What do you think?

Ohio Subscriber

A

We believe the claim should be covered for a number of reasons.

First, the cause of loss is the sink falling from the conveyor belt and being subjected to heat processing for a longer period of time than required. The oven did not malfunction; its temperature remained in the correct range. Therefore, there was no change in temperature, nor was there an extreme of temperature beyond the oven's normal range.

The exclusion cited (2.d.(7)(b), which excludes coverage for changes in or extremes of temperature) has been found ambiguous by several courts. For example, a Connecticut court stated in Burnham & Brady, Inc., v. Graphic Arts Mutual Insurance Co., 1998 Conn. Super. Lexis 1976, that there had not been any prior Connecticut cases interpreting the exclusion. However, the court declined to uphold it, stating that “case law from other jurisdictions has held those words to be ambiguous because they can be read to refer either to indoor or outdoor temperature.”

Even if the temperature exclusion did apply to the loss, there is arguably another factor: the fall from the conveyor belt. The exclusion cited is not preceded by concurrent causation exclusionary language. Concurrent causation is a court-developed doctrine stating that, when an excluded peril and a covered peril both contribute to a loss, the loss is covered. In response to the doctrine, ISO added concurrent causation exclusionary language to certain excluded perils. But the language does not precede the section 2. exclusions, where the extremes of temperature is listed.

Therefore, if the fall contributed to the loss, and if the fall is not excluded, coverage for resulting damage should be triggered even if a section 2. exclusion did apply.