Archive for the 'NJ – Coverage Issues' Category

NO BAD FAITH CLAIM WHERE NO COVERAGE DUE (New Jersey Federal)

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This is a New Jersey Covid-19 coverage case.  The insurer rejected business loss coverage for a law firm’s Covid-19 business interruption claims, arguing (1) there was no direct physical loss and (2) the virus exclusion applied.

The insured brought claims for declaratory relief, breach of contract, and breach of the covenant of good faith and fair dealing. New Jersey Federal Judge Bumb observed that “[a]ll the claims require as a threshold matter that Plaintiff is entitled to coverage under the Policy due to the circumstances outlined above, despite [the insurer’s] denial of Plaintiff’s insurance claim.”

Thus, the insured had to prove both “(1) that Plaintiff suffered “direct physical loss of or physical damage to Covered Property” and (2) that the Virus Exclusion does not apply.” The court assumed arguendo the direct physical loss element went in the insured’s favor, to solely address the virus exclusion.  Judge Bumb held the virus exclusion applied to preclude coverage for all of the insured’s claims, including allegedly breaching the duty of good faith and fair dealing.

“In sum, because (1) the Virus Exclusion is unambiguous, (2) the Virus Exclusion excludes from coverage any losses caused by a virus, (3) COVID-19 is a virus, and (4) the but for cause of Plaintiff’s alleged losses and this case is COVID-19, [the insurer’s] denial of Plaintiff’s insurance claim was appropriate. Therefore, Plaintiff’s claims in this action are legally insufficient.”

Date of Decision:  April 14, 2021

Stern & Eisenberg, P.C. v. Sentinel Insurance Company, Limited, U.S. District Court District of New Jersey No. 20-CV-11277RMBKMW, 2021 WL 1422860 (D.N.J. Apr. 14, 2021) (Bumb, J.)

BAD FAITH CLAIM SURVIVES WHERE INSUREDS ALLEGE CARRIER MISINTERPRETED THE POLICY, FAILED TO INQUIRE WITH THEIR OWN UNDERWRITERS ABOUT THE POLICY, AND FAILED TO ASSESS THE POLICY LANGUAGE IN ACCORDANCE WITH ESTABLISHED LEGAL PRINCIPLES (New Jersey Federal)

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Self-insured public entities sued their excess insurer for breach of contract and bad faith, claiming sums due for attorney’s fees and damages in sexual abuse suits.  The excess insurer claimed nothing was due, under its interpretation of the policy language applied to the facts at issue. The self-insureds survived a motion to dismiss the breach of contract claim and bad faith claims.

First, the court found coverage might be due, and the excess insurers could be liable to reimburse the self-insureds for sizable legal fees and for indemnification under the excess policies on the sexual abuse claims.

Next, the court observed that “[u]nder New Jersey law, in order to bring a successful bad faith claim against an insurer, an insured must show: ‘(1) the insurer lacked a ‘fairly debatable’ reason for its failure to pay a claim, and (2) the insurer knew or recklessly disregarded the lack of a reasonable basis for denying the claim.’”

In this case, the self-insureds alleged the excess carrier “failed to ‘act in good faith in their assessment of the terms and conditions of [the Policies]’ and failed to reasonably ‘assess communications exchanged during the course of negotiations between representatives of the parties, assess the statements of their own underwriters, assess the underwriting documentation, or assess principles of law and accepted construction of the terms of art within the [Policies].” The court found these allegations sufficiently factual in nature to allow the bad faith claim to proceed.

Date of Decision:  January 26, 2021

SCHOOL EXCESS LIABILITY JOINT INSURANCE FUND v. ILLINOIS UNION INSURANCE COMPANY, U.S. District Court District of New Jersey No. CV 20-4951(SDW)(LDW), 2021 WL 248860 (D.N.J. Jan. 26, 2021) (Wigenton, J.)

NO BREACH OR BAD FAITH WHEN INSURER REFUSES TO PAY REPLACEMENT VALUE ON BASIS THAT INSURED HAS TO PAY TO HAVE THAT WORK DONE IN THE FIRST INSTANCE (New Jersey Appellate Division)

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The insured suffered property damage. Under the policy, the insurer would initially pay actual cash value for the loss, and would subsequently pay replacement value if the insured first had the replacement work carried out at the insured’s own expense.  The insured raised various arguments, including a central argument that she could not afford to pay for the repairs in advance of receiving payments for those repairs from the insurer, i.e., she was in a Catch-22. (She alleged the repair costs were over $170,000 greater than the ACV payment.)

The insured sued for breach of contract, breach of the duty of good faith and fair dealing, and under the Consumer Fraud Act.  The insurer obtained summary judgment at the trial level, and the Appellate Division affirmed on the basis of the trial court’s reasoning.

Although the policy created this Catch-22, the trial court judge “recognized ‘a party to a contract may not avail itself of a condition precedent where its own conduct rendered compliance with the condition impossible.’” The trial judge did note his own “concern that defendant ‘appears to have no mechanism to provide payment of RCV value until the repairs or replacements are completed[,]’ thereby requiring the insured to ‘front’ the money and seek reimbursement later.’ But the [trial] judge nonetheless found ‘the plain language of the contract provides for a process whether RCV can only occur after the acceptance of a settlement amount or rejection thereof.’”

The trial judge rejected an impossibility of performance argument, and observed that the insured accepted the actual cash value payment and did not put on any expert evidence that the actual cash value sum the insurer paid was incorrect.

Date of Decision: December 31, 2020

Lanier v. Farmers Mutual Fire Insurance Company of Salem County, New Jersey Superior Court Appellate Division No. A-1398-19T2, 2020 WL 7822353 (N.J. Super. Ct. App. Div. Dec. 31, 2020) (Firko, Rose, Whipple, JJ.)

A CLEAR DISPUTE OF FACT OVER COVERAGE DENIAL PRECLUDES BAD FAITH (New Jersey Federal)

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This case involves a water loss coverage dispute. The factual issue is whether the cause of loss was from a specific event or a leak over time damaging the insured’s property.

The insurer denied coverage and the insured sued for breach of contract, bad faith, violation of the Consumer Fraud Act (CFA) and unconscionability. The court found a legitimate dispute of fact over the actual cause of the insured’s damages, but dismissed the bad faith and CFA claims.

As to the bad faith claim, the court set out the following standards:

  1. “A claim for bad faith on a first-party insurance claim in New Jersey requires that the plaintiff show that the insurer (1) had no “reasonable basis for denying benefits of the policy and … [had] knowledge or reckless disregard of the lack of a reasonable basis for denying the claim.”

  2. “Under this ‘fairly debatable’ standard, a claimant who could not have established as a matter of law a right to summary judgment on the substantive claim would not be entitled to assert a claim for an insurer’s bad-faith refusal to pay the claim.”

  3. “In other words, if there are material issues of disputed fact which would preclude summary judgment as a matter of law, an insured cannot maintain a cause of action for bad faith.”

  4. Therefore, even at the motion to dismiss stage, the existence of genuine issues of material fact will require the dismissal of a bad faith claim.”

The bad faith claim in this case, however, could not survive. There was a genuine issue of fact directly relating to coverage, as to whether the water loss arose from a single event or a leak over time.  The insured herself had conceded that “certain facts that, if true, would provide at the very least a ‘fairly debatable’ and ‘reasonable basis’ for Defendant’s denial of coverage.”

The court also dismissed the CFA claim. The court observed that the CFA does not apply to denying insurance benefits, and found that the claim at issue was for denial of benefits and not some sort of fraud.

Date of Decision: November 25, 2020

Smith v. State Farm Fire and Casualty Company, U.S. District Court District of New Jersey No. CV1910319RMBAMD, 2020 WL 6938432 (D.N.J. Nov. 25, 2020) (Bumb, J.)

BAD FAITH NOT POSSIBLE WHERE THERE IS SPLIT IN LEGAL AUTHORITY ON INTERPRETING POLICY LANGUAGE (New Jersey Appellate Division)

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The central issue in this Superstorm Sandy case was whether coverage was due for a “collapse.” Collapse was a defined term, but the defining language itself opened the door to multiple disputes over the meaning of individual words and concepts. For example, the court had to determine possible meanings of “caving in” and whether “abrupt” meant a matter of seconds or some longer period.  The parties argued the fine details of both the policy language and the facts, including competing expert reports, and the court went through a step-by-step analysis addressing the meaning of each relevant sub-term.

While the insurer made some plausible arguments, the court ultimately had to follow the principle that where the policy language reasonably could be interpreted in more than one way, the interpretation that favors coverage must be applied. Thus, at the end of the day, the trial court and Appellate Division found coverage was due.

On the other hand, the insured’s bad faith claim failed on the same record.

The court observed generally that in first party property damage cases, “the insured must demonstrate that coverage was so clear it was not ‘fairly debatable.’”  If a claim is fairly debatable, there can be no bad faith. Thus, “a plaintiff must show the lack of a reasonable basis for denying the claim or unreasonably delaying its processing, and the insurer’s knowledge or reckless disregard that it was acting unreasonably.”

Relevant to this case, “[a]n insurer’s denial of coverage may be fairly debatable if the insurer was ‘not acting in derogation of well settled New Jersey law’ and there was a split among other jurisdictions on a legal question pertaining to coverage.” Here, there was no clear New Jersey law interpreting the multiple disputes over policy language the insurer raised in denying coverage. “On that basis, [the] decision to deny coverage was fairly debatable, as there was no binding New Jersey precedent interpreting [the insurer’s] policy form.”

Moreover, there was a split in the case law among other jurisdictions concerning the scope of coverage under this same policy language. The Appellate Division favored one line of case law interpreting the policy form at issue, resulting in coverage. This did not change the reality that there was a split of authority and other courts would find no coverage. This lack of clear consensus likewise precluded a finding of bad faith.

Date of Decision: November 19, 2020

Parko Properties, LLC v. Mercer Ins. Co. of New Jersey, Superior Court of New Jersey Appellate Division No. A-4137-17T2, 2020 WL 6799137 (N.J. Super. Ct. App. Div. Nov. 19, 2020) (Oster, Vernola, JJ.)

INSURERS NOT ESTOPPED FROM DENYING COVERAGE, AND COVERAGE HAD TO BE PROVED (New Jersey Appellate Division)

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This long ongoing litigation involved a dispute over whether a subcontractor’s poor workmanship could be a covered “occurrence”. During the pendency of this litigation, the matter went up to New Jersey’s Supreme Court in separate lengthy litigation. The Supreme Court ultimately established law in plaintiff’s favor. In the interim before that decision, however, faced with the uncertainly of coverage, the present insured itself settled with a number of plaintiffs who sued for faulty workmanship.

The case involved multiple insurers and different policy periods.  The insured sought reimbursement in connection with the litigation and settlement sums paid.  The insured also asserted every policy was triggered by an “occurrence” during each policy period. The plaintiff moved for summary judgment on the bases that the insurers were estopped and that there were covered occurrences. The Law Division denied this motion in significant part.

The trial judge did find the policies were implicated and coverage was triggered. However, that judge also “concluded there were material factual disputes as to the reasonableness of the settlements, both as to the ‘various liabilities of the insurers[,]’ and whether defendants were ‘entitled to a diminution of’ their share of the settlements ‘based on covered claims as opposed to uncovered claims.’” Thus, the trial court denied plaintiff summary judgment.

Plaintiff and defendants then entered a “high-low” settlement. This involved a consent order for judgment, where plaintiff reserved the right to appeal the summary judgment denial, to address the insurers’ indemnification obligations. Per the consent judgment, if the Appellate Division affirmed the trial judge, the insurers would pay the low settlement sum; however, if the Appellate Division reversed the Law Division in its entirety, then the insurers would pay the high settlement sum.

On appeal, “plaintiff contended that because defendants ‘wrongfully refused coverage[,]’ causing plaintiff to defend itself against claims covered by the policy and ultimately settle those claims, defendants were liable for the entire settlement amounts if they were ‘reasonable and … made in good faith[.]’” Plaintiff relied on the seminal case of Griggs v. Bertram.

The Appellate Division framed the issue as, “having denied coverage, must defendants pay the full settlement amounts if reasonable and entered in good faith? Or, despite their denial of coverage under the policies, are defendants entitled to an allocation determination, both temporally and substantively, i.e., whether the homeowners’ claims were for ‘property damage’ covered under the policies?”

The court denied plaintiff relief, distinguishing Griggs. It then affirmed the trial court’s decision, thus resulting in the low settlement sum being due.

Unlike Griggs, in this case the defendant insurers had issued timely coverage denials. Their arguments proved successful during the very early stages of the litigation in the Law Division, and even the Appellate Division left the coverage issue open.

Thus, the court found “no basis to apply equitable principles of estoppel to bar defendants’ challenge to coverage, including a temporal and substantive allocation of covered and uncovered claims.” Rather, “a good-faith challenge to coverage is not a breach of an obligation to defend.” Further, the defendant insurers “were entitled ‘to dispute coverage based upon the language’ of the policies.”

Thus, there was no equitable basis, under Griggs, to prohibit the carriers from asserting contractual coverage defenses.  It then fell on plaintiff prove that coverage was due, and the insurers were wrong to deny coverage.  “[I]f there is a factual dispute that, once resolved, may indicate that an occurrence is not covered, and it is unlikely to be resolved at trial, an insurer may deny coverage and await judicial resolution.”  If the insured can ultimately make out its case, the carrier would have to reimburse “plaintiff for its costs and the settlement amounts, assuming they were reasonable and entered in good faith.”

The court again observed, however, “defendants were well within their rights to contest the coverage issues.” It found there were disputed issues of fact over “the nature, extent and timing of the damages” at issue. This could not be decided on summary judgment, and these factual issues “were properly left for a factfinder to conclusively resolve.”

Thus, “[r]esolution of those factual issues was necessary to determine coverage under the policies, and as a result, whether defendants’ denial of coverage was wrongful. Under controlling precedent and the facts of this case, only defendants’ wrongful denial of coverage would translate into a duty to reimburse plaintiff for reasonable settlements it entered into with the homeowners in good faith.” As there was no unequivocal reversal, plaintiff was left with the low settlement sum at the end of the day.

Date of Decision: October 5, 2020

Bob Meyer Communities, Inc. v. Ohio Casualty Insurance Company, New Jersey Superior Court Appellate Division No. A-4526-18T3, 2020 WL 5887025 (N.J. Super. Ct. App. Div. Oct. 5, 2020) (Messano, Smith, JJ.)

IF COVERAGE IS NOT DUE, BAD FAITH CLAIM FAILS (New Jersey Federal)

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This case involved a professional errors and omissions policy, with a bodily injury exclusion. The carrier denied a defense and indemnification based on this exclusion, but the insured asserted in its complaint that there was an applicable policy exception to this exclusion, bringing claims for breach of contract and bad faith.

On a motion to dismiss, the court found the exclusion applied, and the exception to the exclusion did not apply, and dismissed the breach of contract claim.

Addressing the insured’s bad faith claim, the court observed that, “In order to state a claim for bad faith denial of insurance coverage, a plaintiff must allege the following: (1) the insurer lacked a reasonable basis for denying benefits, and (2) the insurer knew or recklessly disregarded the lack of a reasonable basis for denying the claim.”  Further, “if ‘a claim is fairly debatable, no liability in tort will arise.’”

Interestingly, the court cited Third Circuit precedent on Pennsylvania’s bad faith statute for the proposition that “there can be no bad faith claim for denial of coverage if the insurer was correct as a matter of law in denying coverage.”

“Because the Court has found [the insurer] was not obligated to provide coverage under the terms of the Policy, the bad faith claim similarly fails.”

Date of Decision: September 21, 2020

Shore Options Inc. d/b/a Remax v. Great American Insurance Group, U.S. District Court District of New Jersey No. CV 20-03835 (RBK/JS), 2020 WL 5627211 (D.N.J. Sept. 21, 2020) (Kugler, J.)

NEW JERSEY BAD FAITH CLAIM FAILS AS TO BOTH DENIAL AND CLAIM HANDLING DELAY (New Jersey Federal)

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The insured successfully defeated a summary judgment motion on the issue of coverage, but lost on bad faith.

The policy excluded coverage for burst radiator pipes unless the insured took reasonable steps to maintain heat at the property to avoid the problem. Here, the 76-year old insured temporarily moved from his home so family could take care of him after double knee surgery. The record showed a detailed history of the insured’s considerable efforts to maintain heating in his absence, and a somewhat unpredictable set of circumstances leading to the local utility turning off his heat for a short time, which unfortunately led to burst pipes and flood damage in the home.

The record showed a jury could find the insured had taken reasonable steps to maintain the heat, and denied the insurer’s summary judgment motion seeking a ruling that no coverage was due.  Thus, the breach of contract claim proceeded.

However, the court did grant the insurer’s motion on bad faith under the fairly debatable standard.

The court first observed New Jersey recognizes two forms of bad faith, either in denying or processing claims. As to the latter, processing focuses on delay in claim handling.

These two types of bad faith claims are subject to “’essentially the same’ test under New Jersey law, namely, the ‘fairly debatable’ standard.” “A bad faith denial claim succeeds when ‘no debatable reasons existed for denial of the benefits.’” “For a processing claim, bad faith is established when there is ‘no valid reason to delay and the insurance company knew or recklessly disregarded the fact that no valid reasons supported the delay.’” Merely mishandling a claim, however, is insufficient; rather there must be “knowledge that no reason [for denying the claim] existed’”.

In this case, the insured first argued bad faith denial. The court rejected that claim, observing:

“The policy at issue specifically precludes coverage for damage resulting from frozen pipes unless the insured maintained heat or shut off the water. Plaintiff admits to not shutting off the water. Moreover, the interruption of gas service to the house did result in heat not being maintained. Plaintiff left his house unattended for over a year, with no one checking in on the property, and the gas bills did show no gas usage, even though the bills also charged Plaintiff every month. Thus, while the question of reasonable care will be submitted to the jury, a reasonable factfinder could only find on this record that coverage was, indeed, fairly debatable.”

On the delay in processing theory, “Plaintiff claims that Defendants impermissibly focused on ‘the result’ rather than the ‘reasonable care’ exercised to ensure the house was heated. … However, bad faith process claims are typically grounded in an excessive delay, not the nature of the process itself … and it is undisputed that Defendants promptly responded to and investigated the claim. Indeed, the record shows that an investigation took place within days of the loss, and a final determination was issued exactly one month after the discovery of the loss.”

Date of Decision: September 2, 2020

Titley v. Hanover Insurance Company, U.S. District Court District of New Jersey No. 1:18-CV-13388 (RMB), 2020 WL 5229387 (D.N.J. Sept. 2, 2020) (Bumb, J.)

NEW JERSEY COURT DISMISSES BREACH OF CONTRACT, BAD FAITH, FRAUD, AND UNFAIR CLAIM SETTLEMENT PRACTICES ACT COUNTS WITHOUT PREJUDICE, AND GIVES AN OPPORTUNITY TO AMEND (New Jersey Federal)

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A pro se plaintiff brought a barrage of claims against its commercial general liability insurer, among others. He alleges water damage to the insured’s work on a retaining wall the insured was engaged to build. However, there was no third party claim for damages against the insured relating to water damaged wall. The insurer denied the claim, i.e., a claim for damages to a wall built for a third party on which the third party asserted no claim.

First, the court found there was no breach of contract, and dismissed a number of counts on those grounds. However, dismissal was without prejudice and plaintiff could amend if it he could plead specific facts showing a breach.

Next, the court dismissed counts alleging violations of New Jersey’s Unfair Claim Settlement Practices Act (UCSPA). The court stated the “UCSPA does not apply to general liability and property insurance.” Thus, “[b]ecause the Policy is a general liability policy … and not a life or health insurance policy or annuity, the UCSPA Counts … are dismissed without prejudice.” The court specifically declined to address the argument that there is no UCSPA private right of action, saying the law was unclear on that point. The court gave leave to amend, but the plaintiff “must provide additional factual allegations detailing how the Policy falls under the UCSPA.”

Third, plaintiff asserted bad faith claims based upon an inadequate investigation. The court recited New Jersey’s bad faith standards:

  1. “To state a claim for bad faith denial of insurance coverage, Plaintiff must show: (1) the insurer lacked a reasonable basis for its denying benefits, and (2) the insurer knew or recklessly disregarded the lack of a reasonable basis for denying the claim.”

  2. Bad faith claims should be “analyzed in light of a ‘fairly debatable’ standard, which posits that ‘[i]f a claim is “fairly debatable,” no liability in tort will arise.’”

  3. “[T]o establish a first-party bad faith claim for denial of benefits in New Jersey, a plaintiff must show ‘that no debatable reasons existed for denial of the benefits.’”

  4. “Thus, when the insured’s complaint presents issues of material fact as to the underlying claim, dismissal of a related bad faith claim is proper.”

The court found no bad faith claim stated because the plaintiff did not “allege that Defendants lacked a fairly debatable reason for its denial of coverage. Rather, the Policy illustrates that Defendants did possess a reasonable basis for its denying benefits.” Again, however, the bad faith claims were dismissed without prejudice, with leave to amend given, but only if the plaintiff can provide “additional factual allegations detailing how Defendants lacked a reasonable basis for denying Plaintiff’s insurance claim.”

Lastly, plaintiff alleged fraudulent misrepresentation in the policy’s sale to plaintiff, concerning the scope of coverage. Again, the court dismissed without prejudice, but would only consider amendment proper the plaintiff could plead actual facts supporting a fraud claim.

Date of Decision: August 31, 2020

Gage v. Preferred Contractors Ins. Co., U.S. District Court for the District of New Jersey No. 19-cv-20396 MAS ZNQ, 2020 WL 5107351 (D.N.J. Aug. 31, 2020) (Shipp, J.)

NO DUTY TO ANNUALLY INFORM INSURED OF POLICY EXCLUSION ABSENT SPECIAL RELATIONSHIP (New Jersey Appellate Division)

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The insured’s home was damaged by a sump pump failure. The policy did not cover sump pump failures. Years before the loss, the carrier sent the insured notice that his policy did not cover sump pump failures and offered an endorsement for additional sump pump protection. The insured saw the notice, but took no action. The insurer did not send the same notice in the ensuing years.

The insured brought negligence and bad faith claims because the insurer did not send the notice for sump pump coverage every year.

The trial court granted summary judgment to the insurer, and the Appellate Division affirmed.

The Appellate Division observed that, absent a special relationship, “there is no common law duty of a carrier or its agents to advise an insured concerning the possible need for higher policy limits upon renewal of the policy.” Further, “to establish a special relationship creating a duty to advise about adequacy of insurance, ‘there must be a long-standing relationship between the parties, some type of interaction on the question of coverage, and reliance by the insured on representations of the insurance agent to the insured’s detriment….’”

In this case, the insured did not establish “a basis for finding a special relationship … that would give rise to a duty to inform him of the need to buy sump pump coverage, or to inform him annually of the option to do so.” Simply providing notice years earlier that there was no coverage and insureds needed to purchase an endorsement to obtain sump pump coverage did not create that relationship. Rather, the notice clearly told the insured that he had no coverage, and the policy itself unambiguously excluded coverage.

In sum, the insured put on no evidence that he could rightly “assume his policy included coverage in subsequent years without purchasing the endorsement.”

Date of Decision: June 22, 2020

Yew v. FMI Insurance Co., Superior Court of New Jersey Appellate Division DOCKET NO. A-4947-18T3, 2020 N.J. Super. Unpub. LEXIS 1200 (N.J. App. Div. June 22, 2020) (Messano, Ostrer, JJ.)