ADJUSTERS INTERNAT IONAL . COM 7 A D J U S T I N G T O D A Y money — and insurers control when and how much of it is supplied. In short, just as the insurer should not pay extra BI where the policyholder delays, the policyholder should not receive less BI where the insurer delays. Both rules, a simple mirror of each other, are fair and equitable. Thus, courts have held that where repairs are delayed because of insurer delays — either in funding or in adjustment activity — the BI period is thereby lengthened. • In Vermont Mut. Ins. Co. v. Petit, 613 F.Supp.2d 1172 (D.Mass. 2009), where the policyholder’s rental property was destroyed by fire, the BI period included “any delay attributable to [the insurer’s] failure to perform its duties under the policy,” or “failure to adjust [a] loss within a reasonable time,” extending the normal BI period to include the entire time taken by the insurer to adjust and pay the loss. • In SR International Business Ins. Co., Ltd. v. World Trade Center Properties et al., 2005 U.S. Dist. LEXIS 13001, *20 (S.D.N.Y. 2005), with respect to the World Trade Center Buildings, the court acknowledged that the BI period can be extended by “delays attributable to actions taken by the insurers, not the insureds.” • In Streamline Capital, L.L.C. v. Hartford Casualty Ins. Co., 2003 U.S. Dist. LEXIS 14677, *7 n.5 (S.D.N.Y. 2003), where a tenant’s offices were destroyed in the World Trade Center, the court acknowledged that cases “support the view that a delay in payment may have a direct effect on the timing of an insured’s resumption of business.” • In Sabbeth Ind. Ltd. v. Pennsylvania Lumbermans Mut. Ins. Co., 656 N.Y.S.2d 475, 477 (1997), where an insurer’s delay Calculating Business Interruption Period 1. When the property is not actually repaired: Policyholder must revert to theoretical calculation of Business Income. 2. When the property is actually repaired: The court adopts the actual time period of repair as a starting point for analysis. 3. When the insurer causes delay: If through funding or an adjustment activity the insurer causes a delay in repair, the BI period is lengthened. 4. When a third-party causes the delay: If, for example, a contractor or codes officer causes the delay, the risk should shift from the policyholder to the insurer. in investigation and payment caused the policyholder to shut down its business, the extra BI loss was recoverable as a consequential damage. • In Western American, Inc. v. Aetna Casualty & Surety Co., 915 F.2d 1181, 1184 (8th Cir. 1990), where a fire destroyed a manufacturing plant, the BI period, although “theoretical,” was held extended as a result of insurer delay in performing its duties under the policy. • In Bard’s Apparel Mfr., Inc. v. Bituminous Fire & Mar. Ins. Co., 849 F.2d 245, 251 (6th Cir. 1988), the policyholder’s machinery was damaged due to vandalism. Where the policyholder’s due diligence was impacted by insurer delay in payment,
RkJQdWJsaXNoZXIy NjIxNjMz