Insurance Law Hawaii

Insurer Motion to Intervene in Underlying Case Denied

    The Colorado Supreme Court determined that the insurer defending under a reservation of rights could not intervene in the underlying case after the insured assigned its rights to any bad faith claim against the insurer. Auto-Owners Ins. Co. v. Bolt Factory Lofts Owners Ass'n, Inc., 2021 Colo. LEXIS 365 (Colo. May 24, 2021).

    Bolt Factory initiated a construction defects lawsuit against various contractors. Several defendants filed third-party complaints against subcontractors, including Sierra Glass Company. Auto-Owners agreed to defend its insured, Sierra Glass, under a reservation of rights. Auto-Owners declined to settle with Bolt Factory for $1.9 million, within policy limits. Sierra Glass then retains independent counsel and entered into a settlement with Bolt Factory. The settlement allowed Sierra Glass to assign its bad faith claims to Bolt Factory in exchange for the right to pursue the insurer for payment of the excess judgment rather than Sierra Glass. Instead of entering into a stipulated judgment, Bolt Factory and Sierra Glass proceeded to an abbreviated trial.

    The parties submitted proposed findings of fact and conclusions of law. Sierra Glass did not present a defense. Auto-Owners sought to intervene to protect its interest in the non-adversarial trial. The lower court denied Auto-Owner's motion. The court entered judgment in favor of Bolt Factory and against Sierra Glass in the amount of $2.4 million. The court of appeals affirmed. The Supreme Court granted Auto-Owners' petition for certiorari review.

    The Colorado Supreme Court found that the agreement between Sierra Glass and Bolt Factory was permissible under Colorado law. Faced with Auto-Owners' refusal to settle within policy limits, Sierra Glass took steps to protect itself by entering into an agreement with Bolt Factory - an agreement that included both an assignment of claims and a covenant not to execute. The lower court had discretion of requiring the parties to agree to a stipulated judgment or proceed to an uncontested trial where the court itself determines damages.

   Auto-Owners was not allowed to intervene because its interests in the litigation were not impaired. Auto-Owners could sufficiently protect its interests in a subsequent declaratory judgment action regarding coverage. Auto-Owners could also raise its claims and defenses in any bad faith action that Bolt Factory might bring against Auto-Owners pursuant to the assignment of claims.

    The judgment of the court of appeals was affirmed. 

    Thanks to Margie Arnovitz of Dale Barton Agency in Salt Lake City for sending me this case.

 

Oklahoma Finds Policy Can Be Assigned Post-Loss

    Oklahoma joined the majority of court in finding that after a loss occurs, the insured can assign the policy to another. Johnson v. CSAA Gen. Ins. Co., 2020 Okla LEXIS 118 (Okla. Dec. 15, 2020).

    Johnson's property was damaged in a storm. She filed a claim with her insurer. She also executed an assignment of her claim in order to repair the property with the execution of assignment to Triple Diamond Construction LLC. An appraiser retained by Triple Diamond determined the storm damage was $36,346.06. The insurer paid only $21,725.36 for the loss.

    Johnson and Triple Diamond sued the insurer for breach of contract, seeking $14,620.70, not inclusive of interest, attorneys' fees and costs. The insurer filed a motion to dismiss, or an alternative motion for summary judgment to dismiss Triple Diamond as a party. The insurer argued that both the policy and an Oklahoma statute barred the assignment. The district court granted the insurer's motion.

    After review of Oklahoma law and cases across the country on assignments of a policy post-loss, the Supreme Court reversed. Distinguishing between an assignment of a policy and an assignment of a post-loss chose in action which did not increase the insurer's risk was recognised by the majority of courts as implementing an important public policy. An assignment by an insured possessing an insurable interest when the subject of the assignment was a post-loss chose in action was valid in Oklahoma. The district court's dismissal of Triple Diamond was reversed. 

 

Assignment of Claims to Contractor Barred under Iowa Law

    The Iowa Supreme Court affirmed the lower court's denial of the policy holder's assignment to his contractor of claims under his homeowners policy. 33 Carpenters Construction, Inc v. Cincinnati Ins. Co.,2020 Iowa Sup. LEXIS 15 (Iowa Feb. 14, 2020). 

    The insured's home suffered damage from a hailstorm and windstorm. He entered an agreement with 33 Carpenters under which 33 Carpenters would repair the storm damage to the home in exchange for the insured's proceeds from the homeowners policy with Cincinnati. The assignment stated that the Assignor (homeowner) sold and transferred to the Assignee (33 Carpenters) any and all claims which the homeowner had against Cincinnati. 

    A representative from 33 Carpenters called Cincinnati to report the storm damage to the siding and roof of the home. The homeowner submitted his claim. Cincinnati investigated the home, prepared an estimate for the cost of repairs, and made payment to the homeowner.

    Thereafter, 33 Carpenters contacted Cincinnati to dispute the insurer's estimate of the repair cost and requested a new estimate that would include the cost of replacing all of the home's siding and gutters. Cincinnati responded that it would address any differences directly with its insured rather than 33 Carpenters. 

    33 Carpenters then filed suit against Cincinnati, claiming it had breached the homeowner's policy by "failing to pay 33 Carpenters all benefits due and owing under the policy," that had been assigned to it. Cincinnati's answer denied the claims. Cincinnati also filed a counterclaim for declaratory judgment against Cincinnati arguing the assignment was invalid because it effectively allowed 33 Carpenters to act as an unlicensed pubic adjuster in violation of an Iowa statute. Cincinnati file a motion for summary judgment. 33 Carpenters argued that it had entered a valid post loss assignment with the policy holder. The lower granted the motion for summary judgment to Cincinnati. 

    On appeal, the court of appeals affirmed. 33 Carpenters was operating as an unlicensed pubic adjuster in violation of the statute.

    The Iowa Supreme Court affirmed. An assignment contract entered into by a residential contractor acting as an unlicensed public adjuster was void under the statute. 

Requiring Approval of All Insureds and Mortgagees To Assign Policy Upheld by Florida Court

    The Florida Court of Appeal upheld an assignment of benefits provision that required signatures of all insureds and mortgagees. Restoration 1 of Port St. Lucie v. Ark Royal Ins. Co., 2018 Fla. App. LEXIS 12633 (Fla. Ct. App. Sept. 5, 2018). 

    Ark Royal issued a homeowner's policy to the insureds. The policy stated that "[n]o assignment of claim benefits, regardless of whether made before a loss or after a loss, shall be valid without the written consent of the insureds, and all mortgagee(s) named in this policy." 

    The insureds' home suffered water damage. The insureds contacted Restoration 1 to provide cleanup services and signed an agreement assigning to Restoration 1 "any and all insurance rights, benefits, proceeds and any cause of action under any applicable insurance policies." The cleanup was completed by Restoration 1 and it submitted a claim to Ark Royal for $20,305.74. Ark Royal refused to pay the full amount of the claim, stating it was unable to recognize the assignment because it did not have all of the required signatures. 

    Restoration 1 sued Royal Ark for breach of contract and sought a declaratory judgment determining that a clause requiring the signatures of all insureds and mortgagees for an assignment contravened Florida public policy. Ark Royal moved to dismiss. The trial court granted the motion because the assignment failed to comply with the policy's requirements. 

    On appeal, the appellate court recognized that the consent to assignment provision in policies did not apply to an assignment after loss. But a significant difference existed between requiring the insurer's consent and requiring the consent of the insureds and mortgagees. The contract here did not prohibit assignment. It imposed a condition, requiring the approval of all insureds and the mortgagee. This restriction did not conflict with the public interest. Therefore, the trial court's granting of the motion to dismiss was affirmed. 

Arizona Upholds Assignment of Post-Loss Benefits

    The Arizona Court of Appeals upheld the insured's assignment of benefits despite the policy's anti-assignment provision. Farmers Ins. Exchange v. Honorable David Udall, 2018 Ariz. Ct. App. LEXIS 94 (Ariz. June 12, 2018).

    Farmers issued homeowners' policies to four homeowners who later required water damage mitigation and restoration services. Each of the policies included an anti-assignment provision stating that the insured's "interest in this policy may not be transferred o another person without [Farmers'] written consent." Each insured, however, signed a "Work Order Agreement & Assignment of Benefits" authorizing the remediation company, EcoDry Restoration of Arizona, LLC, to perform emergency water mitigation services and then assign insurance rights under the policies to EcoDry. The assignment authorized and instructed the insurance company to pay directly to EcoDry the amount shown in the final billing for work done by EcoDry.

    Farmers did not consent to any of the assignments. Although Farmers made payment to EcoDry, it was an amount less than the invoice total. EcoDry then filed suit alleging the insured had assigned to EcoDry their "post-loss rights" under the policies and that Farmers breached the policies by refusing to pay the amount charged to the insureds. Farmers moved to dismiss the complaint arguing EcoDry did not have a contractual relationship with Farmers nor a valid assignment of the insureds' rights under the policies. The superior court denied the motion and Farmers petitioned the Court of Appeals for special action review. 

    On appeal, the court noted that Arizona law recognized that contractual provisions prohibiting assignment without consent could be enforceable. The general rule was that an indemnity insurance policy could not be assigned, especially where an assignment was expressly prohibited by the terms of the policy, unless the insurer consented. An assignment made after a loss occurred, however, was not of the policy itself, but a claim under, or a right of action on, the policy. 

    Here, the insureds executed the assignments after water damaged their homes, giving rise to their claims under the policies. The insureds did not assign their policies to EcoDry, but rather they assigned a claim under and a right of action on the policies. Therefore, the assignments were valid post-loss assignments of benefits under the policies. As the recipient of a post-loss assignment of benefits, EcoDry stood in the shoes of the insureds and had standing to enforce the policy against Farmers.

Assignment Endorsement Requiring Consent of All Insureds, Additional Insureds and Mortgagees Struck Down in Florida

    Security First Insurance Company's endorsement restricting the ability of policyholders to assign post-loss benefits was struck down by the Florida District  Court of Appeal. Security First Ins. Co. v. Florida Office of Ins. Regulation, 2017 Fla. App. LEXIS 18083 (Fla. Ct. App. Dec. 1, 2017).

    The Department of Insurance, Office of Insurance Regulation (OIR), disapproved Security First's request to amend its policy language to restrict the ability of policyholders to assign post-loss benefits. The endorsement restricted the assignment of post-loss benefits absent the consent of all insureds, all additional insureds, and all mortgagees named in their policies. OIR found that the forms violated Florida statutes because it included language restricting the assignment of post-loss claim benefits. Secruity First appealed the OIR ruling.

    Security First concedes that Florida case law held that an endorsement requiring an insurer's consent for a post-loss assignment of benefits was not enforceable. But it argued that such case law only applied to provisions requiring the insurer's consent. The court disagreed. Prior decisions held that the right to recover under an insurance policy was freely assignable after loss. The OIR properly construed this case law. Therefore, the court affirmed the final administrative order.

Claims for Bad Faith and Punitive Damages Survive Insurer's Motion for Summary Judgment

    The court denied the insurer's motion for partial summary judgment seeking to dismiss claims for bad faith and for punitive damages. Van Der Weide v. Cincinnati Ins. Co., 2017 U.S. Dist. LEXIS 101735 (N.D. Iowa June 30, 2017).

    The homeowner sued the insured general contractor after water was found leaking into the home, causing significant water damage. Cincinnati rejected the general contractor's tender and denied any duty to defend, contending that the alleged defects were discovered after Cincinnati's policy period had ended. Cincinnati was advised that two experts for the insured would testify that the property damage occurred due to construction defects and that the damage began shortly after completion of the home. Cincinnati still refused to defend.

    The homeowner and the general contractor settled, and the policy rights were assigned to the homeowner, who sued Cincinnati. In a prior decision, this court had granted partial summary judgment to the homeowner, determining that Cincinnati must defend claims of faulty workmanship by a subcontractor causing consequential damages beyond the defective work product itself. The prior decision was discussed in a post here. The decision relied upon the Iowa Supreme Court's ruling in National Surety Corp. v. Westlake Investments, LLC, 880 N.W. 2d 724 (Iowa 2016) [see prior post here]. 

    Now, the insurer filed a motion for partial summary judgment seeking dismissal of the bad faith and punitive damage claims. Bad faith under Iowa law required a showing that; (1) the defendant had no reasonable basis for denying the plaintiff's claim; and (2) the defendant knew or had reason to know that its denial or refusal was without reasonable basis.

    Here, Cincinnati was informed that the homeowner's experts would testify that the damage began shortly after completion of the house and during the policy period. Even after receiving this information, Cincinnati failed to investigate and dismissed the experts' input by stating: "I don't understand why you think your 'paid expert's' opinion changes anything." Cincinnati's failure to investigate the new information permitted an inference that it denied the claim in bad faith. The court could not find, as a matter of law, that the claim was fairly debatable as to the facts. 

    Moreover, the court could not find in Cincinnati's favor as a matter of law on the knowledge element. Upon being advised that experts would testify that the damage began shortly after completion, during the policy perod, Cincinnati took no steps to investigate the new information. Based on the record, reasonable jurors could find that Cincinnati knew, or should have known, that the basis for denying the insured's claim was unreasonable. 

    Finally, the court denied Cincinnati's motion in regards to punitive damages. The jury could find that the conduct of Cincinnati constituted willful and wanton disregard for the rights of the insured.

Assignment of Construction Defect Claims Not Covered

    Assignment of insurance proceeds as part of a settlement against the subcontractor for faulty workmanship was not covered under the CGL policy in accordance with Illinois law. Allied Prop. & Cas. Ins Co v. Metro North Condominium Assoc., 2017 U.S. App. LEXIS 4107 (7th Cir. March 8, 2017).

    Metro North Condominium Association hired a developer to build a condominium. The developer used CSC Glass to install the building's windows. CSC installed the windows defectively, causing the building to sustain significant water damage following a rain storm.

    Metro North sued the developer, who turned out to be insolvent. Metro North amended its complaint to add a claim against CSC for breach of the implied warranty of habitability. Metro North eventually dismissed its lawsuit in exchange for an assignment of CSC's policy with Allied and payment of any right to $700,000 worth of insurance coverage. The settlement specified that it was not intended to compensate Metro North for the cost of repairing or replacing CSC's defectively installed windows, but rather for the damage to the remaining parts of Metro North's condominium. 

    Allied's policy had several "your work" exclusions barring coverage for damage to the particular part of the relevant property worked on by CSC, or for the costs of repairing or replacing CSC's own defective work. Further, Exclusion 2.b excluded coverage for damages arising from "contractual liability," that is, damages that CSC became obligated to pay "by reason of the assumption of liability in a contract or agreement." This exclusion applied only if CSC would not have been liable "in the absence of the contract or agreement."

    Allied brought a declaratory judgment lawsuit against Metro North and the parties filed cross-motions for summary judgment. Allied's motion was granted, determining that the settlement damages were not covered under Allied's policy. Metro North appealed.

    The Seventh Circuit affirmed. The breach of the implied warranty of habitability was the only legal theory in play at the time of the settlement, but that theory did not allow for the recovery of damages covered by the policy. The measure of damages for a breach of the implied warranty of habitability was the cost of repairing the defective conditions, here the defectively installed windows. Illinois courts, however, had concluded that CGL policies like Allied's did not cover the cost of repairing the insured's defectively completed work.

    Even if CSC assumed liability for damages to other parts of the building besides the windows themselves, coverage for those damages would be precluded under Exclusion 2.b, since the liability would then have arisen contractually from the settlement agreement.

Consent Judgment Not Binding On Insurer Who is Not a Party to Proceeding

    The West Virginia Supreme Court of Appeals determined that a pre-trial settlement, including a consent judgment against a non-party insurer and an assignment of rights under the policy, was invalid. Penn-America Ins. Co. v. Osborne, 2017 W. Va. LEXIS 119 (W.Va. March 1, 2017). 

    Beecher Osborne injured his leg in a timbering accident while working for H&H Logging Company on land owned by Heartwood Forestland Fund and leased by Allegheny Wood Products, Inc. Osborne sued H&H, Allegheny, and Heartwood, all of whom denied liability. H&H tendered its defense  to Penn America for Mr. Osborne's deliberate intent claim. Penn-America denied the request, determining that the deliberate intent claim was excluded under its policy. H&H then retained defense counsel at its own expense. Liberty Mutual Insurance defended Allegheny and Heartwood. 

    Allegheny and Heartwood filed a motion for leave to file a third-party complaint for declaratory relief against Penn-America for failing to provide them a defense. By contract, H&H had agreed to defend and indemnify Allegheny and Heartwood for suits arising form the contract. The motion was never heard and the third-party complaint was never filed. Further, neither Allegheny, Heartwood, nor Osborne actually tendered to Penn-America on behalf of Allegheny and Heartwood.

    Without notice to Penn-America, Osborne, Allegheny and Heartwood stipulated to a settlement with the following facts: (1) Penn-America breached its policy by failing to provide a defense to Allegheny or Heartwood related to Osborne's claims; (2) due to the breach, Allegheny and Heartwood suffered damages because they were compelled to pay for their own defense; (3) Allegheny and Heartwood had to mitigate the claims asserted by Osborne by entering a pre-trial settlement agreement to preserve and protect their assets; and (4) Allegheny and Heartwood tried to resolve coverage issues by filing a third-party complaint for declaratory relief against Penn-America. Further, Allegheny and Heartwood consented to a $1,000,000 judgment for Mr. Osborne's injury, and they agreed to assign to Mr. Osborne any claims they had against Penn-America for failing to provide them a defense. In return, Osborne agreed not to execute on the $1,000,000 judgment against Allegheny and Heartwood. Instead, Osborne would collect the judgment from Penn-America by asserting his assigned claims. 

    Osborne then sued Penn-America. Penn-America answered by noting it had not been contacted about the lawsuit or settlement after denying a defense to H&H. Penn-America sought to challenge the reasonableness of the $1,000,,000 consent judgment, but the trial court prevented any review of the medical records or other evidence that would demonstrate the severity of Osborne's injury. The trial court entered summary judgment in Osborne's favor, finding that Penn-America was liable for the $1,000,000 consent judgment.

    The West Virginia Supreme Court of Appeals found the pre-trial settlement agreement unenforceable against Penn-America and the assignment of claims was void. Penn-America was not a party to the Osborne lawsuit against Allegheny and Heartwood, and was never given notice of the parties' negotiations for the pre-trial agreement. Further, the record was bare of any facts supporting $1,000,000 settlement as a fair and reasonable valuation of Osborne's lawsuit against Allegheny and Heartwood. To make matters worse, the trial court prohibited Penn-America from conducting discovery on the extent of Osborne's injury or his medical expenses. Therefore, Penn-America was not bound by the consent judgment.

    The settlement agreement made no mention of the fact that Allegheny and Heartwood were being defended and were provided with coverage by Liberty Mutual in Osborne's suit. Recovery on an assigned insurance bad faith claim could not be made upon an untrue factual basis. Osborne's recovery on the assigned claims would be based on a falsehood, i.e., that due to Penn-America's breach, Allegheny and Heartwood were without coverage and the $1,000,000 consent judgment was necessary to protect their assets.

    Finally, evidence of fraud and collusion were present. A $1,000,000 valuation of a lawsuit for Osborne's injury leg, without any cited evidence regarding permanency of the injury, permanent disability, severity, medical expenses, etc., did not reflect serious negotiation on damages. Therefore, the assignment was void and the trial court erred in failing to grant summary judgment to Penn-America. 

    

Distinguishing Hawaii Law, New Jersey Finds Anti-Assignment Clause Ineffective

    The New Jersey Supreme Court found that an anti-assignment provision could not be applied to bar a post-loss claim assignment. Givaudan Fragrances Corp. v. Aetna Cas. & Sur. Co., 2017 N.J. LEXIS 121 (N.J. Feb. 1, 2017). In reaching its decision, the court distinguished a decision from the Hawaii Supreme Court enforcing consent-to-assignment clauses and failing to recognize any post-loss exception to such clauses. See Del Monte Fresh Produce (Hawaii), Inc. v. Fireman's Fund Ins. Co., 183 P.3d 734 (Haw. 2007).

    Plaintiff Givaudan Fragrances Corporation (Fragrances) was sued for environmental contamination at a manufacturing site. A related corporate entity had operated the facility from the 1960s to 1990. Fragrances sought coverage under policies issued to its predecessor. The predecessor attempted to assign to Fragrances post-loss rights under the policies. The insurers resisted, claiming the predecessor was the named insured, not Fragrances, and that the insurers did not consent to an assignment of the predecessor's policies. 

    The trial court upheld the anti-assignment provisions and granted summary judgment to the insurers. The Appellate Division reversed and remanded. The court reasoned that once a loss occurred, an insured's claim under a policy could be assigned without the insurer's consent. Once a loss had occurred, there was no longer any danger that the risk would increase.

    The Supreme Court noted that a minority view that enforced consent-to-assignment clauses, citing, among other cases, Del Monte. To the extent the minority cases found that insurers could enforce anti-assignment clauses and valued such enforcement above the rights of the insured to freely assign its claim, the cases were inconsistent with the established policy in New Jersey. The court, therefore, voided application of the anti-assignment clauses for post-loss claim assignments.

    Here, the right to coverage for the "occurrence" of environmental contamination was assigned to Fragrances after the policies had expired. The loss event occurred during the policy periods. The assignment of claims did not increase the risk undertaken by the insurers for the policy periods for which they wrote coverage, in specified amounts, for the occurrence-based claims pertaining to the site of the contamination.