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JimF
USA
1014 Posts |
 Posted - 06/09/2003 : 08:17:25
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To return all the way back to the very first post under this thread, wherein Wes asked the question about coverage for a floating pool claim in the State of Florida, I expressed my opinion that it was not a covered loss, and for the reasons I have already outlined there.
Additionally, I would like to bring your attention Wes, to the following provision of the Florida Building Code:
(FBC) 424.2.21.4 Hydrostatic relief device. In areas of anticipated water table an approved hydrostatic relief device shall be installed.
Similar language is found in most other state's building codes.
Were an adjuster to encounter such a claim as you outlined, it would be important to determine first of all if such a device was present in an inground pool to comply with the building code, and further, to determine if such device was working in the loss event for subrogation purposes.
Further, most state building codes here in the US also have code requirements for the pool decking to include generally a 4" concrete base with fibermat and rebar over a 12" compacted gravel base. Most stone decking is a minimum of 2" in thickness with much of it 4" set in a minimum of 2" of concrete grout. Additional provisions within most building codes also require non-felt expansion joints to be installed in the 4" concrete base.
It is apparent, that if a swimming pool is installed to comply with the building codes, that edging stone would not/could not pull away easily from a concrete base. For that to happen would require either the adjuster to determine WHY, and if the adjuster lacks the skills to make such a determination, then insurance carriers would generally send in a forensic engineer to make such a causal determination. Others may want to short cut this part of the claims process in haste to close a file, but do so at the expense of subrogation opportunities and policy provisions which were well written to exclude items damaged from an insured's failure to properly maintain the risk and risk components or when such items are improperly designed or installed. To shortcut any determination of why such edging stones failed, fails to provide the carrier with the necessary information to rule out design/installation defects and maintenance failures prior to making what would thus become a premature and incorrect coverage decision. And that kind of shortcut is wrong both in thinking as well as practice.
The shortsighted and shortcut method is not what is taught within the AIC and CPCU programs in America nor at Vale nor anywhere else. I honestly am not aware of such methods being taught anywhere to claims adjusters.
I will later address here why my questions which Clayton has pronounced as "silly" are important in the claims process in situations where causation is unknown or in question.
Investigating a claim is the most important part of the claims process, and any attempt to short circuit the process by making a coverage determination without a causal determination is not only ridiculous but absurd, and flies in the face of generally accepted claims practices both taught and expected here in the United States. To accept the validity of such an argument would thus discount if not abridge subrogation opportunities, liability issues, and would bring into question why insurance carriers presently utilize forensic engineers in causal determination in the claims process. Think about it, it just doesn't make sense!
A link to the Florida Building Code section on Swimming Pools is enclosed below.
http://www.sbcci.org/Florida_Building_Code/changed/ch-4/Sec%20424.pdf |
Edited by - JimF on 06/09/2003 20:55:38 |
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JimF
USA
1014 Posts |
Posted - 06/09/2003 : 08:39:37
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Memo to Clayton Carr: Clayton, as I have said before, I have great respect for your knowledge and experience.
But in the instant situation you are incorrect in your conclusion because you simply cannot get past whatever bias personal or otherwise that fuels your myopia.
I will not address further any comments to you with regard to this topic, but I will continue to help others in seeking the correct answer and to understand the importance of causal determination in the claims decision process of coverage versus denial.
Today, I am sending a letter by mail to the PLRB and FC&S, along with a copy of this thread, and asking for their opinion, to be published here if they respond, as to whether they consider this a covered cause of loss, as well as their reasons for why or why not.
In the end, it simply seems to me, that if you cannot explain a reason why the edging stone catapaulted into the pool, then you would also be at a loss in explaining whether such an event was due to any of the 8 reasons outlined in my question posted prior, all reasonable exclusions clearly written in the policy.
Quite simply, if an adjuster cannot explain his loss as to what did happen, he conversely cannot explain what did not happen, which is of equal or greater import, as a determination of exclusion applicability is as important to the carrier as a determination of coverage. To abridge the claims investigation process in any way, is unfair either to the carrier or to the insured or both. For the adjuster, it no doubt would arise to the level of an E&O concern as well.
Perhaps we have just traveled in two very different insurance and claims worlds. Perhaps we haven't read the same insurance and claims books and journals nor taken the same claims courses nor earned the same claims designations and certifications. But in the claims world that I have traveled, insurance carriers every day want to know the reasons WHY things happen, and when I can't answer that question, those same carriers bring in people, including forensic engineers who can.
Good luck and my Best Wishes in your future insurance and claims travels and I shall honor your request to direct no further questions or comments to you. |
Edited by - JimF on 06/09/2003 09:10:18 |
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ALANJ
USA
159 Posts |
Posted - 06/10/2003 : 08:56:07
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Jim:
Great job with this topic. I'll join in as soon as I get through with all my roof walking. |
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CatDaddy
USA
310 Posts |
Posted - 06/10/2003 : 15:51:24
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JimF
USA
1014 Posts |
Posted - 06/10/2003 : 16:42:15
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CD, start communicating. Tell us what YOU think!
I haven't walked away from this topic and intend to share additional comments here as soon as I get some feedback from the policy experts at FC&S and/or PLRB and/or AICPCU, as well as through additional research I am doing on my own.
It's my dog Ol' Blue that was taught to roll over and play dead CatDaddy. No one ever got around to teaching me that and being part of the 'over the hill' gang, you know what they say about not being able to teach old dogs new tricks and all....... :>)
I remain convinced beyond any shadow of a doubt that this is a non-covered loss under the scenario presented by AllCatMan.
I am further convinced that if I presented AllCatMan's claims scenario to a group of either 100 CPCU's or 100 CIC's, both intrinsically familiar with policy language, analysis, and interpretation; and having either group follow along in reading through the policy as I explained policy exclusions in advocacy for there being no coverage, and you and/or anyone else presented the case for coverage (based on the facts as given and arguments made), that you and/or your accomplices in coverage advocacy would not get 1 vote out of a 100 from either group for the position for coverage.
As I said well back in this thread, you may not arrive at the same conclusion that there is no coverage by following my reasoning, but you cannot arrive at any other conclusion if you follow the policy.
So Father CatDaddy, lay some Spiritual Guidance on us and tell us what you think! If one of your vendor IA's handled this claim and reported it to you, what would be your call and how would you handle it? Would you send in an engineer to determine causation, and why or why not?
And keep in mind Father CatDaddy that it is I, Friar Jim who is trying to keep those greedy fraud riddled hands out of the collection plate of our good Father CD and his faithful flock!
And where is our Elder PA Statesman from the 'Dark Side', Bill Cook?
Surely Bill, you have some thoughts on this claim? [You see Father CD, we have to fight sin whilst we can, and in whatever form the devil disguises himself...]
Although Bill I am sure if the insured was your client, you would prefer not to have me as the adjuster on this one specific claim! :>)
Now I shall return to tasting, er, testing the holy waters in Father CD's communion chalice until he graces me with further wisdom through his divine intervention. We shall serve no wine until it's time....
[Monseignor Ghostbuster, please stomp some more of those damn* grapes and whup us up another batch, the keg is getting a little low]
* (Oops...typo!) |
Edited by - JimF on 06/10/2003 19:13:11 |
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bryan newell
USA
45 Posts |
Posted - 06/10/2003 : 16:53:34
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JimF,
What about damage caused by the improper design? |
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JimF
USA
1014 Posts |
Posted - 06/10/2003 : 17:07:37
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Bryan, damage caused by improper design or installation is excluded under the HO-3 (04 91) Policy by way of the following:
SECTION I - EXCLUSIONS
2. We do not insure for loss to property described in Coverages A and B caused by any of the following.....
c. FAULTY, INADEQUATE OR DEFECTIVE:
(2) Design, specifications, workmanship, repair, construction, renovation or remodeling; or
(4) Maintenance;
of part or all of any property whether on or off the "residence premises."
Bryan, I hope this answers your question understandably. |
Edited by - JimF on 06/10/2003 17:09:10 |
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CatDaddy
USA
310 Posts |
Posted - 06/11/2003 : 07:52:21
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I was not trying to be critical Friar Jim. I am enjoying the dialog of my subjects. I actually discussed this fictitious dilemma last night at the driving range with a couple of sinners that work for Renfroe. I gave them the facts of the scenario and they were VERY quick to agree with you and when they gave their ‘Reader’s Digest” interpretation of the policy, I could see the light! It seemed so simple and the answer was right there for all to see. And actually, I got up on the fence so that I might hear the needs of my Flock better and point out the sinners with wild ideas of coverage, trying to give away the proceeds of our good church. Brother Jim, The big guy and myself are proud of the message you bring to our brethren. But a warning. I know your path is sometimes difficult and you need the support of your brothers but be hasty is calling down the disciple Ghostbuster to assist you. His power is great but his aim is weak. When he fires the Holy Flamethrower, NO ONE is safe!
Keep the faith brothers!
FCD |
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Linda
USA
127 Posts |
Posted - 06/11/2003 : 17:10:27
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While I have not been participating in this coverage discussion, I have been following it and the logics being applied with great interest. I agree there is no coverage for any of the damages which is unfortunate for the Insured. It is an unusual chain of events but no covered cause of loss.
Cat Daddy, I just have one question for you--just how big was that fence you were on? I can tell you are all working hard when you have time on a cat to go to the driving range in the middle of the week. |
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bryan newell
USA
45 Posts |
Posted - 06/11/2003 : 17:21:15
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Jim F,
Devils advocate here.... Roofer does not install a cricket at the chimney chase, because of the improper construction water (not wind driven)has entered the dwelling & caused damage? Same answer? |
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JimF
USA
1014 Posts |
Posted - 06/11/2003 : 17:47:34
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Bryan,
Under your scenario of the builder failing to install a chimney cricket, the interior damage from water, (even if not wind driven), under an HO-3 would be covered and the adjuster should note in his or her claim report the installation defect to the carrier with a note to notify the subrogation unit.
Please note however, that there would be no coverage for any interior personal property damage on Coverage C items, such requiring an opening for any coverage.
Please note as well, that the interior water damage to ceilings, walls, floors, paint, etc. is an "ensuing damage" under the policy from the construction defect (workmanship) provisions which is not otherwise excluded or excepted within the policy. (I will share the applicable language within the policy if that would help you to understand the policy interpretation, if you so desire. Please let me know.)
Coverage would not extend to replacing what is not there (i.e., the chimney cricket) lacking from the contractor's negligence, but other ensuing damages to Coverage A items would be.
Now, is there anyone who wants to argue against this coverage position? |
Edited by - JimF on 06/11/2003 17:56:35 |
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CatDaddy
USA
310 Posts |
Posted - 06/12/2003 : 07:47:43
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Miss Linda, it would have to be a big one wouldnt it? And made very well.
The incident I described at the driving range occurred at a "lighted" facility and ended about 10:15pm. You know I would never do such a thing during business hours. Besides, during the day, I am way too busy ending people's careers to have the time! (ha) When are you gonna come work with me again. We could use us in Jackson, Tennessee. A few have had to take the low road. I also need to see what you're latest gadget is! There's something about a woman in a toolbelt!
Do you need some quiet time in the meditation chamber Friar Jim? You sound stressed!
FCD |
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AllCatMan
USA
39 Posts |
Posted - 06/12/2003 : 23:46:02
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| [size=6]WOW I WAS BUSY WORKING -____ HAIL CLAIMS A DAY(I DON'T WAT TO GET THE BASHING SHORTY GOT BUT IM CLOSE TO YA) AND I MISSED ALL THIS RUCKUS.. THE POOL COVER IS LIKE THE COVER OVER A PATIO... IT IS NOT A PATIO AS THE POOL COVER IS NOT A POOL... IT IS COVERED THE SAME WAY UNDER B COVERAGE.. THE POOL COVER CAUSED THE STONES TO BREAK AWAY AND CAUSE THE ENSUING DAMAGE... JUST AS WOULD DAMAGES RESULTING FROM A RAFTER BREAKING UNDER A PATIO COVER AN FALLING DUE THE WEIGHT OF THE WATER, ICE, OR SNOW...THE COVER AINT A POOL IT IS NOT PERSONAL PROPERTY... IT IS WHAT IT IS...AND UNDER THE SCENERIO DESCRIBED ABOVE IT WOULD ALLOW FOR COVERAGE....THE WATER HAD NOT YET BECOME GROUND WATER.. A FINE LINE BUT IT AINT GROUND WATER...JUST MY OPINION AND YOU KNOW WHAT IS SAID ABOUT OPINIONS EVERYBODYS GOT ONE AND THEY ALL STINK...I HAD A SITUATION VERY CLOSE TO THIS THIS WINTER AND AFTER SOME DEBATE IT WAS COVERED... THE POOL DID NOT FLOAT BUT THE STONES DID CAUSE DAMAGE TO THE POOL BOTTOM AND COVERAGE APPLIED THEN AS IT DOES NOW... |
Join in the Chat Room nightly 7cst/8est. |
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JimF
USA
1014 Posts |
Posted - 06/13/2003 : 06:26:35
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Ok, you say the pool cover is not part of the pool (Coverage B).
You then say the pool cover is not personal property (Coverage C).
I think we could agree the pool cover is not part of the house (Coverage A).
Think about it. That is ridiculous and absurd logic.
You say you had a similar loss wherein you recommended payment to the insured?
Was that recommendation based on your nitwit statement and theory that the pool cover is neither Coverage B nor Coverage C (and I feel that surely everyone would agree it is not Coverage A)?
So, under your "theory" of coverage, did you recommend payment for coverage under D - Loss of Use, Coverage E - Personal Liability or Coverage F - Medical Payments to Others?
After all,
you have told us,
the pool cover is not personal property, so a loss cannot be paid under Coverage C and Coverage C Causes of Loss would not apply;
and you said the pool cover is not part of the pool so a loss cannot be paid under Coverage B and Coverage B Causes of Loss would not apply,
and it could not be part of Coverage A so a loss cannot be paid under Coverage A and Coverage A Causes of Loss would not apply.
Quite frankly your fuzzy logic rests on irrational premises as noted above.
You need to go back and reread the policy. As I have said before, this really is a clear and simple and non-ambiguous coverage question, once you can see the (policy) light.
One poster could only make this a covered loss by not finding a cause.
You only make this a covered loss by not finding a coverage nor a cause.
Convenient for speculation or arguments sake perhaps, but it doesn't work in meeting the policy requirements.
The '3 C's'......
Cause.
Coverage.
Cost.
So (C)imple!
Or as Dale Strain posted here a while back under another thread in discussing the '3-C's' wherein he suggests they are the 3 bases on a baseball diamond, and you only make a "home run" when you get past all three bases.
You fail to realize you're not getting past first base (cause) and second base (coverage) in this claims scenario while thinking you have hit a home run.
What you and another poster fail to grasp, is that this claims scenario question has to do simply with a question of "ensuing loss."
The Second Domino falling over is the edging stone falling into the pool.
Once you grasp the absolute essential importance of the First Domino (the swimming pool cover) falling first, and then focus your application of the HO-3 policy to the initiating event of the First Domino falling, will you ever correctly understand and apply the HO-3 policy provisions.
The Second Domino in a linear chain of dominos can never fall without Domino Numero Uno first stating the avalanche of events. Even more so, when the Second Domino is (or should have been)embedded in 2 inches of concrete.
Listen, if this were a "gray area" coverage question, I could argue either side for or against coverage. But this really is so simple, and clear and unambiguous, that if the great Public Adjuster and my good friend Bill Cook called me today and offered me a Million Bucks to find coverage for this loss, I would regrettably have to turn away his money; it's simply not there. |
Edited by - JimF on 06/13/2003 07:14:08 |
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JimF
USA
1014 Posts |
Posted - 06/13/2003 : 08:25:47
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Domino Theory or Proximate Causation.
Rule Number 1 under Proximate Causation is a determination of the "triggering event."
In other words, what causes the First Domino to fall. In the AllCatMan claim scenario, the swimming pool cover becomes the First Domino.
(For those who would argue that the rain itself is the First Domino, fail to understand that other nearby property exposures to rain did not initiate chains of events which resulted in damage or ensuing damages).
It does not make one wit of difference whether the First Domino is damaged to initiate the chain of events and the damages which ensue from that initial event (the First Domino).
The First Domino in Proximate Cause claims is 'The Cause', that is, what act or event caused all other acts and events to occur.
The first cause or First Domino does not have to suffer damage to itself to be characterized as 'The Cause', a point which thankfully only a few here miss, thus preventing them from seeing this claim in the simplicity that it really is.
In the instant situation of AllCatMan's scenario, every ensuing event in this chain of unusual events and damages first started for some reason (The "CAUSE") and while the edging stone was The "First Damage" it was not "The Cause" of the chain of events. When and if those who argue coverage, begin to understand "The Cause" of the chain of events, including "ensuing damage" to the edging stone, then they will have made the giant leap forward into understanding why this is a non-covered loss.
Go find a book on "proximate cause" or do some research on the internet, or review some of the excellent legal cases which have dealt with this concept in insurance; which very simply says if the underlying (the "initial" or First Domino or "Cause") act or event is not covered, then all other ensuing damages flowing from that initial or 'triggering' act or event are not covered either.
Whether there was damage or not to the swimming pool cover is irrelevant to coverage.
Whether the water on top of the swimming pool cover was surface water or not is irrelevant to coverage.
And whether the swimming pool cover is personal property (Coverage C item) or was by attachment part of the swimming pool (Coverage B item) is irrelevant to coverage as well.
What is relevant is that the First Domino falling and initiating this whole chain of events was the swimming pool cover and not the edging stone, and why some of you cannot see that, for the life of me I cannot understand. It really is that simple.
I do think, that what is confusing for some is the shift back and forth over the question of whether the swimming pool cover is a Coverage B or a Coverage C item, and then having that same shifting of B versus C thinking follow into uncertainty of causes of loss which differ from Coverage B items to Coverage C items. And in their confusion, those arguing for coverage miss the policy fact, that there is no covered cause of loss under either B or C.
I have racked my brain trying to think up or come up with an analogous claims situation which involves proximate cause and ensuing loss, where the same exclusions apply, and where there are exclusions under both Coverage B and no cause of loss under Coverage C which would apply, to make this more easily understandable, but for the life of me I cannot fathom a similar almost precise claims scenario on point to this one. It is an unusual claims scenario and it is a doozy, albeit a rather simple one once you catch it's simplicity. |
Edited by - JimF on 06/13/2003 10:21:18 |
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Floating Pool
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