Insured Must Produce Evidence of Covered Claim
Insurance claims are not difficult for the insured. All an insured must do is prove that the property has been damaged by a peril insured against. After the insured meets that rather simple task by telling the insurer that the wind blew off the roof of its building and rain came in damaging the structure. After it does so the burden shifts to the insurer to prove that an exclusion applies. However, when the insured refuses to meet its burden and demands payment without even the minimum proof required, it may lose everything.
Insurance is a business of utmost good faith and the duty requires that neither party to the contract of insurance will do anything that will deprive the other of the benefits of the contract. In Olivet Baptist Church v. Church Mutual Insurance Company, Slip Copy, United States District Court, N.D. Illinois, 2016 WL 772787 (02/29/2016) a church attempted to collect for damage to the church by windstorm and rain but refused to cooperate with the insurer in its obligation to prove its claim.
Olivet Baptist Church alleged that Church Mutual Insurance Company (“CMIC”) breached its insurance policy and conducted itself in bad faith by denying a claim concerning property damage to the church. The principal issue is whether the damage arose from a windstorm in the church’s vicinity on March 1, 2011; if not, there is no coverage and CMIC prevails.
In February 2015, following Olivet’s repeated failure to produce certain documents, the court barred Olivet “from offering at trial or in any hearing any evidence of damages or causation that defendant requested and [Olivet] failed to produce on or before January 7, 2015.” Ignoring this order, Olivet’s summary judgment materials cite the September 25, 2015 affidavit of Arnold Romeo, an Olivet deacon, to support its position that a windstorm on March 1, 2011 caused the damage to Olivet’s property. This violates the February 2015 order, and so the court disregarded the Romeo affidavit and any assertions in Olivet’s summary judgment papers that rely exclusively on that affidavit.
Olivet’s summary judgment brief relied on the affidavits and reports of two purported experts, Tom Irmiter and Shannon.
Cook worked as a field adjuster for a large insurance company from 1988 to 2006, dealing primarily with commercial and residential property losses. CMIC argues that Cook’s methodology is unreliable given his lack of knowledge as to when the damage occurred and whether it was caused by a windstorm. Specifically, although Cook observed the damage to the property, he does not know when the damage occurred and, in fact, agrees that it could have been caused on some date other than March 1, 2011. Cook also assumed but did not verify that the damage was caused by wind.
The Seventh Circuit has cautioned that the test for reliability for nonscientific experts is flexible. Unlike scientific or technical experts, whose hypotheses can be tested or subjected to peer review and whose methods can be measured against specific industry standards, an insurance adjuster and appraiser’s cannot be so mechanically scrutinized. Cook’s opinions rely on his experience, and expert testimony is not unreliable simply because it is founded on a witness’s experience rather than on data.
The court assumed that Cook is qualified to offer an opinion regarding how much it would cost to repair the property damage. But Cook cannot offer an opinion as to whether any of the damage arose from a windstorm on March 1, 2011. Indeed, nothing in his affidavit or report even purports to offer an opinion on that subject.
On April 16, 2015, more than four years after the alleged windstorm, Irmiter inspected the property while accompanied by Henry Sawyer, another deacon at Olivet. Irmiter observed “plaster cracks, efflorescence, and peeling paint, all of which was consistent with an older building.”
Irmiter’s causation opinions fall outside his area of expertise. As an initial matter, his claim that reviewing Google Maps images and historical weather records was sufficient to establish when the damage occurred. His opinion bears no relationship to Irmiter’s areas of expertise, which concern “on-site inspections and evaluations” and “[p]reparing project[-]specific repair scopes.” More significantly, the report’s causation conclusions are premised largely on information provided by Sawyer during the April 2015 site visit. Accordingly, even if Irmiter could offer expert opinions on some matters pertinent to this case, he cannot offer opinions regarding whether a windstorm on March 1, 2011 caused the property damage he witnessed in April 2015. An expert who parrots an out-of-court statement is not giving expert testimony; he is a ventriloquist’s dummy. This is particularly so given that the February 2015 order barred Olivet from offering any causation or damages evidence that it had not produced on or before January 7, 2015.
Under Illinois law, the interpretation of an insurance policy is a question of law that is properly decided by way of summary judgment. In a dispute over coverage, the initial burden of proof lies with an insured to prove that its asserted loss was a covered loss under the terms of the insurance policy. If the insured meets its burden of proof, the insurer has the burden of proving that an exclusion applies, and the insured in turn the burden to prove that an exception to an exclusion restores coverage.
On the summary judgment record, a reasonable fact finder could not find that the property damage was a covered, non-excluded loss under the policy. In order to recover under a policy, the insured must establish both that there was a windstorm at the time and place of the incident and that the windstorm caused the damages sustained. Olivet was unable to satisfy either requirement.
Olivet made no argument and presented no evidence about the church’s condition on March 1, 2011 suggesting that it was vulnerable to such winds. Even if Olivet could establish that winds near the church on March 1, 2011 were sufficient to cause the claimed damage, it has not adduced evidence that would allow a reasonable fact finder to conclude that such winds actually did damage the church’s exterior or, importantly, that such external damage allowed the entrance of water that caused the subsequent damage to the ceiling and sanctuary in the church’s interior. Olivet’s failure to produce evidence or testimony that a wind storm on March 1, 2011 caused damage to the roof or walls of the church through which rain or snow entered the church and damaged the interior or inside of the church. This is fatal to Olivet’s claim.
To state a claim for breach of contract under Illinois law, a party must allege (1) the existence of a valid and enforceable contract; (2) substantial performance by the plaintiff; (3) a breach by the defendant; and (4) the resultant damages. The insurance policy specifies that CMIC will cover losses at “actual cash value.” Olivet’s damages evidence, however, reflects only replacement value.
In arriving at “actual cash value” a deduction must be made from replacement cost to account for depreciation. Having produced no evidence of depreciation, Olivet was not able to bridge the gap between replacement value, on which its expert opined, and actual cash value.
Because CMIC did not violate its obligations under the policy, it cannot be held liable for engaging in bad faith or improper practices.
Insurance is a business of utmost good faith and the duty requires that neither party to the contract of insurance will do anything that will deprive the other of the benefits of the contract. When an insured refuses to cooperate with the investigation of the insurer, fails to respond to legitimate discovery, and fails to present evidence of the amount of the loss, deserves to lose because, by doing so, it breached the covenant of good faith and fair dealing and deserved to lose.
Barry Zalma, Esq., CFE, practiced law in California for more than 43 years as an insurance coverage and claims handling lawyer. He now limits his practice to service as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes.
He founded Zalma Insurance Consultants in 2001 and serves as its only consultant.
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