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Log in or RegisterState Auto Prop. & Cas. Ins. Co. v. Distinctive Foods, LLC (2024)
The complaint did not allege an occurrence but rather only alleged intentional conduct.
Does Coverage Apply to a Vehicle Driven by the New Owner after the Insured Sold the Vehicle without Canceling the Policy? 2024.05.15
The insured sold a business vehicle and handed it over to the buyer. It was titled in the new owner’s name. Months later the new owner struck a parked vehicle. The owner of the parked vehicle is asserting a claim against the insured, who never removed the vehicle from the policy. Does the insured’s policy afford Liability Coverage for the claim?
Ventilation and Reroofing or Roof Replacement in Fort Lupton, CO
QUESTION: For a private residence in Fort Lupton, Colorado, is ice and water shield required at eaves and valleys when completing a reroofing project? RESPONSE: Yes. The 2012 International Residential Code (IRC) was adopted by the City of Fort Lupton, Colorado, as the residential code for the City. Section R905.2.7.1 covers ice barrier requirements and does not require ice and water shield, ice barrier underlayment, unless there is a history of ice forming along the eaves causing a backup of water, which is left to local jurisdictions to determine and adopt the requirement. Fort Lupton completed Table R301.2(1) and indicated “Yes” in the “Ice Barrier Underlayment Required” column. Possibly. Valley linings are covered in section R905.2.8.2, separately from the Ice Barrier Underlayment requirement of Section R905.2.7.1. The valley lining requirements permit different methods of underlayment, including self-adhering polymer-modified bitumen underlayment complying with ASTM D1970 (aka ice barrier underlayment), but the code does not require this underlayment. The IRC requires roof coverings be installed pursuant to manufacturer’s instructions throughout Chapter 9, including the valley lining provisions. Consultation of the manufacturer’s instructions is necessary to determine if ice barrier underlayment is required in valleys. FACTS: Roof replacement on insured's home located in Fort Lupton, Colorado. DISCUSSION: Colorado has no mandatory statewide residential code for privately owned one- or two-family dwellings and townhomes. Counties may adopt, administer, enforce, and amend building codes for all types of buildings and structures, except for those buildings and structures used only for shelter for agricultural implements, farm products, livestock, or poultry. C.R.S. 30-28-201(1) (authority to adopt); C.R.S. 30-28-205(1) (enforcement); C.R.S. 30-28-204 (amendment). Building codes must be promulgated “with a reasonable consideration of, and in accordance with, the public health, safety, morals, and general welfare and the safety, protection, and sanitation of such dwellings, buildings and structures.” C.R.S. 30-28-203. Municipalities, like counties, may enact building codes. C.R.S. 31-15-601(2) (municipal building and fire regulations); Colo. Const. Art. XX, § 6 (home rule powers). The authority to establish building codes implicitly includes the power to enforce the content of the codes. West Adams County Fire Protection District v. Adams County School District 12, 926 P.2d 172, 175-76 (Colo. App. 1996). Pursuant to its home rule powers, the City of Fort Lupton adopted the 2012 International Residential Code (IRC), with amendments. Fort Lupton, Colorado, Municipal Code, Chapter 18, Article XI, § 18-221. 2012 IRC Reroofing Section R907 of the 2012 IRC on Reroofing requires that recovering or replacing an existing roof must comply with the materials and methods outlined for new roofs in Chapter 9. 2012 IRC § R907.1. Therefore, the provisions concerning ice barrier underlayment in Chapter 9 must be considered. ICE BARRIER UNDERLAYMENT Ice barrier underlayment is required under Section R905.2.7.1 where there is a history of ice forming along eaves as designated in local amendments in Table R301.2. 2012 IRC § R905.2.7.1. Pursuant to Section R905.2.7.1, the City of Fort Lupton completed Table R301.2(1) indicating “YES” that ice barrier underlayment is required. Fort Lupton, Colorado, Municipal Code, Chapter 18, Article XI, § 18-225. Accordingly, the City of Fort Lupton requires the installation of ice barrier underlayment at the eaves when installing or replacing a roof. Valley Lining and Underlayment In general, roof covering material should be installed in accordance with the manufacturer's installation instructions: Roof coverings shall be applied in accordance with the applicable provisions of this section and the manufacturer's installation instructions. Unless otherwise specified in this section, roof coverings shall be installed to resist the component and cladding loads specified in Table R301.2(2), adjusted for height and exposure in accordance with Table R301.2(3). 2012 IRC § R905.1. Valley linings are covered separately under Section R905.2.8.2: “Valley linings shall be installed in accordance with the manufacturer's instructions before applying shingles. Valley linings of the following types shall be permitted: For open valleys (valley lining exposed) lined with metal, the valley lining shall be not less than 24 inches (610 mm) wide and of any of the corrosion-resistant metals in Table R905.2.8.2. For open valleys, valley lining of two plies of mineral-surfaced roll roofing, complying with ASTM D3909 or ASTM D6380 Class M, shall be permitted. The bottom layer shall be 18 inches (457 mm) and the top layer not less than 36 inches (914 mm) wide. For closed valleys (valley covered with shingles), valley lining of one ply of smooth roll roofing complying with ASTM D6380 and not less than 36 inches wide (914 mm) or valley lining as described in Item 1 or 2 shall be permitted. Self-adhering polymer-modified bitumen underlayment complying with ASTM D1970 shall be permitted in lieu of the lining material.” 2012 IRC § R905.2.8.2. Subsections 1 and 2 are specifically cited for open valleys but the listed installation methods are permitted for closed valleys in subsection 3. Subsection 1 includes metal valleys with specifications but no installation instructions. Subsection 2 allows for two plies of roll roofing. Subsection 3 is specific to closed valleys and allows for one ply of roll roofing, either method described in the other subsections, or ice and water shield (ice barrier underlayment) material. (Note: "Self-adhering polymer-modified bitumen underlayment complying with ASTM D1970" is a technical way of referring to ice barrier underlayment). This suggests that standard underlayment cannot be used as a replacement for valley liners. CONCLUSION: The City of Fort Lupton, Colorado, adopted the 2012 IRC and completed Table 301.2(1) to require the installation of ice barrier underlayment at the eaves when installing or replacing a roof. Valley linings are treated separately in the IRC and there is no specific requirement for ice barrier underlayment, though it is cited as a permissible underlayment option for closed valleys. The manufacturer's instructions must be considered to determine what underlayment is required for open or closed valleys. How are we doing with this building code research service? We hope you find this answer helpful. If you have a moment, please let us know how we are doing by replying to this email. Property & Liability Resource Bureau Disclaimer We hope this discussion assists you. It is intended to present you with information about case law and other authority applicable to the interpretation of the relevant insurance policy provisions. Any opinions expressed are for internal use only. This discussion is presented as information only and is not offered as legal advice or an offer of legal representation. PLRB research and writing is not a substitute for legal advice as to the law of a particular jurisdiction as applied in the full factual context of a particular claim. The opinions expressed in this discussion are those of the staff of the Property & Liability Resource Bureau and do not necessarily represent the opinions of the membership. The opinions of the staff of the Bureau do not represent an indication or prediction of any future action or position of any member insurer. You should consult with your company's management to determine your company's positions on the issues discussed. Confidentiality & Copyright Notice Property & Liability Resource Bureau members may reproduce this material or any portion of it for the exclusive use of their employees. Any other reproduction or distribution of this material or any portion of it without the express written consent of the Bureau is strictly prohibited. A full statement of our confidentiality policy and its rationale is here Copyright © Property & Liability Resource Bureau 2024
Great Lakes Ins. SE v. Concourse Plaza A Condo. Ass’n (2024)
(U.S. Court of Appeals for the Eleventh Circuit, applying FL law) Facts The policyholder --condominium association--sustained damage following Hurricane Irma in September 2017. It filed a claim and the insurer sent out an adjuster to inspect the property. The adjuster found damages to the building to be $31,035.21, well below the policy's deductible. Accordingly, in March 2018, the insurer sent the policyholder a letter advising the net claim was zero. The policyholder responded on September 4, 2020--almost three years after the date of its Irma claim. It disputed the estimate but did not provide a competing estimate. Instead, the policyholder stated it was currently assessing the damage itself. The letter also advised that the insurer should consider the letter notice of its intent to pursue additional benefits under the policy in accordance with the policy’s notice provisions and Fla. Stat. § 627.70132. Id. at 2-3. On April 8, 2021, the policyholder filed a proof of loss statement, providing a damages estimate of $6,403,728.62, and invoked the appraisal provision. It later revised its estimate to $3,276,080.50 while maintaining its appraisal demand. The insurer filed suit, seeking a declaratory judgment ruling that the policyholder’s September 2020 letter did not constitute a valid notice of a supplemental insurance claim under Fla. Stat. § 627.70132 and that it therefore failed to provide qualifying notice within the statutory three-year period following landfall of the hurricane. The policyholder counterclaimed, seeking to compel appraisal and for breach of contract. Both parties moved for summary judgment to which the trial court ruled in favor of the insurer. This appeal followed. Id. at 4-5. Statutory Language Fla. Stat. § 627.70132 in effect at the time of the dispute, read in relevant part: A claim, supplemental claim, or reopened claim under an insurance policy that provides property insurance, as defined in s. 624.604, for loss or damage caused by the peril of windstorm or hurricane is barred unless notice of the claim, supplemental claim, or reopened claim was given to the insurer in accordance with the terms of the policy within 3 years after the hurricane first made landfall or the windstorm caused the covered damage. For purposes of this section, the term "supplemental claim" or "reopened claim" means any additional claim for recovery from the insurer for losses from the same hurricane or windstorm which the insurer has previously adjusted pursuant to the initial claim. ******************** Note the statute has been amended since the loss and now reads as follows: (1) As used in this section, the term: (a) “Reopened claim” means a claim that an insurer has previously closed, but that has been reopened upon an insured’s request for additional costs for loss or damage previously disclosed to the insurer. (b) “Supplemental claim” means a claim for additional loss or damage from the same peril which the insurer has previously adjusted or for which costs have been incurred while completing repairs or replacement pursuant to an open claim for which timely notice was previously provided to the insurer. (2) A claim or reopened claim, but not a supplemental claim, under an insurance policy that provides property insurance, as defined in s. 624.604, including a property insurance policy issued by an eligible surplus lines insurer, for loss or damage caused by any peril is barred unless notice of the claim was given to the insurer in accordance with the terms of the policy within 1 year after the date of loss. A supplemental claim is barred unless notice of the supplemental claim was given to the insurer in accordance with the terms of the policy within 18 months after the date of loss. The time limitations of this subsection are tolled during any term of deployment to a combat zone or combat support posting which materially affects the ability of a named insured who is a servicemember as defined in s. 250.01 to file a claim, supplemental claim, or reopened claim. (3) For claims resulting from hurricanes, tornadoes, windstorms, severe rain, or other weather-related events, the date of loss is the date that the hurricane made landfall or the tornado, windstorm, severe rain, or other weather-related event is verified by the National Oceanic and Atmospheric Administration. (4) This section does not affect any applicable limitation on civil actions provided in s. 95.11 for claims, supplemental claims, or reopened claims timely filed under this section. Trial Court Holding The trial court granted summary judgment in favor of the insurer. Trial Court Rationale Relying on Goldberg v. Universal Property & Casualty Insurance Co., 302 So. 3d 919 (Fla. Dist. Ct. App. 2020), the trial court held that Fla. Stat. § 627.70132 required an insured party's notice of a supplemental claim to include an estimate of claimed damages. Because the policyholder’s letter did not do so, the court ruled it had failed to provide qualifying notice within three years as required by the statute. Appellate Court Holding Reversed and remanded. Appellate Court Rationale Neither Statute Nor Policy Language Required Notice of Supplemental Claim To Include Estimate of Damages. The court first acknowledged that there were no relevant decisions from the Florida Supreme Court interpreting § 627.70132. However, two appellate courts issued decisions. First, Goldberg v. Universal Property & Casualty Insurance Co., 302 So. 3d 919, 923 (Fla. Dist. Ct. App. 2020), decided that an insured’s attempt to claim additional payment for an already adjusted loss qualified as a supplemental claim under § 627.70132. The court stated that a “competing estimate by an insured's independent adjuster, or by a prospective contractor" would suffice. Id. at 6. The second appellate decision was Patios W. One Condo. Ass'n v. Am. Coastal Ins. Co., 49 Fla. L. Weekly 75 (Dist. Ct. App. 2024) where the court held that § 627.70132 did not require a notice of a supplemental claim to contain an estimate of additional damages. Instead, the statute required only that "the notice of a supplemental or reopened claim (1) be 'given to the insurer in accordance with the terms of the policy' and (2) constitute an 'additional claim for recovery' for losses from 'the same hurricane.'" Id. at 6-7. Patios rejected Goldberg’s conclusion that the statute required a damages estimate, noting the statute was not a supplemental claim statute but a notice of supplemental claim statute. The court here noted it was bound to follow Patios as it was a decision of the state appellate district in which the federal court where the present case arose from sat. Id. at 7 (“Therefore, because this is an appeal of a case arising out of the Miami Division, we apply the Third District Court of Appeal's Patios decision.”) Accordingly, for the policyholder’s September 2020 letter to qualify as a valid notice of a supplemental claim under § 627.70132, it must have been "given to the insurer in accordance with the terms of the policy" and "constitute an additional claim for recovery for losses from the same hurricane." Id. (quoting Patios). Here, it was undisputed that the letter sought additional recovery for the same hurricane as the original claim. Further, the insurer conceded that the policy did not impose a requirement to provide an estimate of damages. Therefore, the letter qualified as a notice of a supplemental claim under Fla. Stat. § 627.70132. Because it was sent within three years of the date Hurricane Irma made landfall, the provisions of Fla. Stat. § 627.70132 were satisfied. Comments For further discussion of late notice issues, see Florida - Late Notice. Publication Status: Note that this case was decided in an unpublished opinion. While the opinion is not binding precedent, it may be cited as persuasive authority under Federal Rules of Appellate Procedure Rule 32.1.
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