Month: April 2020

Supreme Court Rules In Favor of Property Owner

In June 2013, commercial properties owned by TopDog Properties and insured by GuideOne National Insurance Company sustained wind and hail damage. After its first inspection, GuideOne determined that the loss fell below TopDog’s deductible and denied the claim. GuideOne refused to reinspect the property and then rejected TopDog’s request to resolve the dispute through appraisal, explaining that the policy had a unilateral appraisal provision which only GuideOne could invoke and it refused to do so.

TopDog’s only option was to hire an attorney and file suit against GuideOne, which they did in 2014, alleging claims for breach of contract, common-law and statutory bad faith, and violations of the Texas Prompt Payment of Claims Act (TPPCA).

Over eight months after the lawsuit was filed, GuideOne reversed course and demanded appraisal. Over TopDog’s objection, the trial court compelled the case to appraisal. The damage was so obvious that both appraisers agreed that TopDog’s roofs needed to be replaced as a result of the hail damage, and set the loss at $168,808. After paying the appraisal award, GuideOne moved for summary judgment arguing that TopDog was not entitled to attorney’s fees or any other damages because GuideOne paid the appraisal award. The trial court granted GuideOne’s summary judgment dismissing all of TopDog’s claims, and the court of appeals affirmed. TopDog appealed the case to the Texas Supreme Court.

Today, without hearing oral argument, the Texas Supreme Court of Texas reversed the judgment of the court of appeals and trial court. The case will now go back to the trial court to consider TopDog’s claims for breach of contract, common law and statutory bad faith claims and Texas Prompt Payment of Claims Act (TPPCA) claim. Matthew Pearson, TopDog’s lead attorney, said that “Today’s Supreme Court decision is a win for all Texas policyholders.”

Pearson Legal, P.C. represents property owners on contingency in insurance recovery and construction defects litigation, as well as commercial litigation, throughout the states of Texas, Oklahoma and Colorado. The firm represents commercial property owners, school districts and other public and private entities. According to Texas Lawyer, Matthew R. Pearson (founder of Pearson Legal), is responsible for some of the largest insurance verdicts in the State of Texas in recent years.


Breaking News—President Trump Demands Insurance Companies to Pay Up! Business Interruption Coverage

A picture is worth a thousand words. But, this one video of President Donald Trump may prove to be worth hundreds of billions of dollars.

Donald Trump said he knows how to read insurance policies. He did not see any reference to anything about an exclusion for a “pandemic.”

He said that the insurance executives know what is fair and that they should Pay Up!

Trump said that we cannot let insurance companies off the hook after small businesses have been paying premiums all these years, and when they need the coverage, the insurance companies do not pay. He said: “We cannot let that happen.”

I wish I had been a fly on the wall at the Insurance Information Institute propaganda room this afternoon.


Coronavirus Insurance Law Update March 26—Ohio and Massachusetts File Proposed Legislation Requiring Retroactive Removal of Virus Exclusion To Coronavirus Business Income and Civil Authority Claims


New Jersey started the coronavirus business insurance legislation, but just like a virus, it is spreading to other jurisdictions. Ohio and Massachusetts filed very similar bills to what was filed in the New Jersey Assembly.

I blogged about the ex post facto issues of this legislation last night in Coronavirus Insurance Law Update March 25—New Jersey Anti-Virus Bill and Civil Ex Post Facto Laws. If you read these legislative bills very carefully, one can discern the strong public safety and public policy reasons for the legislation and the need for a retroactive remedy.

I am not a constitutional lawyer, but an insurance lawyer I have a lot of respect for is Barry Zalma. I did not get to see his scheduled presentation this week at the now-canceled First Party Claims West Conference. Zalma made the following comment to my prior post:

Don’t forget the Fifth Amendment, this is a taking without compensation.

I am not a Fifth Amendment Constitutional expert either.

Some insurance company attorneys will argue that this is more akin to a Robin Hood scenario. I get accused of acting like Robin Hood sometimes. But, I correct that because Robin Hood had nothing to do with King Arthur, Noble Knights of The Round Table, or a very special wizard.

Thought For The Day


Louisiana–COVID-19 Pandemic Relief: My Mortgage is Deferred, What about My Insurance Premiums?

By Deborah Trotter on April 7, 2020POSTED IN INSURANCEREGULATION

This past weekend I was asked the question above. This is what I found in Louisiana. On March 26, 2020, by Proclamation No. JBE 2020-37, Louisiana Governor John Bel Edwards transferred certain insurance matters to Commissioner of Insurance James J. Donelon. Commissioner Donelon quickly instituted reasonable emergency measures to address the growing concerns of Louisiana’s residents through Emergency Rule 40 – Moratorium on Policy Cancellations and Non-Renewals for Policyholders in Louisiana during the Outbreak of Coronavirus Disease (COVID-19) (“Rule 40”).1

Rule 40 applies to any and all kinds of insurers and insurance, including all property and casualty insurers, all life insurers, and all other insurance-related entities licensed by the commissioner or doing business in Louisiana and their insureds, policyholders, members, subscribers, enrollees, and certificate holders.2 To specifically address the question posed, Louisiana has suspended the cancellation, nonrenewal or nonreinstatement of any insurance policy in force and effect on at 12:01 a.m. on March 12, 2020, until the earlier of 11:59 p.m. on May 12, 2020, or 11:59 p.m. on the date the governor lifts the state of emergency presently in effect, inclusive of any renewal.3 Rule 40 does provide that a policyholder may cancel a policy in writing or by written consent,4 and an insurer may cancel a policy for acts or practices constituting fraud or intentional misrepresentations of material fact.5

To address the issue regarding premiums, for all but Health insurance policies, Rule 40 provides that a premium owed from an insured may be offset from any claim payment made to the insured under the insurance policy.6 Rule 40 also provides that after the state of emergency is lifted, the insurer may provide notice of cancellation or non-renewal de novo in accordance with existing statutory requirements,7 which would address the issue of non-payment of premiums.

Further, Rule 40 clarifies that nothing in Rule 40 shall be construed to exempt or excuse an insured from the obligation to pay the premium otherwise due for actual insurance coverage provided.8 And further, Rule 40 makes it clear there is no intent to delay or defer the claims adjustment process for a pending or newly filed claim: “Emergency Rule 40 shall not relieve an insured who has a claim filed before or during the pendency of Emergency Rule 40 from compliance with the insured’s obligation to provide information and cooperate in the claim adjustment process relative to the claim.”9

This initial and fast-acting approach taken in Louisiana seems to be fair and reasonable for both the insurer and the insured given the extraordinary circumstances and events. If you have questions regarding this issue in another jurisdiction, check with both your state governor’s office and/or the Department of Insurance for updated guidance. We look forward to seeing these creative solutions to this issue as we all look forward to moving through this pandemic as quickly and smoothly as possible. All the best.
1 Title 37 Insurance Part XI. Rules Chapter 40. Emergency Rule 40—Moratorium on Policy Cancellations and Non-Renewals for Policyholders in Louisiana during the Outbreak of Coronavirus Disease (COVID-19).
2 Id. at §4005. Cancellation, Nonrenewal, and Nonreinstatement, (A).
3 Id. at §4043. Effective Date.
4 Id. at §4009. Written Request for Cancellation by Insured.
5 Id. at §4005. Cancellation, Nonrenewal, and Nonreinstatement, (D).
6 Id. at §4015. Premium Offset.
7 Id. at §4005. Cancellation, Nonrenewal, and Nonreinstatement, (A).
8 Id. at §4017. Obligation of Insured to Pay Premium.
9 Id. at §4023. Insureds Obligation to Cooperate in Claim Process.


Corona Virus and Physical Damage—The Louisiana Case Law That Will Be Relied Upon in the First Coronavirus Case Filed

By Chip Merlin on March 22, 2020POSTED IN INSURANCE

The first coronavirus lawsuit filed was in Louisiana. The subject policy has no ISO virus exclusion which was discussed in, Coronavirus Insurance Coverage Update—The ISO Circular Regarding the Virus Exclusion. Louisiana attorney John Houghtaling filed the lawsuit, and he will undoubtedly be relying upon a Louisiana case, Widder v. Louisiana Citizens Property Insurance Corporation,1 for the proposition that the coronavirus caused physical damage.

Let me say that I am biased about this. My first gut reaction is that this virus is so dangerous it has us cooped away from each other by government order. I am paying extra money for people to fumigate and wipe the surfaces at our offices in Tampa between our reduced maximum ten-person shifts. The ISO is so concerned about the virus that it issued an exclusion to make certain we cannot claim it as covered property damage. Why would anybody think that such a virus that is on property does not physically change property?

If the non-dangerous teenage pranks of “egging” or “TPing” a house are acts of vandalism and property damage, the dangerous virus on my business property certainly is property damage as far as we all should be concerned. But that is just my gut reaction. People can have different gut reactions which will probably turn on whose side you represent and whether you think insurance policies should be looked at as vehicles actually providing coverage. (My bet is that there is little vandalism with eggs or toilet paper at the present time.)

While Widder eventually held lead dust on property constitutes “property damage,” the facts of Widder were very compelling for that fact. As noted in the policyholder’s briefing:

Defendant’s own engineers stated in their report that the lead needed to be removed and caused direct physical harm to property. As stated above, the engineers recommended that the entire property be gutted, recommended that the children’s toys be destroyed, and other personal property should be destroyed if not properly cleanable. In fact; the damage was so severe that they stated ‘given the concentrations of inorganic lead in the wipe samples, the home is not safe to occupy, especially for the child.’

Accordingly, Defendant’s own engineers have assigned the source of the lead as originating, at least in part, outside the property. This created an ‘event’ which lead to the damage, which lead to the recommendation that the entire property needs to be gutted and contents destroyed.

It helps the claim that “property damage” occurred under policy terms when the insurance company’s engineers say that the lead dust made the property damaged and that the house needed to be gutted and contents destroyed. I doubt that the insurance company’s engineers are going to say the same thing with the current coronavirus.

Still, whether lead dust or a dangerous virus falling upon business, it is the fact the pre-existing state of the property has changed with the addition of these non-maintenance types of physical additions. These are unexpected and dangerous additions to property—I doubt anybody will disagree with that.

Yet, big questions are begging—does anybody have any evidence that something more than a quick fumigation or hygienic cleaning is all that is needed to remove the virus? There is usually a 72-hour shutdown period and the remediation seems to be a lot quicker. And, while I have routinely tested for lead on property to prove its existence, is anybody testing for the virus to prove it is even on the business property? The fact that many restaurants and grocery stores are doing a general fumigation and remediation and then opening the next day or providing take out business is not helpful to find coverage. The safe thing is to simply assume the coronavirus is on the property whether it is or is not. For the direct business income claim, these are pretty significant proof issues that will need to be addressed because those “clever and skeptical” insurance defense attorneys are definitely going to be asking these questions.

Still, the Widder holding is helpful in finding coverage and direct physical loss:

The record is clear that Ms. Widder’s home is contaminated with inorganic lead which makes it uninhabitable until it has been gutted and remediated. For the purpose of determining direct physical loss, this type of loss is similar to the type of loss experienced from Chinese drywall. The issue of what constitutes a direct physical loss was recently addressed in connection with Chinese drywall litigation….the court found that the presence of Chinese drywall, from which gaseous fumes were released, did in fact constitute a direct physical loss. The court stated that when a home has been rendered unusable or uninhabitable, physical damage is not necessary….In this case, we find the intrusion of the lead to be a direct physical loss that has rendered the home unusable and uninhabitable. See, Ross v. C. Adams Construction & Design, 10–852 (La.App. 5 Cir. 6/14/11), 70 So.3d 949 (Although the Chinese drywall is physically intact and functional, its inherent qualities require it to be taken down and replaced. Therefore, there was a direct physical loss.).

The New Orleans based coronavirus case filed in Louisiana is certainly in a favorable jurisdiction for policyholders, and with favorable case law. The policy is one without the ISO virus exclusion. That is a good start for policyholders. These are not the only issues, and I have not spoken about the Civil Authority Coverage aspects of the case, which deserves further comment. I again suggest everybody read Bill Wilson’s post on the case.

Thought For The Day

In America, there might be better gastronomic destinations than New Orleans, but there is no place more uniquely wonderful.
—Anthony Bourdain
1 Widder v. Louisiana Citizens Prop. Ins. Corp., 82 So.3d 294 (La. App. 2011).