Spoilage of Food Still a Consequential Loss
Q
Our insured's building and contents are insured under commercial property forms CP 00 10 04 02 (Building and Personal Property Coverage Form) and CP 10 30 04 02 (Special Causes of Loss Form). Recently, lightning struck a utility pole located off premises, damaging a compressor attached to a walk-in refrigerator in his building. Food stored in the refrigerator spoiled. The insurer is paying for the damage to the compressor but is denying coverage for the spoilage loss, claiming that it is a consequential loss. We think that the spoilage is covered because lightning, a covered cause of loss, was the proximate cause of the entire loss. What do you think?
Virginia Subscriber
A
Because of the lapse in time between the lightning damage and the spoilage that is typical in the situation you describe, it is common to rule out coverage under forms promising insurance against direct physical damage. In other words, lightning is seen as the proximate cause of the damage to the equipment, but only as a remote cause of the spoilage. Change in temperature caused the spoilage, a loss that would not have happened had an attendant been on the premises.
Not so long ago, this loss would have been covered by the commercial property forms. At that time, although all risks forms excluded damage from changes in temperature, the exclusion did not apply if there was physical damage by a covered peril to equipment on the premises. This was changed when the simplified language forms were introduced and no exception to the changes in temperature exclusion was included.
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