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CCarr
Canada
1200 Posts |
 Posted - 02/19/2003 : 10:45:43
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I am creating this thread, to isolate this particular doctrine, which can not be ignored on the 'trail' down the road to considering 'cause' or 'coverage'.
In part, it re-emphasizes my belief that policies must be read from the front to the back. The design and flow of a policy wording, is an important concept when a person has to utilize a policy in the determination of the "3Cs".
'Definitions' preceed 'Coverages', so we can relate to the critical areas of the wording; within the intent of the policy, and they set a lot of parameters.
'Coverages' preceed 'Perils Insured Against', so we can know what is covered, before we consider a peril.
'Perils Insured Against' preceeds 'Exclusions', so we can relate to cause, then consider items not intended to be covered.
'Exclusions' preceed 'Conditions', so we can assess our finds to that point in the policy, to the requirements of both the insurer and the insured.
An interesting example of the applicability of this issue is found in the "Freezing Pipes" thread in this 'coverage' forum; where I raised the issue of the fortuity doctrine.
It is not a doctrine where we encounter its applicability very often. However, when considering the first part of a policy - "Defintions" - and that of 'occurrence', the doctrine may arise from time to time; as I felt it did in the "freezing Pipes" thread.
To try and further illustrate the importance of this doctrine, when its applicability is at issue, I did a "Google" search, and offer the following, which is only a small part of what is available for review on the web.
www.gpsllp.com/briefings_y2kfortuity.htm
A briefing from a CA law firm, worth reviewing.
In summary, ".... no loss, risk or claim is insurable if it does not satisfy the fortuity doctrine. The concept of fortuity is fundamental and common to all insurance ....".
www.thefederation.org/public/Quarterly/Fall01/boris.htm
An article by a credible defense attorney author. Although the bulk of the article talks of the fortuity application to liability policies, they do a good job of discussing the doctrine.
In summary, "The concept of fortuity is an indispensable component of any form of insurance .... As one court explained, the concept of fortuity is basic to insurance law. Insurance typically is designed to protect contingent or unknown risks, not to protect against harm that is certain or expected. Insurance protects against risks of loss, not certainties of loss ....".
For anyone that subscribes to "Risk and Insurance" magazine, there is a good article in the January 2003 edition by Robert Frankel, concerning fortuity and summarized as follows; ".... a number of state courts are broadly interpreting the fortuity doctrine, .... that denies coverage when a policyholder should have been aware of likely exposures to loss".
www.thefederation.org/Public/Quarterly/Spring98/machanic.htm
An interesting paper during the run up to the y2k concern. There is a specific discussion concerning fortuity and property policies.
In summary, ".... property policies, even so called 'all risk' policies, do not cover losses which are substantially certain to result .... unless the loss is fortuitous, proceeding from a combination of accidental and unexpected circumstances over which the insured has no control .... there can be no recovery under a policy ....".
The y2k 'scare', is a good example of this, and was the crux of the issue at that time. The author of the paper explained it as follows; ".... In the case of computer related losses in the year 2000, the losses are inevitable, not accidental and unexpected. Insureds have control and can protect themselves. Any harm to insureds will not be fortuitous".
www.crowleylaw.com/IPNews/IP008.htm
This is a July 99 newsletter by a distinguished Montana legal firm. It discusses y2k insurance coverage and an overview of key issues.
In summary, ".... one of the foremost questions with which the courts will have to deal is the requirement of fortuity. For a risk to be insurable, it generally must be fortuitous, i.e., an unexpected, unknown event occurring in the future. The fortuity principal is inherent in the definition of "occurrence" in insurance policies as well as in various exclusions ....".
So, hopefully, this review will create a reference point for whenever concerns arise in a claim you have, where the issue of "occurrence" or "accident" require further examination. |
Edited by - CCarr on 02/19/2003 10:49:20 |
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Newt
USA
657 Posts |
Posted - 02/19/2003 : 12:16:42
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"Damn Fool Doctrine" involve calculated decisions by the insured. That is, the conduct may have been intentional, but the consequences were not intentional. This doctrine is subjective and imprecise, subject to interpretation. Some types of risks are inappropriate to shift to an insurer.
The key would be interpretation, how and where this occurred may have a bearing. In moderate climates this may not be expected by any one. It may have gotten colder than predicted, therefore in my opinion we don't have all the info to make the decision. If this happened in Cutbank, Montana it may apply, because it was an act out of the ordinary.
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Edited by - Newt on 02/19/2003 12:21:56 |
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CCarr
Canada
1200 Posts |
Posted - 02/19/2003 : 13:21:26
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| This doctrine is worthy of being aware of way beyond just frozen pipes, Newt. |
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Newt
USA
657 Posts |
Posted - 02/20/2003 : 14:04:17
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Sorry I put this in the wrong pew, I will do some more reading and come back to the subject.
I have this in my Insurance Law II book, and need to refresh on it.
I left the computer for a while and came back posting on the frozen pires, didn't even look at the title and goofed up. |
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canduss
USA
120 Posts |
Posted - 03/09/2003 : 03:33:11
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| Claims representatives are always ready to reference any Coverage (even collapse) within any policy...given a specific peril......this is the time to reflect and interpolate policy limits considering coverage afforded........ |
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Fortuity Doctrine considerations
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