Number of Occurrences Determination

3b495-legalscalesimageNumber of occurrence can be a knotty issue for courts and coverage counsel. In interpreting the standard policy language, the vast majority of courts count the causes rather than the effects of the harm to determine the number of occurrences. To determine the number of occurrences, courts must look at the specific act of the insured that immediately precedes the harm and directly led to liability.

Multiple plaintiffs sue a petting zoo for exposing them to E. coli bacteria. The petting zoo’s liability insurer maintains that the applicable policy’s per occurrence limit of $1 million must be spread among all the claims. A federal district court agrees, holding that all of the exposures to E. coli constitute a single occurrence and trigger only a single $1 million limit.

A defective plumbing system damages 19 buildings in an apartment complex. The apartment complex’s insurer maintains that 19-per occurrence deductibles apply. A federal court agrees, holding that the damage to each building constitutes a separate occurrence implicating separate deductibles.

Defective paneling damages 1,400 houseboats, house trailers, motor homes and campers. The paneling manufacturer’s insurer maintains that 1,400 per-occurrence deductibles apply. A federal appeals court disagrees, hold that the damage to all the vehicles constitutes a single occurrence implicating a single deductible. (source)

2015 CLM Webinar

Keais

Number of Occurrences Determination

Identifying the number of “occurrences” as defined in a liability policy is critical to determining whether the per “occurrence” or aggregate policy limit applies. This is often a million dollar difference. The importance of this issue is illustrated in cases involving lawsuits arising out of food-borne illnesses with numerous plaintiffs suffering from serious injuries. The claimants/plaintiffs’ goal in those cases is to maximize the policy limits available.

One such case is Republic Underwriter Ins.,et, al. v. Moore, et al, 493 Fed. Appx. 907 (10th Cir. 2012), in which both Pete Duncan (as the claims professional) and Linda Szuhy Ressetar (as counsel for the insurer) were involved. They will discuss the legal and practical lessons learned during the life of that case and recent litigation on the issue.

Date: Wednesday, June 10, 2015
Time: 12:00 PM – 12:30 PM EDT

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*This posting is for informational purposes only, as a courtesy to our reading audience. Provencher & Company has in no way been compensated for the sharing of this information. The use of or enrollment in any classes, seminars, training, etc. in no way constitutes or implies any endorsement of the provider of said programs. Provencher & Company shares no financial obligation to attendee or organizer.
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Reptile 101: What Claims Handlers Need to Know

reptile behavior (1)Reptile strategy has taken the plaintiffs’ bar by storm. The Reptile theory asserts that you can prevail at trial by speaking to, and scaring, the primitive part of jurors’ brains, the part of the brain they share with reptiles. The Reptile strategy purports to provide a blueprint to succeeding at trial by applying advanced neuroscientific techniques to pretrial discovery and trial.

The fundamental concept is that the reptile brain is conditioned to favor safety and survival. Therefore, if plaintiff’s’ counsel can reach the reptilian portion of the jurors’ brains, they can influence their decisions; the jurors will instinctively choose to protect their families and community from danger through their verdict. Thus, the focus of the plaintiff’s case is on the conduct of the defendant, not the injuries of the plaintiff. The jurors are not interested in plaintiff’s injury, even when severe, according to the theory. Rather, the only truly effective way to engage jurors is to demonstrate how the defendant’s conduct endangers the jurors and their families. (source)

 

2015 CLM Webinar

Keais

Reptile 101: What Claims Handlers Need to Know

Plaintiff attorneys are using Reptile strategy to unreasonably increase claims value. Attend this webinar to learn the basics of the Reptile program, and what claims handlers can do to identify use of Reptile strategy, as well as defense strategies which can defeat the Reptile strategy.

Date: Wednesday, May 27, 2015
Time: 12:00 PM – 12:30 PM EDT

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*This posting is for informational purposes only, as a courtesy to our reading audience. Provencher & Company has in no way been compensated for the sharing of this information. The use of or enrollment in any classes, seminars, training, etc. in no way constitutes or implies any endorsement of the provider of said programs. Provencher & Company shares no financial obligation to attendee or organizer.

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

by Dick Bennett

cozen article 1-5-15Matching 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 building’s roof or siding.  Earlier this month, the Minnesota Supreme Court held that the phrase “comparable material and quality” means material that is suitable for matching; with respect to color, a reasonable match – not an identical match – is all that is required.  In Cedar Bluff Townhome Condominium Ass’n. v. American Family Mut. Ins. Co., – N.W.2d – , 2014 WL 7156914, 2014 Minn. LEXIS 661 (Minn., Dec. 17, 2014), however, the court held that that meant that all of the siding on 20 buildings had to be replaced to avoid a color mismatch even though less than 2% of it had actually sustained hail damage.  Continue reading

Broad Evidence Rule Reliance On Market Value Rejected

Broad Evidence Rule Reliance On Market Value Rejected3b495-legalscalesimage

A Wisconsin appellate court has set aside an Appraisal award that determined Actual Cash Value of a fire damaged building under the Broad Evidence Rule. The Appraisal panel determined ACV utilizing five factors including market value, averaged of adjusted sales price, income approach, building assessment value and a less than 100% weight factor for replacement cost less depreciation. The court relied on a common understanding of Actual Cash Value, including definitions from the Commissioner of Insurance Office, Black’s Law Dictionary and the carriers own website to conclude that Actual Cash Value in this case would be calculated primarily by subtracting depreciation from the cost to repair the damaged property.

Coppins v. Allstate

 

This is presented for adjustment practice information only and should not be construed as legal advice. For a full copy of the unpublished opinion click here.  We would encourage readers to secure legal counsel before relying on this opinion.

Ohio Supreme Court Says Ambiguity Determination Must Consider Context

3b495-legalscalesimageIn the recent case of Sauer v. Crews, 2014-Ohio-3655, an insurance company asked the Ohio Supreme Court to affirm that when determining whether a policy provision is ambiguous, courts must consider the context of the provision and should not isolate the provision or weigh ambiguity in the abstract. The court agreed with the insurer and ruled that “courts must look at the provision in the overall context of the policy in determining whether the provision is ambiguous.” 

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

Ever handled a hail loss from a year prior to the actual date and been asked to determine if the loss is covered? The attached article outlines three defenses that are available and what a Federal judge in Texas thought was sufficient to sustain those defenses.

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

by Dick Bennetthail damage

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 claims, addressing a trifecta of defenses available – lack of causation, late notice, and prejudice.  The case is Hamilton Properties v. American Insurance Company, 2014 WL 3055801, 2014 U.S. Dist. LEXIS 91882  (N.D.Tex., July 7, 2014).

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Audit 101 – Do’s and Don’ts, Pet Peeves and Pitfalls

No cost to attend
Audit 101 – Do’s and Don’ts, Pet Peeves and Pitfalls
 
This webinar will examine the roles played by industry professionals, corporate counsel and law firms and how to collaboratively work through the audit process. Specifically, we will examine the “dos and don’ts” of audits, identify pet peeves of the various players, and provide practical tips on how to avoid audit pitfalls.
 
 
Date: Wednesday, October 22, 2014
Time: 12:00 PM – 12:30 PM EDT
*The posting of this article is for informational purposes only, as a courtesy to our reading audience. Provencher & Company does not own, has in no way been compensated for the sharing of this information, and content of said article belongs to that of the originating author. The use of or enrollment in any classes, seminars, training, etc. in no way constitutes or implies any endorsement of the provider of said programs. Provencher & Company shares no financial obligation to attendee or organizer.