- Barry Zalma, Inc.
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Okay, I purchased Zalma on D.I.V. and found it a great resource (thanks), I’ve read through (most) of your excellent blog, witnessed accolades from your peers (Merlin Law Group), and lastly searched your site word specific for my Holy Grail, the true meaning in insurance life and the object of my professional desire, yes, what I have come to the Mount to seek is the case law supported definition of ‘Like-Kind-Quality’ in the realm of insurance replacement of personal property. My searches always lead to auto related, parts related cases and a couple of cases give the briefest definition with the best and most detailed being ““of like kind and quality” is properly interpreted to require that the insurer place the insured in possession of a car “the same or nearly the same” as the damaged auto, in terms of the “fundamental nature” and “…degree of excellence” of the automobile…” and elsewhere “… the equivalent of an object with comparable attributes…”. That’s as good as it got and nothing involving personal property, household goods, or even a claim under a home owner’s policy that dealt with defining the standards of replacement. As a personal property appraiser working with many different carriers the question of accurately matching comparables for the Market Analysis approach comes up countless times day after day… but never with solid guidance that would survive the ultimate test of prevailing at trial. No policy language, no Black’s definition, nothing substantive on insurance blogs and that’s for the glossaries that even mention LKQ. Inquiring minds want to know…can ya help a guy out here… I’m dying for want. Best, chris
The test is used by almost all real estate appraisers. They find fair market value by use of one, two or three methods: 1. Replacement cost; 2. the fair market value considering what a willing buyer would pay a willing seller with neither be under pressure to buy or sell; or 3. the earnings approach by applying a multiplier based on experience to the potential earnings of the property. Some use all three and mos say the best guide is fair market value determined by reviewing sales of comparable properties.
As an Oregon court said: “”We have observed in previous cases of this kind that there are three standard approaches to valuation: the market data approach, the income approach, and the cost approach. Bend Millwork v. Dept. of Revenue, 285 Or 577, 592 P2d 986 (1979); Medical Building Land Company v. Dept. of Rev., 283 Or 69, 582 P2d 416 (1978); Swenson v. Dept. of Revenue, 276 Or 1, 553 P2d 351 (1976). The appropriateness of a particular valuation method or combination of methods is not determined by fixed principles of law, but is a factual determination that depends on the record developed in each case. See Medical Building Land Company v. Dept. of Rev., supra at 78-79. Because we try this case ‘anew upon the record,’ we must determine which of the above approaches to valuation, under the facts of this case, best reflects the ‘true cash value’ of the property. In making this determination, we emphasize that we are performing our function as fact-finder, not our function as a corrector of legal errors.”
[City of Bend v. Juniper Utility Company, An Oregon Corporation; J. L. Ward Company, An, No. A137087 (Or.App. 04/06/2011) ]
Therefore, it depends, on the question posed and the type of property involved to determine which method is best.
Barry, Been a reader of your website for a few years and learn and enjoy from your articles. Question, do you know where we could get some info on New York State court cases regarding property deductibles and sublimits. One of my clients had a flood claim, policy read the deductible for flood in flood zone A will be 2% of the values at RISK. Our opinion and a couple of court cases outside if New York State concluded the values at risk was the sublimit of coverage for flood. The carrier ACE is using the total insured values at that location which would make the deductible over $2M. Before hiring a coverage attorney we are looking for some NYS court cases that we could present to the claims adjuster.
I would contact the insurance agents and brokers association’s Boll Wilson.
If a Georgia based property and casualty insurance AGENCY hires agents
in Cal, do the insurance premiums that are collected from Cal customers
need to be deposited and maintained in a Cal bank account? Also, do the
funds have to be deposited in a “Trust” account?
I really don’t know. I would suggest you contact the IIABA or a lawyer who deals with California insurance administrative law.
Dear Mr. Zalma,
I have of recent, have had to explore the endless blogs, posting, and laws and Standards of insurance, appraisal, and tort. I must say that yours is by far the most user friendly. My family and I have a huge insurance issue, If I may take up but only a few moments of your valuable time. One question.
1. If as renters…claim large loss Contents claim…(asbestos contaminated) all personal property in the home contaminated. Insurer requests “content listing” to include original price, original purchase date, condition, and actual cash value, with receipts. We provide said without receipts, due to the fact they are INSIDE THE HOME, and also contaminated. Insurer hires content inventory co. to inventory contents of home and provide a non contaminated viewing area for us to view and document nessassary data on our items. Wonderful for all, except during first day of inventory and to its completion no viewing area provide nor any item be display to us. Inventory documents used during inventory do not contain areas for data required by insurer or us. All items now destroyed. only very limited photos provided by content co. and description of items for more then half of line items vauge. No official assessment submitted to us, but verbal offer of 20k. was made. How can assessment be made excluding data required for cost method assessment and said method used on and by insurers and still be USPAP compliant?
Thank you for your time,
Henry, what you are asking me is for legal advice, that I cannot give you in this forum.
I suggest you retain a local attorney to represent you and provide you with the advice you need.
Dear Mr. Zalma, I fully understand. If I may pose it a different way. Can a assessment be conducted without the data required for a ACV (Cost Method) and still be USPAP compliant?
Sorry, I don’t know.
Dear Attorney Zalma;
What would you recommend as a resource, in the study of ‘private attorney general’?
I don’t feel competent to make a recommendation.
Great. Now i can say thank you!
Excellent write-up. I certainly love this site. Thanks!
I’ve been a long time reader of yours, and appreciate your insight and presentation of the issues. You are a credit to the practice of law. I have a quick question for you: do you know of any cases speaking to the failure of an insured to pay the required downpayment (e.g. bounced check) on a commercial policy thereby resulting in the voiding of a binder of insurance? My thought is an insurance policy is a contract, and part of the terms of the agreement are correctness in the application and payment by the insured, in return for coverage. When a check is handed to an insurance agent that is not a valid instrument of payment, wouldn’t the contract become null and void back to its date of inception after the opportunity for cure has come and gone?
Just curious if you’ve seen this question answered by the courts.
Thanks for the kind words.
If the bad check is provided knowingly it can easily be argued it is a fraud. If you are in a rescission friendly state like California or New York that would be a sufficient misrepresentation of a material fact to support a claim of rescission.
I’ve never seen such a situation but it seems no contract was ever formed for failure of consideration.
I wanted to ask if I could use your article on Insurable Interest?