fact. This was the point of a brief filed by a medical society in a covid business income claim pending before the New Hampshire Supreme Court.1
Continue Reading Science Debunks Insurers False Opinions That Covid Does Not Physically Damage Property

Judges writing about what insurance contracts mean should read what the insurance industry teaches its adjusters and claims managers what insurance contracts mean. For example, a judge would not learn how a doctor is supposed to practice medicine by reading medical malpractice cases. For the same reason, judges and insurance law practitioners should spend time reading insurance industry authoritative materials to learn what insurance contracts are meant to insure.
Continue Reading The Insurance Industry Teaches That a Cause of Loss Does Not Have to Alter Property

A number of insurance law treatises are relied upon to provide guidance to lawyers and judges regarding the general state of insurance law. One of those is Couch on Insurance (Couch) published by Thomson Reuters. Merlin Law Group subscribes to a number of services providing treatise information on insurance law, including Couch in our Westlaw subscription. This service and information is not cheap. Thomson Reuters publishes a onetime purchase of the treatise for $18, 493.00. The Internet advertisement for Couch states:
Continue Reading Can Judges Trust the Couch Insurance Law Treatise When It Comes To Physical Loss or Damage Analysis?