Archives: Property insurance

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Limitations Periods in Insurance Policies

Here are a few universal truths. If politicians can raise taxes, they will.  If lawyers can bill, they will. And if judges can find a way to help clear their docket, they will.  That last truth can create a serious problem for the unwary dealing with insurance claims. Many business property policies and homeowners’ policies … Continue Reading

The Illegal Acts Exclusion and “Entrustment” of Property

There’s an excellent, but sad and haunting, nonfiction book written by Jeff Hobbs called  “The Short and Tragic Life of Robert Peace.”  It’s about a kid who grew up among poverty, gangs and tough guys in a rough section of Newark, but who was naturally gifted and ended up at Yale. Unfortunately, he couldn’t outrun … Continue Reading

“Ordinance or Law” Coverage for Costs of Repair

I was saddened to learn that Judge Ruggero Aldisert, formerly of the Third Circuit, recently passed away.  I never had the privilege of appearing before Judge Aldisert, and I never met the man, but I feel indebted to him for writing two excellent books that were published through NITA:  “Logic for Lawyers” and “Winning on … Continue Reading

The Appraisal Provision in First-Party Property Policies

I’m not a big fan of arbitration.  I think it costs too much (which kind of goes against its main marketing point), and I don’t particularly like the fact that there’s no right of appeal absent the arbitrator committing fraud. Having said that, and with so many Sandy-related claims still pending in New Jersey, I … Continue Reading

Additional Insured Coverage and the Employer’s Liability Exclusion

My late Uncle Carmen was an accountant who worked for the IRS.  One tax season, I was grousing about how complicated the 1040 form could be. Uncle Carmen didn’t suffer fools gladly, and, with the veins bulging from his neck, insisted that NOTHING ON EARTH COULD BE SIMPLER.  My response was to engage in a … Continue Reading

Sandy and the New Jersey Department of Banking and Insurance

As the weeks following Sandy have stretched into months, and the months are beginning to stretch into years, businesses and homeowners with unresolved claims have been asking me whether it’s worthwhile to complain about their carrier to the New Jersey Department of Banking and Insurance (“DOBI”).  Truth be told, it’s a complete waste of time. … Continue Reading

How to prove a business interruption loss

I once heard a veteran of the complex commercial litigation wars describe the process as follows. “Each side hires an expert,” he said, “and the preponderance of perjury prevails.” A cynical – if funny and unfortunately too-often-accurate – view.  Recognizing that expert witnesses are, in essence, paid advocates, the Supreme Court formulated the Daubert and … Continue Reading

Can an insurance policy shorten the statute of limitations?

With the one-year anniversary of Sandy just having passed, many policyholders are asking how long they have to sue their carrier. Be careful. Many insurance policies contain limitations periods that shorten the general six-year statute of limitations for breach of contract in New Jersey. Such provisions are enforceable both in New Jersey and in New … Continue Reading

“Newly Acquired Premises” and The Rule of Ambiguity

Insurance company claims personnel tend to view the concept of “ambiguity” as the last refuge of a scoundrel.  That’s because unhappy policyholders often reflexively argue that a particular term in dispute is “ambiguous.” On the other hand, miserly insurance companies often argue that the term is perfectly clear. Neither side usually understands what the term … Continue Reading

The Coinsurance Penalty and Replacement Cost Coverage

I confess:  I sometimes wonder whether some claims personnel have ever heard of the “red face” test.  In other words, you should only take a negotiating position if it doesn’t actually cause you to blush.  Otherwise, how could seemingly rational people contend that buying “expanded” coverage means that the policyholder has no coverage?  (And how … Continue Reading

Concurrent Causation and Superstorm Sandy

As the Sandy-related insurance disputes develop along the New Jersey coast, we’re seeing what we anticipated:  general liability and homeowners’ carriers are disclaiming coverage on the ground that the damage was caused by flood, and is therefore excluded.  Policyholders, on the other hand, are trying to establish that a good portion of the damage wasn’t … Continue Reading

Insurance claims and Superstorm Sandy

I recently got interviewed by Ed Beeson of the Newark Star-Ledger as part of his article about the looming Superstorm Sandy insurance coverage litigation.  The insurance industry has definitely circled the wagons, and the first suits are now being filed.  There will be a lot of battles over causation (e.g., wind versus flood), as well … Continue Reading

Flood insurance and basements

A group of owners of hurricane-damaged homes have brought a putative class action in federal court in Newark, arguing that their flood insurance carriers are short-changing them by calling their first floors “basements”.  The case is Donnelly v. New Jersey Re-Insurance Co., Docket No. 12-cv-7629, and was filed by Union City solo Jeffrey Bronster. FEMA policies … Continue Reading

Business interruption insurance and Hurricane Sandy

When Hurricane Sandy struck New Jersey last week, one of my out-of-state lawyer friends, employing the sort of dark humor that perhaps only other lawyers can appreciate, congratulated me on my “happy positioning in the world’s greatest business interruption insurance goldmine.”  I told him that, unfortunately, this time I might be a plaintiff instead of … Continue Reading

Actual cash value and replacement cost

Large first-party property damage cases often come down to a battle of accountants.  In other words, unlike Olympic beach volleyball, they’re usually not particularly thrilling to watch.  (Not that I have anything against accountants.)  But the results of the battle can have a major impact on the policyholder’s balance sheet.  How is the policyholder’s claim … Continue Reading

Coverage for “stigma” damages

Let’s say you own a factory building.   Construction activity on an adjacent lot causes damage to the structure.  You have the standard first-party property insurance policy providing coverage for “direct physical loss or damage,” and the policy gives the carrier the option of paying either the “cost of repair” or “loss of value.”  If the carrier … Continue Reading