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1 Overhead and Profit 1/10/2007 I. Overhead and Profit Definitions Overhead and profit are distinct elements of cost, although they are frequently referred to together. Overhead encompasses fixed costs for any business it includes salaries, office rent, utilities and business licenses. The contractor usually recovers these costs by charging a flat percentage of 10% on each estimate. Profit is the amount over the costs of a job that the contractor expects to earn for his or her services. The primary services are to coordinate, schedule and supervise the activities of the various subcontractors. A common allowance is 10%, in addition to 10% overhead. This is referred to as ten and ten. In some areas, contractors routinely use the ten on ten method, which results in a total of 21%. II. Markham, Property Loss Adjusting, 2 nd Ed., Vol. II, p. 8, Insurance Institute of America (1995). Policy Language Many homeowners policies contain Loss Settlement language similar to the following with regard to loss settlement of property losses: 3. Loss Settlement Covered property losses are settled as follows: B. Buildings under Coverage A or B at Replacement Cost without deduction for depreciation, subject to the following: 1. If, at the time of the loss, the amount of insurance in this policy on damaged building is 80% or more of the full Replacement Cost of the building immediately before the loss, we will pay the cost to repair or replace after application of deductible and without deduction for depreciation, but not more than the least of the following amounts: (a) (b) (c) the limit of liability under this policy that applies to the building; the replacement cost of that part of the building damaged to a like construction and use on the same premises; or the necessary amount actually spent to repair or replace the damaged building. 2. If, at the time of the loss, the amount of insurance in this policy on the damaged building is less than 80% of the full Replacement Cost of the building immediately before the loss, we will pay the greater of the following amounts, but not more than the limit of liability under this policy that applies to the building: (a) (b) the Actual Cash Value of that part of the building damaged; or that portion of the cost to repair or replace, after application of the deductible and without deduction for depreciation, that part of the building damaged which the total amount of insurance on this policy on the damaged building bears to 80% of the Replacement Cost of the building 4. We will pay no more than the Actual Cash Value of the damage until actual repair or replacement is complete. Once actual repair or replacement is complete, we will settle the loss according to the provisions of (b)(1) and (b)(2) above

2 (ISO form H , p.9-10) (emphasis added) Another example is found in State Farm s policy, which provides as follows: 3. Loss Settlement. Covered property losses are settled as follows: b. We will pay the cost to repair or replace buildings under Coverage A subject to the following: (1) Until actual repair or replacement is completed, we will pay the actual cash value of the damage to the buildings, up to the policy limit, not to exceed the replacement cost of the damaged part of the buildings for equivalent construction and use on the same premises; (2) You must make claim within 180 days after the loss for any additional payment on a replacement cost basis. (State Farm Florida Insurance Company, policy HO5). Any additional payment is limited to the amount you actually and necessarily spend to repair or replace the damaged buildings with equivalent construction and for equivalent use on the same premises; There is no reference to or definition of overhead and profit in the definition section of most policies. Likewise, there is seldom a definition of either Actual Cash Value (ACV) or Replacement Cost (RC) in the policy. A notable exception is the homeowners policy issued by Nationwide. Nationwide actually defines Actual Cash Value as: the amount it would cost to repair or replace covered property with material of like kind and quality less allowance for physical deterioration and depreciation, including obsolescence. (Nationwide Insurance Company of Florida, policy HE-09). III. The Insurance Company s Failure to Pay Overhead and Profit It appears there are two (2) basic ways companies withhold or fail to pay overhead and profit: 1) Some carriers hold back the entire amount of overhead and profit from their A.C.V. property loss payment. This can be done in two ways: a) One is to avoid or omit reference to overhead and profit entirely in their damage estimate or correspondence, and to simply offer or tender an A.C.V. payment without including overhead and profit or making any mention of overhead and profit; b) A second way is to tender the A.C.V. payment with a letter to the insured which states something like: You will also note that we have deducted overhead and profit from the enclosed repair estimate. We will reimburse the cost for the overhead and profit if you hire a licensed contractor and provide us with a copy of the signed contract. 2) In addition, some carriers pay a portion of overhead and profit as part of A.C.V. but withhold a portion (calculated on the depreciated amount of the claim) as part of Replacement Cost. The insured is often provided the option of recovering the portion withheld as Replacement Cost if he or she meets the condition of first showing repairs have been completed or that a contractor has been retained to complete the repairs. Of course, nowhere in most policies does it provide that the insurer may omit payment, or conditionally withhold

3 payments for overhead and profit. Conditions which provide that general contractor s overhead and profit may be withheld from the insureds, or that overhead and profit will be paid only in the event the insured hires a general contractor, are usually imposed pursuant to an internal company procedure or practice rather than any policy language. IV. Two Company Examples A. Southern Family Insurance Company/Poe Financial Deposition testimony from Brad Wakefield, the designated corporate representative of Southern Family Insurance Company (Attachment 1), indicates that Southern Family trains its adjusters that overhead and profit should not be paid as a component of Actual Cash Value (Wakefield depo., 4/1/03, p.100, L.7-12). This is despite the fact that the company understands that every home already has a component of overhead and profit built into it when the home is constructed, which is part of the value of the home (Wakefield depo., 4/1/03, p.98, L.12-20, p.99, L.14-17). If the insured performs the repairs himself, or the insured has a general contractor perform the repairs but does not submit a copy of the signed contract with the general contractor, Southern Family will not pay for general contractor s overhead and profit (Wakefield depo., 4/1/03, p.91, L.9-16; p.92, L.6-15; p.97, L.7-19; p.100, L.13-23; p , L.17-25; p.144, L.10-13; p.141, L.15-23). Southern Family keeps any overhead and profit in cases where an insured fails to comply with the company s request for a signed contract, even if the work is done by a contractor (Wakefield depo., p ). Southern Family, through Mr. Wakefield, also admits that the policy does not contain the term overhead and profit and that the policy does not state that the company has the right to withhold overhead and profit (Wakefield depo., 4/1/03, p.138, L.1-10, L.17-20). Likewise, the policy does not define Replacement Cost or Actual Cash Value (Wakefield depo., 4/1/03, p.93-96). Note that Mr. Wakefield initially testified that his act of withholding overhead and profit from the Actual Cash Value payments to the insureds was based on the provisions contained in Southern Family s claim manual (Wakefield depo., 4/1/03, p.92, L.16-25). Later, Mr. Wakefield reviewed the claims manual and changed this testimony by stating that there was nothing in the Southern Family claims manual regarding the withholding of overhead and profit. Instead, he testified that he was trained to withhold overhead and profit by Southern Family, and specifically, to only make such payments if the insureds provided a contract with a general contractor (Wakefield depo., 8/21/03, p , L.3-10). This testimony and Mr. Wakefield s apparent confusion raises a question whether Poe Financial Group (the parent company of Southern Family) may have a separate manual regarding overhead and profit which is different from the manual of Southern Family Insurance Company. B. State Farm Florida Insurance Company State Farm s practices are confirmed through the testimony of its corporate representative, William May and its adjuster, Elliott Brown (Attachments 2 and 3). As with Southern Family s policy, State Farm s policy neither sets forth a definition of Actual Cash Value nor does it set out the basis by which State Farm determines Actual Cash Value (Wm. May depo., p.86; Elliott Brown depo., p.52). Likewise, the policy does not contain any language which permits State Farm to place any conditions on the payment of overhead and profit (Brown, depo., p.53). In fact, the policy never uses the term

4 overhead and profit (Brown, depo., p.53). State Farm sometimes pays a portion of overhead and profit as part of the Actual Cash Value of a property loss if, in the adjuster s judgment, it is reasonably likely a contractor will be necessary (See Operation Guide 75-01, p.7-8; and Operation Guide 75-04, p.5)(included as Attachment 4). However, even in cases where it acknowledges overhead and profit is necessary, State Farm holds back a portion of overhead and profit as part of Replacement Cost. That is because even when it believes it to be reasonably likely that a contractor is necessary to complete the repairs, State Farm believes overhead and profit is a component of both Actual Cash Value and Replacement Cost (May depo., p.73-76). Based on this testimony, State Farm s treatment of overhead and profit is controlled by its operation guides and its interpretation of its policy and not by the language of its policy. V. Case Law on Payment of Overhead and Profit Actual Cash Value under the policy, and the law, includes general contractor s overhead and profit. The fact that carriers fail to pay, hold back, or wrongfully impose conditions on the payment of general contractor s overhead and profit is neither supported by the law nor the language of most policies. The act of withholding overhead and profit from payment of an insureds Actual Cash Value property loss, therefore, constitutes a breach of contract. Decisions from Florida and around the country support this position. One decision which is instructive comes from the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida sitting in its appellate capacity. That case is Banker s Surety Insurance Company v. Gary Littlefield, Case No. CVA (a copy of the Littlefield decision is Attachment 5). The Littlefield claim resulted from a windstorm loss which damaged the insured s home. The insurer withheld general contractor s overhead and profit when it paid the Actual Cash Value of the loss. The county court judge found the Actual Cash Value provision of the policy ambiguous, and held that the insurer had therefore breached its contract by failing to pay overhead and profit as part of the Actual Cash Value of the loss. In affirming the decision of the county court, the Circuit Court in Littlefield engaged in a thorough analysis of existing case law from various other states. It reached the conclusion that the insureds were entitled to recover general contractor s overhead and profit as part of the Actual Cash Value of the loss to their home, and that overhead and profit was not part of the Replacement Cost coverage provided by the policy (as argued by the insurer). The Circuit Court analyzed analogous Florida case law discussing Actual Cash Value and it concluded that the term Actual Cash Value is synonymous with the term fair market value under Florida law. However, in affirming the county court, the Littlefield court agreed there was an ambiguity in the Banker s policy by its use of the term of Actual Cash Value. The Littlefield court specifically determined that it was ambiguous whether Actual Cash Value as used in the policy includes or excludes contractor s overhead and profit, because the term Actual Cash Value was not defined. As a result, the circuit court in Littlefield ultimately held that the insurance company had breached its contract by wrongfully holding back and failing to pay general contractor s overhead and profit as part of the Actual Cash Value of the loss. It should be noted that two (2) of the foreign cases analyzed by the Littlefield court clearly hold that the insurance

5 policy term Actual Cash Value is not ambiguous and includes general contractor s overhead and profit absent a contrary definition in the policy. See, Gilderman v. State Farm Insurance Company, 649 A.2d 941 (Pa.S.Ct. 1994); Salesin v. State Farm Fire & Casualty Co., 581 N.W. 2d 781 (Mich.Ct.App. 1998). In Gilderman, a Pennsylvania court held that the repair or replacement cost includes any amounts that an insured is reasonably likely to incur in repairing or replacing a covered loss. It found that, in some instances, those costs include use of a general contractor and a 20% overhead and profit charge. The Gilderman court indicated that the cost of building materials (whether or not such materials are actually purchased) and the cost of labor to install or make such repairs of the materials is to be considered. It further held that where replacement costs are reasonably likely to be incurred, no deductions can be made to determine Actual Cash Value. Some insurance companies (such as State Farm) continue to argue that Gilderman does not require that overhead and profit must always be included in an Actual Cash Value payment. Instead, those companies claim Gilderman stands for the proposition that overhead and profit costs may only be included where they are reasonably likely to be incurred by the insured. As indicated previously, State Farm has incorporated this standard into its internal operation guides (see Attachment 4). Following Gilderman, the Michigan Court of Appeal decided Salesin, supra. In the Salesin case, court held that State Farm owed the policyholder for general contractor overhead and profit despite the fact that the policyholder would almost certainly not incur that expense. Salesin involved a water loss to a residential house caused by a leaking washing machine hose. The policyholder asserted that State Farm wrongfully withheld $5, in general contractor overhead and profit when adjusting the loss. The policy at issue was State Farm s HO5 Replacement Cost Policy. That policy contained provisions allowing for holdback of depreciation but the policy did not directly address the issue of contractor overhead and profit. Id. at 701 The Salesin court stated: It is uncomfortably true that finding that State Farm owes Salesin an additional $5, for contractors overhead and profit will result in a payment to him for costs that he has not incurred and almost certainly will not incur. However, it is true Salesin has paid a premium for a full replacement cost policy. There is no logical reason, nor any reason based on the insurance policy itself or the record below, for deducting estimated contractor s overhead and profit when making payment under I.c.(1) of State Farm s insurance policy The Salesin court further observed: State Farm s insurance policy in this case does not contain a definition of Actual Cash Value, nor does it set out the basis on which State Farm determines Actual Cash Value State Farm routinely deducts contractor s overhead and profit as well as depreciation when it makes an Actual Cash Value of the damage payment under its insurance policy There was deposition testimony that this procedure is contrary to industry norms and practices. Indeed, Salesin asserts, and State Farm does not appear to deny, that State Farm is the only known insurance company that deducts contractor s overhead and profit from the Actual Cash Value payment under a homeowner s insurance policy.

6 Both the decisions in Gilderman and Salesin disproved a prior Federal trial court opinion in Snellen v. State Farm Fire & Casualty Co., 675 F.Supp (W.D.Ky 1987). That prior decision approved State Farm s practice of withholding overhead and profit when paying Actual Cash Value. It is significant to note that the Kentucky Department of Insurance later found the practice of withholding overhead and profit to be improper in a Market Conduct Examination of Allstate Insurance Company. See; Kentucky Market Conduct Examination of Allstate Insurance Company, August 4, 1993 and resulting Order dated December 8, As with the policies at issue in Littlefield, Salesin, and Gilderman, supra, most policies do not contain a definition of Actual Cash Value and do not set out any basis by which a company determines how an Actual Cash Value payment is to be calculated. Most policies also do not contain any reference to overhead and profit or which otherwise indicate that general contractor s overhead and profit is not considered to be a component of Actual Cash Value. Insurers may wish to consider general contractor s overhead and profit to be similar to depreciation a part of Replacement Cost which is subject to being withheld from A.C.V. payments or conditionally paid only when the insured actually incurs that expense. However, nothing in most policies permit the characterization of general contractor s overhead and profit as anything other than part of Actual Cash Value of the loss. The majority of courts who have considered the issue have reached the conclusion that general contractor s overhead and profit should be paid as part of the Actual Cash Value of a claim. These decisions are based on common sense. After all, the price of a house or building originally purchased by an insured includes the value of both the raw materials and the cost and labor used to build it. Such value is inherent in the value of the structure. For their own benefit, many insurers prefer to make an artificial and legally incorrect distinction that general contractor s overhead and profit is not part of the value of the existing structure but is something extra which may be withheld and considered to be a component of Replacement Cost (in whole or in part). It is obvious this interpretation benefits insurers who wish to avoid paying all or part of a claim as long as possible (perhaps forever) and is to the detriment of insureds. If insurers wish to define Actual Cash Value and Replacement Cost to permit general contractor s overhead and profit to be considered part of the Replacement Cost they could easily include such language in the insurance contract. Most fail to do so. As noted previously, Nationwide Insurance Company of Florida has defined Actual Cash Value as follows: 9. Actual Cash Value means the amount it would cost to repair or replace covered property with material of like kind and quality, less allowance for physical deterioration and depreciation, including obsolescence. (Nationwide Insurance Company of Florida, policy HE 09, p.a2) As set forth in Nationwide s policy, it appears Actual Cash Value is defined so as to include overhead and profit because it is not excluded. The only deductions from Actual Cash Value permitted under Nationwide s definition are physical deterioration and depreciation, including obsolescence. As for other policies which do not define the terms Actual Cash Value and Replacement Cost, the courts should either determine that Actual Cash Value includes overhead and profit or that an ambiguity exists in the policy as to whether

7 Actual Cash Value includes or excludes contractor s overhead. Either way, the result is the same the courts should find for insureds and determine that overhead and profit cannot be withheld from an A.C.V. payment. There is another Florida case which supports this analysis. That case is Banker s Security Insurance Company v. Brady, 765 So.2d 870 (Fla. 5 th DCA 2000) (Attachment 6). To date, Bankers is the only Florida appellate court decision to address the issue of overhead and profit. Although the primary issue addressed by the court in Banker s was whether there was a breach of an oral settlement agreement between the parties over the adjustment of plaintiffs claim, another issue on appeal was whether overhead and profit was included in the Actual Cash Value of the damage to the insureds home. In acknowledging the insureds appeal of the failure to pay overhead and profit, and the insurance company s imposition of the condition that overhead and profit would not be paid until after the insureds first signed a contract with a general contractor, the Banker s court stated: [w]e need not address the additional issue of whether Banker s could withhold overhead and profit. It apparently has paid the settlement less overhead and profit. But we find nothing in the policy that authorizes Banker s to withhold overhead and profit from the cost to repair or replace a covered loss, since under this policy Banker s undertook to pay its insureds prior to the actual repair or replacement. Id. at 872 (emphasis added). The Fifth District Court of Appeal in Banker s specifically noted that the circuit court below had ruled that Banker s cannot withhold overhead and profit under its policy. Id. at The appellate court did nothing to disturb that finding and it expressly stated that nothing in the policy authorized the insurer to withhold overhead and profit. Id. at 872. Based on the Banker s decision, it appears the Fifth District Court of Appeal would agree that the payment of Actual Cash Value for damage to an insured s home includes contractor s overhead and profit in the absence of contrary policy language. Since the Banker s decision, the case of Ghoman v. New Hampshire Insurance Company, et al., 159 F.Supp.2d 928 (N.D.Tex.2001) was published. In Ghoman, the insured owned a hotel damaged by wind and hail and the insurer paid the Actual Cash Value of repairs but withheld overhead and profit (among other things) from the payment. The Federal trial court held the insurer wrongfully failed to pay general contractor s overhead and profit as part of the Actual Cash Value of the insureds loss. The Ghoman court noted that the term Actual Cash Value was synomous with the term fair market value under Texas law. Id. at 934 (this is the same conclusion reached by the opinion of the Florida Ninth Circuit Court in Banker s Surety Insurance Co. v. Littlefield, supra). The Ghoman court ultimately concluded that Actual Cash Value under the policy means Replacement Cost less depreciation, and that the contractor s overhead and profit falls within the term Actual Cash Value. Id. at 939. In reaching this conclusion, the Ghoman court cited with the approval the previous appellate decisions in Salesin and Gilderman, supra. Id. Insurers may argue that the payment of general contractor s overhead and profit will result in a windfall to the insured where the insured does not retain the services of a general contractor or decides to repair certain damages himself. However, this windfall argument has been rejected by the courts which have considered it. Ghoman is one case which rejected the windfall argument. The insured made the repairs using its own materials and

8 personnel and without a general contractor. The Ghoman court addressed the claim that the insured did not actually incur the costs for contractor s overhead and profit because he completed the repairs himself. The court found that while the insured did not incur any cost for a general contractor: Id. at [It was] legally irrelevant the plaintiff contracted for the Actual Cash Value of his loss. His recovery is not tied to the repair or replacement of his property. The same result was reached in Salesin v. State Farm Fire & Casualty Co., 581 N.W. 2d 781 (Mich. Ct. App. 1998). There, the court rejected State Farm s theory that the insured would reap a windfall if he were paid general contractor s overhead and profit as part of the Actual Cash Value of the loss and before such damages were incurred. The court instead stated: The original estimate of the Actual Cash Value of the damage, is just that, an estimate. Certainly, the insured has not incurred the cost of contractor s overhead and profit at this point. Neither, however, has the insured incurred the cost of labor or materials. It is no more logical to exclude the former than it is to exclude the latter Id. at 791. VI. DOI Bulletins Addressing Overhead and Profit In addition to the case law, there are also several state departments of insurance bulletins and publications which support the insureds argument that overhead and profit is part of A.C.V. While the position of a state department of insurance is not controlling, it may provide guidance to the courts. See; Kimbrell v. Great American Insurance Co., 420 So.2d 1086 (Fla. 1982). A. Florida: In 1992, the Florida Department of Insurance (DOI) issued Informational Bulletin That Bulletin was entitled Hold Backs Prohibited on Real Property Partial Losses and was issued following Hurricane Andrew. The DOI cited the case of Sperling v. Liberty Mutual, 281 So.2d 297 (Fla. 1973) which interpreted the application of Florida s Valued Policy Law, Section (2) to prevent the withholding of depreciation. In Bulletin , the DOI also stated: This authority is specifically applicable to the practice by insurers of imposing a hold back of insurance proceeds greater than Actual Cash Value until replacement has taken place. While this practice is appropriate for personal property, this bulletin serves to place insurers on notice that for partial losses on real property, the hold back is inconsistent with established precedent insurers who have been applying hold backs in claims for partial loss on real property should pay the actual amount of the loss. The DOI stated its belief that the application of a hold back can cause the insured difficulty in repairing the property: The application of a hold back to repair of real property can particularly cause hardship to the insured when the Actual Cash Value payment is insufficient to enter into a contract to make repairs. In such an instance, the insured may be forced to seek other funding sources, at his expense, in order to contract for repairs. (Bulletin ).

9 B. Other States: Similar department of insurance bulletins have been issued in the States of Colorado and Texas. In Colorado Insurance Bulletin 12-98, the Commissioner of Insurance in that state stated deduction of contractor s overhead and profit, in addition to depreciation, is not consistent with the definition of Actual Cash Value. Similarly, the Texas Insurance Commissioner s Bulletin No. B provides the deduction of prospective contractor s overhead and profit in determining the Actual Cash Value under a Replacement Cost policy is improper, is not a reasonable interpretation of the policy language, and is unfair to insureds. The Texas Department of Insurance also specifically rejects the windfall argument in its bulletin. VII. Settlements on Overhead and Profit Claims Many settlements regarding overhead and profit are protected by confidentiality. Some notable exceptions are: A. Gonzales v. State Farm, Superior Court of California, County of Los Angeles, Case No (Joint Settlement Agreement requiring payment of overhead and profit as part of ACV) (1998). B. Morris v. Liberty Mutual Fire Insurance Company, Case No. CJ , District Court, Pottowatomie County, OK (Stipulation of Settlement in Class Action alleging insurer improperly withheld payment of overhead and profit from homeowners property damage claims)(2005). VIII. Conclusion Several states have case law and/or department of insurance bulletins which support the position that overhead and profit is part of the Actual Cash Value of a property insurance claim. Florida law appears to follow the majority view. Nonetheless, some carriers continue to misinterpret the law and ignore the best interests of their insureds by withholding overhead and profit and imposing wrongful conditions designed to discourage payment of overhead and profit. Insureds adjusters and attorneys should expose and prevent this practice whenever possible. If the insurance industry will not correct and prohibit this practice itself, it appears it will need to be remedied by litigation, including claims for breach of contract, declaratory relief, unjust enrichment, improper claims handling practices, and the use of class action suits where appropriate. << Back

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