We would like to know how the Ordinance or Law Coverage Endorsement, CP 04 05 10 90, will respond to the Americans with Disabilities Act (ADA). For example, if an older building is damaged by a covered peril, and the ADA requires additions such as a ramp or elevator, will this be covered even if the old building did not contain these items? In other words, will construction of new features rather than simply repairing or replacing old be covered?
Under 3. Coverage C—Increased Cost of Construction Coverage, the endorsement reads "we will pay for the increased cost to repair, rebuild, or construct the property caused by enforcement of building, zoning or land use ordinance or law." Does the ADA fall within this description, since it is a federally mandated social act? Do you know of any court cases addressing these issues?
Michigan Subscriber
We can find nothing in the endorsement that would preclude coverage. Part A of the endorsement, Coverage for Loss to the Undamaged Portion of the Building, states "we will pay for loss to the undamaged portion of the building caused by enforcement of any ordinance or law that…regulates the construction or repair of buildings." According to Webster's Collegiate Dictionary "to construct" means "to make or form by combining or arranging parts or elements." Nothing in this definition implies construction can only apply to repairing or replacing preexisting elements.
In Part C, Increased Cost of Construction Coverage, the placement of the comma after "building" clearly indicates that a "building" ordinance or law is separate from a "zoning or land use" ordinance or law, and that the two items are covered. Again referring to Webster's Collegiate Dictionary, an "act" is "the formal product of a legislative body: statute." The ADA falls within the scope of a "building law."
When presented with claims for new construction of mandated elevators, ramps, or restroom facilities, for example, insurance companies may attempt to deny coverage on the grounds that this was never the intent of the endorsement. They may argue that the endorsement was intended to provide, in event of a loss, construction to code. Rebuilding with earthquake-resistant materials is an example of this.
Although the ADA is too recent to have brought about any definitive court cases, our opinion is that, should the matter go to court, coverage questions will be resolved in favor of the insured. There are two reasons for this. First, any ambiguity of language is resolved in favor of the insured. Second, Part B of the endorsement clearly excludes coverage for enforcement of any law or ordinance requiring clean up, etc., of "pollutants." There are no other exclusions of coverage in the endorsement.
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