We insure a performing arts building that is owned by a nonprofit foundation, but the land on which it is situated is leased from the city. On the premises in a separate structure from the insured building is a vault containing all of the electric wires that service the insured's building. A fire in this vault knocked out power to the performing arts building just when a major performance was scheduled.

We have off premises services—time element power failure coverage (CP 15 45 04 02), but it presents two problems. There is a sixty hour deductible, and the damage actually occurred on premises, although the damaged wiring was in a structure owned by the city and not insured by our client.

We have argued that the damaged wire, even though it was located in the city owned vault, was owned by the insured because it ran directly into the insured's building and thus constituted a loss that triggered the business income coverage. The insurer claims that the wire is owned by the utility company and is therefore not insured property, thus precluding business income coverage.

Oregon Subscriber

It makes no difference whether the wire is owned by the insured or by the utility company. The business income coverage in form CP 00 30 04 02 is triggered by property at the insured premises being damaged by an insured peril. The actual policy language reads as follows: "The suspension [of your operations] must be caused by direct physical loss of or damage to property at the premises described in the declarations." There is no requirement that the property be covered property or that it be owned by the insured. Since there is coverage under the business income coverage form, there is no need to look to the off-premises services form.

A Pennsylvania subscriber has a question about a very similar claim with opposite results. He writes:

Our insured suffered a business income loss when wind caused a tree to fall on wires on the insured's premises. The insurance company has denied coverage under the special causes of loss form, CP 10 30 06 95, because of exclusion B 4. a. (1), which states: "We will not pay for any loss caused directly or indirectly by the failure of power or other utility service supplied to described premises, however caused, if the failure occurs outside of a covered building."

Although there was no off premises power failure, I think this should be covered because the business income form, CP 00 30 06 95, covers suspensions caused by direct physical loss of or damage to property at premises which are described in the declarations.

This seems very similar to the other loss. Should it be covered?

While this loss does seem to be similar to the other, the edition dates of the forms used are different. The exclusion for failure of utility service "if the failure occurs outside of a covered building" was added to the special causes of loss form, CP 10 30 06 95. The 1991 edition did not contain this exclusion. This makes a substantial difference in how apparently similar—but not identical—claims should be handled.

 In addition to adding that particular exclusion to the 1995 special causes of loss form, ISO also amended endorsement CP 15 45 06 95 utility services—time element to add language covering the interruption of service to the described premises, which would cover interruption occurring outside a covered building. Since the 1991 edition of form CP 15 45 does not limit coverage to loss arising from damage "located outside of a covered building," the loss you describe probably would have been covered under the 1991 form.

 However, when using the 1995 special causes of loss form, the claim would be excluded unless endorsement CP 15 45 06 95 were also attached to the policy.

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