HOW TO APPLY COINSURANCE AND DEDUCTIBLE CLAUSES IN PROPERTY INSURANCE POLICIES

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1 HOW TO APPLY COINSURANCE AND DEDUCTIBLE CLAUSES IN PROPERTY INSURANCE POLICIES William F. Merlin, Jr., Esquire Mary Kestenbaum, Esquire Merlin Law Group, P.A. 777 S. Harbour Island Blvd., #950 Tampa, FL TEL: (813) FAX: (813) FAPIA CONVENTION TALLAHASSEE, FLORIDA April 2006

2 INTRODUCTION Coinsurance requirements and deductibles may not seem that important to a property owner when he or she purchases insurance. However, the significance of these two types of provisions was made known to many policyholders following the 2004 and 2005 hurricane seasons, when multiple hurricane losses affected properties, and when property owners realized that they may have been underinsured due to rising property values. If property owners have not properly insured their properties, or if they have not understood the ramification of these policy provisions, their insurance recoveries may be much lower than anticipated. The insured s public adjuster may not be able to alleviate the effects of high deductibles or coinsurance requirements. Yet, an understanding of whether the insurer has properly applied a coinsurance penalty or a deductible will assist the policyholder in maximizing his or her insurance recovery. COINSURANCE Coinsurance is a clause that requires the insured to be personally responsible for part of each loss, unless the insured has been careful to carry an appropriate amount of insurance on the property. To determine if the property is adequately insured, the amount of insurance that the insured purchased is measured against the value of the property. If the property is not insured to the required percentage of the property s value, the policyholder becomes liable for a portion of the loss as a coinsurer, along with the insurer that issued the policy. Coinsurance is a condition of the property insurance policy that can affect the amount the insured recovers. The reason insurers include coinsurance clauses in their policies is to ensure adequate insurance is carried. Thus, where a coinsurance clause exists, the insured is required to carry an amount of insurance equal to or greater than a certain percentage of the insured property s total value. If an insured carries that amount of insurance, the insured is considered to be adequately insured for a loss. Replacement cost is typically used in determining the property s total value for purposes of a coinsurance requirement. In determining if the coinsurance requirements are met, the insured value of all covered property, both damaged and undamaged, is taken into consideration. Replacement cost guides can be found in either written form or in an online database, and these guides are typically available for use by an insurer to approximate a building s replacement cost. These guides use details such as square footage, use of the property, and method of construction to determine the appropriate valuation for the property. 2

3 Florida s Statutory Coinsurance Requirements In Florida, coinsurance is addressed by the Florida Statutes in , titled Liability of Insured; Coinsurance; Deductibles. The statute incorporates certain protections for an insured when coinsurance is incorporated in the policy, so that the insured is made aware of the policy s coinsurance requirements. The statute contains the following language with respect to co-insurance: (1) A property insurer may issue an insurance policy or contract covering either real or personal property in this state which contains provisions requiring the insured to be liable as a coinsurer with the insurer issuing the policy for any part of the loss or damage by covered peril to the property described in the policy only if: (a) The following words are printed or stamped on the face of the policy, or a form containing the following words is attached to the policy: Coinsurance contract: The rate charged in this policy is based upon the use of the coinsurance clause attached to this policy, with the consent of the insured. ; (b) The coinsurance clause in the policy is clearly identifiable; and (c) The rate for the insurance with or without the coinsurance clause is furnished the insured upon his or her request. The statute will come into play if the insurer wishes to rely upon a coinsurance penalty as a way to reduce recovery under a policy. Specifically, this subsection 1 provides that an insurer may issue a policy requiring the insured to be liable as a coinsurer only if certain requirements are met. The language must be printed or stamped on the face of the policy, or found within a form attached to the policy. The coinsurance clause must be clearly identifiable, and the rating information must be made available upon request. Although there is little reported case law addressing coinsurance requirements in Florida, one Florida appellate court has specifically addressed the question of whether an insurer could rely upon a policy s coinsurance clause and penalty if this particular language of the statute was not met. In United States Fire Insurance Co. v. Roberts, 541 So. 2d 1297 (Fla. 1st DCA 1989), the insured filed a motion for summary judgment as to whether the insurer could apply a coinsurance penalty. In that case, it was undisputed that the policy did not contain the language required by this portion of the statute. The opinion noted that a prior version of the statute had expressly stated that if this language was not in the policy, the coinsurance requirement was void and of no effect. The insurer attempted to argue that, since the statute no longer contained any language expressly finding the coinsurance clause void, then the clause was valid. However, the court looked to the legislative history of the change to the statute removing the null and void language, and determined that the change removing 3

4 the language was merely meant to clarify the statute. The change was not intended to remove the protection to insureds. Thus, the court rejected the insurer s argument. The court also found that, even if the insured knew of the existence of the coinsurance clause in the insurance policy, that knowledge would make no difference. The violation of the statutory requirement was sufficient in and of itself, and the coinsurance penalty could not be applied. One other Florida appellate court has addressed the coinsurance statute in the context of an additional living expense claim. In Bankers Security Insurance Company v. Brady, 765 So. 2d 870 (Fla. 5th DCA 2000), the insured argued that the portion of the insurance policy providing for payment of living expenses off the premises was an insurance policy covering real or personal property, thus triggering the requirements of However, the Brady court rejected that argument by explaining that additional living expenses are different and apart from damage to real or personal property. Thus, they are not additional damages to the home and there was no coinsurance argument with respect to the additional living expense claim. Subsection 4 of contains additional requirements for an insurer to meet when using any coinsurance clause. According to the current version of the statute, subsection 4(a) contains the following language: 4(a) A policy containing a coinsurance provision applicable to hurricane losses must on its face include in boldfaced type no smaller than 18 points the following statement: THIS POLICY CONTAINS A CO-PAY PROVISION THAT MAY RESULT IN HIGH OUT-OF-POCKET EXPENSES TO YOU. Subsection 4 of the statute contains language that is slightly different from the only if language of subsection 1. Although subsection 4 states that a policy must include this language, it does not state that the insurer can only issue such a policy if the cited language is found. Thus, the question may arise as to what will occur if a policy does not contain the boldfaced, 18 point type. Unfortunately, there is no Florida appellate case law addressing the failure to comply with subsection 4(a). Thus, although it may be possible to make the argument that an insurer cannot rely upon a coinsurance clause if this language does not exist, we cannot at this time comment on whether that argument will ultimately be successful. Policy Coinsurance Language Typically, a policy s coinsurance requirement will be between 80 to 100 percent of the value of the property. If the insured meets the requirements of the policy s coinsurance clause by having more than the required minimum amount of insurance, the claims adjuster will pay the adjusted loss. If the insured does not meet the coinsurance clause requirement, he or she will be paid only a portion of the adjusted loss. Deductibles, discussed in more detail below, 4

5 must still be applied even when the property is adequately coinsured. However, the insured should benefit by applying the deductible to the loss first, then applying the coinsurance penalty, unless the policy indicates that the deductible takes effect after the coinsurance clause has been applied. That method is required in some insurance policies. An insurance policy will typically contain an explanation of how the coinsurance requirement should be applied, as well as examples of what constitutes adequate insurance, and what constitutes under-insurance. For example, the following is found in the Citizens CR insurance policy: Coinsurance. You will maintain insurance against the Perils Insured Against on each item of Covered Property, in an amount not less than the coinsurance percentage specified in the Declaration page of this policy to the value of each item of Covered Property. a. If a building or other structure, the value considered in the determination of value will be the replacement value; and b. If contents, a mobile home or a mobile home appurtenant structure, the value considered in the in the determination of value will be the Actual Cash Value; and c. The value of property not covered will not be considered in the determination of value. If a Coinsurance percentage is shown in the Declarations, the following condition applied. We will not pay the full amount of any loss if the value of Covered Property at the time of loss times the Coinsurance percentage shown for it in the Declarations is greater than the Limit of Liability for the Covered Property. Instead, we will determine the most we will pay using the following steps: 1. Multiply the value of Covered Property at the time of loss by the Coinsurance percentage; 2. Divide the Limit of Liability of the Covered Property by the figure determined in Step 1; 3. Multiply the total amount of the covered loss, before application of any deductible by the figure determined in Step 2; 4. Subtract the deductible from the figure determined in Step 3; and 5

6 the amount determined in Step 4. is the most we will pay. For the remainder, you will either have to rely on other insurance or absorb the loss yourself. EXAMPLE No. 1, Underinsurance When: The value of the property is $250,000 The Coinsurance percentage is 80% The Limit of Liability is $100,000 The Deductible is (3% of coverage amount) $ 3,000 The amount of loss is $ 40,000 Step 1: $250,000 x 80%= $200,000* *The minimum amount of insurance to meet your Coinsurance requirements. Step 2: $100,000 / $200,000 =.50 Step 3: $ 40,000 x.50 = $ 20,000 Step 4: $20,000 - $3,000 = $ 17,000 We will pay no more than $17,000. The remaining $23,000 is not covered. EXAMPLE No. 2, Adequate Insurance When: The value of the property is $250,000 The Coinsurance percentage is 80% The Limit of Liability is $20,000 The Deductible is (3% of coverage amount) $ 6000 The amount of loss is $ 40,000 Step 1: $250,000 x 80%= $200,000* *The minimum amount of insurance to meet your Coinsurance requirements. Step 2: $20,000 / $200,000 = 1.00 Step 3: $ 40,000 x 1.00 = $ 40,000 Step 4: $20,000 - $3,000 = $ 34,000 We will pay no more than $34,000. No penalty applies. 6

7 Ultimately, if it is determined using these formulas that there is inadequate insurance, the insured must partially insure the loss, forgoing the benefit of the insurers paying the entirety of the loss. Under those circumstances, the insured and insurer are coinsurers. Applying Coinsurance Penalties The question sometimes arises as to whether insurers uniformly apply coinsurance penalties. What occurred after the 2004 hurricane season provides some guidance in showing that insurance companies do not always routinely apply their coinsurance penalty as written. For example, Citizens Property Insurance Corporation issued a bulletin following the 2004 hurricane season indicating that a coinsurance penalty/insurance to value penalty would not be applied to partial losses. The language of the Citizens bulletin is as follows: TO: ALL CLAIMS ADMINISTRATORS, AYO COMPANIES & EXAMINERS FROM: CITIZENS CLAIMS MANAGEMENT DATE: November 5, 2004 BULLETIN #14: Insurance to Value (ITV) and Coinsurance The following rule should be followed regarding ITV and Coinsurance. The File requirement for completing an Insurance to Value (ITV) analysis has changed. An ITV is no longer required as a File Requirement or as a basis for determining if coinsurance penalties apply. All Citizens policies are assumed to be insured to value at policy inception and therefore coinsurance penalties should not be applied. ITV valuations will still be required for purposes of establishing value when estimating total losses. Any questions should be directed to 7

8 Condominiums and Coinsurance Additional problems can potentially arise in the context of a condominium claim, when an insured condominium has reduced the amount of coverage it obtained due to the changes in the past few years to of Florida Statutes, regarding the property which is to be insured under a condominium policy. Significantly, the recent changes appear to reduce the condominium association s responsibility for insuring certain items inside the condominium unit. Thus, condominium associations may think they need less coverage on the property. Unfortunately, problems can arise following that reduction in coverage which could expose a condominium association to a potential underinsurance claim resulting in a coinsurance penalty. DEDUCTIBLES A deductible serves many purposes for both the insured and the insurer. Deductibles require the insured to share in the loss, therefore providing an incentive for the insured to prevent and minimize losses. Deductibles also eliminate the insurer s need to pay for smaller losses, because losses below the deductible amount are absorbed by the insured. This practice will provide a benefit to the insurance company, because the insurer will not have to pay administrative costs for smaller claims, as well as proving a benefit to the insured, who then pays a lower premium. There are different methods by which deductibles can be applied in an insurance policy. Non-windstorm property policies typically have a straight dollar amount of deductible, where the chosen deductible is applied to every covered cause of loss. A split dollar amount deductible can be used where different deductibles apply, depending on the cause of loss. In the past, standard commercial property policies traditionally had a standard $250 deductible; however, with an adjustment of premium, that amount could be raised or lowered. In today s insurance market, hurricane deductibles are typically calculated as a percentage. Significantly, the insured can absorb a deductible if the loss is greater than policy limits. This is accomplished by applying the deductible to the actual loss before applying any coverage limits. Thus, if the claim exceeds the policy limits, the excess loss can be applied to the deductible to absorb part or all of the deductible. Although this process of absorbing a deductible is not usually expressly stated in the insurance policy, this is viewed as the proper claims adjustment practice in the insurance industry. Moreover, at least one Florida court has recognized that this is the proper way to apply a deductible to a property loss. See General Star Indemnity v. West Florida Village Inn, Inc., 874 So. 2d 26 (Fla. 2d DCA 2004). 8

9 Florida s Statutory Deductible Requirements In Florida, deductibles, like coinsurance clauses, are addressed by statute. In response to the concern over the continued viability of the Florida market for residential property insurance prompted by Hurricane Andrew, one of the costliest natural disasters in U.S. history, the Florida legislature revised its insurance laws to include the creation of special residential hurricane coverage and hurricane deductibles. In 1996, the legislature amended and of the statutes. The legislature s intent, which is included in the statute itself, is: to encourage the use of higher hurricane deductibles as a means of increasing the effective capacity of the hurricane insurance market in the state, and as a means of limiting the impact of rapidly changing insurance premiums (6)(a), Fla. Stat. In , the legislature recognized and defined a category of residential property insurance termed hurricane coverage. Hurricane coverage along with the term windstorm are defined as: (2)(a) Hurricane coverage is coverage for loss or damage caused by the peril of windstorm during a hurricane. The term includes ensuing damage to the interior of a building, or to property inside a building, caused by rain, snow, sleet, hail, sand, or dust if the direct force of the windstorm first damages the building, causing an opening through which rain, snow, sleet, hail, sand, or dust enters and causes damage. (b) Windstorm for purposes of paragraph (a) means, wind, wind gusts, hail, rain, tornadoes, or cyclones caused by or resulting from a hurricane which results in direct physical loss or damage to property. Florida Statutes specifically require that a deductible provision in an insurance policy be clear and unambiguous when it comes to a hurricane deductible. In , the legislature recognized a specialized class of deductibles for policies termed hurricane deductibles. This law permits insurers to state a hurricane deductible amount as either a fixed amount or as a percentage of the policy limit. Specifically, subsection 2 of provides: (2) Unless the office determines that the deductible provision is clear and unambiguous, a property insurer may not issue an insurance policy or contract covering real property in this state which contains a deductible provision that: (a) Applies solely to hurricane losses. (b) States the deductible as a percentage rather than as a specific amount of money. 9

10 Hurricane coverage or hurricane deductibles are triggered by the damage from the peril of windstorm during a hurricane. Once a storm system has been declared a hurricane by the National Hurricane Center of the National Weather Service, the application of this coverage or deductible begins when a hurricane watch, or warning is issued for any part of Florida. See (2)(c). Such coverage or deductible continues for the time period during which the hurricane conditions exist anywhere in Florida and ends at the expiration of 72 hours following the termination of the last hurricane watch, or hurricane warning issued for any part of Florida. As with coinsurance clauses, requires that certain language be referenced when a hurricane deductible is included on the policy, and recites the following: (4)(a) Any policy that contains a separate hurricane deductible must on its face include in boldfaced type no small than 18 points the following statement: THIS POLICY CONTAINS A SEPARATE DEDUCTIBLE FOR HURRICANE LOSSES, WHICH MAY RESULT IN HIGH OUT-OF- POCKET EXPENSES TO YOU. As with coinsurance clauses, there is little Florida case law addressing the applicability of a deductible to a property insurance policy. As was the case with coinsurance, no Florida case addresses the question of an insurer s failure to comply with subsection (4). The question of whether a hurricane deductible should be applied to the total loss or to only to a covered loss was addressed recently by a Florida appellate court in the case of General Star Indemnity v. West Florida Village Inn, Inc., 874 So. 2d 26 (Fla. 2d DCA 2004). In General Star Indemnity, the insured sustained substantial property damage as the result of a hurricane, and the insured sought to have the deductible applied to the total loss sustained at the property, including applying it to non-covered losses. The insured s attorney argued that the deductible language was ambiguous, requiring a construction in favor of the insured. However, the appellate court found that the language discussing applicability of the deductible to the amount of loss required the deductible to be applied only to the amount of covered loss, which was consistent with the only reasonable interpretation of the contract of insurance when read in its entirety. According to the court, an interpretation to the contrary would be tortured and would lead to an unintended result. Further, the court found that a deductible loses its meaning entirely if it is to apply to a loss that is not covered by the policy. Recent Changes to the Statute The 2004 hurricane season caused resulted in substantial out of pocket sums being spent by policyholders who likely did not understand the significance of a hurricane deductible 10

11 based on a percentage. In addition, policyholders were faced with the prospect of multiple hurricane deductibles due to multiple losses during the same hurricane season. To correct the inequity of multiple deductibles during the 2004 hurricane season, the Florida legislature instituted a procedure for certain policyholders to obtain reimbursement if they were charged multiple deductibles when they made a claim. In addition, the Florida legislature amended as it applies to deductibles, so as to alleviate the problem of multiple substantial deductibles being charged during one hurricane season. These changes also attempted to make it clearer as to how much money a percentage hurricane deductible will cost following a storm. Unfortunately, some of the changes were to take place only with policies issued or renewed after May 1, Thus, if a policy renewed after the 2004 hurricane season and before May 1, 2005, the insured may end up facing multiple deductibles as a result of multiple storms during the 2005 season, without the new statutory protections. Specifically, subsection (3) of the statute contains the requirements for the type of deductible which can be applied to a hurricane loss. The statute was amended in 2005 with respect to the percentages allowed to be used for hurricane deductibles. The statutory amendments further specify the types of notice and alternatives that an insurer must offer under subsection (3). In addition, the 2005 changes require that a personal lines residential property insurer must also display the actual dollar amount of the hurricane deductible on the Declarations page of the policy. This particular change was effectuated due to the fact that people were unaware of the actual dollar amount of their hurricane deductible when it was provided as merely a percentage. With respect to personal lines residential property insurance, the statute was further amended so as to eliminate the problem that occurred during the 2004 hurricane season with multiple deductibles being taken where multiple hurricanes damaged a house. That new statutory language states: (5)(a) The hurricane deductible of any personal lines residential property insurance policy issued or renewed on or after May 1, 2005, shall be applied as follows: 1. The hurricane deductible shall apply on an annual basis to all covered hurricane losses that occur during the calendar year for losses that are covered under one or more policies issued by the same insurer or an insurer in the same insurer group. 2. If a hurricane deductible applies separately to each of one or more structures insured under a single policy, the requirements of this paragraphs apply with respect to the deductible for each structure. 3. If there was a hurricane loss for a prior hurricane or hurricanes during the calendar year, the insurer may apply a deductible to a subsequent hurricane which is the greater of the remaining amount of the hurricane deductible or the amount of the deductible that applies to 11

12 perils other than a hurricane. Insurers may require policyholders to report hurricane losses that are below the hurricane deductible or to maintain receipts or other records of such hurricane losses in order to apply such losses to subsequent hurricane claims. 4. If there are hurricane losses in a calendar year on more than one policy issued by the same insurer or an insurer in the same insurer group, the hurricane deductible shall be the highest amount stated in any one of the policies. If a policyholder who has a hurricane loss under the prior policy is provided or offered a lower hurricane deductible under the new or renewal policy, the insurer must notify the policyholder, in writing, at the time the lower hurricane deductible is provided or offered, that the lower hurricane deductible will not apply until January 1 of the following calendar year. CONCLUSION The insured should be aware of the significance of a potential coinsurance penalty before a loss occurs, and the insured should make certain that adequate coverage is placed on the property. This is especially true in light of the escalating property values of many areas in Florida. However, after a loss, if the insurer seeks to impose a coinsurance penalty, the insured should question whether the insurance company has appropriately complied with all the statutory requirements in Florida. The insured and public adjuster should also attempt to determine how that particular carrier is dealing with coinsurance issues if the loss is the result of a hurricane. As with coinsurance clauses, deductibles can raise all sorts of problems and headaches for the insured. Although the Florida legislature has tried to make some changes to the way deductibles are applied in the State of Florida, problems will likely continue to arise. 12

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