ADJUSTERS INTERNAT IONAL . COM 11 A D J U S T I N G T O D A Y among the engineers regarding making repairs before design, engineering and construction plans had been fully examined and proven.” Id. • In American National Bank & Trust Co. of Chicago v. Continental Casualty Co., 434 N.E.2d 321, 324 (Ill. App. 1982), a fire caused significant damage to an apartment building, interrupting rents. There were delays in repairs caused by the approved contractor, the fault of neither the insurer nor the policyholder. The court allowed a jury to include within the BI period the extra time caused by contractor delays. As the court aptly noted, “[t]he disparity between the times within which construction is scheduled to be done and is in fact done is part of the experience in life of most people.” Id. • In Eureka Security Fire & Marine Ins. Co. v. Simon, 401 P.2d 759, 763-64 (Ariz. App. 1965), a fire damaged a shopping complex that included the policyholder’s store. Delay in rebuilding the store (under lease) was caused by the landlord’s plan to rebuild first the entire shopping center. The extra time was included in the BI period for the store. Such delay “in returning to business was occasioned by events without the control of the [policyholder].” Id. • In Anchor Toy Corp. v. American Eagle Ins. Co., 155 N.Y.S.2d 600, 604 (N.Y. Sup. Ct. 1956), even where the BI period was measured as purely theoretical (due to the fact that the property was not rebuilt), the measure properly allowed for an additional contingency period. As the court wisely commented, the theoretical BI period “is the time it would take to replace the structure providing the building was put up by the experts in the court room. But buildings seldom are. In the field it snows, and men fall off girders, and the wrong size window glass is delivered. An estimate of 8 weeks for these contingencies is not believed to be excessive.” Id. It is fair and equitable to include in the BI period delays and contingencies that were not caused by the policyholder. This is in the very nature of the insurance contract, which shifts such risks from policyholder to insurer. Conclusion The lesson for policyholders is this: when the insurer measures the BI period using a purely “theoretical” approach, they may be artificially reducing the covered BI period. A correct statement of the “theoretical” rule is as follows: where there are no actual repairs due to a policyholder’s decision not to rebuild, or due to a condemnation or sale of the property, then the proper measure of the BI period is the “theoretical” time it should take to complete repairs with “due diligence and dispatch” (assuming realistic contingencies). Where there is an actual BI period, the proper approach is to start with such actual time it took to rebuild and reopen. If the actual period is what it is because of delay caused by the insurer or others beyond the control of the policyholder, the insurer cannot subtract from the actual period. The insurer can subtract from the actual period only if it can prove that the policyholder irresponsibly delayed in its repairs, due to its own fault. After all, this is the insurers’ main point — a policyholder should not receive extra BI if it is itself at fault in delaying repairs. That would The lesson for policyholders is this: when the insurer measures the BI period using a purely ‘theoretical’ approach, they may be artificially reducing the covered BI period. “ ”
RkJQdWJsaXNoZXIy NjIxNjMz