Richard Bennett

Richard Bennett

Cozen O'Connor

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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

Insurers Say “Over My Dead Body” to Claims for Damage From Decomposition

Last April saw decisions handed down in Pennsylvania and Florida that addressed the ghoulish question of whether first-party policies cover property damage from a decomposing body, and the courts in both jurisdictions held...more

7/18/2014 - Property Damage Property Insurance

Sixth Circuit Holds That Declines in Market Value are Not a Factor in Determining Actual Cash Value

In a case of first impression in Michigan, the federal Court of Appeals determined last month that general market conditions could not be considered when calculating actual cash value. In Whitehouse Condominium Group, LLC v....more

7/15/2014 - Condominiums Fair Market Value Property Insurance Property Valuation

Argument That Rain Alone Can’t Cause a Flood “Would be News to Noah” Says a California Court

Last month an appellate court in California looked to the Bible, citing the Book of Genesis when rejecting the argument that an inundation caused solely by heavy rain was not an excluded flood. The opinion was handed down in...more

7/11/2014 - Flood Insurance Flooding State Farm

New York Court: Storm Surge is a Species of Excluded Flood

One of the most litigated issues in the Gulf States in the wake of Hurricane Katrina was whether flood exclusions bar coverage for loss by storm surge. The courts ultimately decided that the answer was yes....more

7/8/2014 - Exclusions Flood Insurance Flooding Hurricane Katrina Policy Exclusions Popular Property Insurance

New York Court: All Sandy Losses, Including “Downstream” Financial Ones, Capped By Annual Aggregate Limit For Flood

Superstorm Sandy jurisprudence is starting to shed light on some unresolved issues in the effected states. In El-Ad 250 West LLC v. Zurich American Ins. Co., — N.Y.S.2d —, 2014 WL 2931058 (N.Y.Cty., June 27, 2014), a New...more

7/3/2014 - Flood Insurance Hurricane Sandy Insurers Loss Coverage Occurrence Policy Limits Property Insurance

Waiver of Attorney-Client and Work-Product – You Can’t Be Just a Little Bit Pregnant

A recent Mississippi opinion dramatically underscores the dangers of an advice-of-counsel defense. In Willis v. Allstate Ins. Co., — F.Supp.2d —, 2014 WL 1882387 (S.D.Miss., May 12, 2014), the court held that the insurer had...more

6/27/2014 - Allstate Attorney-Client Privilege Homeowner's Insurance Insurers Legal Advice Work-Product Doctrine

California Court: An Insurance Claim for Feng Shui Is Not Harmonious Qi

Feng shui is a Chinese philosophical system that supposedly orients buildings and their contents in an auspicious manner. Last month in Patel v. American Economy Ins. Co., — F.Supp.2d —, 2014 WL 1862211 (N.D. Cal., May 8,...more

6/23/2014 - Insurers Loss Coverage Property Damage Property Insurance

Connecticut Holds that When a Lapsed Policy is Reinstated, Coverage is Only Restored Prospectively

In a case of first impression in the Nutmeg State, an intermediate level court in Connecticut recently held that reinstatement of coverage after a lapse for non-payment of premiums does not operate to restore coverage...more

6/18/2014 - Insurers Loss Coverage Premiums Reinstatement

Failure to File a Proof of Loss is Fatal, and the Defense Does Not Require a Showing of Prejudice

On June 3, Connecticut’s intermediate level appellate court held that the failure of a policyholder to file a sworn statement in proof of loss was fatal to his claim....more

6/12/2014 - Denial of Benefits Homeowner's Insurance Insurers Proof of Loss State Farm

New York Holds Water Which Backs Up Is Covered If It Originated On The Insured Premises

Last week, in Pichel v. Dryden Mutual Ins. Co., — N.Y.S. 2d —, 2014 WL 1923736 (May 15, 2014), an intermediate level appellate panel in New York brought the state into line with the interpretation of water backup adopted by a...more

5/26/2014 - Policy Exclusions Property Insurance Sewer Systems Water Damage

Congress Moves Towards Reauthorization Of TRIA

Congress returned last week from an extended spring recess with few legislative days left on the calendar before the mid-term elections and a long list of must-do legislation. One piece of legislation that seems certain to...more

5/8/2014 - Legislative Agendas Legislative Process Terrorism Insurance TRIA

New York Adopts a Broad Definition of Covered Vandalism

On October 17, New York’s highest court held that an insured could recover for a “vandalism” loss without showing that the vandal in question intended to damage the insured’s property. Indeed, proof of intent to cause...more

10/29/2013 - Evidence Property Damage Standard of Proof

Eighth Circuit Adopts An Expansive Definition of Newly Acquired Property

On July 23, a unanimous panel of the 8th Circuit held that it was reasonable to contend that a port terminal, where a shipping company hired by the policyholder had stored a piece of the insured’s equipment for six days,...more

8/6/2013 - Acquisitions Ambiguous Heavy Equipment Leases Property Ownership Summary Judgment

Florida Requires Replacement Cost Payments Include Profit and Overhead Even if No Repairs Have Been Made

On July 3, 2013, the Florida Supreme Court held that an insurer making a replacement cost payment to a homeowner who had yet to repair the damaged property could not withhold payment of that component of replacement cost that...more

7/16/2013 - Compensatory Damages Economic Damages Insurers Legal Costs Lost Profits

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