I'm not going to fight each issue one at a time. I'm waiting
until I can address them all with them at the same time,
as a final settlement.
I looked into it a bit. Big problem is that the whole claim is up
to $10K. So, it's not a big enticement for any adjuster. I
called the two local ones that I could find and both are not
taking any new clients. The person on the phone at one of
them gave me advice along the lines that I'm probably better
off dealing with the insurance company myself. Sounded like
they were not having a lot of luck with the insurance companies
>Do you know how this adjustor got
Allstate picked them. What their internal process is, who
Yes, from TN. And that I think is part of the problem. An
adjuster that lives in the NYC/NJ area has a better understanding
of what things cost. I'm sure they still have the same per sq ft
costs loaded, but if they see a paint job comes out to $1100 and
they know from personal experience there is no way in hell it
can be done for that, I think they are far more likely to go back
and do some fiddling with line items within their control to make
it come out right. After a lot of complaining, I finally did get
the adjuster to pay for two coats, after insisting all along that
they never would. Even with that, it's still $1000 less than the
lowest quote and I've gotten about 6 now.
One problem with that is that I can't find the damn thing at
the moment. But it doesn't matter at the moment, because my
strategy right now is to address all the remaining issues at
On 3/26/2013 8:09 AM, firstname.lastname@example.org wrote:
The agent certainly should be able to furnish one in a heartbeat.
I'd forgotten the carrier; I've never dealt w/ Allstate but my sense is
they're one of the PITA outfits. Our carrier has always been the Farm
Bureau in the state of current residence and while they may be a little
higher premiums, I've never had any difficulty in the claims process.
But, you've got to be able to qualify as member in the Farm Bureau in
most states for them to underwrite which is generally not possible for
urban dwellings. Not that any of that helps your current problem, just
I looked at the State Farm web site for catastrophe adjustment and there
are a couple of interesting things at the following page--nothing I
found specifically covered the question of coverage re: code-mandated
upgrades but the question of the depreciated estimate and replacement
coverage for personal property was...says they'll make an additional
restitution on the actual replacement cost when you supply your cost
documentation for the repair or replacement of the item.
Seems like a reasonable approach to work it out in the end--they do have
a generic paragraph about the difference between contractor estimate and
adjustment as well...they (of course) claim they have "local rates"
built into their software but rates for whom--the illegals gathered in
front of the Lowes every morning, maybe? :)
I didn't find any mention as noted on the Code or the 'law and
regulation' rider issue. I don't recall whether you said NJ or NY so
didn't look at state sites to see what they're saying.
I'd be on the agent, though to get on my side to at least reach the
minimum reputable contractor estimates for the physical repair work...
On 3/24/2013 7:07 AM, email@example.com wrote:
Again, yeah, that one.... :)
One other comment intended to make on the above point.
Be completely clear there are two different issues here--lowball rates
for covered repairs will be much more easily contested and while I
understand it's irritating and frustrating, don't get too bent out of
shape too soon over them. That's the kind of the thing independent
adjustors or tradesmen can help with and do all the time successfully.
The larger issue that has been the subject of the sidebar discussion is
one of what is/isn't covered. That's the one that is strictly going to
be a legal issue first and that you really need to get factual into the
nitty-gritty of the _specific_ language of your _specific_ policy and
any riders attached thereto.
If you have replacement cost coverage, they DO have to replace it to
current code, at no cost to you. You pay your deductible - the
insurance covers the rest. Period.
My brother's old farmhouse burned to the ground. Insurance paid to
build a house of the same square footage - all brand new - to the same
level of finish. The old house was pretty basic, so the insurance
would not pay for travertine floors, marble kitchen counters etc - but
he DID get double glazed argon filled windows in place of the drafty
wood-sash single pane windows the old house had - and the wiring and
plumbing were to current code, not 1938 standards like the old house.
And he even got a square foundation and floors that were level.
On 3/23/2013 3:19 PM, firstname.lastname@example.org wrote:
No, not necessarily...there may be some jurisdictions that require such
riders (in the US only FL that I know of for sure at the moment) but
it's not uncommon for there to be an "ordinance or law" exclusion in a
standard replacement policy (in fact, any more it's more common for it
to be there rather than not which is why one needs to read the policy in
its entirety in the actual policy language and can't rely simply on the
general description to know of what is/isn't actually covered).
I have no idea about Canada, specifically...wouldn't surprise if it were
a reqm't there.
Here's a case that was litigated in Colorado about this exact issue
with Allstate. Allstate tried to claim the exact same thing, that
cost coverage only meant they would pay for a replacement house that
could not be legally built because current codes required some things
beyond what was required when the house was originally built. The
first court agreed with Allstate and you guys. The appeals court
reversed the whole decision and agreed with the plaintiff and my
interpretation, ie that replacement cost coverage means the insurance
company has to pay to build it to current code. They said it in a
elegant way. Replacement cost coverage is supposed to put you
back in the position you were in before the loss, ie replace what was
damaged. The fact that it costs more now due to some code
does not put the insured in a better position, they are still only
a house that they can live in like they originally had. Or in my
case a roof.
"Plaintiff contends that the trial court erred in concluding that the
replacement cost limitation for “equivalent construction for simila
use” is unambiguous and precludes coverage for the cost of upgradin
the fire damaged parts of her house to comply with current building
codes. We agree.
In its order granting summary judgment to defendant, the trial court
noted that “[o]ne of the traditional concepts of fire insurance is
indemnify or compensate the insured for the actual loss sustained, and
not to place the insured in a better position than he or she was in at
the time of the fire,” citing Bischel v. Fire Insurance Exchange, 1
Cal.App.4th 1168, 2 Cal.Rptr.2d 575 (1991), and Breshears v. Indiana
Lumbermens Mutual Insurance Co., 256 Cal.App.2d 245, 63 Cal.Rptr. 879
(1967). The trial court reasoned that replacing plaintiff's
noncomplying structure with one that complied with current building
codes would compensate plaintiff for expenditures she had never made
and would put her in a better position than she had been in prior to
Taking this reasoning into account when applying the common definition
of the terms to the facts, the court concluded that:
“equivalent construction for similar use” does not require
to pay for structural improvements or code upgrades which were not in
existence in the building at the time of the fire despite the fact
that any new construction must conform to current building codes.
“Equivalent construction for similar use” requires
construction equal or like in value or worth to that which was
destroyed or damaged for a use nearly corresponding or resembling in
many respects the pre-fire use (i.e., in this case a house which,
although it was inhabited, did not conform to current building codes).
Plaintiff contends that interpreting the policy language to include
the cost of building code upgrades does not conflict with the
principle of not putting an insured in a better position than he or
she was in before the fire and that the provision can reasonably be
interpreted to include the cost of returning the dwelling to its
equivalent or similar use as a habitable structure. We agree with
An insured who does not rebuild or repair is generally entitled on
to the actual value of the loss, and payment of additional amounts
representing a higher cost to replace the structure would be an
impermissible windfall. See State Ins. Co. v. Taylor, 14 Colo. 49
511, 24 P. 333, 337 (1890)(“[t]he rule of damages is the value of t
property lost, and not the cost of replacement,” and the measure fo
destroyed buildings is “the actual value of the property in the
condition it was in at the time of loss, taking into consideration its
age and condition, and not necessarily what it would cost to erect a
new building”); Dombrosky v. Farmers Ins. Co., 84 Wash.App
. 245, 259,
928 P.2d 1127, 1136 (1996)(where insured had not incurred the
additional cost of replacing the structure, payment of additional
amount would be a windfall).
However, while an actual cost policy is designed to avoid placing
insured in a better position than he or she was in before the fire, a
replacement cost policy allows for such a possibility because it is
intended to allow the insured to replace the damaged building. Se
Hess v. North Pac. Ins. Co., 122 Wash.2d 180, 859 P.2d 586 (1993)
(replacement cost coverage is not limited by concept of indemnity and
recognizes that obsolescence and deterioration are insurable risks);
12 L. Russ, Couch on Insurance 3d § 176:56 (1998)(“Rep
coverage was devised to remedy the shortfall in coverage which results
under a property insurance policy compensating the insured for actual
cash value alone.”).
Here, the policy defines replacement cost as the “cost to
rebuild or replace the damaged or destroyed part(s) of the building(s)
without deduction for depreciation.” However, defendant's
interpretation of this clause-requiring only the payment of the cost
to provide a building constructed to its prefire specifications rather
than a functional replacement-conflates the separate concepts of
replacement cost and reproduction cost:
Reproduction cost is the estimated cost to construct, at current
prices, an exact duplicate or replica of the building being appraised,
using the same materials, construction standards, design, layout, and
quality of workmanship, and embodying all the deficiencies,
superadequacies, and obsolescence of the subject building.
Replacement cost is the estimated cost to construct, at current
prices, a building with utility equivalent to the building being
appraised, using modern materials and current standards, design, and
American Institute of Real Estate Appraisers, Appraisal of Real Estate
ch. 15, at 351-52 (9th ed.1987); see also Black's, supra, at 349
(“replacement cost” defined as the “cost of acquiri
ng an asset that is
as equally useful or productive as an asset currently held”).
Thus, nothing in the concept of “replacement cost” coverage
plaintiff's recovery to the cost of restoring her house to its prefire
Regardless of the actual “replacement cost,” however, the p
contains a limitation on the amount that will be paid. It provide
that the amount paid for replacement cost is not to exceed the
smallest of the cost for “equivalent construction for similar use o
the same premises,” the limit of the policy, or the amount actually
Defendant contends that the “equivalent construction for similar us
limitation does not include the cost of rendering plaintiff's house
habitable by complying with changed building codes, even if that
amount is otherwise encompassed in “replacement cost,” and
any event, plaintiff's recovery here is limited to the amount she
actually expended on the modular home. We disagree with both
Defendant contends that the restriction on replacement cost to
“equivalent construction for similar use” clearly limits re
cost coverage to reproduction cost. We disagree.
“[C]overage provisions in an insurance contract are to be
construed in favor of the insured to provide the broadest possible
coverage.” Fire Ins. Exch. v. Bentley, 953 P.2d 1297, 1300
1998). While an insurer may exclude events from coverage, see
O'Connor v. Proprietors Ins. Co., 696 P.2d 282 (Colo.1985), the
exclusion must be clear and specific. See Bohrer v. Church Mut. I
Co., 965 P.2d 1258 (Colo.1998). Only if the language of the
exclusion is unambiguous will it alter the reasonable expectations of
an insured. See Principal Mut. Life Ins. Co. v. Progressive Mount
Ins. Co., 1 P.3d 250 (Colo.App.1999), aff'd, 27 P.3d 343 (Colo.2001).
Here, the limitation provides for the cost of “equivalent construct
for similar use.” The terms are not defined in the policy
, but their
meaning can be ascertained from common definitions. “Equivalent
defined as “[e]qual in value, force, amount, effect, or significanc
or as “[c]orresponding in effect or function; nearly ident
virtually identical.” Black's, supra, at 561.
“Use” is defined as
“[t]he application or employment of something; esp., a lon
possession and employment of a thing for the purpose for which it is
adapted.” Black's, supra, at 1540.
As the definitions of both “equivalent” and “use
include concepts of
functionality, the plain meaning of the term “equivalent constructi
for similar use” includes maintaining the property's prefire functi
Prior to the fire, plaintiff's house was a habitable dwelling yielding
rental income. Merely restoring it to its prefire condition would
have rendered it uninhabitable and thus unfit for any similar use.
Such a result does not comport with the plain language of the
limitation or the reasonable expectations of an insured purchasing a
replacement cost policy. See Bering Strait Sch. Dist. v. RLI Ins.
Co., 873 P.2d 1292 (Alaska 1994); Starczewski v. Unigard Ins. Grou
61 Wash.App. 267, 810 P.2d 58 (1991).
Although defendant cites cases that have reached the opposite result-
some interpreting “equivalent construction” to preclude the
building code upgrades and some finding the exclusion for building
codes applicable-most of those cases involved policies that also
included language that the insurer would pay replacement cost “with
allowance for any increased cost of repair or reconstruction by reason
of any ordinance or law regulating construction or repair.”
Bischel v. Fire Ins. Exch., supra, 1 Cal.App.4th at 1174, 2 Cal.Rptr.
2d at 578; McCorkle v. State Farm Ins. Co., 221 Cal.App.3d 610, 27
Cal.Rptr. 492 (1990); Breshears v. Ind. Lumbermens Mut. Ins. Co.,
supra; Bradford v. Home Ins. Co., 384 A.2d 52 (Me.1978);
v. Commerce Ins. Co., 196 Va. 106, 82 S.E.2d 477 (1954); see also
Hewins v. London Assurance Corp., 184 Mass. 177, 182, 68 N.E. 62, 64
(1903)(amount paid “shall in no event exceed what it would then cos
the insured to repair or replace the same with material of like kind
and quality,” and insurer was not liable “beyond the actual
destroyed by fire”).
Here, however, no other language in the policy would negate the
reasonableness of interpreting the “equivalent construction for
similar use” limitation as contemplating similar functional utility
and thus to include the cost of complying with regulations necessary
to render plaintiff's house habitable.
On 3/24/2013 7:06 AM, email@example.com wrote:
Well, we're back to what I've said all along--in the end it will come
down to the details of what your policy says and, specifically, whether
it does or does not have an exclusion or not. It's why I said there was
(I figure probably slim) chance it's an overly zealous adjustor but I
figured it was likely the adjustor knows what the policy he's adjusting
against actually covers as the better odds.
And, then if it doesn't and the adjustor still doesn't want to give and
your personal agent won't help then you have the choice as to whether
it's worth the legal battle to fight or not.
But the above judgment wins on your side because the particular
litigant's policy did not have the exclusion not because it's a general
principle in all cases. As always, in law, the particular facts will
pertain on the particular case and slight differences in those can
change the outcome.
I'm hoping you'll come out whole; just warning that it isn't a foregone
conclusion depending on the circumstances.
"Defendant moved for summary judgment, arguing that the policy
unambiguously excludes coverage for required building code upgrades
and provides only for the cost of returning the house to its prefire
condition, building code violations notwithstanding. "
It did have the exclusion. And the court agreed with my
“Exclusionary language that conflicts with the objectively reasonab
expectations of the insured is not enforceable, even if a ‘painstak
study of the policy provisions would have negated those expectations.
” Tepe v. Rocky Mountain Hosp. & Med. Servs., 893 P.2d 132
(Colo.App.1994)(quoting State Farm Mut. Auto. Ins. Co. v. Nissen, 851
P.2d 165, 168 (Colo.1993)).
As always, in law, the particular facts will
Yes, I hear what you're saying. And if you go back to how this
all started here, I listed a number of things where the insurance
company is low balling and trying to weasel away. Not paying
for ice damming material was just one example. And in this
case, it's not worth fighting over, because it doesn't amount to
that much of the total claim. It's probably $400 or so. That's
real world price, could be $200 in their pricing.
I'll give you another example. I had an old couch up in the loft.
It got some water on it, and there are stains that won't come
out. I do have replacement cost coverage, right? They gave
me $200 for a 16ft sofa.
Replacement cost means replace with brand new. No betterment charge if
the new is only available as better. Case in point. You have a 40 inch
rear projector TV. Lightning kills it, or some other insured peril -
it will be replaced with a 40 inch LCD, LED, or Plasma unit since the
rear projection is no longer available.
Your P2 PC gets destroyed or stolen and you have replacement cost
coverage you get an i3 or i5 unless your old one was a super killer
machine in which case you might even get an i7 as a replacement
(likely costs less than the old P4 did new anyway).
Without replacement cost you get the depreciated value - so you get
$15 for your old P4, and $100 for your rear projection TV.
If hardwood flooring is damaged replacement cost puts in new hardwood
flooring - doesn't matter if the old flooring was scuffed and in need
of sanding and re-finishing - you get new finished flooring at no
extra cost - unless when the insurance was originally taken out there
was a disclaimer stating that the floor was not covered due to
condition. (extremely unlikely and uncommon)
On Sat, 23 Mar 2013 07:15:36 -0700 (PDT), " firstname.lastname@example.org"
That's true. But, and it's a big but (no pun intended) it is for
replacement of what was present at the time the policy was placed
in force. If there was no ice dam at that time, they are not
required to pay for an ice dam at a later date. The insured will
have to pay the difference. That is why one should update their
policy every year. It's called a coverage review and if you fail
to do that, you really don't have a leg to stand on if you wind
up in court. It always comes down to this. Read the policy BEFORE
you pay for it. If you are not sure about a particular provision,
or unhappy with one, say so.
Take a look at my earlier post citing what Allstate found out
in Colorado appeallate court. In that case a house burned down
and Allstate tried to claim what you say above, that they only
have to pay for construction standards of what was already
there. The appeallate court said no. The insured had a house
before the loss, replacement coverage and to put them
back in the position they were in they get a new house. The
fact that new building codes mean it will cost some more
money is the insurance company's problem.
They looked at it like I do. If your bedroom burns down,
the insurance company owes you a new bedroom. The
fact that arc fault interrupters, more insulation, ice dammng,
etc are required today is their problem. The alternative view
requires believing that they aren't replacing a bedroom, they are
replacing drywall, nails, electical cable, carpet etc and it
doesn't have to be a livable bedroom when they are done.
If you believe it has to be a livable bedroom, how can it be
right for the insurance company to not pay for it to be built
to min code? If they don't pay, you can't build it, unless
you pay the difference yourself.
So, following their method, you could have a house insured
for $400K. You could be paying replacement cost premiums
for 40 years. One day the house burns down and they tell
you they won't pay out the full $400K, because the house
could be re-built for $350K, IF it could be rebuilt to codes that
were in effect in 1970. But of course, you can't legally do
that. So, what then? You go live in a tent?
On Sun, 24 Mar 2013 13:48:40 -0700 (PDT), " email@example.com"
I'm hoping you're smarter than that. No, you pay the difference.
Read your policy and get back to me with exactly what the
replacement cost exclusions are.
Having said that, each state has different requirements and so
one state might allow "added costs" for code required additions
and some might not, Texas for instance does not unless they have
changed. But it is usually a case of "give it to you with one
hand and take it away with the other". So, read the policy,
expecially the exclusions. If there is no reference to code
required additions, either pro or con, then you have a case. If
they exclude it, you don't. You pay the extra costs.
A this old hose had one of the crew had a home fire, the home burnt
The rebuilding meant meeting todays code. that included a new septic
system. a new system had to be installed and the current code for that
location required a sand mound system. insurance was required to pay
the costs because it was a code issue up to the limits of the
policy...... san mound pumps etc 40 grand extra....
in the case of my friends with knob and tube, the kitchen and baths
had no GFCIs, and ALL the K&T had to be removed by law, to meet code.
Their insurance paid
maybe, in my friends case it was FORCED PLACE insurance. The mortage
company required them to have and pay for. It ONLY covered the
structure at a
cost of 5 times normal homeowners insurance:(
The original homeowners insurance company went bankrupt out of
business. no other company wanted to insure the home the roof was bad,
over mold fears and the presence of K&T. the owner failed to make
repairs lacking the $.
So forced place insurance covered the mortage company.
As soon as the fire damage was fixed the homeowner qualified for
regular homeowners insurance so forced place wasnt needed.
On 3/25/2013 8:19 AM, firstname.lastname@example.org wrote:
The unknown here in all these is what the policies actually state--in
the lender-mandated coverage case one presumes they probably required
the 'law & covenant' rider be included. It is highly unlikely the
ins-co voluntarily spent more than were obligated for in any large
As noted earlier, it's also been my observation that one generally gets
better cooperation/settlement in the case of a "one-off" incident than
likely to get in widespread disaster as well simply because in the one
case it doesn't show up as much an in the latter the corporate impact is
clearly very large and immediate so there's more pressure to hold
adjusters to the lowest limits possible. Also, in those cases you're
likely working w/ itinerant contract adjustors who may be paid w/
incentives for how much they can "save".
So, as I've said innumerable times, you need to find out the specific
details within your policy's exclusions in the actual fine print
language--it will control not your perception of what you think it
_should_ cover nor even the summary description of coverage supplied
that will, in fact, have a disclaimer that it is not the actual policy.
Most of us don't understand all of the fine print.
What about the companies that advertise they will get your home or
auto repaired properly? I assume they have contractors that will work
with them at the prices they offer.
Seems too easy to just say "go ahead, make it right and Ill be happy"
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