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Message |
Dale Strain
Registered User
Username: Catmandale
Post Number: 1
Registered: 1-2002
| | Posted on Sunday, February 17, 2002 - 6:15 pm: | |
Steve,
In your first post, you mention that the pool, if a structure, should have been declared and listed on the policy. Is this the reason for denial of coverage? That it had not been reported and premium collected?
I'd be interested to know what underwriting values they would use on the pool. Does the county assessor add the pool when they levy taxes?
What is the cause of loss to this property? Is the question between covered perils or all risk?
It has been my practice over the years to look for coverage rather than a reason not to pay. That is not to say that all things are covered, but the approach we take and our intent is measured by those around us. Fair dealing pays off.
Good luck in court.
Dale
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D Wong Whey
Registered User
Username: Dwongwhey
Post Number: 57
Registered: 10-2001
| | Posted on Sunday, February 10, 2002 - 10:24 pm: | |
Definitions within the insurance policy govern coverage deriving from a specific insurance policy. Other definitions such as definitions from a building code, while perhaps useful, are not governing in determination of the distinction of real versus personal property.
I suspect that your carrier denial was in large part based upon a recommendation which was made by the unenlightened adjuster in the claims report. It is becoming even more apparent that you are now trying to defend a poor decision by grasping at straws.
You might find it useful to read the CPCU textbook on the legal environment and legal issues of insurance or perhaps read a law school textbook about real property.
This is just one more reason why higher professional standards and continuing education are necessary to protect the consumer public from the uninformed and undereducated. |
Tom Strickland
Registered User
Username: Toms
Post Number: 21
Registered: 12-2001
| | Posted on Sunday, February 10, 2002 - 10:20 pm: | |
 In a nutshell, if this "pool" was purchased and delivered and put together and it can be reveresed (no matter how hard, impractical,or whatever) it is UPP. I cannot see it being APS unless I have missed something. I humbly think the insured is in a good position at present, again, unless we missed something.
Steve, I guess the real question is "why,and/or what were the exclusions that the carrier used in denying this claim"
One other thing, in preparing for your deposition or testimony, Your file should reflect your testimony. Don't try to lead your testimony one way or the other, let your file do the talking, ie, rec'd assg, contact,inspect,appraise/scope (and all the other whistles and bells) status report to carrier and then "you" were (IF that is the case) instructed by the carrier or the carrier did deny this claim "based on their interpretation of the insureds policy language and exclusions, etc. I am sure others will post with other good advise, but again, let the file tell your story!!
Good luck and if any other help, keep posting, look how everybody trys to help . We "all" "can" get along!!!
Also,I don't feel the code will hold "water". Cause it can be "drained" Also, a chlds (or adjusters) jungle gym "may" require a permit (due to size,construction,etc) but when moved, they will make daddy take it with them.
(Message edited by toms on February 10, 2002) |
Steve Whitcomb
Registered User
Username: Stevew
Post Number: 4
Registered: 9-2000
| | Posted on Sunday, February 10, 2002 - 9:49 pm: | |
Uniform Building Code, Section 106 - Permits.
106.1 Permits Required. Except as specifed in Section 106.2, no building or structure regulated by this code shall be erected, constructed, enlarged, altered, repaired, moved, improved, removed, converted or demolished unless a separate permit for each building or structure has first been obtained from the building official.
106.2 Work Exempt from Permit. A building permit shall not be required for the following:
11. Prefabricated swimming pools accessory to a Group R, Division 3 Occupancy in which the pool walls are entirely above the adjacent grade and if the capacity does not exceed 5,000 gallons ...
In this case, the diameter of the pool is 17'6" with side wall height of 5'3". Assuming the pool is filled to a minimum depth of four feet:
A = area of a circle (Round Swimming Pool)
A = pi R2 or A = 3.14 x (8.75 x 8.75) or A = 3.14 x 76.56 or A = 240.4 square feet. Water depth is 4 feet x 240.4 square feet or 961.6 cubic feet.
There are 7.48 gallons in a cubic foot. 961.6 cf x 7.48 gpcf = 7192.77 gallons of water in this pool scenario.
If my math is correct, a building permit is required under UBC Section 106. What other personal property requires a building permit?
As always, your thoughts are greatly appreciated.
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D Wong Whey
Registered User
Username: Dwongwhey
Post Number: 56
Registered: 10-2001
| | Posted on Sunday, February 10, 2002 - 6:49 pm: | |
Linda I would argue that if the shed is bolted to a foundation it is indeed APS but if it is merely sitting atop a concrete pad without any anchors, then it is personal property. I post only to clarify what I think you intended. If that was not your intent, please post to correct my assumption. |
Linda Asberry
Moderator
Username: Linda
Post Number: 20
Registered: 12-2000
| | Posted on Sunday, February 10, 2002 - 5:09 pm: | |
1. If a shed is on a foundation then it is a APS, if it is on skids, then it is personal property.
2. The above ground pool, assuming it has not been landscaped or otherwise enclosed in such a manner to render it impossible to move then it is personal property.
3. The water and chemicals in the pool are personal property no matter what the status of the pool.
I agree the carrier is on thin ice denying this claim. Will be interesting to see how far they skate. Keep us posted.}}}
(Message edited by Linda on February 10, 2002)
(Message edited by Linda on February 10, 2002) |
John Durham
Registered User
Username: Johnd
Post Number: 27
Registered: 9-2000
| | Posted on Sunday, February 10, 2002 - 1:06 pm: | |
Steve:
The carrier MAY want to deny the claim as not being an APS, BUT would not this be the same as an 8 X 10 shed, which IS an APS? Now this example shed COULD be moved on a truck if the insured vacated the premesis ... the same with a "portable" pool. As previously posted, the company may be on very thin ice on this and we all know how the courts have responded in the past. APS or UPP, if the coverage is there for either, the company owes for this loss. Does a policy specify if an APS so covered MAY NOT be moved from the location or must be so attached as to render it "unmoveable" from the location? And if so, why are "sheds" classified as an APS. If this goes to court, you should have answers for these questions, among others. Good Luck.
PS: This is one reason why "CONTRACTORS" should not/cannot handle claims as this type of problem is not unusual !!
John Durham
(623) 544-2369
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D Wong Whey
Registered User
Username: Dwongwhey
Post Number: 55
Registered: 10-2001
| | Posted on Sunday, February 10, 2002 - 12:18 pm: | |
What would you call the water in the pool? Personal property or other structure?
When the above ground swimming pool kit arrived by truck but before it is assembled on site, what would you call the kit? Personal property or other structure?
What would have happened if a windstorm had blown a tree over the kit and damaged it before assembly? Would the damage be to UPP or other structure?
Was the pool somehow 'permanently attached' or despite the inconvenience, movable?
No matter what your carrier decision in denial, unless there are facts absent here, the case in my opinion will ultimately be decided in favor of your insured. The carrier would appear to be making a decision on very thin ice.
Please let us all know how the court finally decides this case. |
mark salmon
Registered User
Username: Olderthendirt
Post Number: 137
Registered: 12-2000
| | Posted on Sunday, February 10, 2002 - 11:48 am: | |
A pool that has to be assembled, with a partial deck, not something you drag to a new location to save the grass or throw on the moving truck. I would call it other structure. |
Steve Whitcomb
Registered User
Username: Stevew
Post Number: 3
Registered: 9-2000
| | Posted on Sunday, February 10, 2002 - 11:24 am: | |
Tom and DDW,
The carrier has already denied coverage,using the other structures vs personal property argument. The insured has filed suit. I am just trying to prepare for the court hearing.
I just thought it posed an intriguing question regarding coverage under a farm fire and wind policy. With the vast knowledge base of the CADO
posters, I knew there was someone who could set me straight.
Your thoughts are greatly appreciated. |
D Wong Whey
Registered User
Username: Dwongwhey
Post Number: 54
Registered: 10-2001
| | Posted on Sunday, February 10, 2002 - 7:24 am: | |
I agree with Tom Strickland that you really do seem to be looking for a way to deny this claim with your unproportional interest in case law. As Tom has requested, please give us more details. |
Tom Strickland
Registered User
Username: Toms
Post Number: 20
Registered: 12-2001
| | Posted on Sunday, February 10, 2002 - 2:21 am: | |
Steve, I feel the pool would be personal property.
The answer to your question if you have coverage in the amount $ xyz.oo then you could pay that much. I don't really understand your issues with court cases unless you are attempting to deny coverage or something along those lines. Please clarify and I will do my best to do some research as to pools being personal property or other structure. If considered an other structure your coverage would be 10%,(unless its a M/H policy,of some sort) again, unless I am missing something. Sounds like you want to deny this claim for some reason, but please explain in a little more detail and more help could be forthcoming. I will search Nexus and see what I find.
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D Wong Whey
Registered User
Username: Dwongwhey
Post Number: 53
Registered: 10-2001
| | Posted on Saturday, February 09, 2002 - 9:30 pm: | |
Steve your above ground pool can readily be considered personal property notwithstanding whatever case law you may find. Ironically, under an HO-3 policy, if coverage limits are reached, coverage could probably be afforded under either Coverage B for other structures or Coverage C for personal property.
While I don't have time this evening to go into the various nuances which you now bring up, you do raise some interesting questions, which need to be answered in order to help some of the newer younger adjusters who visit this board regarding the distinctions to be made between personal and real property improvements.
I'll be back later with more. In the meantime, please feel free to jump in with your own thoughts to help educate fellow adjusters. |
Steve Whitcomb
Registered User
Username: Stevew
Post Number: 2
Registered: 9-2000
| | Posted on Saturday, February 09, 2002 - 1:13 pm: | |
DWW and RD
Thank you for your responses. I agree that portablity is a consideration. And, probably even the insured's intent.
Portability? Just about anything can be moved now days. Castles, bridges, corn cribs, etc. Some more easily than others. But these would not be considered personal property.
Intent? The insured states that if he sells the farm, he may or may not take the above ground pool with him. How much damage would the insured do to the pool disassembling and reassembling the pool?
"Structure" - Something made up of a number of parts held or put together in a specific way.
Sounds like an above ground swimming pool to me.
The insured purchased the 18' x 5' round pool with an attached partial metal deck, and the seller's employees leveled the site, erected the structure and the local fire department came out and filled it with water.
Would the increased liability, of having the pool at the insured location,come in to play? And, if so, should the insurer have been notified of its existance?
Does anyone know of any court decisions dealing with the definition of personal property? As always,I would appreciate any furhter assistance you can give me. |
R D Hood
Registered User
Username: Old_dog
Post Number: 8
Registered: 1-2002
| | Posted on Thursday, February 07, 2002 - 10:56 am: | |
DWW is correct. It is Personal property and coverage, (if afforded) is available, check if this is a RCV policy or ACV.
F&R policies normally have scheduled APST, and you are correct in that aspect. |
D Wong Whey
Registered User
Username: Dwongwhey
Post Number: 52
Registered: 10-2001
| | Posted on Thursday, February 07, 2002 - 10:32 am: | |
If the above ground pool is movable or 'portable' then it is considered personal property. Property permanently attached is considered real property and can include 'other structures.' |
Steve Whitcomb
Registered User
Username: Stevew
Post Number: 1
Registered: 9-2000
| | Posted on Thursday, February 07, 2002 - 9:58 am: | |
Under a standard fire and wind(farm) policy, a windstorm totals the insured's 18' above ground swimming pool.
Is the above ground pool considered personal property or would it be an other structure, which should have been declared and seperately list on the policy?
Is anyone aware of any court cases that have delt with this issue?
Your thoughts and supporting rational, will be greatly appreciated.
SteveW
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