The Loss in Progress Rule
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The “Loss in Progress Rule” has been described as follows:
[t]he point at which a threat of loss is so immediate that it may fairly be said that the loss was in progress and the insured knew of it at the time the policy was applied for or issued is generally a question of fact. Sentinel Ins. Co. v. First Ins. Co., supra, 875 P. 2d at p. 920; Inland Waters Pollution Control, Inc. v. National Union Fire Ins. Co. (6th Cir.1993) 997 F. 2d 172, 178.
At least one court has seen the loss in progress rule as an attempt to “swallow up” the “expected or intended” exclusion. [ City of Johnstown v. Bankers Standard Insurance Company, 877 F. 2d 1146 (2d Circuit, 1989).] The defense is independent of the exclusion for losses that are “expected or intended” by the insured. A majority of states, unlike California, have overruled the old marine rule under which a false representation of fact that the insured warranted to be true automatically voided coverage, regardless of the materiality of the misrepresentation. [Peril and Fortuity, supra, p. 795; Kenneth S. Abraham, A Theory of Insurance Policy Interpretation, 95 Mich. L. Rev, 531, 532 (1996).]
In Chemstar, Inc., v. Liberty 1993 WL 13626320 the court concluded that “since an insurer may only insure against contingent or unknown risks of loss, a policy issued after the ‘loss in progress’ has begun does not cover such loss.”
The California Supreme Court, in Prudential LMI v. Superior Court, 51 Cal. 3d 674, 274 Cal. Rptr. 387 (1990). made it clear that there is a stark difference between first and third party insurance. The California Supreme Court said:
As one court observed, in first party cases applying the rule finding coverage only on actual occurrence of injury, no damage or injury of any kind has taken place until manifestation; the cause instead lies dormant until it later causes appreciable injury. Ins. Co. of North America v. Forty-Eight Insulations, 633 F. 2d 1212, 1222, fn. 18.
© 2021 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant 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 practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and email@example.com.
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