Investigating coverage
| Author | David Frangiamore |
| Pages | 145-282 |
INVESTIGATING
COVERAGE
4-1
CHAPTER 4
INVESTIGATING COVERAGE
§400 WHAT IS INSURANCE COVERAGE? WHAT IS THE DIFFERENCE BETWEEN POTENTIAL
AND ACTUAL COVERAGE? AND CAN THE INSURER WAIVE A COVERAGE DEFENSE?
§401 The Policy
§402 Coverage Analysis
§403 Policy Interpretation
§403.1 Ambiguities in Policy Language
§404 Reasonable Intent of Insured
§405 Reduction in Coverage
§406 Marketing Brochures and Advertising
§407 Duty to Defend
§408 Trigger of Coverage
§409 [Reserved]
§410 FIDUCIARY DISCLOSURE BY THE INSURER
§411 Good Faith and Fair Dealing
§412 Independent or Cumis Attorney Disclosure: Third-party
§420 DOCUMENTS NECESSARY FOR A COVERAGE INVESTIGATION
§420.1 Insurer’s Claim File
§420.2 Application for Insurance
§420.3 Agent’s Files
§420.4 Underwriter’s Files
§420.5 Coverage Question Investigation File
§420.6 Factual Investigation File
§420.7 Promotional/Advertising Materials
§420.8 Insurance Commissioner’s File
§420.9 Declaration Sheet
§420.10 Insurance Policy Endorsements
§420.11 Underwriting Manuals
§420.12 Outside Independent Legal Opinion—“Advice of Counsel”
§420.13 Home Office Insurance Claim Files
§420.14 Drafting History of Policy Forms
§420.15 Claim Manuals
§430 OBTAINING THE NECESSARY STATEMENTS
INVESTIGATING
COVERAGE
How Insurance Companies Settle Cases 4-2
§440 POLICY DEFENSES
§440.1 No Notice of Claim or Improper Notification of Claim
§440.2 No Insurable Interest
§440.2.1 Insurable Interest and How It Relates to “Loss Payable” Clauses
§440.3 Occurrence Not Within Term Policy Period
§440.3.1 Montrose Endorsements and Attempt to
Limit Coverage for Continuing Damage
§440.4 Undefined Policy Terms
§440.4.1 Vague or Ambiguous Policy Terms
§440.5 Failed Policy Conditions
§440.5.1 The Bankruptcy Clause
§440.5.2 Duty to Cooperate
§440.5.3 The No Action Clause
§440.5.4 The Other Insurance Clause
§440.5.5 Notice of Occurrence and Lawsuit
§440.5.6 The No Assignment Clause
§440.5.7 The Voluntary Payments Clause
§440.5.8 The Subrogation Clause
§440.5.9 “Sue and Labor” and Mitigation of Damages Clause
§440.6 Exclusions
§440.6.1 Burden of Proof on Exclusions and Exceptions to Exclusions
§440.6.2 Expected and Intended Injury–The California Delgado Decision
§440.6.2.1 Separation of Insureds
§440.6.3 Contractual Liability
§440.6.4 Pollution Exclusion
§440.6.5 Automobile Exclusion
§440.6.6 War Exclusion
§440.6.7 Damage to Owned Property
§440.6.8 Damage to “ Your Product”
§440.6.9 Damage to “ Your Work” or “Faulty Workmanship”
§440.6.10 Unenforceable Exclusionary Clauses and Policy Conditions
§440.6.11 Business Pursuits Exclusion
§440.6.12 Policy Exclusion Riders
§440.7 Claims for Emotional Distress
§440.8 Policy Limits, Aggregate Limits, and Exhaustion Issues
§440.8.1 History of Policy Limit Insurance Forms
§440.8.2 Exhaustion: When Insurer Can Withdraw From Defense
§440.8.3 Duties of Excess Insurer That Is Directly
Above Another Excess or Umbrella Carrier
§440.8.4 Claim Payment Allocation and Policy Exhaustion Issues
§440.9 Prorating Coverage
§440.10 Vehicle Ownership, Maintenance, Use, or Operation
§440.11 Pre-Existing Condition
§440.12 Prejudice
§450 CONTRACT DEFENSES
§450.1 Fraud/Rescission: Voiding the Policy
§450.2 Mistake and Reformation
§450.3 Policy Cancelled
§450.4 Renewal or Cancellation of Coverage
§450.5 Covered Malicious Torts
§450.6 Partial Defenses Liquor Liability Exclusion
INVESTIGATING
COVERAGE
4-3 Investigating Coverage
§460 THIRDPARTY LIABILITY POLICIES: SPECIALIZED ISSUES
§461 Duty to Defend
§462 Obligation to Provide Defense for Claims
§462.1 Meaning of Suit Extended to Include “Calderon Notices” in California
§462.2 Insurer Is Obligated to Defend a Contractor in Certain Federal “Adjudicatory”
Administrative Proceedings
§463 Duty to Defend and Independent or Cumis Counsel
§463.1 Duty to Defend Under Several Applicable Policies?
§464 Duty to Indemnify
§465 Deductibles and Self-Insured Retentions (SIRs)
§466 Stop Losses and Aggregate Deductibles
§467 Beware of Allocation Games on Deductibles and SIR’s
§468 Supplemental Payments and Insurer’s Obligation to Pay Attorney Fees as Part of a Judgment
§470 GOOD FAITH COVERAGE INVESTIGATION
§471 Alternative Coverage Investigation
§472 Numerous Theories of Denial—Waiver
§480 ALTERNATIVE DISPUTE RESOLUTION
§481 Four Basic Methods
§482 Declaratory Relief Action
§490 FIRSTPARTY PROPERTY CLAIMS
§491 Scope of Coverage: All Risk or Specified Peril?
§491.1 Investigation of a Property Claim
§491.2 Proof of Loss Requirements
§491.3 Submitting and Completing Proof of Loss Form
§491.4 Defects in Proof of Loss
§491.5 What Constitutes Physical Loss or Damage?
§491.6 Examinations Under Oath
§491.7 Actual Cash Value
§491.8 Replacement Coverage in Homeowners Policies
§491.9 Total Covered Loss and Valued Policy Laws
§492 Collapse and Imminent Collapse
§493 Concurrent Causation
§494 Computer Viruses and Software Coverage
§494.1 Applicability of Standard Form Insurance to Cyber Theft Claims
§495 Mold Claims
§495.1 What Is Mold and Why Has It Become an Insurance Issue?
§495.2 First-Party Mold Claims
§495.3 Is there Coverage for Mold for Third-Party Claims?
§495.4 Additional Research
§496 Sue and Labor Coverage
§4100 TITLE INSURANCE CLAIMS AND COVERAGE
§4101 Standard Form Title Insurance Policies
§4102 Applicable Insurance Code Statutes and Regulations for Title Insurance
§4103 Basic Title Insurance Terms and Definitions
§4104 What a Title Insurance Policy Covers and Does Not Cover
§4105 What Is the Title Insurer’s Obligation if a Defect Is Found?
§4106 Benefits Payable Under a Title Insurance Policy
§4107 Defense of an Adverse Claim
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