In this month that we celebrate love, the best theme for our topic is best expressed by Tina Turner: What's love got to do with it?
I refer to policy language analysis. Last month when we discussed this issue, I warned that hearsay and folklore are too often the basis for interpreting insurance policy language.
This month, permit me to add "love" to that list: specifically, the all-too-common practice of falling in love with the way you wish the policy read. Perhaps the Doobie Brothers expressed the inherent dangers the best: "What a fool believes he sees, no wise man has the power to reason away."
Why the Business Auto policy (BAC) should so often be the fulcrum of such struggles between emotion and reason is a puzzlement, but such it be. One of the most heated exchanges over my past articles pertained to my seemingly straightforward assertion that Symbol 1 means exactly what it says: "Any auto."
Unless there is some following exclusion or limitation that modifies that two-word statement, it stands as written. Yet many readers, including a few widely recognized as experts of our coverage world, took umbrage that I could interpret that wording too broadly.
This "answer I love" versus "answer that is real" conflict arose again in a question posed to the IIABA Virtual University. Here are the basic facts:
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Insured has a BAC with Symbol 2 for all coverages
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The insured asked the agency to delete several autos that were being sold
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An accident occurred, causing $8,000 in damage to one of the deleted autos
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Turns out that auto was never sold, and insured admits the request to delete was an error
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Insurer denies claim due to the fact damaged auto was deleted.
Astute readers know where we begin: Read the form! Here is the applicable ISO BAC (CA 00 01 03 06) language:
Symbol 2: Owned "autos" only. Only those "autos" you own (and for Liability Coverage any "trailers" you don't own while attached to power units you own). This includes those "autos" you acquire ownership of after the policy begins.
There are no further applicable exclusions or limitations.
Virtual University respondents said that said that "newly acquired" was the only exception to "declared." Interesting theory, but where in the policy does language back up such an assertion? To deny a claim takes more than theory; it takes solid policy language, ultimately defensible in court.
And the solid policy language is, in fact, there for all to see. "Symbol 2: Only those autos you own." So we only have two questions to ask:
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Does Symbol 2 provide coverage for physical damage to owned autos on this policy? Yes.
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Did the insured own the auto damaged? Yes.
We're done.
There is only one further possible exception applicable for the carrier to hang their denial upon: General Condition 2: Concealment, Misrepresentation or Fraud. The entire policy may be voided if the carrier can prove the insured guilty of any of those three.
The courts are strong on any attempt to void an entire policy after the policy has been issued and the applicable premium paid. Because an insured has the right to depend upon coverage, the burden is on the carrier to demonstrate clear evidence of intent to conceal, misrepresent or commit fraud.
Do we have such evidence? As it appears, there is no other mistake here than an insured thinking a sale was going to take place, which later fell through. And that falls far short of clear intent to defraud, conceal or misrepresent. As for the carrier's reasonable expectation that proper premiums need to be collected for what they now know to be the reality of owned vehicle exposure, that is for General Condition 6: Premium Audit.
So why would otherwise reasonable practitioners of the insurance arts, such as the carrier who denied this claim, resort to a search for theoreticals when the coverage is stated clearly and unambiguously?
Love. And what is love but a second-hand emotion? The Virtual University respondents are simply not able to get past their emotional reactions to the seeming unfairness—that an insured could actually delete autos from a policy and then expect a claim on those very vehicles to still be paid. Their emotional responses then led them to seek out any possible policy provision that might somehow back up their already false assertions, even if those provisions are clearly inapplicable. Love is truly blind. And once a fool believes, there goes reason.
Do not misread me, emotional ones. The Princess Bride's "Twooo Wuvvv" is a wondrous state of being. But then again, Westley knew when to keep his piracy career apart from his love for Buttercup.
Moral of the story? When it comes to the emotional love of your life, think Elvin Bishop's "Fooled Around and Fell in Love." When it comes to the logic of insurance language, think J. Geils: Love stinks!
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