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CCarr
Canada
1200 Posts |
 Posted - 06/15/2003 : 10:41:37
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This topic was brought into the discussion in another thread (the pool cover et al). It was also suggested that the FC&S would solidly support the opposing opinion advanced in that other thread, as would ".... a group of either 100 CPCU's or 100 CIC's ....".
While referring to that other thread, and the specific scenario being 'discussed' as that of Mikey's, in summary it was; as per my post of 6/6 10.33 specifically items (a - j).
My opinion was ridiculed and more, and was shot at with wide ranging blasts in an attempt to soundly sink it, basically finally summed up as follows; ".... to sum up the policy interpretation as I clearly see it, there is no coverage for a loss ENSUING from a NON-COVERED event or PROXIMATE CAUSATION damage from a NON-COVERED event .... If the initial triggering event is not covered, then neither is the ensuing damage to the building nor to the personal property ....". And, as further expounded on with the "domino theory" post of 6/13 08.25, which was brought to our attention; ".... a point which thankfully only a few here will miss ....".
I stand firm with my conclusion as stated in that thread of 6/6 13.43, and again on 6/8 21.27, based on the "claims facts" presented to us in that thread that I summarized in my post of 6/6 10.33.
I was instructed to go find a book, or do some research, or to review some excellent legal cases.
So I did, but I do that anyway. I am a follower of the National Underwriter which publishes FC&S articles and bulletins.
Guess what popped up in my email this week? Yes, an article titled as per this thread, relative to ensuing damage. It deals with a lower Court and a Supreme Court decision on this topic. The case is 'Weeks v. CoOperative Insurance Companies (N.H. 2003).
The reported appeal at the N.H.S.C. can be read at;
http://www.courts.state.nh.us/supreme/opinions/2003/weeks020.htm
It involves a BOP policy, but the relevant language is similar and the issue is the same; IF in the 'pool caper' the patio stone edging catapulted into the pool due to negligent installation of the patio stone edging.
As you will note reading the case, Weeks won at the lower Court but lost at the Supreme Court. However, the issue being fought was whether the negligent work was covered; as Weeks had no ensuing damage.
However, the N.H.S.C. examined the issue of ensuing loss and stated; "thus, the exception to the exclusion operates to restore coverage if the damage ensues from a covered cause of loss".
In the 'pool caper', that would be the falling object (patio stone edging) into the pool and everything else that then happened.
That N.H.S.C. opinion was based on the 'Acme Galvanizing v. Firemans Fund' case (Ct app 1990) wherein that court held, ".... we interpret the ensuing loss provision to apply to the situation where there is a "peril" .... which causes a loss .... separate and independent but resulting from the original excluded peril, and this new peril is not an excluded one, from which the loss ensues".
The N.H.S.C. went on to state, "accordingly, coverage will be reinstated under the exception to the exclusion when an excluded risk sets into motion a chain of causation which leads to a covered loss ....".
This clearly changes the rules of the "domino game" as were suggested to us in the 'pool caper' thread.
That N.H.S.C. opinion was based on the 'McDonald v. State farm Insurance' case (Wash 1992).
So, for those that are sitting across the lawn on the far 'picket fence' or milling about on the lawn around the pool; I suggest that there is ample, comfortable and secure room on the rail fence on which I still sit. |
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JimF
USA
1014 Posts |
Posted - 06/15/2003 : 12:02:15
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I highly recomment that adjusters read this New Hampshire Supreme Court ruling in it's entirety, and not focus on a short excerpt posted, which is not shown in context, nor has the same meaning when viewed in context.
What a lower court decision was or said, as we all know, means nothing when a higher court confirms or overrules (reverses) the lower court ruling.
A complete reading of the New Hampshire Supreme Court ruling is in complete accordance with everything I have said and posted under the other thread on swimming pool covers coverage question and on the accepted concepts in the American Insurance Industry on proximate causation losses.
Thanks for pointing out this case and sharing it to confirm what I have said all along under the other thread.
Alan Jackson, J.D., where are you now that this coverage question is "going legal"?
Perhaps cat adjusters should be especially mindful of this earth shattering legal decision the next time they are deployed to New Hampshire for an earthquake or hurricane catastrophe! Or said another way, when was the last time any cat adjuster worked a storm in New Hampshire? :>) |
Edited by - JimF on 06/15/2003 12:05:55 |
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CCarr
Canada
1200 Posts |
Posted - 06/15/2003 : 16:09:33
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What an absolutely silly response, as per the last edit at 12.05.
I'm stuck on which paragraph is the worst. The 4th in relation to your opinion of what is said in the case, or the foolishness of the 6th paragraph. |
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JimF
USA
1014 Posts |
Posted - 06/15/2003 : 16:17:34
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You know, the only word these days in your dictionary seems to be "silly". And I am tired of seeing it from you each and every time I post here.
I am entitled to my opinion, just as you are entitled to yours.
You asked me to not comment further on your posts, and I tried to honor that, but I expected the same equal consideration in return.
And that's all I need to say about this topic and I have no desire to communicate with you again, now or ever, in any way, shape, form or fashion.
Please go your way and I'll go mine, and I will not waste my time reading your meaningless, mostly incorrect postings, and ask that you do the same with regards to mine.
Lastly, I think that any adjuster who reads the entirety of the New Hampshire Supreme Court decision can discern for themselves what the NHSC said, and whether that is consistent with my earlier post or not. I believe that it is. I invite others to read it and decide for themselves. They may have a different view.
There have been literally hundreds if not thousands of proximate causation cases in almost every court of the many different jurisdictions here in the United States, and rest assured, no matter what conclusions you may have drawn incorrectly, this one New Hampshire case did not upset the applecart of proximate cause nor did it change the method whereby American insurers handle proximate cause losses. Had that been the case, it would be THE only thing anyone and everyone in this industry was talking about. |
Edited by - Linda on 06/16/2003 07:33:06 |
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CCarr
Canada
1200 Posts |
Posted - 06/15/2003 : 20:46:02
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Wow, I can't resist, that one takes the cake, or the worm; for the all time best piece of silly and ignorant posting that I have ever seen.
Do you ever listen to yourself talk like that?
Geez, and you label me the blithering idiot? I guess there are no mirrors in your cave.
Beware and caution to anyone who might dare disagree with him; but others have said that before.
Maybe, now all the venom is out, and people can return to reflecting properly on the various technical opinions. |
Edited by - CCarr on 06/15/2003 20:53:48 |
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ALANJ
USA
159 Posts |
Posted - 06/16/2003 : 05:51:08
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Jim:
Once again you are right on the money. These FC&S bulletins can get people in trouble. The NH case only binds NH courts not the rest of us. In Al they would laugh you out of court for using a NH case. How many pools can they have up there? When in doubt, call your defense lawyer buddy and ask for a coverage opinion. One using the case and black letter law of the state in question. Have fun. Back to more hail damaged roofs and studying for July bar.
I can not urge people enough to be carefull when using FC&S. They are state specific. |
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Negligent work exclusion & ensuing loss
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