The title to this post would almost certainly be answered “no” by any insurance regulator or consumer advocate. But Liberty Mutual Insurance Company argues this is exactly what it can do with no consequence because the fraudulent and deceptive statements in the declarations should have been found by the policyholder reading the fine print in the policy endorsement—which is anything other than an enhanced product.
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The Mid-Atlantic Association of Public Insurance Adjusters (MAPIA) held a meeting this past week with about thirty-five public adjusters in attendance. President Paul Yemm, yours truly, Holly Soffer, and Tony DiUlio are pictured above. Soffer and Diulio gave a wonderful insurance gaps presentation that was highlighted Tony DiUlio’s discussion of a water loss that resulted in a bad faith verdict against State Farm.
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(NOTE: This guest post is by Barry Zalma, Esq., CFE.1 Barry Zelma is a prolific writer and scholar in the field of insurance. I have purchased numerous publications from Barry. I am currently reading a book on legal ethics he wrote, The Little Book on Ethics For The American Lawyer, which may be his finest work and that is saying a lot after reading his treatises on insurance law and adjustment. I encourage you to read this very thorough post and consider purchasing Zalma’s publications for your reference library. – Chip Merlin.)

A Policyholders Lawyer’s Take on the Obligation to Read

In its blog the Merlin Law Group cites a small portion of a lengthy Hastings Law Journal article written by Professor Chuck Knapp.2 Dr. Knapp did not like the use, by appellate courts, of the concept that there is a duty to read (DTR) an insurance policy.

The blog post by Chip Merlin proposed that Dr. Knapp’s proposals would allow the court to rewrite the terms and conditions of the policy. Dr. Knapp did not do that but spent many pages explaining why the word “duty” should not be used and the exceptions available to the courts when interpreting an insurance contract as well as other contracts.
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Business owners and owners of commercial property should not buy Farmers Insurance. Virtually every insurance company in the United States considers the entire cost of restoration right away when making payments, including at actual cash value—except Farmers Insurance. Farmers Insurance has declared war on its own customers and independent restoration contractors.
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United Policyholders takes action and gets things done for policyholders regarding the insurance gap issue. United Policyholders is tackling the insurance gap coverage problem by providing staff and resources to collect rogue property insurance policy forms being issued by insurance companies, to show examples of how insurers are stepping over each other to silently gain a competitive advantage of lower price with cheap insurance.
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Judges should stop with the fiction that policyholders have a duty to read their insurance policies before a loss. They do not read all the insurance contracts they purchase, and nobody does. Even if they read their policies, most people would not understand the policy and certainly not contemplate every circumstance which could arise in advance of how the policy would be deciphered for those hypothetical circumstances of loss and disaster.
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Consumers are bombarded by insurance company advertisements loaded with puffery and bloated promises. While celebrity hucksters, jovial lizards with heavy accents, and emu sleuths might be amusing on TV, real world policyholders are left to discern fact from fiction when it comes to promotional statements in insurance company quotes.
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In a recent case,1 a federal appeals court addressed the issue of whether fire damage to a vacant dwelling from an arsonist was considered distinct from vandalism, so as to not implicate an exclusion within a homeowners insurance policy. In that case, Wells Fargo Bank owned an insurance policy on an abandoned house that an arsonist set ablaze. The insured sued its insurer after the insurer refused to indemnify the insured for the loss, relying on a policy provision exclusion for damage caused by “vandalism or malicious mischief” after the property had been vacant for more than thirty consecutive days.
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I often receive calls from policyholders asking how an insurance company can deny their claim based on an exclusion that isn’t defined in the policy. One of these terms is “surface water,” a common exclusion found in most policies. Recently, I had a client whose home’s gutter system malfunctioned during a rainstorm. Rather than channeling water to run from his roof, through the gutter system and out to the street, water was redirected at the side of the home. The water filled up a planter built in to the side of the house and eventually made its way into the home, damaging his flooring.
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