Monthly Archives: December 2012

Happy New Year

The story that follows is based on fact but is fiction. The names, places and descriptions have been changed to protect the guilty. This story was written for the purpose of providing insurers, those in the insurance business and the … Continue reading

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Claims Made and Reported

Who’s On First The Appellate Division of the Supreme Court, New York County dealt with an appeal of a judgment entered September 7, 2011, to the extent appealed from, declaring that plaintiff is obligated to defend and indemnify defendant in … Continue reading

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Fraud By Third Party Should Not Be Considered by Arbitrator

Arbitration Award Stands The Minnesota Court of Appeal was called upon to decide whether a trial court judgment vacating a no-fault arbitration award was proper in State Farm Insurance Companies, Petitioner v. Arecely Padilla, No. A12-0928 (Minn.App. 12/24/2012). Padilla argued … Continue reading

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Definitions in Policy Gives Word Special Meaning

Liar, Liar, Pants on Fire Illinois State Bar Association Mutual Insurance Company (ISBA) brought an action for declaratory judgment against its insured, Timothy J. Cavenagh, seeking a declaration that Cavenagh’s professional liability insurance policy did not require ISBA Mutual to … Continue reading

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Perjury in Bankruptcy Court Defeats Bad Faith Claim

Bankruptcy Fraud Is a Crime Michael Martindale, and his wife, Velicia Martindale, appealed from an opinion and order entered by a trial court dismissing them from a bad faith claim they had filed against First National Ins. Co. of America, … Continue reading

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Agreeing to Coverage Continuing After Loss Is Very Expensive

Insurers Who Make Coverage Generous Must Pay In the 1960’s insurers had little concern over continuing losses like those cause by asbestos, pollution, contamination, etc., and, as a result were willing to give coverage for damages occurring after the expiration … Continue reading

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Insurance Only Pays Indemnity

Policy Wording Controls Insureds who contended that the liability coverage provision in their homeowner’s policy required the insurer to defend a lawsuit brought by a contractor the insureds had hired to repair fire damage to their home and to remodel … Continue reading

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Deceit Not Enough to Void Insurance in Oklahoma

Rescission Requires Factual Findings of Intentional Deceit The Supreme Court of Oklahoma was called on to decide whether a misrepresentation on a life insurance application was sufficient to allow the insurer to void the policy. In Shannon M. Benson v. … Continue reading

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Installment Fee Is Not A Premium

Installment Fees Not Premium Many lawyers believe that a class action will be extremely profitable for the lawyers representing the class. This is especially so when the defendant is a major insurer with assets greater than many member nations of … Continue reading

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Only Insured Can Recover UIM Benefits

WHO’S ON FIRST? Insurance is a contract of personal indemnity. It does not follow title to property but only insures the person(s) the insurer agrees to insured. Nicole Sparks, ignoring the general rule of personal indemnity, appealed an order of … Continue reading

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No One Wants a Lawyer Who Is Nasty

Lawyer, Heal Thyself Professionalism and civility is the foundation of the practice of law. Upon this foundation lays competency, honesty, dedication to the rule of law, passion, and humility. Every lawyer and every judge is charged with the duty to … Continue reading

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A “House” is Not Always a “Home”

Insurers Need Not Define Every Policy Term The Fifth Circuit Court of Appeal was asked to interpret a clause in an insurance policy which excludes coverage for the contents of a “rice drying house.” Hebert Farms filed a claim for … Continue reading

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Incompetent Arsonist Gets Nothing

Only Fools Represent Themselves In a case that proves that a party who represents herself has a fool for a client and an incompetent for a lawyer, Lori Meyers v. New Jersey Manufacturers Insurance Company, No. A-4585-10T2 (N.J.Super.App.Div. 12/11/2012) a … Continue reading

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Florida Requires “Prejudice” to Defeat a Late Claim

Two Years Five Months Late May Be Okay The Kings Bay Condominium Association, Inc. (“Kings Bay”) appealed a trial court’s final summary judgment in favor of its insurer Citizens Property Insurance Corporation (“CPI”). Kings Bay argued that the trial court … Continue reading

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Court Protects One to Detriment of All Others

Insurer Refused Right to Contract Direct General Insurance Company (“DGI”) wrote an automobile liability insurance policy with a specific, agreed to, exclusion of a young driver living in the household. As a result of the exclusion the named insured’s premiums … Continue reading

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Exception to Exclusion Controls

An Apartment Is Not A Condo Ment Bros. Iron Works Co., Inc. (“Ment”) appealed from a judgment of the United States District Court for the Southern District of New York (Hellerstein, J.) granting summary judgment in favor of Interstate Fire … Continue reading

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No Coverage for Loss From Use of a Firearm

  CGL Means What It Says The state if Washington appellate division was called upon to decide the application of a firearms exclusion in a commercial general liability (CGL) policy in Capitol Specialty Insurance Corporation v. Jbc Entertainment Holdings, Inc., … Continue reading

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“Arising Out Of” Means What it Says

Any Loss Arising Out of Asbestos Clearly Excluded The Wisconsin Court of Appeal was asked by Michael D. Phillips, Perry A. Petta, and Walkers Point Marble Arcade, Inc. (collectively, “Phillips”) to reverse the trial court’s order granting declaratory/summary judgment to … Continue reading

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Desire Doesn’t Change Policy Wording

No Ambiguity When Entire Policy Is Read Insurance policies are not interpreted by their individual parts, phrases and sections but must be read as an entire contract. Even if a single provision of the policy seems ambiguous it is imperative … Continue reading

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No Damages – No Coverage

Technicolor Clean Up Costs Not Covered Several years ago, Thomson, Inc., acquired the assets of Technicolor, Inc., which included, among other things, three contaminated former film-processing sites. Eventually, local environmental authorities directed Thomson to remediate the contamination at the sites, … Continue reading

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INSURERS SUE FRAUD PERPETRATORS

Insurers Proactive Against Fraud The best defense in battle has always been a strong offence. In litigation the same is true. Insurers have, for decades been passive victims of insurance fraud, considering it to be a cost of doing business. … Continue reading

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Lack Of Waiver of Subrogation is Expensive

Interinsured Claims Exclusion Does not Apply Delos Insurance Company appealed a judgment entered in favor of respondent Gemini Insurance Company, after Gemini’s motion for summary judgment was granted. In Gemini Insurance Company v. Delos Insurance Company, No. B239533 (Cal.App. Dist.2 … Continue reading

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Life Insurer Must Pay If No Evidence of Murder by Beneficiary

No Conviction of Murder – Pay There is no question that a life insurer need not pay life insurance benefits to a beneficiary who murdered the insured. To allow a murderer to profit from his crime is against public policy … Continue reading

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Claims File Protected Work Product

DISCOVERY OF CLAIM FILE BEFORE COVERAGE DECISION PROHIBITED When an insured waits more than four years to report a wind damage loss should assume that the insurer will question the claim, reserve its right to investigate without waiving policy defenses, … Continue reading

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Damages

Failure to Prove Damages Defeats Bad Faith Claim When presenting a claim to an insurance company the person insured is obligated to prove to the insurer the loss was caused by a peril insured against, and the value of the … Continue reading

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The Importance of the Waiver of Subrogation

How to Avoid Litigation A waiver of subrogation is useful in construction contracts because it avoids disrupting the project and eliminates the need for lawsuits. The contract price can be reduced by an agreement between the owner and the builder … Continue reading

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