Adjusting Today Basis for Institutes CE Courses The Institutes, the leader in providing knowledge solutions for risk management and the property/casualty insurance industry, offers continuing education courses based on technical information compiled from issues of Adjusting Today. The courses — “Valuing a Property Insurance Claim” and “Natural Disasters: Coverage Issues”— include seven modules each and are approved for credit by insurance departments in most states. They are offered to property insurance producers, adjusters or both, depending on the state, for up to three continuing education credit hours per course. More information is available at CEU.com. Gary Thompson is a partner with the law firm of Reed Smith LLP in Washington, D.C. He represents policyholders in their pursuit of property and business interruption insurance proceeds. The views expressed herein do not necessarily reflect those of the firm, its attorneys, or its clients, or with regard to any pending cases. Gary Thompson ABOUT THE AUTHOR CORPORATE OFFICE 126 Business Park Drive Utica, New York 13502 800.382.2468 Outside U.S. (315) 797.3035 FAX: (315) 272.2054 Editor@AdjustingToday.com Copyright © 2016 Adjusters International, Inc. Adjusters International ® and the AI logo are registered trademarks of Adjusters International, Inc. Follow Adjusting Today on Facebook & Twitter: Facebook.com/AdjustersInternational Twitter.com/AdjustingToday ADJUSTING TODAY is published as a public service by Adjusters International, Inc. It is provided for general information and is not intended to replace professional insurance, legal or financial advice for specific cases. ADJUSTINGTODAY Adjust ingToday. com View our entire catalog of back issues, download PDF versions, subscribe and contact the editor. WEB ADDRESSES AdjustersInternational.com AdjustingToday.com PUBLISHER Ronald A. Cuccaro, SPPA EDITOR Sheila E. Salvatore AT07-1 3031-R1 11 Bronx Entertainment, LLC v. St. Paul’s Mercury Ins. Co., 265 F.Supp.2d 359 (S.D.N.Y. 2003) (“Bronx Entertainment”). 12 Bronx Entertainment, 265 F.Supp.2d at 361. 13 Bronx Entertainment, 265 F.Supp.2d at 361. 14 Likewise, in Holt v. Fidelity Phoenix Fire Ins. Co., 76 N.Y.S.2d 398, 400 (3d Dep’t 1948), the court ruled that an assignee could not recover for its own business interruption loss, but noted that had the seller “not already been paid for its own losses,” it could have recovered BI past the sale date or assigned to the purchaser such claim to recover the seller’s BI losses. Another off-point case is SR International Business Ins. Co. Ltd. v. World Trade Center Properties, LLC et al., 394 F.Supp.2d 585 (S.D.N.Y. 2005), which also dealt with the issue of whether an assignee could assert its own ongoing rental income losses. The court held that an assignee can assert its own ongoing rental income losses (and did not reach the issue of whether the assignee could assert its own ongoing BI loss). With respect to the issue of whether the seller/policyholder, having not assigned its claims, can recover for the full “theoretical” BI loss past the sale date, there is only one court that to date has ruled on that issue, and for the policyholder – BA Properties. 15 To the extent there is any uncertainty regarding the valuation, in determining ACV, New York, Florida, and other state courts follow the “broad evidence rule.” See New York Cent. Mut. Fire Ins. Co. v. Diakas, 60 So.2d 786, 788-89 (Fla. 1954); McAnarney v. Newark Fire Ins. Co., 247 N.Y. 176 (1928); Worcester Mutual Fire Ins. Co. v. Eisenberg, 147 So.2d 575, 576 (Fla. App. 1962). Under the broad evidence rule, any evidence logically tending to establish a correct estimate of the value of the damaged or destroyed property may be considered by the trier of facts to determine the “actual cash value” at the time of the loss. 147 So.2d at 576. The rule “permits any evidence which logically tends to establish a reasonable approximation of the value of the property destroyed.” Id. Courts have considered “replacement value,” “wholesale value,” and the owners’ experience and testimony to determine ACV value. Id. 16 See, e.g., Fla. Stat. § 627.455 (“a policy may be assignable, or not assignable, as provided by its terms”); Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165 (2d Cir. 2006) (policyholder could assign a claim to a successor corporation); SR International Business Ins. Co. Ltd. v. World Trade Center Properties et al., 394 F.Supp.2d 585 (S.D.N.Y. 2005) (permissible 2003 assignment of 9/11/2001 property claims from owner of World Trade Center retail leases to the Port Authority). 17 Fla. Jur. 2d (Feb. 2005) § 1562 (“Assignment After Loss”). See also, e.g., Professional Consulting Svcs., Inc. v. Hartford Life & Acc. Ins. Co., 849 So.2d 446, 447 (Fla. 2d Dist. 2003) (allowing assignment); Better Constr. Inc. v. National Union Fire Ins. Co., 651 So.2d 141, 142 (Fla. 3d Dist. 1995) (an insured may assign insurance proceeds to a third party after a loss); Gisela Inv. N.V. v. Liberty Mut. Ins. Co., 452 So.2d 1056, 1057 (Fla. 3d Dist. 1984) (anti-assignment clause does not prevent the assignment of a post-loss claim or interest in insurance money). 18 SR International Business Ins. Co. Ltd. v. World Trade Center Properties, LLC, et al., 394 F.Supp.2d at 593, citing Beck-Brown Realty Co. v. Liberty Bell Ins. Co., 241 N.Y.S. 727 (Sup. Ct. Kings Cty. 1930).
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