Richard Bennett

Richard Bennett

Cozen O'Connor

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Minnesota Holds “Comparable Material and Quality” Requires Wholesale Replacement Where Undamaged Siding Is Faded

Matching issues are frequently problematic when storms damage only portions of an insured structure’s exterior and it proves impossible to replace the damaged sections with material that is an exact match for the rest of the...more

12/24/2014 - Condominiums Insurance Litigation Property Damage Property Insurance Replacement Costs

Our Dysfunctional Congress Skedaddles, Leaving TRIA to Die

Last Friday we reported that the House of Representatives had finally passed a bill reauthorizing the Terrorism Risk Insurance Act (TRIA) and sent it to the Senate. The post included a picture of a cartoon bomb with a lit...more

12/19/2014 - Appropriations Bill Legislative Agendas Terrorism Insurance TRIA

If It’s December, It Must Finally Be Time for Congress to Do Something About TRIA

It looks like Congress is finally turning its attention to reauthorizing the Terrorism Risk Insurance Act (TRIA). The statute will sunset on December 31st unless action is taken before then....more

12/15/2014 - Legislative Agendas TRIA

Florida Court: Under All-Risk Policy, Insured Does Not Bear Burden of Showing Loss Was Caused by a Sinkhole

On November 26th, a unanimous panel of Florida’s Second District Court of Appeals held that a trial judge had erred in placing the burden of showing that loss was caused by covered sinkhole activity on the shoulders of the...more

12/10/2014 - All-Risks Insurance Appeals Burden of Proof Property Damage Property Insurance

New Jersey Court: Loss of Use – Without More – Can Be “Direct Physical Loss or Damage”

Last month, a New Jersey federal court held that the term “direct physical loss of or damage to” property did not require that the property be physically altered in any permanent way. In Gregory Packaging, Inc. v. Travelers...more

12/5/2014

With Respect to Discoverability, Indiana Federal Court Distinguishes Between Pre-Suit and Post-Suit Reserves

In May, we reported on a Third Circuit decision holding that loss reserve information was generally irrelevant and not discoverable. In October, a federal court in Indiana came to the same conclusion with respect to...more

12/1/2014 - Affirmative Defenses Claims Adjusters Counterclaims Discovery Insurers Property Damage Property Insurance

Seventh Circuit: Under Wisconsin Law, “Continuous or Repeated Exposure” Language Means That a Continuous Trigger Theory Applies

Yesterday, in Strauss v. Chubb Indem. Ins. Co., – F.3d – , 2014 WL 6435314, 2014 U.S. App. LEXIS 21794 (7th Cir., Nov. 18, 2014), the Court of Appeals held that the use of the phrase “continuous or repeated exposure” in a...more

11/20/2014 - Appeals Occurrence Policy Limits Property Damage Property Insurance Triggering Event Water Damage

New Jersey Court Holds $22 Million “Named Storm” Deductible Applicable to a Superstorm Sandy Loss

On October 29th, a New Jersey trial court held that a commercial policyholder’s Superstorm Sandy claims were subject to a $22 million “named storm” deductible equal to 2% of the total insurable values at risk at all of the...more

11/4/2014 - Commercial Property Owners Deductibles Hurricane Sandy Property Damage Property Insurance

Second Circuit Affirms a Southern District Decision Construing “Covered Location” Narrowly

In January, the Southern District rejected an insured’s $2 million claim for a generator destroyed by Superstorm Sandy. The unit was in the basement of an office building in lower Manhattan, but the contract of insurance...more

10/31/2014 - Commercial Property Owners Hurricane Sandy Insureds Policy Exclusions

Oklahoma Supreme Court Reconciles Sewer Backup Exclusion With Accidental Discharge Coverage Grant

In May, we reported that a New York court had found that a policy containing both an exclusion for water that backs up through sewers and drains and a coverage grant for accidental discharge or overflow from a plumbing system...more

10/30/2014 - Property Damage Property Insurance Wastewater

Pennsylvania Court: Inaction When Damage is Known to Be Likely is Enough to Render the Loss Non-Fortuitous

On September 19th, a federal court in Pennsylvania held that a wall collapse was not fortuitous because the insureds knew that the wall was unstable and likely to fall and yet took no steps to correct the problem. ...more

10/27/2014 - Policy Exclusions Property Damage Property Insurance Repairs

Florida Court: Your Own Attorney is Simply Not a “Disinterested” Appraiser

As noted yesterday, last month saw an intermediate level appellate panel in Florida address whether the attorney for the policyholder could serve as that party’s appraiser. It was a case of first impression in the Sunshine...more

10/22/2014 - Appraisal Property Damage Property Insurance

Florida Court Holds “Retained Rights” Provision Does Not Render an Appraisal Clause Unenforceable

In a pair of sinkhole cases, different panels of Florida’s intermediate level appellate court recently compelled appraisal, and the decisions are instructive because they address both challenges to the procedure and also the...more

10/21/2014 - Appraisal Appraisal Clauses Property Insurance

Texas Supreme Court Accepts a Concurrent Cause and Ordinance or Law Matter Involving Hurricane Ike

On October 3rd, the Texas Supreme Court granted a policyholder’s petition for review in a Hurricane Ike matter that potentially gives Texas’ highest court an opportunity to address several important insurance issues. They...more

10/15/2014 - Concurrent Causation Demolition Hurricane Ike Local Ordinance Property Damage Property Insurance Wind Damage

Iowa Decision Underscores the Danger of Sharing Privileged Material with Reinsurers

Last month, a federal court in Iowa handed down a decision holding that neither work product nor attorney-client nor the common interest doctrine shield legal advice and analysis from production in discovery once it has been...more

9/30/2014 - Attorney-Client Privilege Common-Interest Privilege D&O Insurance Discovery FDIC Progressive Casualty Insurance Company Receivership Reinsurance Work Product Privilege

Alabama Supreme Court Clarifies (And Criticizes) Its Bad Faith Jurisprudence

In an opinion released for publication on August 14th, 2014, one year after issuance, the Alabama Supreme Court unanimously held that the state has but one tort of bad faith, albeit with two separate methods of proof, and...more

9/29/2014 - Bad Faith Property Damage Property Insurance State Farm

Pennsylvania Court Addresses What Is a Coverage Dispute for Appraisal Purposes

Last month, a Pennsylvania federal court rejected the notion that a dispute over whether an admittedly covered occurrence necessitated repair of certain discrete portions of the damaged structure was a coverage dispute,...more

9/18/2014 - Appraisal Insurers Loss Coverage Occurrence Property Damage Property Insurance State Farm

Fourth Circuit: Twenty-Seven Days of Inaction Enough to Waive Right to Rescind for Violations of Protective Safeguards Clause

The marriage liturgy in the Anglican Book of Common Prayer contains the well-known line “speak now or forever hold your peace,” and the take-away from a recent Fourth Circuit decision out of North Carolina is clearly “act now...more

9/12/2014 - Denial of Benefits Estoppel Materiality Misrepresentation Rescission Waivers

Texas Limits Scope of Anti-Technicality Statute and Material Breach Doctrine in Vacancy Clause Case

Last week, the Texas Supreme Court handed down an opinion that involved two unique (and somewhat troublesome) creatures of state law – the so-called “anti-technicality” statute and the material breach doctrine – and in Greene...more

9/3/2014 - Breach of Contract Property Damage Property Insurance Vacancy Clause

Current Florida Sinkhole Statute Held to Apply Even Though Policy Used Prior Statute’s Formulation

Florida adopted a stringent, five-part definition of what constitutes a covered sinkhole loss in 2011, but many policies continue to employ the 2005 statutory formulation which merely defined “sinkhole loss” as “structural...more

8/28/2014 - Property Damage Property Insurance

Texas Court Lays Out a Useful Roadmap of the Defenses to a Hailstorm Claim

Hailstorm claims for damage to roofs often involve belated notification that an already old or damaged structure has been further compromised. In a recent Texas case, the court provided a primer for carriers confronting such...more

8/27/2014 - Hotels Late Notices Prejudice Property Damage Property Insurance

South Carolina: Admission of Cause & Origin Testimony by Fire Chief Was Prejudicial Error

In James D. Fowler v. Nationwide Mutual Fire Ins. Co., 2014 WL 3844215, 2014 S.C. App. LEXIS 209 (S.C. App., Aug. 6, 2014), South Carolina’s Court of Appeals recently held that it was prejudicial error to allow the jury to...more

8/25/2014 - Causation Firemen Prejudicial Error Testimony Trials

Vermont: There is No Cause of Action for Negligence in Adjusting a Property Loss

Last week, the Vermont Supreme Court firmly rejected the notion that an insured can bring a cognizable claim for negligence against his or her carrier in connection with the inspection and handling of a first-party property...more

8/21/2014 - Breach of Contract Duty of Care Insurers Negligence Property Insurance

Florida Insurer Waives Two-Year Requirement by Waiting That Long to First Raise It

Florida court recently held that the insurer could not rely on a policy requirement that conditioned recovery of the cost of complying with current building codes during reconstruction on having completed the work within two...more

8/18/2014 - Building Codes Popular Property Damage Property Insurance Repairs

In Iowa, Rain is What Gene Kelly Sang In – Not Water From a Burst Drain Pipe

Earlier this year, an Iowa court recognized that rain becomes rainwater once it has fallen, and it held that policy language excluding loss caused by “rain” – without more – will not operate to bar coverage for water from a...more

7/24/2014 - Policy Exclusions Property Damage Property Insurance

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