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Private limitation of the measure Provisions fall short of legal suit against insurers



Insurances, to protect the insurer from obsolete claims and litigation where available evidence is difficult to obtain, include private restrictions of action usually one or two years. In addition, those who are insured by a first party property insurance policy must protect the property from further losses and provide evidence to determine the amount of the loss.

I Martha Ventilla v. Pacific Indemnity Co., 19-CV-1134 (JMF), United States District Court Southern District of New York (July 9, 2020) Martha Ventilla filed a supplementary insurance claim against Pacific Indemnity Company ("Pacific Indemnity") to recover, under a homeowner's insurance policy (the "police"), nearly $ 400,000 in damages in addition to the $ 951

,4288.46 already paid that occurred when the tub in her Manhattan apartment flooded it. January 31, 2015 and flooded her apartment with one to two inches of water. [19659002] The Pacific damages moved for a brief assessment. Pacific Indemnity calculated that all of Ventilla's claims were time-limited by the policy's two-year limitation clause.

FACTS

On January 31, 2015, Ventilla was in her apartment room when she noticed water creeping in under her door. She followed the rising current to the bathroom, where she discovered that her bathtub was inexplicably flooding. In a desperate attempt to prevent the flood and protect her most beloved objects, Ventilla (in addition to contacting construction personnel, who arrived with a wet vacuum cleaner) jumped into the water with clothes and bedding. But instead of washing clothes and bedding for reuse or at least storing the damaged belongings in storage in support of a later insurance claim, Ventilla brought the soaked items and other destroyed contents from her apartment and threw them away the same day.

Ventilla reported the incident to Pacific Indemnity on February 2, 2015, and on February 4 and 25, 2015, representatives of the insurance company conducted preliminary and follow-up investigations of her apartment. Ventilla could not, and in fact did not, present the damaged items to the inspection representatives during any of the visits.

More than a year passed, and in addition to presenting certain receipts and credit card snippets for certain items, Ventilla never provided more definitive details about her additional loss claim or provided artwork for inspection or assessment, despite Pacific Indemnity's follow – up requests. An art assessment from Ventilla's expert was submitted in June 2018, more than three years after the loss.

Eventually, the parties entered into a settlement agreement and release ("Release") signed by Ventilla on December 5, 2016, according to which Pacific Indemnnity paid Ventilla $ 951 428.46 for construction repairs, mold cleaning, content, art and additional living expenses. In exchange, Ventilla released all "claims and potential receivables for additions and amendments and additional living expenses" that arose under the policy and that relate to January 31st.

Nearly twenty-eight months after the January 31 flood, May 23, 2017, Ventilla filed a claim for additional content and for the first time, Pacific Indemnity announced that it was seeking $ 286,640.48 for damages to items in "seven closets." Pacific damages received proof of loss and investigation under oath. Yet it was only after this trial began, on July 9, 2019 – over four and a half years after the due date – that Ventilla in her first set of interrogatory answers finally demanded $ 99,098.00 for damage to her art collection ("Fine Arts" ["FineArts")19659002] Pacific Indemnnity notified Ventilla that the company denied coverage for Ventilla's claims for additional content and any claims on Fine Arts as time-limited by the policy's two-year limitation clause.

ANALYSIS

Under the New York Act shorter, but reasonable, period to initiate an action is enforceable.The courts have argued that there is nothing inherently unreasonable with a two-year period.as Pacific Indemnity rightly notes, courts in New York have enforced even shorter limitation clauses.What what is important here, however, is not so much how long the limitation period is, but the accrual date and if, taking into account the circumstances of the specific case, the relevant precedents may be met within the prescribed period.

According to the policy, Ventila's ability to bring all legal action against Pacific damages was based on two events: first, that it complied with all the conditions of the policy, and second, that it brought an action within two years of a loss. In order to meet all the conditions for a claim for property damage, Ventilla was required to notify Pacific Indemnity or its agents of the loss as soon as possible; take all reasonable measures necessary to protect property from further loss or damage; prepare an inventory of damaged personal property, attach bills, receipts and other similar support; and at the request of Pacific Indemnity, show Pacific Indemnity the damaged property, participate in an investigation under oath and submit, within sixty days of the request, a signed, answered proof of loss.

All of these events could, with reasonable justification, have been completed within two years of the incident on January 31, 2015. Valve's failure to wash or retain the damaged items – and the snowball effect that the erroneous decision may have had with respect to her ability to submit supplementary content and claims to fine art before 31 January 2017 – does not excuse that fact. The court concluded that no reasonable jury would conclude otherwise.

When approving an insurance and in the absence of fraud or incorrect declaration, an insured is burdened with knowledge of all insurance terms.

No, you have the right to sit on rights, violate the essential terms of a contract and then claim that their slavery was caused by an insurance company taking advantage of its innocence or old age after paying nearly a million dollars. The two-year private limitation of the action provisions in many first-party property policies is designed to avoid late or piecemeal claims such as those presented by Ventilla. This case teaches that the insured also has an obligation to deal fairly and in good faith with the insurer and act quickly and efficiently to prepare and prove a claim.


© 2020 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to working as an insurance consultant specializing in insurance coverage, handling insurance claims, bad faith insurance and near-insurance fraud. insurers and policyholders. He also acts as arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance coverage and attorney and more than 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine / ACE Legend Award.

For the past 52 years, Barry Zalma has devoted his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following libraries with books and other materials to enable insurance companies and their claims personnel to become insured.

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