In Pioneer Tower Owners Assn. v. State Farm Fire & Cas. Co., 12 NY3d 302 (2009), the New York Court of Appeals found an "earth movement" exclusion was ambiguous when applied to an excavation. The court now considered whether a similar exclusion, expressly made applicable to "man made" movement of earth, eliminated the
November 2012
Term “Resident Premises” In Homeowners’ Policy Found Ambiguous
By Tred R. Eyerly on
The meaning of "residence premises" in a first party policy was the issue in Dean v. Tower Ins. Co. of New York, 2012 N.Y. LEXIS 3088 (N.Y. Oct. 25, 2012).
The insureds purchased a home. Closing was scheduled to take place on May 20, 2005. The insureds purchased a homeowners' policy from Tower…
Anti-Assignment Provision Unenforceable in Kentucky
By Tred R. Eyerly on
On a certified question from the Federal District Court, the Supreme Court of Kentucky decided that an anti-assignment provision in a policy is unenforceable. Wehr Constructors v. Paducah Div. Assur. Co. of Am., 2012 Ky. LEXIS 183 (Ky. Oct. 25, 2012).
Before building an addition to its hospital, Murray Calloway County Hospital…
Testimony of Policy Archivist Excluded Under Daubert
By Tred R. Eyerly on
The insured had to rely on a policy archivist to establish the terms and conditions of two umbrella policies that were lost. See Canal Ins. Co. v. Montello, Inc., 2012 U.S. Dist. LEXIS 148119 (Oct. 15, 2012). The court excluded the reports and testimony of the expert because he could not satisfy the…
Insurer Waives Attorney-Client Privilege and Work Product Protection
By Tred R. Eyerly on
By voluntarily injecting a legal issue into the case, the insurer waived the right to keep its communications confidential. Catalina London v. Johnson & Bell, Ltd., 2012 U.S. Dist. LEXIS 147993 (N.D. Ill. Oct. 10, 2012).
The Catalina London sued its former coverage counsel for giving negligent coverage advice in a declaratory judgment…
Late Notice of Loss Excused Where No Prejudice to Insured
By Tred R. Eyerly on
Four homeowners filed suit against Farmers after loss due to fire. Henderson v. Farmers Group, Inc., 2012 WL 5246912 (Cal. Ct App. Oct. 24, 2012). The issue was whether Farmers must provide coverage where late notice was given, but no prejudice was shown.
In August 2009, the Station Fire destroyed 89 homes in Southern California.
Arizona Does Not Recognize Efficient Proximate Cause Doctrine
By Tred R. Eyerly on
The federal district court determined the insureds' arguments relying upon the efficient proximate cause doctrine were misguided and only a portion of the loss from fire and earth movement was covered. Stankova v. Metro. Prop. & Cas Ins Co., 2012 U.S. Dist. LEXIS 150900 (D. Ariz. Oct. 18, 2012).
The insureds' garage was…
Ohio Supreme Court Finds Construction Defects Do Not Arise From An Occurrence
By Tred R. Eyerly on
The Ohio Supreme Court recently determined that underlying obligations of defective workmanship are not claims for "property damage" caused by an "occurrence." Westfield Ins. Co. v. Custom Agri. Systems, Inc., 2012 Ohio LEXIS 2485 (Ohio Oct. 16, 2012).
The case evolved from a certified question from the United States Court of Appeals for the Sixth…