Insurance Coverage Newsletter May 2014

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NEW JERSEY 
Property Coverage - Consumer Fraud Act
No Consumer Fraud Act Claim against Insurer for Failure to Pay Insurance Proceeds
  
Baskay v. Franklin Mut. Ins. Co., 2014 N.J. Super. Unpub. LEXIS 910 (App. Div. Apr. 23, 2014)
 
In this consolidated appeal, the New Jersey Appellate Division affirmed a trial court's dismissal of the policyholders' claims against their insurers under the Consumer Fraud Act for failure to pay a first-party property claim. The policyholders claimed their well was damaged by lightning and needed to be replaced.  The insurer retained an expert who opined that the damage to the well was caused by pressure exerted by ground and surface water rather than by lightning and, as a result, declined to pay costs incurred in repairing and replacing the well.  In the ensuing coverage action, the Appellate Division found the insurer could not be held liable under the Consumer Fraud Act for simply refusing to pay benefits it did not believe were warranted. 
 
 
Standard Flood Insurance Policy Applied
Non-Owned Debris Removal Not Covered under Standard Flood Insurance Policy Unless Debris Located In or On Insured Dwelling
 
Torre v. Liberty Mut. Fire Ins. Co., 2014 U.S. Dist. LEXIS 57133 (D.N.J. Apr. 24, 2014)
 
Policyholders sought coverage under their standard flood insurance policy for the removal of debris that had collected outside their shore home after Hurricane Sandy. The District Court applied the policy to find that the policy did not cover costs associated with removing non-owned debris because that debris was not in or on the insured dwelling itself.
 
Policyholders owned a home at the New Jersey shore that was damaged by Hurricane Sandy. They filed a claim under their standard flood insurance policy in relation to damage to the covered dwelling. The policyholders later pursued a supplemental claim for indemnification for the cost associated with removing debris that had collected outside the exterior perimeter walls of their dwelling.
 
 
Auto Coverage - Statutory Minimum 
Insurer Disclaimed under Applicable Rider Yet Still Required to Cover Up to Statutory Minimum
 
Csap v. Am. Millennium Ins. Co., 2014 N.J. Super. Unpub. LEXIS 1131 (App. Div. Unpub. 2014)
 
A passenger in an ambulance was injured when she fell out of her wheelchair during the ride. The passenger sued the ambulance owner, who sought coverage from two insurers. One insurer disclaimed because the ambulance driver had not been "listed" in accordance with a policy rider. The Appellate Division panel acknowledged the policy rider, but nevertheless found for equitable reasons that the insurer owed coverage up to the statutory coverage minimum for ambulances.
 
Both of the ambulance owner's insurers sought to avoid providing coverage in relation to the accident. The first insisted that no coverage was available pursuant to an auto exclusion clause. The second admitted it owed coverage under a $35,000 vehicle-related insurance policy; but it disclaimed in relation to a second vehicle-related policy that covered the difference between the $35,000 policy and the $500,000 statutory minimum for ambulances.
 
 
NEW YORK
 
Occurrence / Construction Defects
Policy Amendment of the Definition of "Occurrence" Did Not Expand the Definition to Include Faulty Workmanship
 
National Union Fire Ins. Co. of Pittsburgh, PA v Turner Constr. Co., 2014 N.Y. App. Div. LEXIS 3546 (N.Y. App. Div. 1st Dep't May 15, 2014)
 
New York court applying New Jersey law finds that a policy's definition of "occurrence" that includes "accident, event or happening" does not provide coverage for claim of faulty workmanship against the insured.
 
The insurer sought a declaration that it was not obligated to defend and indemnify its insured in a lawsuit in New Jersey arising out of allegations of defects in the design and installation of a pipe rail system in a commercial building.  The insured was the general contractor who subcontracted the design and building of an exterior wall, which included a pipe rail system.  After the installation, a segment of the pipe rail system fell to the street from the eighth floor of the building. An outside consultant hired by the building's owner determined that the installation did not conform to the building plans.
  
 
Priority of Coverage - Professional Liability
Court Finds General Liability Policy is Excess to Professional Liability Policy Based on Other Insurance Provision
 
WCHCC (Berm.) Ltd. v. Granite State Ins. Co., 2014 U.S. App. LEXIS 8383 (2d Cir. N.Y. May 5, 2014)
 
Court finds professional liability policy does not explicitly provide its position in a priority of coverage analysis with respect to other excess policies.
 
An insurer who issued a professional liability policy to a nurse brought a declaratory judgment action against the general liability insurer of a medical center seeking a declaration that the general liability insurer was the primary carrier and solely responsible for a settlement entered into by the insured.  First, the court recognized the policies at issue reflect two types of excess policies under Lumbermens Mut. Cas. Co. v. Allstate Ins. Co.: (1) those that purport to be excess over other sources of insurance; and (2) those that purport to be excess and delineate the interplay with other excess policies.