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Zalma on Insurance

Zalma on Insurance

By Barry Zalma
Presentation of insurance issues relating to claims handling, insurance coverage, interpretation of insurance policy coverages, insurance fraud, and investigation.
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Are You an Insurer Who Does Business in California?
The book is designed to assist California insurance claims personnel,  claims professionals, independent insurance adjusters, special fraud investigators, private investigators who work for the  insurance industry, the management in the industry, the attorneys who  serve the industry, and all integral anti-fraud personnel working with  California admitted insurers who must comply with the requirements of  the California SIU Claims Regulations that were rewritten and made  operative October 1, 2020. The state of California, by statute, requires all admitted insurers  to maintain a Special Investigative Unit (an “SIU”). The SIU must comply  with the requirements set forth in the Special Investigative Unit  Regulations (the “SIU Regulations”) and train all integral anti-fraud  personnel to recognize indicators of insurance fraud. It is necessary, therefore, that insurance personnel who are engaged  in any way in the presentation, processing, or negotiation of insurance  claims in California to be familiar with the SIU Regulations. The state  has imposed on all claims personnel duties to deal with insurance fraud  if the insurers are doing business in the state. California licensed  insurers are required by California Insurance Code Sections 1875.20-24  and California Code of Regulations, Title 10, Sections 2698.30 -.41 to  establish and maintain Special Investigative Units that identify and  refer suspected insurance fraud to the California Department of  Insurance (CDI) and directly to the local California County District  Attorney’s Office for workers’ compensation only. https://zalma.com/blog You Must Know how to Comply with the California SIU Regulations that are Effective October 1, 2020 New Regulations to Enforce Statutes Requiring Insurers To Maintain A Special Investigative Unit See the full video at https://youtu.be/gy_3jDhDaNII  have completed a resource for everyone involved in the insurance  industry in the state of California to enable them to comply with the  newly revised California SIU Regulations since the revisions add much to  the obligations of insurers doing business in California. The new book: California SIU Regulations 2020 a book explaining the revised SIU Regulations is now available from Amazon.com here.
12:19
September 23, 2020
Explaining The Fortuity Doctrine
https://zalma.com/blog The fortuity doctrine arises from the basic concept upon which insurance is founded: that insurance covers risks, not losses that were planned, intended, or anticipated by the insured. It has always been the view of insurers that losses that were expected by the insured could not be insured. To do so would have a counterproductive effect. No one would buy insurance until they were certain they would have a loss. The concept of spreading the risk on which insurance is based would be defeated. The creation of losses would be encouraged. An accident or occurrence is never present when the insured performs a deliberate act unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage. 
21:18
September 22, 2020
Explaining the Latent Defect and Inherent Vice Exclusions
Latent Defect at https://zalma.com/blog Cases that provide coverage despite an exclusion for latent defects fall generally within two categories. The court determines either that: the defect could have been discovered through appropriate testing and it is therefore not latent; or the loss resulted from a contributory covered risk. “A policy will define latent defect” as “a hidden flaw inherent in the material existing at the time of the original building of the yacht, which is not discoverable by ordinary observation or methods of testing.” “The word “inherent” requires that a latent defect be characteristic of or intrinsic to the material. The word “flaw” imposes the exact opposite requirement. It includes problems with a specific piece of material, but not problems characteristic of the material itself. In short, giving the terms their plain and reasonable meaning, there can be no such thing as an inherent flaw.” (Ardente v. Standard Fire Ins. Co., 744 F.3d 815 (1st Cir. 2014))
11:12
September 21, 2020
Explaining the Duties of the Public Insurance Adjuster
https://zalma.com/blog Most policyholders do not have the in-house capability to  investigate, evaluate, and negotiate significant property insurance  losses. While some losses, such as a small fire loss requiring only  minor repairs, may be dealt with easily, others, which involve more  complex damages and different potential causes of loss, are much harder  to assess. Resolving them may require expertise in understanding the  scope of coverage provided by the applicable property insurance policy,  scientific or other specialized background to determine the cause of a  specific loss, the ability to determine the cost to repair or replace  the damaged property, and the calculation of the amount of a time  element (business interruption) loss. In  such cases, the policyholder may engage a public insurance adjuster  (PA). PA’s are licensed by almost every state and their contract forms  must be approved by the state. All PAs claim to be experts on property  loss adjustment; most are. They represent only policyholders in  fulfilling the duty to prepare, file, and adjust insurance claims. The  PA should handle every detail of the claim, working closely with the  policyholder and the insurer to obtain a prompt and reasonable  settlement. PAs usually charge a contingency fee, which they present to the insured as a fait accompli.  But this fee is negotiable. The insured should try to lower it as much  as possible. For a major loss, more than one PA will arrive at the site  seeking a contract. A fee quoted by one can be reduced by seeking lower  fees from the others. Rates can be negotiated from a low of 3% to a high  of 40%, although the average charge is 10% to 15%. When considering a  PA, the insured must take into account the fact that even if the insurer  pays the full amount of the loss, the cost of the adjuster’s fee may  not leave enough funds to fully repair the damaged structure. Upon being retained, the professional PA should: immediately inspect the loss site; analyze damages; assemble the necessary support for the claim; review the coverage to determine the portions of the loss which are covered; assess the value of the loss; and negotiate with the insurance company to reach the end result.
20:42
September 18, 2020
Trigger of Coverage for Property Damage
https://zalma.com/blog Trigger of Coverage The term “trigger of coverage” means “what event must occur for  potential coverage to commence under the terms of the insurance policy”  and “what must take place within the policy’s effective dates for the  potential of coverage to be ‘triggered.'” [In Re Feature Realty Litig.,  468 F. Supp.2d 1287, 1295, n.2 (E.D. Wash. 2006)] After the California Supreme Court adopted a continuous trigger in  Montrose Chemical Corp. v. Admiral Ins. Co. (1995) 10 Cal.4th 645, 685,  42 Cal.Rptr.2d 324, 913 P.2d 878 (Montrose) in the case of successive  policies, property damage that is continuous or progressively  deteriorating throughout several policy periods is potentially covered  by all policies in effect during those periods, so that the insurer’s  duty to defend arose under those policies. Insurers, trying to limit  their coverage, revised the policy wording. Therefore, the precise question is what result follows under the  language of the policies of insurance to which the parties agreed. The  “continuous injury” trigger has been applied mostly in cases involving  gradual release of pollutants and other environmental harms. After  Montrose, the insurer revised its policies to use the language for the  very purpose of “obviat[ing] the application of the ‘progressive  damage-continuous trigger’ articulated in Montrose.” As a result, the  defendant’s policies state that property damage “which commenced prior  to the effective date of this insurance will be deemed to have happened  in its entirety prior to, and not during, the term of this insurance.”  [Ins. Co. of Pa. v. Am. Safety Indem. Co., 32 Cal.App.5th 898, 244  Cal.Rptr.3d 310 (Cal. App., 2019)] In King Cnty. v. Travelers Indem. Co. (W.D. Wash., 2019) the  Louisiana Court of Appeals ruled that allegations by a property owner  that an environmental consultant failed to detect the presence of  pollutants on its property did not trigger coverage under the  consultant’s liability policies. The Court found that the “occurrence”  giving rise to the claims against the insured took place years prior to  the issuance of the policies in question.
09:36
September 17, 2020
Casualty Insurance
https://zalma.com/blog Casualty Insurance Many people use the terms “casualty” and “liability” as if they were synonymous. However, casualty insurance includes insurance that does not fall within the definition of liability insurance. “Casualty insurance” is defined as an “agreement to indemnify against loss resulting from a broad group of causes such as legal liability, theft, accident, property damage, and workers' compensation.” Black's Law Dictionary 871 (9th ed. 2009). Liability insurance is part of the casualty line of insurance. A “casualty” is an accidental injury, a fortuitous event. For every such harm there is a law or legal principle that places the burden of the consequences back on the finances of the initiator of the harm. Applying the ancient maxim of the law that “for every wrong there is a remedy...” liability insurance exists to fund the remedy. Another feature of casualty insurance policies is that they are limited to injuries to persons other than the insured. The ultimate concern of these policies is the insured—the person who buys the insurance who needs to be protected from claims made by third persons. At one time, insurers were limited by statute and their charters were limited as to the type of insurance they could write. Casualty insurance could only be written by casualty insurance companies. That is no longer the case and casualty insurance may be written by any insurer willing to do so with sufficient assets to perform. • Terrorism Coverage • Flood Insurance • Political Risk or Government Liability • Employee Theft and Dishonesty • Surety Bonds
16:42
September 16, 2020
Zalma's Insurance Fraud Letter - September 15, 2020
https://zalma.com/blog
14:42
September 15, 2020
The Fair Claims Settlement Practices Regulations
https://zalma.com/blog
16:07
September 14, 2020
Rescission Requires Caution
https://zalma.com/blog
19:07
September 11, 2020
Mold and Bad Faith
https://zalma.com/blog
19:41
September 9, 2020
Training Liability Claims Adjusters to Recognize Fraud
https://zalma.com/blog
15:00
September 8, 2020
A Video Explaining the Manufactured Lawsuit - the Bad Faith Set Up
https://zalma.com/blog
18:52
September 8, 2020
How to Read the Homeowners Policy
https://zalma.com/blog 
16:29
September 4, 2020
The Ethical Insurance Professional
https://zalma.com/blog
15:53
September 3, 2020
A reading of the Guebara Case
https://zalma.com/blog
29:07
September 2, 2020
Collapse and insurance
https://zalma.com/blog
16:00
August 31, 2020
Rescission is optional to the party deceived
https://zalma.com/blog
14:41
August 28, 2020
Fraud by Insurers
https://zalma.com/blog
15:21
August 28, 2020
False swearing and insurance
https://zalma.com/blog
15:19
August 28, 2020
How to be a Professional Liability Claims Adjuster
https://zalma.com/blog
16:01
August 25, 2020
Construction Defect
https://zalma.com/blog 
14:32
August 21, 2020
Utmost Good Faith and the Ethics of Insurance
https://zalma.com/blog
14:10
August 18, 2020
The Fifth Amendment not Available to the Bad Faith Plaintiff
https://zalma.com/blog
16:49
August 17, 2020
The Problem of Taxes and Bad Faith Punitive Damages
https://zalma.com/blog
17:44
August 13, 2020
The Duty to Defend
https://zalma.com/blog
14:52
August 10, 2020
Underwriting Insurance
https://zalma.com/blog
17:29
August 7, 2020
The Ethical Insurance Professional
https://zalma.com/blog
10:21
August 6, 2020
Heads I Win, Tails You Lose - A True Crime Story
https://zalma.com/blog
10:04
August 5, 2020
The Unethical Insured
https://zalma.com/blog. 
16:33
August 5, 2020
Construction Defects Experts and Consultants
https://zalma.com/blog
15:19
July 30, 2020
Evidence Needed to Prove Insurance Fraud
https://zalma.com/blog
17:16
July 29, 2020
How adjusters Select Defense Counsel
https://zalma.com/blog
13:28
July 28, 2020
The Independent Medical Examination
https://zalma.com/blog
18:15
July 27, 2020
Defenses to the tort of Bad Faith
https://zalma.com/blog
17:32
July 24, 2020
The Concurrent Cause Doctrine
https://zalma.com/blog
16:17
July 23, 2020
Notice Prejudice Rule Does not Always Apply
https://zalma.com/blog
12:11
July 21, 2020
When the Notice-Prejudice Rule Does not Apply
https://zalma.com/blog
12:11
July 20, 2020
The Duties of the Public Insurance Adjuster
https://zalma.com/blog
19:04
July 20, 2020
The Trigger of Coverage
https://zalma.com/blog
10:46
July 17, 2020
Zalma's Insurance Fraud Letter - July 15, 2020
https://zalma.com/blog
18:31
July 15, 2020
The Law of Unintended Consequences and the Tort of Bad Faith
https://zalma.com/blog
18:10
July 14, 2020
The Claims Made CGL Policy
https://zalma.com/blog
15:24
July 13, 2020
Ethics and the Insurance Product
https://zalma.com/blog
16:52
July 9, 2020
Settlement of Liability Claims
https://zalma.com/blog
19:27
July 7, 2020
Ethics for Insurers and Insurance Claims Professionals
https://zalma.com/blog
16:10
July 3, 2020
Ethics for the Insurance Professional
https://zalma.com/blog
16:10
July 3, 2020
False Swearing - A Defense to Fraudulent Insurance Claims
https://zalma.com/blog
14:27
July 2, 2020
Ethics for Insurance Professionals
https://zalma.com/blog
16:10
July 2, 2020
What Insurance Professionals Must do to Defeat Fraud
https://zalma.com/blog
14:49
June 30, 2020
Arson is a Named Peril
https://zalma.com/blog
10:37
June 29, 2020
Mutability of Memory for the Insurance Interviewer or lawyer
https://zalma.com/blog
16:42
June 26, 2020
Unintended Consequences and the tort of Bad Faith
https://zalma.com/blog
11:49
June 26, 2020
Rescission in New Jersey
https://zalma.com/blog
13:23
June 25, 2020
Unintended Consequences and the Tort of Bad Faith
https://zalma.com/blog
11:49
June 25, 2020
Ethics for the Independent Insurance Adjuster
https://zalma.com/blog
11:16
June 23, 2020
Mold Claims Investigations
https://zalma.com/blog
12:12
June 22, 2020
Mold Insurance Policy Exclusions
https://zalma.com/blog
10:52
June 19, 2020
Law of Unintended Consequences and the Tort of Bad Faith
https://zalma.com/blog
13:39
June 18, 2020
Subrogation Waiver
https://zalma.com/blog
15:13
June 16, 2020
Insurance and the Criminal Lawyer
https://zalma.com/blog
15:09
June 15, 2020
The Sick Building Syndrome
https://zalma.com/blog
17:07
June 11, 2020
Construction Defects and Building Codes
https://zalma.com/blog
11:44
June 10, 2020
Property Insurance is a Contract of Personal Indemnity
https://zalma.com/blog
13:21
June 9, 2020
The Bad Faith Set-Up
https://zalma.com/blog
17:41
June 8, 2020
Adjusting the Commercial Property Loss
https://zalma.com/blog
17:32
June 5, 2020
Concealment and Misrepresentation
https://zalma.com/blog
13:01
June 4, 2020
California Fair Claims Settlement Practices Regulations
https://zalma.com/blog
11:36
June 4, 2020
Don't Sweat the Small Stuff
https://zalma.com/blog.
09:00
June 4, 2020
Red Flags of Fraud
https://zalma.com/blog
19:37
June 1, 2020
The Law of Unintended Consequences
https://zalma.com/blog
08:13
May 29, 2020
The Loss in Progress Rule
https://zalma.com/blog
16:08
May 29, 2020
How to Avoid Charges of Bad Faith
https://zalma.com/blog
12:11
May 29, 2020
Diminution in Value Damages
https://zalma.com/blog
14:49
May 29, 2020
Arson for Profit
https://zalma.com/blog
05:45
May 29, 2020
The Right to Independent Counsel
https://zalma.com/blog 
20:53
May 29, 2020
The Law of Unintended Consequences and Bad Faith - 1
https://zalma.com/blog
16:47
May 21, 2020
What is Insurance?
https://zalma.com/blog
12:25
May 19, 2020
Conditions
https://zalma.com/blog
19:16
May 16, 2020
Marine Warranties
https://zalma.com/blog
07:34
May 16, 2020
A Proposal to Create Claims Professionals
https://zalma.com/blog
12:39
May 16, 2020
When a Policy is Void
https://zalma.com/blog
20:09
May 16, 2020
Claflin v. Commonwealth
https://zalma.com/blog
21:07
May 16, 2020
Eight Corners Rule
https://zalma.com/blog
13:05
May 16, 2020
What is First Party Property Insurance
https://www.zalma.com.
13:02
May 15, 2020
Insurance Fraud Basics
https://zalma.com/blog
11:38
May 15, 2020
Who must submit to an EUO
zalma.com
11:08
May 15, 2020
Sick Building Syndrome
Zalma.com
11:42
May 15, 2020
Adjusting Property Claims
Zalma.com
31:09
May 15, 2020
Texas Finds a Chink in the Eight Corners Rule
Read the full article and see the video at https://www.linkedin.com/…/hallelujah-texas-allows-fraud-ex… and at https://zalma.com/blog plus more than 3150 posts. The eight-corners rule of insurance contract interpretation about duty  to defend directs Texas courts to determine a liability insurer’s duty  to defend its insured based on: the pleadings against the insured and     the terms of the insurance policy. For many years plaintiffs’ lawyers have taken advantage of the rule and  with careful pleading have required an insurer to defend a suit that  was probably not covered by the insurance policy. In Loya  Insurance Company v. Osbaldo Hurtado Avalos And Antonio Hurtado As  Assignees of Karla Flores Guevara, No. 18-0837, Supreme Court of Texas  (May 1, 2020) the Texas Supreme Court, in the face of an obvious fraud,  was asked to create an exception to the eight corners rule. ZALMA OPINION It is about time that the state of Texas created an exception to the  eight corners rule. Hopefully this decision will lead to others allowing  the admission of extrinsic evidence to determine the duty to defend as  is the case in California and other states. A careful lawyer drafting a  suit can always allege something that will allow for a defense. Consider  my blog post on how a murder’s estate got a defense when he shot the  plaintiff in: “Four Corners Rule Requires Defense for Person who Shot  Plaintiff in the Face
13:05
May 6, 2020
How to be a Professional Claims Handler
A Proposal to Create a Staff of Insurance Claims Professionals See the full video at https://youtu.be/1nVg3ZqtDpA To avoid claims of breach of contract, bad faith, punitive damages,  unresolved losses, and to make a profit, insurers must maintain a claims  staff dedicated to excellence in claims handling. That means they  recognize that they are obligated to assist the policyholder and the  insurer to fulfill all the promises made by the insurer in the wording  of the policy. When the claims staff is made up of claims people who treat all  insureds and claimants with good faith and fair dealing and provide  excellence in claims handling litigation between the insurer and its  insureds will be reduced exponentially. To keep the professional claims staff operating efficiently and in  good faith they must be honored with increases in earnings and  perquisites. Conversely, those who do not treat all insureds and claimants with  good faith and fair dealing should be counseled and given detailed  training. If they continue with less than professional conduct they must  be fired. The insurer must make clear to all employees that it is committed to  immediately eliminating staff members who do not provide excellence in  claims handling and must be ready to publicly and quickly fire those who  do not provide excellence in claims handling. An excellence in claims handling program can include a series of  lectures supported by text materials like the program I created for  Experfy.com. It must be supplemented by meetings between supervisors and  claims staff on a regular basis to reinforce the information learned in  the lectures. To guarantee that the training and requirement for  excellence in claims handling is effective the insurer must also  institute a regular program of auditing claims files to establish  compliance with the requirement to deal fairly and in good faith to the  insured. The insurer’s management must support the training and repeat it  regularly. Management should be closely involved in all claims and  required to audit claims files to determine that the training has taken  and is being applied to each claim. There is no quick and easy solution. The training takes time;  learning takes longer. If the insurer does not have the ability to train  its staff it should use outside vendors who can do so using available  sources like this publication, training from professional organizations,  and continuing education providers.
12:39
April 29, 2020
An Agent is not an Insurer
A Video Explaining Why an Agent is Not an Insurer Private Limitation of Action Provision is Enforceable The video is available at https://youtu.be/RvFP2j0Jpp4 Frankie and Michael Cabral sued for breach of contract, insurance bad  faith, conversion, and negligence after defendant Public Storage  disposed of personal belongings that plaintiffs had placed in a leased  storage unit. Plaintiffs appeal from summary judgment in favor of Public  Storage, and also challenge the court’s sustaining of a demurrer  without leave to amend based on a limitations provision contained in  plaintiffs’ Lease Agreement. California courts accord contracting parties substantial freedom to  modify the length of the statute of limitations. Courts will enforce an  agreed upon limitations period that is shorter than what is otherwise  provided by statute if the limitations period is reasonable. Reasonable  in this context means the shortened period nevertheless provides  sufficient time to effectively pursue a judicial remedy. The limitations provision in this case was clear. Plaintiffs were  informed they had one year to commence an action for a claim based on  lost or damaged property covered under the lease. The one-year period  afforded plaintiffs adequate time to determine the damages resulting  from the loss of stored property and to file a claim. Plaintiffs  contended that the Lease Agreement and limitations provision were  unconscionable.  The issue whether a contract or provision is  unconscionable is a question of law. Procedural unconscionability focuses on oppression or surprise due to  unequal bargaining power. Substantive unconscionability refers to a  provision involving terms that are so one-sided as to shock the  conscience, or that impose harsh or oppressive terms. In light of Court  of Appeal’s finding that the provision is reasonable, a fortiori the limitations provision is not substantively unconscionable. The Court of Appeal concluded that the 12-month limitations provision  is reasonable and enforceable. As a general rule, a plaintiff may only  sue for breach of an insurance contract and breach of the covenant of  good faith and fair dealing against an insurer that is a party to the  contract. The insurer’s agents and employees who are not parties to the  insurance contract cannot be sued. (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 576; Filippo, supra, 74 Cal.App.4th at pp. 1442-1444).
11:33
April 28, 2020
Explaining Conditions Precedent in Insurance Policies
Insurance Conditions Precedent Video available at https://youtu.be/I1ByB3cE34E.  When used in contract law, the word condition refers  to an event, the occurrence or non-concurrence of which alters the  previously existing relations of the parties by creating or  extinguishing a legal duty. A condition is different from a promise or  warranty. When used in an insurance policy the condition imposes duties  on the insured (the promisor) and gives a corresponding right to the  insurer (the promisee). Breach of a condition gives the insurer legal  justification for refusing to perform its obligations under the policy. There are two types of conditions: conditions precedent; and conditions subsequent. The distinction is significant in the resolution of insurance  disputes because it determines the allocation of the burden of proof.  The insured has the burden of proving the fulfillment of a condition  precedent. The insurer has the burden of proving that a condition  subsequent has not been fulfilled in order to avoid liability. A condition precedent is an event, not certain to occur, which must  occur, unless its non-performance is excused, before performance under a  contract becomes due. [Restatement (Second) of Contracts § 224 (Am. Law Inst. 1981); accord IDT Corp. v. Tyco Grp., 13 N.Y.3d 209, 214 (2009); Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co.,  86 N.Y.2d 685, 690 (1995).] While no particular words are necessary to  create a condition, the words “if” or “provided,” as well as the phrases  “provided that,” “on condition that,” “in the event that” usually  connote an intent for a condition rather than a promise. [13 Samuel Williston & Richard A. Lord, Williston on Contracts § 38:16 (4th ed. 1990, updated 2019); accord MHR Capital Partners LP v. Presstek, Inc., 12 N.Y.3d 640, 645 (2009)]. The violation of a condition precedent precludes recovery. [Gordon v. St. Paul Fire & Marine Ins. Co., 163 N.W. 956, 957 (Mich. 1917); Yeo v. State Farm Ins. Co., 555 N.W.2d 893, 895 (Mich. Ct. App. 1996).” Durasevic v. Grange Ins. Co. of Mich. (6th Cir., 2019)]
19:16
April 28, 2020
Marine Warranties
Marine Insurers Invented  The Warranty In An Insurance Policy The video is available at Zalma on Insurance on YouTube at https://youtu.be/Vjb1PKEs3K8 Marine insurers invented the warranty in an insurance policy. So, it is fitting that a boat was involved in Lloyd’s of London v. Pagan-Sanchez, 539 F.3d 19 (1st Cir. 2008), in which the First Circuit Court of Appeal enforced a warranty and deprived the insured of all rights to indemnity because of the breach of warranty. The case arose in 2003. A vessel called the Gabriella was at sea when an exhaust hose came loose and the Gabriella began taking on water through its exhaust system. Attempts to pump out the water were unsuccessful, and the Gabriella flooded and sank. The insured later submitted a claim to the plaintiffs for $175,000 for the loss of the boat and $100,000 for the costs incurred during salvage operations. The insurers found by investigation that the loss of the Gabriella was caused by wear and tear, gradual deterioration, and lack of maintenance, and they also found that the vessel’s fire extinguishing equipment had not been inspected or certified within the preceding year and that the automatic engine room fire extinguisher system had been disconnected prior to the loss. Both were warranted by the insured to be in effect. Even though there was no relationship between the terms of the warranty and the actual cause of the loss, the First Circuit concluded that “under the federal rule and the law of most states, warranties in maritime insurance contracts must be strictly complied with, even if they are collateral to the primary risk that is the subject of the contract, if the insured is to recover.” In addition, “in marine insurance, there is historically no requirement that the breach of warranty relate to the loss, so that any breach bars recovery even though a loss would have happened had the warranty been carried out to the letter.” The treatise noted that most courts agree that in a maritime insurance contract, “[i]f the warranty is breached, the insurer is discharged.” New York law has long provided that "the breach of an express warranty [in a marine insurance policy], whether material to the risk or not, whether a loss happens through the breach or not, absolutely determines the policy and the assured forfeits his rights under it." Cogswell v. Chubb, 1 A.D. 93, 36 N.Y.S. 1076, 1077 (1st Dept.1896) (navigation limit warranty), aff'd, 157 N.Y. 709, 53 N.E. 1124 (1899). As New York's Court of Appeals has explained, an express warranty in a marine insurance policy "must be literally complied with, and that noncompliance forbids recovery, regardless of whether the omission had a causal relation to the loss." [Jarvis Towing & Transp. Corp. v. Aetna Ins. Co., 298 N.Y. 280, 82 N.E.2d 577, 577 (1948) and Levine v. Aetna Ins. Co., 139 F.2d 217, 218 (2d Cir.1943); Kron v. Hanover Fire Ins. Co., 15 N.Y.2d 521, 254 N.Y.S.2d 119, 202 N.E.2d 563-64 (1964) all of which required literal compliance rule to bar coverage where insured breached a warranty. [Great Lakes Ins. SE v. Aarvik (S.D. Fla., 2019)] In admiralty, a vessel owner impliedly warrants the seaworthiness of a vessel at the inception of an insurance policy. [State Nat'l Ins. Co. v. Anzhela Explorer, L.L.C. , 812 F.Supp.2d 1326, 1365 (S.D. Fla. 2011)]
07:34
April 28, 2020
No Action Available Against Surplus Line Broker for Breach of Contract or Bad Faith
Surplus Line Broker Not an Insurer After her house burned to the ground and her insurer rescinded the  policy Suzan E. Taylor sued the insurer and the surplus line broker who  obtained insurance for her from certain underwriters at Lloyd’s, London.  The broker moved to dismiss Taylor’s action in Hiscox Dedicated  Corporate Member Limited v. Suzan E. Taylor  v.  The Society Of Lloyd’s,  The Corporation At Lloyd’s, and Burns & Wilcox, Ltd., NO. 6:18-CV-06100, United States District Court Western District Of Arkansas Hot Springs Division (April 20, 2020) Introduction Lloyd’s Policy No. VSRD634943 (the Policy), provided fire insurance  coverage for the high value home owned by Suzan E. Taylor, in Garland  County, Arkansas. Taylor purchased fire insurance coverage from Certain  Underwriters at Lloyd’s of London (the Insurer). Under the terms of the  Policy, the dwelling was insured for $2.6 million and the personal  property was insured for $1.3 million. Hiscox Dedicated Corporate Member  Limited (“Hiscox”) is the majority underwriter of Lloyd’s Syndicate  #33, the only syndicate subscribed to the Policy. ZALMA OPINION An insurance broker is a person or entity that transacts insurance  with but not on behalf of an insurer. They are not insurers. A Surplus  Line broker is an intermediary between the person seeking insurance,  that person’s agent, and the insurer. Under Surplus Line law the broker  can provide a policy to the insured but may not be considered an  insurer. It was overkill on the part of the insured to sue the broker  when the policy, in clear and unambiguous language, explained Burns and  Wilcox was not an insurer and liable for any claims.
06:05
April 23, 2020
The Modern Market at Lloyd’s
The market at Lloyd’s is a place where groups of individuals and corporations can transact insurance. After hundreds of years it has developed a strict method of placing insurance. The Corporation of Lloyd’s never sells insurance itself and is not at risk on the insurance sold on the floor at Lloyd’s. Rather, the underwriter members subscribe to cover all or part of a proposed placement of insurance, at their own election. Numbers of individual underwriters, many in England but others scattered throughout the world, have joined together to form syndicates. Syndicates may have anywhere from two or three to hundreds of members. The individual members are known as the “names” on that syndicate. These syndicates are the entities which subscribe on behalf of their members to cover risks and percentage parts of risks. The actual potential liability of a given name depends upon his percentage share of the syndicate of which he is a member, as well as the percentage of the risk to which his syndicate has subscribed. Lloyd’s includes a number of different types of members who are involved in the business of insurance at Lloyd’s. Individual members or “Names” — high-net-worth individuals whose exposure to the insurance risks they underwrite is unlimited – and corporate members formed exclusively to underwrite insurance business at Lloyd’s. Currently, underwriting is also conducted by partnerships and syndicates that include individual and corporate names. When insureds receive Lloyd’s policies of insurance, what they actually obtain are commitments from each individual, corporate, limited liability, or partnership insurer (the underwriters) to pay claims up to their entire assets. The Names are jointly and severally obligated to the insured for the percentage of the risk each has agreed to assume.
07:22
April 22, 2020
The History of Insurance from Sumeria to the Inception of Lloyd's
The History of Insurance The essence of insurance is the spreading of risk from one person to many. As early as 1200 BC, Phoenician merchants began transferring some of their risk to the backers of specific voyages, whereby the backers would profit if the voyage was successful, but would lose their investment if the cargo was lost at sea, either from natural disasters or from pirates. In exchange for backing a voyage and to assure payment if the voyage was successful, Phoenician law allowed the lenders to confiscate the merchant's ship for nonpayment. This form of collateralized loan was called bottomry: this term probably arose because the ship's hull was referred to as the bottom. Since substantial resources were required for voyages, and the wealth of these early nations depended heavily on trade, other settlements around the Mediterranean and in Asia also enacted bottomry laws by 400 BC. In 300 BC the Babylonians developed a system of loans for shipments by sea. Merchants found the risks of shipping by sea to be too great to take on alone, since the loss of one ship could bankrupt a merchant. With insurance, the risk of shipping was equitably spread among those subscribing to the loan.
00:32
April 21, 2020