Disciplined in Sophisticated Defense and Insurance Litigation

September 26, 2014 | Blog Post| When It Comes to Sinkholes, Contracts, Statutes and Regulations Do Matter

On August 21, 2014, the United States Court of Appeals for the Eleventh Circuit vacated the decision of the U.S. District Court for the Middle District of Florida in Shelton v. Liberty Mutual, Case number 13-15371 / D.C. Docket No. 8:12-cv-02064-JSM-AEP. This decision confirms that the statutory definitions for structural damage under the May 17, 2011 amendments to the Florida sinkhole statutes apply to property policies issued after those amendments were enacted. The court’s order reversed the positions taken by the District Court that seemed bent on plotting a new course for Florida jurisprudence.

The case on appeal involved a homeowner’s policy issued in July of 2011. The policy provided coverage for “sinkhole loss” and defined sinkhole loss as “structural damage to the building, including the foundation, caused by sinkhole activity.” The policy did not define “structural damage,” but the Florida statute in force at the time the policy was issued did.

The Plaintiffs asserted that the “plain meaning” of the policy term “structural damage” was simply “damage to the structure.” They argued that the statutory definitions for structural damage enacted before the contract was issued did not apply as they had not been expressly incorporated by reference. As a back-up position, Plaintiff argued that, even if the law could be applied to the contract, the carrier was provided more coverage than that provided by the statutory definitions. Plaintiffs argued that the carrier had specifically intended to adopt the “plain meaning” urged by Plaintiffs, thereby granting additional coverage, when it had issued a policy that did not define the term “structural damage.”

The District Court adopted Plaintiffs’ arguments, finding “structural damage to the building” to mean “any damage to the structure” and also finding that statutory definitions in place when the policy was issued were inapplicable unless expressly incorporated by reference. In a footnote, the court also adopted Plaintiffs’ back-up argument, advising: “[N]otably, Liberty Mutual’s motion ignores bedrock Florida insurance law that an insurer may provide more coverage than is statutorily required.” In this footnote, the court appeared to find that:

(a) The absence of a policy definition was sufficient to establish that the parties had specifically intended to reject the statutory definitions;

(b) That the insurer intended to adopt the court’s own definition of “structural damage” when the policy was issued; and

(c) That the insurer had done so in order to provide the greater coverage now argued by Plaintiffs.

Clearly, the lower court’s ruling seemed to mark a sharp departure from all previous decisions regarding the application of statues to contracts and the treatment of undefined terms in contracts.

The Eleventh Circuit, however, reversed that ruling. Consistent with its previous decisions and those of the Florida Supreme Court, it held that valid state statutes in place at the time a contract is made become a part of it and must be read into the contract as if the parties had expressly incorporated them by reference. The court agreed that there is an exception where the contract discloses a contrary intention. However, the court noted that the policy at issue in this case did not incorporate a different definition of “structural damage,” and there was simply no indication that the parties intended to affirmatively reject the statutory definitions. Under Florida law, the absence of an alternative definition meant that the statutory definitions filled the gap. The appellate court also found that the application of the 2011 statutory amendments was not a change in policy terms that would require written notice of a change in policy terms under Fla. Stat. § 627.43141(2) to be effective.

While it remains unclear what prompted the District Court to rule as it did, it seems clear from the Eleventh Circuit’s decision that established precedent regarding the application of statutes to contracts, as well as the treatment of undefined contact terms, remains in place. After a little rough water, the vessel that is Florida jurisprudence is back on its established course.

John Garaffa

John devotes his practice to the analysis and defense of 1st and 3rd party disputes. He has written widely on the consequences and statutory environment governing data breaches, business interruption, first party bad faith, punitive damages, discovery disputes, and on the application of state valued policy laws to property losses in Florida and other Gulf Coast States.

September 23, 2020 Blog PostDefining Occurrence – When Policy Definitions Do Not Apply To All Coverages

On September 8, 2020 the United States Court of Appeals for the Eleventh Circuit issued its decision in Port Consolidated, Inc. v. International Insurance Company of Hannover, PLC, 2020 WL 5372281 (11th Cir 2020)  The decision is notable for two reasons...

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September 15, 2020 Blog PostHeads I win, Tails You Lose: Southern Owners Insurance Company v. MAC Contractors

On July 29, 2020, the Eleventh Circuit Court of Appeals issued its opinion in Southern Owners Ins. Co. v. MAC Contractors, of Fla., LLC, --- Fed. Appx. ---, 2020 WL 4345199 (11th Cir. July 29, 2020).  While purporting to follow its own precedent, which narrowly interpreted the Florida Supreme Court’s decisions in United States Fire Ins. Co. v. J.S.U.B., Inc....

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September 08, 2020 Blog PostDoes the Pollution Exclusion Bar Coverage for Injuries Arising out of Viruses and Bacteria?

In policies without a specific bacteria or virus exclusion, there is an arguable basis for insurers to rely on a pollution exclusion to exclude coverage for claims for bodily injury resulting from an occurrence involving bacteria or viral “contaminants...

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July 22, 2020 Blog PostTo Wait or to Mediate?

Mediation has always played a large role in resolving first-property property claims.  Mediation offers a unique opportunity for resolution that is hard to find elsewhere in the life of a litigated case...

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June 29, 2020 Blog PostPretzel Logic: Cheetham v. Southern Oak and Its Ill-Begotten Progeny

The standard ISO homeowners insurance policy contains an exclusion for damage caused by water which backs up through sewers or drains.  While this appears to be an unambiguous exclusion, using twisted logic, the Third District Court of Appeal in Cheetham v. Southern Oak Ins. Co., 114 So. 3d 257 (Fla. 3d DCA 2013) interpreted this exclusion to apply...

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June 25, 2020 Blog PostButler's Thursday Tips | Little Black Box

Join us for this week's Thursday Tip as attorney Paola Solano discusses the use of ECMs in Third-Party vehicle claims.

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June 25, 2020 Blog PostNevada Division of Insurance Issues Notice to Property and Casualty Insurers Disallowing New Exclusions related to COVID-19, viruses, or pandemics

This notice does not impact existing policies that were submitted and approved before the COVID-19 emergency in Nevada.  However, the NVDOI has requested that insurers voluntarily withdraw any such exclusions from policies submitted and approved on or after March 12, 2020.  

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June 19, 2020 Blog PostIs Amazon a Seller? An Issue Primed for State Courts

The tide is turning as another federal court declares that Amazon is responsible for third-party products purchased on its website. On January 7, 2020, the Southern District of Texas in McMillian v. Amazon.com joined the Third Circuit court of Appeals and the Western District of Wisconsin in finding that Amazon can be a “seller” under the applicable state product liability statutes.

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June 18, 2020 Blog PostButler's Thursday Tips #8 | Importance of a Mediator

Join attorney Shaheen Nouri as he gives three reasons why a mediator is important in a First-Party claim.

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June 01, 2020 Blog Post13 Ways That COVID-19 Will Change the Insurance Industry

Some people will have permanent complications from the Coronavirus , which will create a new population with pre-existing conditions. This may result in either more “eggshell Plaintiffs” or in an exacerbation of a pre-existing condition in an MVA...

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May 21, 2020 Blog PostNORTH CAROLINA'S LATEST APPRAISAL RULING PRECLUDES APPRAISAL IF ANY DAMAGES DISPUTE EXISTS

In the last 60 days, COVID-19 has affected us all. Federal and state governments have issued quarantine orders. Schools have been closed. And many businesses have been adversely affected. Although North Carolina’s Federal Courts have not (yet) issued any COVID-19 related rulings, they have, in the last 60 days, issued several new coverage decisions. One of those has significantly curtailed the ability of any appraisal to proceed...

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May 13, 2020 Blog PostIt's a Policy, Not a Payday Loan: The Voluntary Payments Provision Deconstructed

From time to time, the issue of whether an insurer has a duty to reimburse a payment made by an insured without the permission of the insurer is analyzed by a court.  A standard ISO form in a Commercial General Liability policy contains the following, or similar provision...

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May 06, 2020 Blog PostMembers Only: The Eleventh Circuit Restricts Membership to the "Illusory Coverage" Club to Narrow Set of Circumstances

The Doctrine of Illusory Coverage is a common law doctrine that Florida courts have confirmed is a part of Florida’s insurance law. See e.g., Zucker for BankUnited Financial Corp. v. U.S. Specialty Insurance Co., 856 F.3d 1343, 1352 (11th Cir. 2017)...

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April 15, 2020 Blog PostLocal Florida Governments have issued Orders suggesting COVID-19 caused property damage

Florida Governor Ron DeSantis issued an Executive Order declaring a state of emergency due to COVID-19.  Many Florida cities and counties have issued their own orders to reduce the spread of the virus.  At least two of the orders contained language that was curious to those connected to the property insurance industry.

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April 13, 2020 Blog PostDELAY IN COMPLETION COVERAGE AND THE CORONAVIRUS

States, counties and municipalities have issued “stay at home”, “shelter-in-place”, and other orders relating to COVID-19.  Many orders require the suspension of non-essential construction projects. The orders typically have exemptions, for projects like critical or essential infrastructure, public works, and housing. In light of these orders, construction projects around the country will be delayed...

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April 02, 2020 Blog PostDuke v. Hoch Standard Survives Challenge in Eleventh Circuit

In a recent decision, QBE Specialty Ins. Co. v. Scrap Inc., Nos. 18-13926 and 19-13894, 2020 WL 1228648 (11th Cir. Mar. 13, 2020), the United States Court of Appeals for the Eleventh Circuit held that the insured failed to carry the burden of proving allocation of damages between covered and uncovered claims...

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March 18, 2020 Blog PostCIVIL AUTHORITY COVERAGE AND THE CORONAVIRUS

Other states have taken even more drastic action. For example, the Mayor of Philadelphia ordered the shutdown of all nonessential businesses, followed shortly by a similar order by the Governor of Pennsylvania...

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February 28, 2020 Blog PostInformation or Indemnity: Do Certificates of Insurance Grant Insured Status?

Often, a person or entity that is attempting to claim additional insured status under the insurance policy of another will rely on a “Certificate of Insurance” that was issued by the named insured’s agent...

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February 11, 2020 Blog PostTAKING INTEREST IN THE DISINTERESTED: ANALYZING STATE FARM FLORIDA INS. CO. V. CRISPIN

Florida courts continue to refine the roles and limitations of appraisers in Florida property claims.  Florida’s Fifth District Court of Appeal recently held that a public adjuster cannot serve as a disinterested appraiser where the public adjuster is retained on a contingency fee basis...

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November 19, 2019 Blog PostA BRIEF REFRESHER ON APPRAISAL IN NORTH CAROLINA, SOUTH CAROLINA, AND GEORGIA

Most first party property coverage policies contain an appraisal provision that allows either the insured or the insurer to make a written demand for appraisal when the parties agree that covered property was damaged by a covered cause of loss, but disagree on the value of that damaged property...

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November 14, 2019 Blog Post"Slow and Steady" or "Fast and Furious": Repeated Seepage or Leakage Policy Exclusion Prevails

A recent ruling in a U.S. District Court in Missouri may suggest a new path for policy exclusions based on “continuous or repeated seepage or leakage of water.”...

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August 13, 2019 Blog PostThe Evolving Limitations on Appraisers in Florida: Analyzing State Farm Florida Ins. Co. v. Sanders

Appraisers are frequently involved in Florida property claims.  Accordingly, Florida courts continue to refine the roles and limitations with respect to appraisers and the appraisal process as a whole...

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May 10, 2019 Blog PostWhat Baseball Has Taught Me About The Insurance Appraisal Process

Anyone who has ever watched baseball knows that umpires sometimes make an incorrect call. In appraisal of a property insurance claim, sometimes the umpire can make a mistake as well.

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April 26, 2019 Blog PostBreaking News! Florida AOB Reform Explained

The Florida Legislature passed a bill that makes significant changes to the assignment of benefits (“AOB”) process in Florida.  Governor Ron DeSantis stated he will sign the bill into law.  The effective date will be July 1, 2019.

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March 07, 2019 Blog PostPennsylvania court rules insurer may still be responsible to pay RCV even if repairs never completed.

In situations where a property insurer denies coverage, the insured often complains that it is faced with a difficult dilemma – use its own money to fund repairs or avoid making repairs and risk having its recovery limited to actual cash value (ACV) if the insurer is later found liable for coverage.

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February 26, 2019 Blog PostTHE MARKOVITS DECISION: CONSIDERATIONS AND IMPLICATIONS

Recently, Florida’s First District Court of Appeal held that for purposes of determining the timeliness of a proposal for settlement, the complaint is considered served on the insurer when process is served upon the statutory agent, Florida’s Chief Financial Officer, and not when process is forwarded by the Chief Financial Officer to the insurer.  Markovits v. State Farm Mutual Automobile Ins. Co., 235 So. 3d 1018 (Fla. 1st DCA 2018) rehr’g denied (Feb. 5, 2018).

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February 26, 2019 Blog PostTHE MARKOVITS DECISION: CONSIDERATIONS AND IMPLICATIONS

Recently, Florida’s First District Court of Appeal held that for purposes of determining the timeliness of a proposal for settlement, the complaint is considered served on the insurer when process is served upon the statutory agent, Florida’s Chief Financial Officer, and not when process is forwarded by the Chief Financial Officer to the insurer.  Markovits v. State Farm Mutual Automobile Ins. Co., 235 So. 3d 1018 (Fla. 1st DCA 2018) rehr’g denied (Feb. 5, 2018).

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February 21, 2019 Blog PostNot Off the Hook...Trouble in Paradise for Puerto Rico Insurers

Recent legislative and judicial developments in Puerto Rico may very well have revived thousands of claims that insurers believed to be time-barred, per the terms of the Suit Against Us provisions of their Policies. Until the February 14, 2019, ruling issued by a San Juan court, residential property damage claims that had not escalated to suit within a year of the date of loss, had been considered time-barred. It would seem that it may not be the case anymore, and insurers should be prepared for a potential flurry of new litigation, even involving prior Hurricane Irma and Maria claims.

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December 14, 2018 Blog PostDrone Accident Excluded Under CGL Policy's Aircraft Exclusion

In the most recent edition of our book, Butler on Drones, we reported that ISO has issued specific exclusions for unmanned aircraft for inclusion into CGL policies, but it was an open question whether a CGL policy’s standard aircraft exclusion already excluded coverage for liability arising from the use of a drone. A California federal district court has now weighed in on the question – the first to do so, as far as we are aware. And we like the answer.

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October 10, 2018 Blog PostRecent Federal Court Decision May Alter the Reservation of Rights Landscape in South Carolina

Only 15 months ago, in Harleysville Group Insurance v. Heritage Communities, Inc., the South Carolina Supreme Court fundamentally changed the reservation of rights landscape in South Carolina. Since Harleysville, two questions have remained: When must an insurer issue a reservation of rights letter to avoid waiving its rights, and what level of explanation is sufficient to avoid waiver?

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September 19, 2018 Blog PostHurricane Florence: Civil Authority and Ingress/Egress Coverage

The hurricane may trigger civil authority or ingress/egress coverage for businesses that are not directly damaged but lose income because they cannot access their operations for a period of time due to a governmental evacuation order.

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September 19, 2018 Blog PostHurricane Florence: Civil Authority and Ingress/Egress Coverage

The hurricane may trigger civil authority or ingress/egress coverage for businesses that are not directly damaged but lose income because they cannot access their operations for a period of time due to a governmental evacuation order.

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September 10, 2018 Blog PostHurricane Florence is aiming for the Carolinas

Once Hurricane Florence passes through the region, insurance professionals can expect a deluge of claims activity. While both North Carolina and South Carolina have felt the effects of recent Hurricanes Irene and Matthew, for example, many insurance professionals have limited familiarity with the particularized coverage issues which may arise in both states. Navigating the laws of both states, which can be both parallel and disparate, is going to be important in Florence’s aftermath.    

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September 10, 2018 Blog PostHurricane Florence is aiming for the Carolinas

Once Hurricane Florence passes through the region, insurance professionals can expect a deluge of claims activity. While both North Carolina and South Carolina have felt the effects of recent Hurricanes Irene and Matthew, for example, many insurance professionals have limited familiarity with the particularized coverage issues which may arise in both states. Navigating the laws of both states, which can be both parallel and disparate, is going to be important in Florence’s aftermath.    

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September 06, 2018 Blog PostFull Consent to Assignments

Consent Not Fully Given: Fourth District Court of Appeal Enforces Policy Provision Requiring Consent of All Insureds and Mortgagees to Any Assignment of Benefits

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April 18, 2018 Blog PostWHO REALLY OWNS THAT MITIGATION COMPANY? PENNSYLVANIA AND NEW YORK LAW SAYS IT MATTERS IF IT'S THE PUBLIC ADJUSTER

The legislatures are directing the public adjuster to focus on negotiating the insurance claim as opposed to profiting from remediation or remediation efforts and to ensure that all relationships are properly disclosed to the insured. This is certainly a move in the right direction.

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March 07, 2018 Blog PostFirst-Party Property Bad Faith in Florida - Podcast

Increasingly, property insurers in Florida are being sued for bad faith. What accounts for this increase?  Mainly, it has been driven by recent appellate court decisions that have eroded and all but eliminated any prerequisites to bad faith actions.  In part one of this two-part webinar series, we will outline the legal environment created by those decisions; attempt to define “bad faith”; explore the use and abuse of the civil remedy notice of insurer violation, and; discuss some things that can be done either to avoid a bad faith lawsuit altogether or, at least, to put the file in the best posture if a bad faith lawsuit can’t be avoided.

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February 23, 2018 Blog PostFlorida Court Rules Against Insurer on Seepage/Leakage Exclusion

Florida first-party property insurers have seen a dramatic rise in the number of reported water loss claims over the past five years.  Many insurance policies contain an exclusion for losses “caused by constant or repeated seepage or leakage of water over a period of 14 or more days.”  Today, one Florida appellate court ruled that “an insurance policy excluding losses caused by constant or repeated leakage or seepage over a period of fourteen days or more does not unambiguously exclude losses caused by leakage or seepage over a period of thirteen days or less.”

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January 16, 2018 Blog PostAOB Reform Bill Passes Florida House, Senate Future Uncertain

On January 12, 2018, the Florida House of Representatives passed a bill (HB 7015) that would dramatically affect the way contractors and their lawyers use assignments of benefits (“AOBs”) in first-party property insurance claims and lawsuits.  The biggest changes in the bill impact how AOBs must be written, new obligations on assignee contractors in the claim investigation process, limitations on when assignee contractors can file lawsuits, and how and when attorney fees are awarded (see all the details of the bill below). 

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January 08, 2018 Blog PostALL INSURANCE ADJUSTER OFFICES NOW NEED A HEAD HONCHO!: FLORIDA LEGISLATURE ADDRESSES ADJUSTING AND PUBLIC ADJUSTING FIRMS

Florida House Bill 911, “An Act Relating to Insurance Adjusters” became law on January 1, 2018. In large part, the new legislation deals with the internal operation of public adjusting firms. For example:

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November 06, 2017 Blog PostContingency Fee Multipliers: Florida Supreme Court Rejects Rare and Exceptional Circumstances Requirement

The United States Supreme Court analyzed the availability of contingency fee enhancements under fee-shifting statutes in Burlington v. Dague, 505 U.S. 557 (1992). There, the Court held that a contingency enhancement was not permitted under fee-shifting provisions of the Solid Waste Disposal Act and Clean Water Act. It reversed a 25% lodestar enhancement. Justice Scalia wrote the majority decision. He emphasized that fees are “certain” or “contingent.” Id. at 560. A fee is certain if it is payable without regard to the outcome of the suit; it is contingent if the obligation to pay depends on a particular result obtained. Id. at 560-61.

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September 01, 2017 Blog PostHurricane Hindsight is 20/20

It took years of depositions and other discovery to realize that that most of my 2004-2005 hurricane condominium association claims were much simpler to defend than I thought.   The center of gravity of these claims was the proper calculation of Actual Cash Value (ACV).

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September 01, 2017 Blog PostHurricane Hindsight is 20/20

It took years of depositions and other discovery to realize that that most of my 2004-2005 hurricane condominium association claims were much simpler to defend than I thought.   The center of gravity of these claims was the proper calculation of Actual Cash Value (ACV).

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August 09, 2017 Blog PostTO FEE OR NOT TO FEE, THAT IS THE QUESTION: THE FLORIDA SUPREME COURT FINDS COVERAGE FOR PROPOSAL FOR SETTLEMENT SANCTIONS IN FAVOR OF THE PLAINTIFF UNDER AN AUTOMOBILE LIABILITY POLICY IN MACEDO II

Due to its holding in Macedo II, the Florida Supreme Court created a situation where, arguably, many auto policies now provide coverage for attorney’s fees and expenses awarded against an insured following an adverse verdict triggering the penalties under a proposal for settlement.

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August 09, 2017 Blog PostTO FEE OR NOT TO FEE, THAT IS THE QUESTION: THE FLORIDA SUPREME COURT FINDS COVERAGE FOR PROPOSAL FOR SETTLEMENT SANCTIONS IN FAVOR OF THE PLAINTIFF UNDER AN AUTOMOBILE LIABILITY POLICY IN MACEDO II

Due to its holding in Macedo II, the Florida Supreme Court created a situation where, arguably, many auto policies now provide coverage for attorney’s fees and expenses awarded against an insured following an adverse verdict triggering the penalties under a proposal for settlement.

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August 08, 2017 Blog PostHoly Harleysville! – The Rules Governing RORs, Intervention, and More in South Carolina Have Just Changed

For insurers, litigating third party coverage disputes in South Carolina has always proved formidable.  Insurers can be liable for “bad faith” even if there is no coverage; they may be required to pay an insured’s attorney’s fees if the insurer commences a coverage action against its insured and loses ; and extra-contractual claims may proceed simultaneously with a breach of contract claim.

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July 26, 2017 Blog PostThe Continuing Saga of Sebo v. American Home Assurance Company: The Second District Court of Appeal Rules on Remand

On July 20, 2017, the Second District Court of Appeal issued an order that closed its books on the Sebo appeal.  Mr. Sebo made a homeowner’s claim to American Home contending construction deficiencies had allowed water to enter the residence at multiple points, causing, eventually, a complete destruction of the residence.  The trial court ruled the concurrent cause doctrine applied, and so that the combination of covered water damage and excluded faulty, inadequate and defective construction had resulted in coverage for the loss. 

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July 25, 2017 Blog PostThat Sinking Feeling: Sinkholes, Florida Law, and Some Questions Raised by The Recent Collapse in Land O' Lakes

The recent catastrophic ground cover collapse in Land O’Lakes attributed to a sinkhole highlights the unique aspects of Florida geology and the impact it can have on the risks faced by building owners and their insurers. In central and western Florida, the land generally consists of a layer of limestone topped by layers of clays and sands. The limestone is a vestige of the shells and skeletons of marine life deposited during prehistoric periods when that layer was at the bottom of shallow seas. Over time, limestone was formed and covered by layers of silts and sands. The limestone is slowly dissolved by groundwater, and constitutes part of the aquifer.

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July 25, 2017 Blog PostThat Sinking Feeling: Sinkholes, Florida Law, and Some Questions Raised by The Recent Collapse in Land O' Lakes

The recent catastrophic ground cover collapse in Land O’Lakes attributed to a sinkhole highlights the unique aspects of Florida geology and the impact it can have on the risks faced by building owners and their insurers. In central and western Florida, the land generally consists of a layer of limestone topped by layers of clays and sands. The limestone is a vestige of the shells and skeletons of marine life deposited during prehistoric periods when that layer was at the bottom of shallow seas. Over time, limestone was formed and covered by layers of silts and sands. The limestone is slowly dissolved by groundwater, and constitutes part of the aquifer.

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July 17, 2017 Blog PostThe Innocent Co-Insured: Underestimating Definite and Indefinite Articles

Four little words—a, an, any, and the—can mean a world of a difference with respect to coverage for an innocent co-insured.  A federal judge (applying Florida law) recently ruled that “that the phrase ‘any insured’ unambiguously expresses a contractual intent to create joint obligations.” Stettin v. National Union Fire Insurance Company of Pittsburg, PA, 2017 WL 2858768 (11th Cir., July 5, 2017) (emphasis added).  The Settin Court solidified a prior U.S District Court for the Southern District of Florida case, which held that an intentional loss provision precluded coverage for even innocent co-insureds when the intentional loss provision contained language prohibiting coverage for intentional acts by any insured.

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July 05, 2017 Blog PostEarth Movement: "Any" Means Any; Home-Owners Insurance Company v. Dominic F. Andriacchi (Michigan Court of Appeals)

For years, courts across the country have considered whether an earth movement exclusion in a policy applies only when the earth movement losses are caused by or stem from natural causes or phenomena, or whether it applies to earth movement losses from both natural and man-made causes.

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June 22, 2017 Blog PostBottini v. GEICO: Parties to Bad Faith Action Not Bound by $30.8 million-dollar Verdict Without Appellate Review

For years, when a bad faith action was brought pursuant to a jury verdict in excess of policy limits in the underlying UM claim, everyone assumed the jury verdict was binding in the bad faith action. Then, Bottini v. GEICO resulted in a $30.8 million-dollar verdict – over 600 times the policy’s UM limit of $50,000! GEICO appealed, and the Second DCA concluded that even if GEICO were correct that errors affected the jury’s computation of damages, any such errors were harmless in the context of this case.

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June 20, 2017 Blog PostFlorida's Third District Court of Appeals provides a warning: When insureds communicate about their policy needs, agents better listen and communicate back or insurance companies could be left holding the bag in a negligent procurement action.

In Kendall South Medical Center v. Consolidated Insurance Nation, No. 3D16-926, 2017 WL 1908376, *1 (Fla. 3d DCA May 10, 2017), the Third District Court of Appeals reversed the lower court’s fourth dismissal of Kendall South Medical Center’s complaint for negligent procurement, holding that there may be liability for negligent procurement where an agent fails to explain to an insured a coinsurance provision that could reduce coverage to less than the amount requested by that insured.

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May 19, 2017 Blog PostINSURANCE PROCEEDS PAYABLE TO TENANT DIVERTED TO PAY FOR PROPERTY OWNER'S BACK TAXES

The Third Circuit Court of Appeals sitting in Pennsylvania recently issued a precedential decision that interpreted the definition of a “named insured” under a tax delinquency statute to encompass tenants of a property even though the property owner, not the tenant, owed the delinquent taxes.

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March 23, 2017 Blog PostNebraska Supreme Court Rules that an Insurer Can Depreciate Labor in Determining Actual Cash Value

Property policies typically provide, if there is coverage, that the insured can recover for the costs to repair or replace the property damaged by loss.  But when an insured does not repair or replace the damaged property (or until such repairs are made), the insured is only entitled to the actual cash value of the property.  The calculation of actual cash value varies state to state, but generally courts either define it as replacement cost less depreciation or courts use the broad evidence rule. 

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March 21, 2017 Blog PostPennsylvania Superior Court adopts narrow interpretations of surface water exclusion and ensuing loss clause

In the Ridgewood Group LLC v Millers Capital Insurance Company, No. 1138 EDA 2016, February 27, 2017, the Superior Court of Pennsylvania analyzed two often troublesome policy provisions, the surface water exclusion and the ensuing loss cause .

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March 14, 2017 Blog Post2017 Florida State Legislature to Consider Bills Aimed at Assignments of Benefits, Water Losses, Appraisers, and Umpires

The 2017 Florida Legislative Session convened on March 7.  Of particular interest to property insurers are the following bills, which we are closely watching: SB 944, proposing licensing requirements upon appraisers and appraisal umpires; SB 1038 and HB 1218, proposing a statute concerning assignments of benefits; and SB 1218, proposing licensing requirements on those who perform water damage restoration and prohibiting policy provisions that preclude post-loss assignments of benefits.

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March 07, 2017 Blog PostFederal Diversity Jurisdiction: Proving Citizenship of Limited Liability Companies

Jurisdiction gives a federal court the power to hear a case. Jurisdiction matters at the outset of a lawsuit. It matters during discovery. It even matters after summary judgment. Jurisdiction matters because federal courts are courts of limited jurisdiction.

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March 07, 2017 Blog PostFederal Diversity Jurisdiction: Proving Citizenship of Limited Liability Companies

Jurisdiction gives a federal court the power to hear a case. Jurisdiction matters at the outset of a lawsuit. It matters during discovery. It even matters after summary judgment. Jurisdiction matters because federal courts are courts of limited jurisdiction.

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February 16, 2017 Blog PostSurplus Insurers, Too, Can Rely on the Application to Interpret Policy

Section 627.419 of the Florida Statutes provides that “[e]very insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any application therefor or any rider or endorsement thereto.”  This statute has not applied to surplus lines insurers since the “Zota-fix” legislation of 2009, which generally exempted surplus lines insurers from Chapter 627.

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January 11, 2017 Blog PostWhat Is An Offer of Judgment And Can It Really Lower the Cost of or Shorten Litigation?

Insurance coverage litigation today is often time consuming and expensive.  Many cases include claims for “bad faith” damages, and some cases seek punitive damages.  To support their allegations, litigants will usually seek a wide-array of documents and testimony.  Accordingly, litigating such matters can also become expensive. 

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June 24, 2016 Blog PostTreading Water: Florida Office of the Insurance Consumer Advocate Holds Forum on Florida's Ongoing Water Loss Crisis

The state of water loss claims abuses in Florida, the water loss marketplace, and water loss damage claims on a national scale were presented by the Division of Insurance Fraud, Bureau of Property & Casualty, and the National Insurance Crime Bureau, respectively. 

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October 28, 2015 Blog PostWhen Revenge Is Not So "Sweet": The Wages of "Revenge Porn" under Florida's New Cyber Harassment Statute

Policyholders who seek coverage for the monetary consequences of a violation of the statute under the “personal and advertising injury” or general liability coverage in their insurance’ policies are likely to find themselves looking elsewhere for funds.

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September 08, 2015 Blog PostNJ: Insurers Still On The Hook To Pay Innocent Parties Under Fraudulent Policies

The decision offers further guidance in the somewhat inconsistent world of rescission and automobile policy statutes, which – when accounting for the application misrepresentation, policy, and statutes – can be a tricky process.

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September 08, 2015 Blog PostNJ: Insurers Still On The Hook To Pay Innocent Parties Under Fraudulent Policies

The decision offers further guidance in the somewhat inconsistent world of rescission and automobile policy statutes, which – when accounting for the application misrepresentation, policy, and statutes – can be a tricky process.

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August 27, 2015 Blog PostLa. Federal District Court Greatly Expands the Duty to Preserve in Response to a Litigation Hold Notice

Takeda appealed the ruling to the Fifth Circuit Court of Appeals, but it reached a settlement in the MDL litigation in May of 2015 before appellate briefing commenced.  The Actos ruling is isolated to date; no other court has applied this holding or followed its interpretation.

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August 11, 2015 Blog PostInsurers Don't Sleep on Your Rights: Insurer's Motion to Intervene Denied as Untimely

The court noted that Cincinnati had been defending the action since 2012, but did not file the motion until 2015 and only on the eve of trial.  With regard to the damage interrogatories themselves, the parties argued that neither party’s expert had broken down the damages in the manner proposed by Cincinnati.

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June 10, 2015 Blog PostPost-Complaint Communications by Insurer's Employees Protected from Discovery in Bad Faith Litigation

The insured failed to articulate any type of argument that he could not obtain the substantial equivalent by other means without undue hardship.  The court recognized that the insured has the opportunity to conduct bad faith discovery, which may include deposing State Farm adjusters, to obtain the substantial equivalent...

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April 09, 2015 Blog PostCan an Insured Sue His Adjuster When the Insured is Injured Cleaning Debris, Because the Adjuster Incorrectly Denied Coverage for Debris Removal?

Imagine a gigantic tree limb weighing over 7,000 lbs falling onto your home.  You dutifully call your insurance company to report the loss. So when the adjuster inspects your home and (verbally) tells you that debris removal is not covered by your policy and that you need to clean up the debris (glass, limbs, branches) all by yourself, you clean it up yourself, right?  And when you hurt your hand in the process ...

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April 08, 2015 Blog PostFourth Circuit Sets Stage For Interpreting Contingent Business Interruption

CBI insurance provides coverage for loss of sales or revenue sustained when business is interrupted due to property damage that occurs away from the insured premises and, consequently, disrupts the flow of goods and services from/to a supplier or customer (referred to as the “dependent” or “contributing” properties). There are a limited number of cases discussing issues relating to CBI insurance; and the Fourth Circuit’s ruling provides greater clarity as to what constitutes a “direct” supplier, which is a common...

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April 08, 2015 Blog PostFourth Circuit Sets Stage For Interpreting Contingent Business Interruption

CBI insurance provides coverage for loss of sales or revenue sustained when business is interrupted due to property damage that occurs away from the insured premises and, consequently, disrupts the flow of goods and services from/to a supplier or customer (referred to as the “dependent” or “contributing” properties). There are a limited number of cases discussing issues relating to CBI insurance; and the Fourth Circuit’s ruling provides greater clarity as to what constitutes a “direct” supplier, which is a common...

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April 06, 2015 Blog PostIt's a "Storm Surge" -- not a "Flood"!

Both parties cited to the SEACOR Holdings, Inc. v. Commonwealth Ins. Co., 635 F.3d 675 (5th Cir. 2011) case. The SEACOR case held that flood limits did not apply to Hurricane Katrina-generated water damage. In the SEACOR policy, there were definitions for flood, windstorm and named windstorm. The definition of windstorm and named windstorm did not include the phrase “storm surge,” but the definition of flood included wind-driven water. The SEACOR court held that all damage caused by Katrina was the result of a named windstorm...

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April 06, 2015 Blog PostIt's a "Storm Surge" -- not a "Flood"!

Both parties cited to the SEACOR Holdings, Inc. v. Commonwealth Ins. Co., 635 F.3d 675 (5th Cir. 2011) case. The SEACOR case held that flood limits did not apply to Hurricane Katrina-generated water damage. In the SEACOR policy, there were definitions for flood, windstorm and named windstorm. The definition of windstorm and named windstorm did not include the phrase “storm surge,” but the definition of flood included wind-driven water. The SEACOR court held that all damage caused by Katrina was the result of a named windstorm...

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July 24, 2014 Blog PostThe Emperor's New Property Damage?

For many years, Florida courts appeared to say that general liability insurance policies did not cover a subcontractor’s faulty work that damaged other parts of a general contractor’s work. That all changed with the Supreme Court of Florida’s decision in United States Fire Insurance Company v. J.S.U.B., Inc., in 2007. In J.S.U.B. the court found that present GL policies covered the faulty work of a subcontractor that damaged other parts of a general contractor’s work. The reasoning used by the J.S.U.B. court to reach that conclusion would seem to also apply to claims for property damage to a subcontractor’s work that resulted from the subcontractor’s faulty work. However, courts applying Florida law have not yet found this to be so, and in fact say just the opposite.

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July 22, 2014 Blog PostFeng Shui: Direct Physical Loss Does Not Include Damage to Invisible Forces

A federal judge recently ruled that an insurer was not obligated to pay $50,000 for a feng shui consultant following a fire loss in a dentist’s office. Patel v. American Economy Insurance Co. et al., No. 12-cv-04719, 2014 WL 1862211 (N.D. Cal. May 8, 2014). While the cost to repair the physical damage from the fire was insured under the policy, the court found that the cost to repair damage to any invisible forces that may have been at work in the office was not.

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