In a previous blog post, The applicability of the protective protection measure and common situations that could effectively render the provision meaningless I discussed a commonly inserted condition in property insurance: the protection measure.  When real estate insurance is issued, insurers can add provisions that try to reduce the risk of loss. One way an insurer can do this is by including what is called a "protective protective measure." The provision below shows how insurers will generally prepare such a condition:
The local alarm or fire protection system
The following conditions are added to the policy:
You are required to maintain, in fully functional condition, all protection ̵1; or security systems that you have told us about and that you have control over.
Failure to do so will void any coverage that otherwise exists under this policy for fire, lightning, theft, attempted theft, vandalism and malicious accident and any losses caused by an intentional and unfair act committed in connection with theft, attempted to theft, vandalism and malicious accident.
The following exceptions are added to the policy:
1. We do not cover loss or damage caused by theft, attempted theft or vandalism and rudeness, and any loss caused by an intentional and unjust act committed in connection with theft, attempted theft, vandalism and harmful assault, unless all that physical protection and all security systems you have been told about are in full and efficient operation when the home is left unattended.
2. We do not cover loss or damage caused by fire unless all fire protection systems, such as an alarm system and / or an automatic fire protection sprinkler system that you have told us, always work.
Exceptions 1. and / or 2. do not apply if:
a. Prior to the date of loss or damage, you had no knowledge of shutdown or deterioration that would end the entire and effective operation of the system. or
b. prior to the date of loss or damage, you informed us of the shutdown or deterioration that ceases the entire and efficient operation of the system.
To put it simply: the provision means that if you, the insured, suffer damage to your property through theft, the insurer will not be held liable for the damages if you failed to maintain an operational alarm system, which could potentially have protected you from these injuries. In the previous blog post, the question I presented was:
What happens if the property thief is the one who caused the alarm not to work? In essence, the insurance companies can deny coverage for the claim, with reference to the inoperable alarm system and the condition according to the police. But this type of coverage decision would theoretically give the insurer a say in these common situations.
This blog post will not go back to different court results and simultaneous causal relationships as the last one did, but will discuss two specific trigger words in these provisions that can be used to justify an insured's due diligence: "control" and "maintain" . " maintains in fully functional condition, all protection or safety systems that you have told us about and that you have control over .
These words are strangely specific and are usually not defined anywhere in the policy. There have been many cases throughout the country where an insured person tries to use these two words to argue either that they maintained the alarm system, or that they did not have control over the alarm system – and therefore the provision should not be used as a justification for denial when the alarm system later were found to have been inactive during their loss.
Courts that have had such an argument have discussed this idea of "maintaining" and "controlling" an alarm system. These courts use the combination of these ideas together with the facts to consider that an insured should not be denied coverage under this condition if it turns out that the insured used accuracy to keep up with his alarm system – even if it proved to be unusable. . Some courts facing protective coverage on protective measures have emphasized and held that even if the alarm system did not work at the time of the loss, the fact that the insured used care in maintaining the alarm system shows. 1
In SFI v. United States Fire Insurance Company a supervisor of negligence failed to activate a burglar alarm system. After the insured suffered a vandalism loss, the insurer refused coverage for failure to comply with the insurance's terms for the insurance after the alarm was found to be out of order at the time of the loss. The language of the protection provision in question was almost identical to the example provision I quoted above. The language provided that "it is a condition of this insurance that the insured must retain such protective measures as are apparent from the approval of this insurance as far as it is within his control." S.F.I the court analyzed the facts of the case and held that the insured did everything reasonable to ensure that the system worked. Therefore, the court found that a failure to turn on the system would not prevent recovery.
Another case that analyzed whether or not an insured "maintained" a security system is Commercial Union Insurance Company v. Taylor . 2 In Taylor the policy contained an increase in risk that looks and functions in the same way as a protective measure. Facts in the case showed that the sprinkler system on the insured's property did not work in the event of the fire loss. The insurer denied the insured's claim of alleged failure to maintain the sprinkler system, referring to the provision on increased danger.
In its unanimous opinion confirming the court's judgment for the insured, the Georgia Court of Appeal stated:
The district court found that “[n] either named insured [Huey or Larry Taylor] knew that the sprinkler had been turned off until the fire started. There was no evidence that the employee turned off the sprinkler with the authority of any named insured … One of the named insured visually inspected the sprinkler system regularly. There is absolutely no indication of any fault by any named insured. The court finds that the insured have acted with due care to maintain the sprinkler system.
In its decision, the court in Taylor looked at the terms "control" and "knowledge" together, and together with the idea of due diligence:
The appellant claims that the district court has not made a sufficient fact as to whether the loss was due to the risk being increased in a way within the insured's control and knowledge. We can not agree. I Commercial Union Fire Ins. Co. v. Capouano 55 Ga. App. 566 (190 SE 815), that court interpreted the term " control and knowledge " and held that "control" presupposes knowledge and that it would be unreasonable to consider that a person had control over a thing which he had no knowledge of. Thus, in fact, discover that there can be no "control" without "knowledge". … The court finds that the insured have acted with due care to maintain the sprinkler system. “We believe that these factual findings on the issue of increased danger are within the insured's control and knowledge are sufficient to be able to decide this issue.
Taylor and Capuano courts follow the idea that it would be unreasonable to consider that an insured person had control over an alarm or sprinkler system if the facts of the claim show that they used due diligence to maintain their Operation. Basically, these courts agree that just because an alarm or sprinkler system did not work at the time of the loss, an insured's claim should not automatically be annulled and give the insurer reason to reduce the coverage.
1 ] SFI v. United States Fire Ins. Co. 453 F. Supp 502, 507 (M.D. La. 1978).
2 Commercial Union Ins. Co. v. Taylor 312 S.E.2d 177 (Ga. App. 1983).