Richard Bennett

Richard Bennett

Cozen O'Connor

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Vermont: First-Party Pollution Exclusions Are Not Confined to Traditional Environmental Pollution.

Courts in a number of American states, notably California, have found that pollution exclusions in first-party policies are “inherently ambiguous” and that the purpose of such provisions is “to address liability arising from...more

12/21/2015 - Homeowner's Insurance Insurance Industry Pesticides Pollution Exclusion

Arkansas Bars Depreciation of Labor When Calculating Actual Cash Value

Over the last few years, courts have disagreed over whether labor — as opposed to materials — can be depreciated when determining actual cash value (ACV); two of our 2015 posts addressed cases in which the District of Kansas...more

12/17/2015 - Contract Disputes Denial of Insurance Coverage Depreciation Homeowner's Insurance Insurance Industry

Can You Burn the House Down and Still Recover From Your Homeowners Insurer? An Illinois Judge Says Yes!

Someday the editors of this blog will have to create a “Hall of Shame” for most witheringly wrong-headed pieces of first-party property insurance jurisprudence, and a clear contender is a federal decision out of Illinois that...more

12/4/2015 - Arson Denial of Insurance Coverage Fire Damage Insurance Industry Property Insurance Standard Fire

Connecticut Court Holds No Cause Of Action Against Independent Adjuster For Negligence

The states are divided over whether an independent adjuster can be sued for negligence by the insured, and no Connecticut appellate court has ever addressed that issue. Last Tuesday, however, one of the state’s federal...more

12/1/2015 - Claims Adjusters CT Supreme Court Homeowner's Insurance Insurance Industry Negligence

Fifth Circuit: Total Loss Amount Caps Insured’s Recovery Even Under Multiple Policies Covering Different Risks

We don’t usually cover cases dealing with Standard Flood Insurance Policies (SFIPs) issued pursuant to the National Flood Insurance Program, but a Texas case decided by the federal Court of Appeals earlier this month...more

11/30/2015 - Flood Insurance Hurricane Ike Insurance Industry National Flood Insurance Program Wind Damage

New Jersey Court Rejects Theory of Spoliation By Encouragement

Three years out, Superstorm Sandy litigation continues to wend its way through New Jersey’s courts.  Last weekend, a federal judge in the state handed a victory to the insurer in Stiso v. State Farm Fire & Cas. Co., 2015 U.S....more

11/25/2015 - Anti-Concurrent Causation Clauses Denial of Insurance Coverage Hurricane Sandy Insurance Industry Property Insurance

The Elephant in the Room – Catastrophic Property Damage from a Cyber Attack

This past October was the country’s first National Cyber Security Awareness Month, and that makes it an appropriate time to touch on a very troubling first-party exposure. Every day brings news of massive cyber attacks on...more

11/18/2015 - Commercial General Liability Policies Cyber Attacks Cyber Insurance Insurance Industry Popular TRIA

Fifth Circuit Refuses To Predict Texas Will Adopt a Sophisticated Insured Exception to Contra Proferentem

Texas has yet to address whether it recognizes a sophisticated insured exception to the doctrine of contra proferentem, and the state’s federal Court of Appeals declined an opportunity to make a prediction about that question...more

11/17/2015 - D&O Insurance Denial of Insurance Coverage Insurance Industry Insurance Litigation Summary Judgment

Insurers From Coast to Coast Notch Suit Limitation Victories

Over the last several months, courts in Washington, Kansas, and Virginia have awarded victories to carriers asserting a suit limitation defense, and there are three valuable takeaways from the decisions. First, the insurer...more

11/16/2015 - Insurance Industry Insurance Litigation Limitation Periods Property Insurance Statute of Limitations

Pennsylvania Court Orders Production of Underwriting Files On Similar Claims By Other Policyholders

Carriers routinely resist efforts to compel production of the underwriting and claims files on other policyholders on the basis of relevance. Early last month in H.J. Heinz Co. v. Starr Surplus Lines Ins. Co., 2015 WL...more

11/13/2015 - Discovery Insurance Claims Insurance Industry Underwriting Agreements

Virginia Holds Determination Whether Insurer Acted In Bad Faith Must Be Made By The Judge And Not The Jury

This country’s courts are split on whether the decision to award attorney’s fees in bad faith litigation should be made by the judge or the jury. Earlier this fall, Virginia aligned itself firmly with the former in Revi, LLC...more

11/11/2015 - Attorney's Fees Bad Faith Jury Awards Real Estate Development Title Insurance

Florida Court Rejects Claim Replacement Of Undamaged Property Is Necessary For Aesthetic Uniformity

Late last week a federal court in Florida tossed a condominium association’s claims that it was entitled to replace undamaged hallway carpeting, wallpaper, baseboards, and woodwork in order to “achieve aesthetic uniformity”...more

11/11/2015 - Aesthetic Functionality Denial of Insurance Coverage Insurance Industry Insurance Litigation Property Insurance

New York Court Holds Public Adjuster Entitled to Fee Even Though Claim Settled After Ten Years Of Litigation

Disputes between the insured and its public adjuster (PA) are frequently contentious and have the unfortunate potential to draw the carrier into litigation. A perfect example is last week’s decision in Public Adj. Bur., Inc....more

11/9/2015 - Insurance Industry Insurance Litigation Public Adjusters Retainer Fees

Vermont Supreme Court Collapse Case Underscores Danger of Insuring Against the “Risk” of a Peril

Three months ago in Equinox on the Battenkill Mgmt. Ass’n. v. Philadelphia Indem. Ins. Co., 2015 VT 98 (Vt., Aug. 7, 2015), Vermont’s highest court held that a policy insuring against the “risks of . . . collapse” affords...more

11/6/2015 - Ambiguous Construction Defects Contract Terms Policy Exclusions Property Insurance VT Supreme Court

Massachusetts Court: Loss of Drink Product Caused By Faulty Workmanship And Design of Bottle Caps Not a Covered Ensuing Loss

Monday saw a unanimous panel of Massachusetts’ intermediate level appellate court reject a policyholder’s ensuing loss arguments. In H.P. Hood LLC v. Allianz Global Risks U.S. Ins. Co., 2015 Mass. App. LEXIS 175, 2015 WL...more

11/5/2015 - Appeals Commercial General Liability Policies Commercial Insurance Policies Denial of Insurance Coverage Energy Drinks Faulty Workmanship Food Manufacturers Insurance Industry Manufacturers Summary Judgment

Minnesota Harmonizes the Mortgage Clause and the Vacancy Clause

Lat week, Minnesota’s highest court unanimously held that a mortgagee’s recovery for vandalism damage to a vacant building is only barred by the vacancy clause if the insured’s acts caused the vacancy. The decision is ...more

11/2/2015 - Banking Sector Banks Denial of Insurance Coverage Financial Institutions Insurance Industry Mortgagee Mortgages Property Insurance Vacant Properties Vandalism

California Court Holds Pre-Loss Preventative Measures To Avert A Collapse Are Not Covered as Mitigation.

Last week in Grebow v. Mercury Ins. Co., 2015 Cal. App. LEXIS 948, 2015 WL 6166610 (Cal.App., Oct. 26, 2015), a unanimous panel of California’s intermediate level appellate court rejected arguments that expenses incurred to...more

10/30/2015 - Denial of Insurance Coverage Homeowner's Insurance Insurance Industry Mitigation

New Jersey Panel: If a Flood Is Excluded, So Are the Unhealthy Water-Borne Substances that It Leaves Behind

Last week, a unanimous panel of New Jersey’s intermediate level appellate court rejected policyholder arguments that even though flood was excluded, the proximate cause of their Superstorm Sandy loss was the non-excluded...more

10/26/2015 - Denial of Insurance Coverage Flood Insurance Flooding Hazardous Substances Homeowner's Insurance Hurricane Sandy Insurance Industry Insurance Litigation National Flood Insurance Program Summary Judgment

California Court Adopts Expansive Reading of Contamination and Product Recall Coverage

Two weeks ago in Foster Poultry Farms, Inc. v. Certain Underwriters at Lloyd’s, London, 2015 U.S. Dist. LEXIS 138609, 2015 WL 5920289 (E.D.Cal., Oct. 9, 2015), a California Court applying New York law found coverage under a...more

10/23/2015 - Commercial General Liability Policies Food Contamination Food Recalls Insurance Industry Lloyds of London Salmonella USDA

Utah Court: Seepage Over A Months-Long Period Is Excluded As Moral Hazard

Two weeks ago in Wheeler v. Allstate Ins. Co., 2015 WL 5714392, 2015 U.S. Dist. LEXIS 131736 (C.D.Utah, Sep. 29, 2015), a Utah court barred coverage for a mold loss caused when a vacant log cabin suffered a long-term water...more

10/15/2015 - Allstate Insurance Industry Policy Exclusions Property Insurance Residential Property Owners Residential Real Estate Market Summary Judgment Vacant Properties Water Damage

ISO Issues Countrywide Revision to the Definition of a “Residence Premises” in its HO Program

The “where you reside” language in the homeowners forms that the Insurance Services Office (ISO) has published since 1991 have spawned litigation around the country for over 20 years, given the number of scenarios which could...more

10/8/2015 - Homeowner's Insurance Insurance Industry Residency Requirements

Massachusetts Court Refuses to Apply Discovery Rule to Commencement of the Suit Limitations Period

Monday, in Nurse v. Omega U.S.  Insurance., Inc., 2015 Mass. App. LEXIS 158, 2015 WL 5774390 (Mass.App., Oct. 5, 2015), a unanimous panel of Massachusetts’ intermediate level appellate court held that the two-year suit...more

10/7/2015 - Appeals Claims Limitations Period Discovery Rule Homeowner's Insurance Insurance Industry Insurance Litigation Property Damage Statute of Limitations Summary Judgment Water Damage Water Usage

Florida to Decide What Test Applies When Concurrent Multiple Perils Cause a Loss

For years, Florida courts have been seesawing between two different doctrines to determine whether there is coverage under a property policy when two perils – one excluded and one included — combine to cause a loss. Two...more

10/1/2015 - Appeals Construction Defects Declaratory Judgments Design Defects Florida Homeowner's Insurance Insurance Industry Severe Weather Water Damage

Under Illinois Law, Mine Subsidence Held to Be a Type of Excluded Earth Movement

Ever since Mattis v. State Farm Fire & Cas. Co., 118 Ill.App.3d 612, 73 Ill.Dec. 907, 454 N.E.2d 1156 (1983), Illinois courts have held that an earth movement exclusion contained in a first-party policy applies only to earth...more

9/24/2015 - Homeowner's Insurance Insurance Industry Policy Exclusions Policy Limits State Farm Summary Judgment

Tennessee Court: Requirement that Insurers “Make Available” Sinkhole Coverage Does Not Require Policyholders Be Notified

Since 2007, Tennessee statutes have required that homeowners carriers “make available” insurance coverage for sinkhole losses. Last Friday in Patterson v. Shelter Mut. Ins. Co., 2015 Tenn. App. LEXIS 734, 2015 WL 5320231...more

9/18/2015 - Homeowner's Insurance Insurance Industry Interlocutory Appeals Property Damage

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