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Matching is a factual determination and can be solved by assessment | Property Insurance Law Team Blog



The Supreme Court of Connecticut ruled that matching is a factual assessment rather than a legal coverage issue and can be resolved through the assessment process. 1 This is a huge gain for policyholders. I would like to give a big shout-out to Merlin Law Group's lawyer Shane Smith who volunteered his time to work on this case by submitting a amicus brief 2 on behalf of United Policyholders [19659002] The Court held:

[W] when an insurer admits the existence of a covered danger to an insured's premises, questions about the extent of the insurer's obligation under § 38a-316e (a) to replace adjacent, undamaged objects in order to achieve a reasonable uniformity appearance is part of the loss amount and is therefore part of the assessment process, as the statutory legislative history reflected that the legislator intended to codify the existing insurance industry's practice of restoring damaged property to a comparable loss condition and considered that the determination of matching would be subjective. to cases and resolved through the assessment process, and case law from other jurisdictions was consistent with this approach; in the present case, the defendant admitted that the damage to the plaintiff's roof was a covered loss under the insurance, and the parties' dispute as to how many shingles needed to be replaced to make the plaintiff whole was a factual dispute that fell within the scope of the policy assessment clause.

It is important to note that many adjusters know that these issues are facts. What happens is that the insurance company's insurance defense attorneys try to turn these factual disagreements into alleged "coverage issues" and therefore a legal issue that only courts can decide. The Connecticut court reviewed this charade:

It seems to us that the defendant's underlying concern is that § 38a-31

6e (a) uses terms that leave too much room for discretion to determine what is "adjacent" and what is necessary to create a "reasonably uniform appearance." In response to this concern, we note that the judge of the assessment panel, when exercising his discretion to make the matching assessment in this case, may ultimately agree with the defendant's valuer that the defendant's obligation extends only to the backs and ridge of the roof. Alternatively, the judge may conclude that the defendant is obliged to repair the entire roof of the plaintiff. Either way, it seems to us that the necessarily fact-intensive case-by-case investigation inherent in the matching task requires that evaluators be given space to make matching decisions.

United Policyholders is a large non-profit organization as it requires action and results in matters which directly affects policyholders. Our amicus summary noted in part:

The evaluation is intended to be effective, inexpensive, equitable and limited in scope to the amount of an insured loss. See Amy M. Coughenour, Appraisal and the Property Insurance Appraisal Clause – A Critical Analysis: Guidance and Recommendations for Arizona 41 Ariz. St. L.J. 403, 406 (2009). Speed ​​and a speedy resolution of the matter are of particular interest to the insured, who is likely to handle relocation or other inconveniences in addition to just a financial loss. . . . Cost is another major factor in the assessment process. Disputes, and to a lesser extent arbitration, are more expensive ways of resolving a dispute. Valuation minimizes the cost of determining the separate issue of the loss amount. . . . The legal fees and expenses associated with the assessment process are likely to be significantly less than those associated with litigation solely in respect of damages. . . . Valuation also provides the policyholder and the insurer with a fair way of resolving dollar value disputes by handing over the parties' disagreement to professionals with more expert knowledge of loss valuation than an arbitrator, judge or jury may have.

On a daily basis, insurance valuers and adjusters handle the extent of damage issues such as matching, fair cash value, wear and tear, depreciation [sic] and other everyday adjustments, which can just as easily be claimed as "coverage disputes", which makes the assessment process unnecessary. In this case, a common and relatively simple disagreement is used as to whether parts of damaged property can be matched to prevent quick and less costly settlement through the insurance assessment process. This can not be in the public interest and certainly not in the policyholder's interest.

From a practical point of view, the assessment could only take place according to Liberty Mutual's position if there was total agreement on the extent of the damages. As several courts have noted, such as Texas, this interpretation would "make assessment clauses virtually unusable" and would not be in line with the intent of the provision itself as a party could always avoid assessment by labeling the issue as a coverage dispute … [19459020Thisisanimportantbenefitforpolicyholdersandthosetryingtomovematchingdisputestoaforumwheretheycanberesolvedquickly

Thought for the day

[119] Design can be art . Design can be aesthetics. The design is so simple, that's why it's so complicated.
– Paul Rand
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1 Kass v. Liberty Mutual Ins. Co. SC 20451 (Connection 11 January 2022).
2 Letter of Amicus Curiae United Policyholders in Support of Plaintiff-Appellee, Kassual in Liberty Mutual. Co. SC 20451 (2022).


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