April 8, 2010

We are working on a commercial fire loss of a restaurant/bar that occurred in October of 2009. The fire left a hole in the roof of the building that was uncovered for several months. To date, the loss is still under investigation by local and federal authorities and the carrier. We requested in writing on numerous occasions that the roof issue be addressed and the property be mitigated from further damage to protect the integrity of the site. The property was released from the state fire marshal to the carrier but remains under investigation by the carrier and has not been released to the insured. The carrier sent an estimate for $1,200 to tarp the roof from a builder/vendor but nothing was done. The insured has not been allowed on the property without having the state fire marshal or the carrier there.

The carrier sent a notice to the insured stating that the insured is not in compliance because the loss was not mitigated from further damage. The insurer is spending $40,000+ to put a new roof over the loss site. In addition, the insurer is heating the loss site for fourteen days then calling in an electrical expert to review the loss and do a separate investigation. We had requested this be done previously as well but it went ignored by the carrier.

Our question is in this situation—when the property is not released to the insured—how can the insured be responsible to mitigate further damage? How can the carrier hold the insured responsible when our requests went unanswered for nearly five months? How can they make the decision to spend that amount of money to put a temporary structure in place without the approval of the insured? What rights are afforded the insured under the policy when access to the site is restricted and any work at the site by the insured was not permitted?

Indiana Subscriber

It is our opinion, based on the information you have provided, that the insured took all reasonable steps to protect the property from further damage. If the insured did not have access to the property to tarp the roof and made requests to the insurer to do so, there was nothing more the insured could reasonably do. Based on these facts, the insurer is incorrect in stating that the insured is not in compliance.

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