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December 18, 2014  

 
75px_malecki   Remembering Don Malecki

The insurance world in general and the National Underwriter Company in particular have lost a colleague and a friend. Don Malecki passed away on Friday, December 12th.

Don was a recognized insurance and risk management expert who spent over 50 years in the business as a writer, consultant, and expert witness. Don began his career as a fire underwriter and later as a supervising casualty underwriter. He began his writing career when he joined the staff of the Fire, Casualty, and Surety (FC&S) Bulletins, the National Underwriter Company, in 1966. Don left the National Underwriter Company in 1984 to start his own consulting practice, a practice in which he contributed his every working hour toward understanding the insurance business, and sharing that understanding and knowledge with all those seeking his guidance. Don was a recognized expert witness who was called upon numerous times over his career to testify in courts around the country as to the history and meaning of insurance policy language. Don was also an author and co-author of many books on insurance and risk management. He was past president of the Cincinnati Chapter of Chartered Property Casualty Underwriters (CPCU) and a member of the Society of Risk Management Consultants.

It is safe to say that Don Malecki was a giant in the insurance industry, a man who dedicated his life's work to learning and teaching about insurance coverage and risk management. Don will be greatly missed by those who benefitted in the past and still benefit now from his sharing of his time and knowledge, and he will be especially missed by those who knew him and worked with him. God Bless.
 Q&A of the Week
Cancellation of Package versus Standalone Policy

A New York subscriber recently asked the following question:

I have a client who has a package auto, home, and umbrella policy. The client recently sold his vehicles and no longer needs to obtain the auto coverage.

Our client has requested to cancel his New York automobile policy (that is insured under a New York package policy). The client still wishes to continue the home coverage.

However, the company said that because the insured no longer has the auto coverage with them, they have to cancel the home policy. We sent the request to just cancel the auto portion of the policy and request to keep the home, but the company said they are cancelling the home.

I was under the assumption by New York state law that a company cannot do this. Please advise if this is legal for a carrier to do this.

ANSWER: Package policies are different than standalone policies and are often contingent on the insured having all the property in a package to cover. Without the auto, the policy no longer qualifies for a true package policy; the carrier may be able to convert it to a standalone policy, but if they do not offer lone homeowners forms, then their only option is to cancel unless the insured is willing to add a named nonowner policy to the package to cover the auto portion. We are not lawyers and cannot provide legal advice; we suggest you consult an attorney or the state insurance department.

 
 Litigation Watch

Coverage for a Mortgagee

The insured's mortgagee brought an action against the insurer to recover for a fire loss to a vacant building. This case is SWE Homes, LP v. Wellington Ins. Co., 436 S.W.3d 86 (Tex. App. 2014).

Sadberry purchased a residential property with a mortgage from SWE. He insured the home with Wellington Insurance Company. The policy contained a mortgage clause and a vacancy clause. The vacancy clause prohibited coverage for damage to the dwelling if the insured building is vacant for sixty consecutive days immediately before a loss.

The property was damaged in a fire and Sadberry filed a claim. However, after Sadberry admitted that the property had been vacant for over a year prior to the fire, the insurer denied coverage. SWE then filed a claim pursuant to the mortgage clause. When Wellington failed to respond, SWE filed a lawsuit. The district court entered summary judgment for the insurer and this appeal followed.

Wellington argued that there was no covered loss since the property had been left vacant for over sixty consecutive days immediately before the loss. SWE argued that under the policy, coverage for the mortgagee could not be defeated by the mortgagor's actions triggering the vacancy clause when SWE had no knowledge of those actions. So, the court of appeals of Texas, Houston, said that the only real dispute here revolves around whether SWE's claim under the mortgage clause is defeated by operation of the policy's vacancy clause.

Wellington focused on the language of the mortgage clause wherein it states that Wellington will pay for any covered loss and then interprets this language as meaning that because Sadberry triggered the vacancy clause by leaving the property vacant for a prolonged period, the fire damage was not a covered loss. SWE countered that this interpretation renders the other sections of the mortgage clause meaningless, that is, the section that declares SWE has the right to receive the loss payment under certain circumstances, including the condition that SWE inform Wellington of any change in occupancy or substantial change in risk that was known to SWE.

The court would not accept the insurer's interpretation of the policy language. The court said that such an interpretation does not construe the document as a whole, harmonizing all of the provisions so that none are rendered meaningless. While the vacancy clause would mean no coverage for the insured, the clear import of the standard loss payable language means that the vacancy clause does not operate to defeat coverage for SWE.

The court noted that there are two common types of loss payable clauses in insurance policies. The open clause states simply that any loss is payable to the mortgagee as its interest may appear, that is, the mortgagee enjoys the same rights as the insured and if coverage is defeated due to an act of the insured, the mortgagee likewise would be denied recovery. The other type is a standard mortgage clause that provides coverage is not invalidated by any act or neglect of the mortgagor. In this case, the court found that the mortgage clause is a standard loss payable clause and so, acts committed by Sadberry would not constitute a defense to an action by SWE.

The court also noted that the provisions barring coverage would be rendered void by operation of Texas Insurance Code, section 862.055.

The opinion of the trial court was reversed and remanded.

Editor's Note: The court of appeals contrasted the vacancy clause with the mortgagee clause and decided that the language favored the mortgagee in its quest to have coverage for the fire loss. As long as the mortgagee complied with the terms of the mortgagee clause (and it did), the insurer was obliged to pay the mortgagee for the loss.

 
   
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