Benjamin R. Messing

All articles by Benjamin R. Messing

 

Texas Supreme Court Opens the Door for Statutory Damages After Appraisal

Good faith use of the appraisal process to resolve legitimate valuation disputes under a property policy is no longer an absolute defense under Texas law to claims for statutory delay damages. In a pair of decisions regarding appraisal, the Texas Supreme Court held that when appraisal is invoked after the commencement of litigation, the prompt payment of the award by an insurer precludes statutory bad faith claims under Chapter 541 of the Texas Insurance Code, but potentially allows for statutory
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Can You Depreciate Labor? Tennessee Supreme Court Says No.

When calculating the actual cash value (ACV) amount of property damage, the labor component cannot be depreciated according to the Tennessee Supreme Court in a unanimous decision answering a certified question.  Lammert, et. al v. Auto-Owners (Mutual) Ins. Co., 2019 WL 1592687 (Tenn. April 15, 2019). At issue were two homeowner policies, one policy which contained a definition of ACV and the other which did not, but neither policy explicitly stated whether labor costs were included within the scope of
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Not So Fast – Pennsylvania’s Bad Faith Statute Is Not A Blank Check for Fees

The Third Circuit recently held that a jury bad faith damage award does not automatically entitle a successful claimant to an award of attorney’s fees under Pennsylvania’s bad faith statute. In affirming the district court’s denial of an award of attorney’s fees, the Third Circuit formally endorsed the view that where a fee-shifting statute provides a court with discretion to award attorney’s fees, such discretion includes the ability to deny a fee request that is outrageously excessive. In doing so, the
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Years Later, Hurricane Sandy Claims Still Present Unique Coverage Questions

The Second Circuit’s recent reversal of summary judgment involving a coverage dispute over a $50M Hurricane Sandy storm surge claim is an important reminder to always closely read the policy. At first blush, the policy in question was a seemingly standard all-risk commercial property policy that featured a flood exclusion and a separate windstorm or hail deductible endorsement. The coverage analysis in this case should have been straightforward – storm surge falls within the scope of the flood exclusion vitiating
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