2nd Source - C111 Chapter 7 Advanced Loss Adjusting




Chapter 7 – Commercial Property Losses





Introduction
-        Loss investigation activities for commercial risks are similar to those for personal lines
-        The main differences are the nature of the property is different (due to its use) and the wordings are geared toward commercial policies
-        Business have many levels of exposure with many policies that may respond to a loss like a CGL, property policy and business interruption, to name a few
-        Commercial policies are not standard wordings and therefore variation in policy wordings from insurer to insurer must be reviewed by the adjuster to understand the coverages available to a loss;  endorsements may limit or extend coverages;  possibility that due to the large size of the commercial risk being insured, manuscript wording policy may be enforce

Interpreting Commercial Policies
-        Policy analysis starts with a review of the declaration page (dec pg)
-        The information a loss adjuster looks for on the dec pg are:
·         Insured's information
·         Address of property that is covered by the policy
·         Specific amounts of coverage for the different lines of insurance
·         Other entities having interest in the property insured (e.g. Mortgage)
·         Additional named insureds
·         Parties having a legal interest in the property insured
·         Loss payees who have rights to indemnity (same as the insured)
·         Policy number
·         Policy wordings; i.e. exclusions and limitations
-        The dec pg will include the form number for the actual policy wording used; the adjuster should know whether the wording is a standard wording or a manuscript wording
-        Mortgagees and other lien holders and their interests must be noted on the policy because any claims payment must include these entities as a loss payee
-        Another concern for the loss adjuster is to see if policy wordings, with regards to lien holders, have an independent right of recovery under the policy, regardless if the insured has is some way breached a policy condition or committed insurance fraud
-        If the endorsement, which is for the lien holder, has no clause to protect it, than any breach of the policy or insurance fraud by the insured will extend to the lien holder as well;  both the lien holder and insured will forfeit indemnity under the policy in this instance
-        When a endorsement/clause exists that protects the mortgagee even if the insured has breached a condition of the policy or committed insurance fraud, the insurer can assume the interest of the mortgagee;  the insurer can pay the full mortgage balance and try to recover the loss payment from the named insured or foreclose upon the property to sell it; an insurer would choose this option if the property has a significant value



-        The following principles are used to interpret policy wordings:
·         What was the purpose of the parties to the contract if this contract was enforce;  ambiguous elements should be reviewed closely to see what expectations were available
·         Policy wordings should be read as a whole
·         Words and phrases used in wordings should e given their ordinary everyday meaning unless they have been otherwise defined in the policy
·         Provisions in the policy should be interpreted broadly in favour of the insured and exclusions should be interpreted strictly and narrowly against the insurer
·         Contra Proferentum Rule  - when ambiguity exists the policy should be construed in favour of the insured, as it was the insurer who drafted the contract;  this imbalance of power, since the insurer wrote the contract, protects the insured from any ambiguous wordings and goes against the party that drafted the contract
·         A clause under review should have its intent taken from the policy
·         It is the insured who must prove that coverage applies
·         It is the insurer who must prove that a exclusion or limitation clause applies
-        Some words and phrases that are commonly used in policies have been subject to judicial review;  the loss adjuster should make note of the law and the developing legal trends;  a decision on one case may not apply to another case
-        The loss adjuster must be alert to the possibility that an insured, faced with damaged property that is not covered by the policy may have a motive to commit insurance fraud
-        A warranty, whether expressed (in writing) or implied, may be used to limit policy coverage;  a promissory warranty requires strict compliance under all circumstances
-        The results, if an insured fails to comply with a policy warranty, are the following:
·         Limit policy coverage
·         Insurer may be discharged from liability under the policy from the date of the breach
·         Void the policy ab initio (from the beginning)
·         Suspend the policy coverage until the breach is remedied



Breach of Condition
-        A breach of condition clause keeps the policy coverage enforce for losses that are not related in any way to the breach of warranty
Example - A hailstorm damaged the insured's roof.  The hailstorm occurred after the insured had become aware that the fire detection system in the property was no longer in service.  The lapse of the fire detection systems had no effect on the hailstorm damage and would not affect the coverage for the hailstorm damage, since a fire detection system was not designed to detect hailstorms






Property Protection Systems
-        The Property Protection Clause stat that the insured must notify the insurer of any interruption (to the insured's knowledge), or a flaw in or defect of any:
·         Sprinkler or other fire extinguisher systems
·         Intrusion detection systems
·         Cancellation or non-renewal of any contract which provides monitoring or maintenance services
·         Suspension of policies in response to any fire detection or intrusion detection systems

-        Basis of settlement is explained in the policy and is normally ACV for many policies
-        Some policies may have wordings that waive the co-insurance clause if the loss is under a certain amount, but if the loss is of a large amount then the co-insurance clause will be applied
Example - Sunfire Inc. has a policy with the amount of insurance set at $1mill on equipment with a 100% co-insurance clause.  Upon a thorough investigation the loss adjuster was able to verify the loss to the insured's equipment was valued at $400,000.  However, the adjuster also determined in the course of the investigation that the total value of the equipment was $2mill.  The co-insurance formula used to determine the basis of settlement and was applied as follows:

Amount of insurance carried (DID)             x   Amount of Loss   =  Settlement Amount
Amount that SHOULD have been insured

$1,000,000   x   $400,000 =  $200,000
$2,000,000



Condition of Risk Referred to Underwriters
-        The adjuster will refer a risk to underwriters when information is uncovered that shows:
·         The risk was misclassified
·         The risk does NOT meet the underwriting criteria
·         There is a material change in the risk that could possibly void coverage
-        The underwriter may decided to increase the premium or take some other action on the risk that may interfere with the smooth and competent handling of the claim
-        The actions decided by the underwriter should be carried out by the loss adjuster, but the loss adjuster should weigh the consequences carefully as inappropriate action may seriously impede the progress on a claims file




Urgent Claims Action
-        In a claims situation it is the insured's responsibility to authorize:
·         Quick emergency action
·         Clean up of premises
·         Board up premises to ensure access to dangerous property is controlled
·         Protect the insured property against further damage
·         All actions must be done to mitigate the cost the claim
-        The insured can do recovery work, which may help keep the costs to reasonable levels
-        The loss adjuster may enlist the help of an engineer or a general contractor to ensure that the work is done properly and economically; e.g. work like taking down walls and shoring (supporting existing structures to prevent them from falling)
-        Once the damages are assessed the loss adjusters should notify the underwriters
-        After emergency work has been completed, the general contractor would be asked to estimate damages according to the scope-of-repair;  an experienced, knowledgeable, and competent general contractor or estimator should be hired
-        The scoping of insured damages is an important step in the claims process as it will determine if an item can be repaired or replaced; e.g. A wall may need cleaning and repainting rather than being taken down and replaced;  items that require replacement may still have a residual salvage value
-        Often the adequate scoping for the repair estimate will be the centre of dispute when settling the claim
-        Review of the estimate is also required in order to ensure:
·         items were not overstated
·         that more work wasn't done in order to drive up costs
·         price on a particular item was not inflated
·         quantities or measurements have not been overstated
·         that old unrepaired damages are not to be included in the claim
-        However, it is the duty of the insurer, once it invokes its right to complete the repairs, to do so competently;  if the roof was installed incorrectly the insurer must make good on the faulty repair work otherwise any resulting damage due to the improper repairing the roof will rest with the insurer;  the insurer may have a subrogation opportunity against the roofer who negligently installed the roof

Salvaging Operations
-        The reason an insured might perform salvage activities are:
·         To mitigate the cost of the loss
·         Insured is the rightful owner of the damaged property until the insurer indemnifies the insured;  there may be policy conditions that state there can be no abandonment of damaged property to the insurer without prior written consent from the insurer
·         Insured may have strategies in place to save property from further damage
-        Often there is a narrow time frame for decisions in which salvage operations can be effective
-        The more time that passes, the more likely there is a decrease in the value of the goods;  the quicker the salvor can turnover stock the more profit will result
-        The salvor who bids on damaged goods must know all the costs that they will have to incur in order to repair it
-        On partially damaged, reconditioned stock the settlement of the claim would be the cost to recondition or repair the property.  If the property is sold as damaged stock (i.e. fire sale) the claim would be settled on the difference between the normal sale price and the reduced price
Example - Merchandise that was damaged due to fire but was still sellable as damaged stock was done so by the insured.  The merchandise was sold at 70% off the normal price.  The cost to recondition the stock was more costly and the insurer agreed to settle the insured's claim for the difference of the sale price and the discounted price; i.e. 70%
-        Reputable professional salvors and liquidators may offer appraisal services, out-of-market sales (person or entities that sell items to wholesalers who then sell to retailers) or auction services;  the salvor may charge for each service provided, such as:
·         picking up the goods
·         transporting the goods
·         packing the goods
·         storing the goods
-        The insured would have to sign off on any salvage sale agreement as they own the property unless they are indemnified by the insurer who then assumes the right of recovery through the policy contract



Water Damage Losses
-        The cause of the water damage is the key to any investigation especially if the policy is a Named peril form
-        For commercial risks the Named peril form covers only water escape from the fire protection equipment, like sprinklers and all other water escape losses are excluded
-        Water related perils typically excluded under the broad form coverage of a commercial policy are:
·         Floods which include:
Ø  Waves
Ø  Tides
Ø  Tidal waves
Ø  Tsunamis
Ø  Rising of, breaking out, or overflow of any body of water (natural or manmade)
Ø  Exceptions;  if the proximate cause of the loss was fire, explosion, smoke, leakage from protective equipment, leakage from a water main, or property in transit



·         Seepage, leakage, or influx of water derived from natural sources through basement walls, doors, windows, or other openings from:
Ø  Foundations
Ø  Basement floors
Ø  Sidewalks and side walk lights
Ø  Sewer backup
Ø  Sump pump, septic tank or drains
Ø  Exceptions; if the proximate cause of the loss was fire, explosion, smoke, leakage from protective equipment, leakage from a water main, or property in transit

Commercial Fire Losses
-        If the loss adjuster visits the loss site of a fire loss, s/he should examine where the fire originated, if the circumstances permit
-        For commercial establishments that have a kitchen, there is a good chance the fire will originate in this area
-        If the kitchen is the point of origin of the fire the adjuster should review the history of the following:
·         Maintenance
·         Cleaning schedules
-        The insured should have kept records of these activities in order for the adjuster to properly investigate the claim;  the loss adjuster should also interview any staff and insured of who was the last person to use the cooking equipment and how it was used
-        The loss adjuster should investigate the source of power for the cooking equipment (e.g. natural gas or electricity) to compare it to the information the insured presented in the application
-        The loss adjuster should be familiar with equipment that is used; e.g. pizzeria's may use a wood-fired pizza oven or a electric pizza oven while other restaurants may use deep fryers, gills, or bake ovens for their cooking processes
-        For those establishments that use deep-frying equipment and grills the grease vapours that are produced are suppose to be drawn into the exhaust hood;  these types of exhaust hoods have filters and ducts that must be cleaned periodically to prevent grease build up to prevent the hazard of fire;  logs or invoices for contractors should be reviewed in order to see when the last service was completed
-        If faulty workmanship for the maintenance of the cooking equipment is the cause of the fire loss the adjuster should be aware of any subrogation opportunities against the service contractor;  there is also a possibility of subrogation against the supplier of materials that were defective causing the loss, like the filters used in the exhaust hood that failed to properly absorb the grease vapour
-        The loss adjuster should also investigate to see if the sprinkler system was working;  if it was not working when did the insured come to know this fact; there are warranties in the contract that state the insured should inform the insurer of any defects to the sprinkler systems, as this is a material fact that will affect the risk and possibly invalidate coverage under the policy if the insured knew prior the loss



-        The reason the insured may have a motive for arson for loss caused by perils excluded by the Broad form commercial policy are:
·         The existing damages due to the excluded peril are too costly to repair
·         Reconstruction will take longer than expected and would severely damage the insured's ability to operate the business
·         Bylaws violation have been exposed and the cost to repair has greatly increased
·         Equipment needed by the insured to operate the business was damage due to the excluded peril and this has caused customers to find competitors, severely crippling the revenue stream of the insured

Stock Losses
-        Basis of settlement for stock; manufacturers may lose stock in various stages of production;  finished goods and goods partially manufactured, indemnity is restricted to the cost of materials plus the cost of labour and other incidental charges necessary to bring the product up to the same state it was it prior to the loss
-        Stock already sold and waiting to be delivered would be valued at the price for which it was sold less any discounts applied;  unsold stock is settled on the ACV
-        For Stock declaration policy forms, coverage is on the basis of the actual cash value and losses will be paid according to the stock values reported
-        The insured may suffer penalty if the amount of insurance was not adequate to cover the loss or the application of the co-insurance clause in the policy

Builders Risk Losses
-        AKA Course of Construction insurance policies
-        Designed specifically to insure property that is under construction
-        The loss adjuster should account for unforeseen problems like:
·         soil conditions that need to be addressed prior to construction
·         water table levels that rise and possibly pose greater hazard
·         termite infestation
·         cracked foundation
·         mold or fungi
·         asbestos used in original construction
-        If these problems exist there could be a motive for insurance fraud
-        The builder's risk policy covers the owners, the general contractor and any sub-contractors is to provide blanket coverage in order to avoid disagreements in the course of a claim when a party involved in the construction project has its own insurance policy
-        The subrogation clause in a builder's risk policy waives all subrogation rights against any party insured by the policy, this way if any party insured causes damage, as a result of negligence, the insurer will not subrogate against that party
-        For claims covered under builder's risk, coverages are provided on an all risk basis and exclusions will determine what is covered and what is excluded;  the loss adjuster should determine both the proximate and immediate cause of loss in order to determine if coverage applies
-        Builder's risk broad form provides replacement cost coverage; this includes the cost of replacing, repairing, constructing, or reconstructing the property as long as the following conditions are met:
·         takes place on the same site
·         materials are new or of like kind and quality
·         occupancy of the building is unchanged and remains as it was originally intended

Contractors Equipment Floater Losses
-        Contractor's equipment floater insurers large equipment used for:
·         building roads
·         excavations
·         construction
·         road maintenance
·         snow removal
-        Coverage also extends to hand tools and smaller pieces of equipment, as well as machinery and equipment under the following circumstances:
·         while it is on the job
·         in transit between jobs
·         undergoing repairs in a repair shop
·         being stored in the open or inside
-        Exclusions under the Contractors Equipment Floater are for machinery or equipment that is rented or leased, but this can be insured through the addition of an endorsement
-        Other exclusions include losses that are caused by exceeding the rated capacity of the equipment
Example - High Hoisters Inc. operates a crane to hoist materials and equipment to upper floors of buildings.  Due to labour and weather delays the project falls behind.  In order to make up time the company uses larger loads to hoist materials to the upper floors, but exceeds the maximum recommended capacity.  On a large load hoist the crane collapses.  After a thorough investigation the loss adjuster confirms the loads used exceeded the recommended weight capacity of the crane causing the crane to collapse and as such the insurer denied the claim
-        There may also be specific limits of insurance and the loss adjuster should review all wordings under the policy
-        The insured must inform the insurer of any purchase for any newly acquired equipment within a specified period of time from the date of acquisition in order for coverage to be extended to the newly acquired equipment
-        Co-insurance clause also exist which could penalize the insured for not insuring the property to value




Installation Floater Claims
-        A contractor can be the following and more:
·         Cabinetry installer
·         Heating installer
·         Air conditioning installer
·         Plumber
·         Equipment for production installer
-        While installation is taking place the contractor has an insurable interest in the material, fixtures or equipment until either the work has been accepted or the contractors interest in this property ceases;  the contractor's interest in a property will usually cease when the work is completed
-        Example - Jeff was contracted as a cabinetmaker under Residential Depot Inc. to install kitchen cabinets and a counter top for Vijay.  Residential Depot provided the materials and equipment for Jeff to complete the work.  Residential Depot had a installation floater added to its policy prior to the job.  It took Jeff 10 days to finish the job and at 18:00 hrs on the last day he called Residential Depot HQ to advise the work was done.  Residential Depot was informed the next day a fire had occurred at the residence where Jeff had completed the job at around 20:00 hrs the day before.  Residential Depot put in a claim for the materials used by Jeff to complete the job, promptly.  The insurer for the Installation Floater advised that Residential Depot's interest ceased to exist at 18:00 hrs when Jeff completed the job and the materials used by Jeff, upon completion of the job, belonged to the owner Vijay.  The claim was denied due to a lack of insurable interest.
-        Installation Floater can be sold as Named Perils or All Risks coverage and the wordings are customized to each insured and each operation
-        Contractors who install electrical, refrigeration, mechanical, or other equipment may have testing coverage added to the policy wording, otherwise damage to equipment as a result of testing is specifically excluded

Boiler and Machinery Losses
-        Boiler and machinery coverage is a specialized area, and specialists from boiler and machinery insurers usually attend to these losses
-        This type of policy covers direct losses caused by accident to equipment specifically insured under the property
-        "Accident" is defined to be a sudden and accidental breakdown of the equipment insured which results in simultaneous physical damage to it, and the physical damage must require the repair or replacement of it
-        Equipment that may be included for coverage are:
·         pressure equipment
·         boilers
·         hot water tanks
·         air tanks
·         steam cookers
·         refrigeration and air conditioning vessels
·         piping
-        Basis of settlement would be the least of the cost to repair the damaged property or the cost to replace it with property of like kind, capacity, size, quality, and function;  another condition when equipment is to be replaced is that it must be installed for the same site or an adjacent site
-        Depreciation is NOT applicable unless repairs or replacements take place twelve (12) months after the date of the accident
-        Property that is excluded under the policy are those deemed useless or obsolete to the insured
-        Perils excluded is if a fire, smoke, combustion or explosion occurs, which is not related to the boiler & machinery equipment, but boiler & machinery equipment is damaged along with other property;  this is excluded as it is covered under the property policy
-        Exception to the peril excluded is arcing occurs within an electrical object causing a fire;  it is difficult to separate damages within the equipment;  the boiler & machinery insurer and the property insurer will share the loss to the equipment;  Agreement of Guiding Principles is often used by insurers when multiple policies cover the same loss and this agreement is provided to signatory insurers who are members of the Agreement through the Insurance Bureau of Canada (IBC)
Example - Part of the Agreement will address rateable contribution when multiple policies that cover the same loss have different deductibles.  Often the purpose of such an Agreement will give a larger settlement to the insured and provide a more equitable rateable contribution to the insurers, balancing the principle of indemnity and fair contribution of indemnity by multiple insurers

Subrogation in Property Claims
-        Subrogation in commercial claims are similar to those in other claims
Example - A roof collapses shortly after being installed.  The loss adjuster explores the possibility that the installer used defective roof material, the roof was inadequately designed, the roof was improperly installed or a combination of these.  The loss adjuster, once having enough evidence, explores the opportunity to subrogate against the installer or the product manufacturer or both based on the investigation results
-        It is important to manage an insured's expectations on a subrogation action because the attempt to recover funds from the responsible party may not be successful or economical to pursue; the factors to consider when an insurer pursues subrogation are:
·         Responsible party is judgement proof (has no assets or financial ability to satisfy the award)
·         Responsible party didn't carry liability insurance
·         Responsible party may be deceased and any subrogation recovery action dies along with the responsible party
·         Responsible party is NOT in a position to defend his/herself;  however a default judgement can be secured
·         Responsible party can NOT be located
·         Responsible party is incarcerated and restitution will take an extended period of time
-        There are many factors that must be evaluated when an insurer decides to pursue recovery
-        Parties who may be responsible for the loss must be put on notice as soon as possible;  the insurer should send out a letter confirming the damage and demanding payment from the responsible party
-        An damage that is NOT indemnified by the insurer to the insured can be recovered by the insured against the responsible party unless statute law prohibits such an action; i.e. the Insurance Act of Ontario
-        When only part of the claim has been recovered the policy or insurance act will determine how the money is to be distributed to the insured and insurer;  most often the insured will be entitled to recover his/her loss total first and the balance will go to the insurer;  the insurer has the right to deduct its expense to pursue recovery from the amount obtained from the negligent party prior to the distribution of funds to the insured
-        The amount to be recovered from the negligent party is subject to negotiation;  the tortfeasor may NOT be required to pay back the full amount recovered under the insurance contract
Example - The insured had hired Rob Builder's Co. to add an addition to its existing building.  During construction the wall was not shored properly and fell causing damage to equipment owned by the insured.  Falling objects are covered under the insured's property policy on a replacement basis.  Equipment was damaged beyond repair, due to the falling wall and was replaced by the insurer with a new like kind & quality equipment.  The CGL policy of Rob Builder's Co. refused to settle the claim for the equipment at replacement cost and instead was only legally obligated to pay the ACV of the equipment that was damaged.  The equipment that was damaged was 5 yrs old.  The CGL insurer paid 50% of the replacement cost of the new equipment.  The insured's insurer accepted the negotiated value based on ACV.

Adjuster's Reports
-        The loss adjuster will send a preliminary report to the insurer within 24 to 72 hours, once the insurer has been informed of the claim
-        The preliminary report for more complex loses will likely have less information as investigation remains pending
-        The preliminary report for less complex claims will usually be more thorough and often the preliminary report will also be the final report
-        The preliminary report will note:
·         any coverage issues
·         provide an tentative estimate for the amount of loss for reserving purposes
·         recommendations for future handling of the file
·         recommendation of any advance payment to the insured to mitigate the claim
-        The Detailed Adjuster's Report will follow the preliminary report;  the detailed report will usually be delivered to the insurer within approximately 15 days after delivery of the preliminary report



-        The loss Detailed Adjuster's Report will usually contain the following information:
·         Detailed narrative of the loss
·         Explanation of the damages
·         Repair estimates for the damages
·         Salvor's information and evaluation of what is not repairable; any salvage value for damage property
·         Copies of contracts; e.g. Lease agreements
·         Statements of parties involved in the loss; i.e. TP, insured, witnesses, police, fire dept., investigator, etc.
·         Emergency service reports; e.g. Police, fire dept, ambulance records, etc.
·         Reserve recommendations and revised updates
·         Recommendation of advance payments in order to mitigate the claim; these payments will only be issued if the insurer gives permission to do so