Vacancy/Occupancy Clauses; Protective Safeguards Endorsements

6 ADJUSTINGTODAY.COM surrounding the vacancy or unoccupancy. Hence, a detailed investigation will be necessary to gather sufficient information to make an intelligent and fact-based decision. For those who wish to further explore court rulings involving the subject of vacancy and unoccupancy, here are some cases that might be of interest: • Farmers Insurance Exchange, Appellant v. Bob Greene, 376 S.W. 3d 278 (Texas Court of Appeals 2012) • Oakdale Mall Associates, Appellant v. Cincinnati Insurance Company, Defendant-Appellee, 702 F. 3d 1119 (U.S. Court of Appeals Eighth Circuit 2013). This case involved the theft of copper piping and coils, which seems to be a fairly common kind of loss when a building is vacant. • Camelback Properties, Terry Wilbourn and James Lantz v. Phoenix Insurance Company, Case No. 10 C 01467 (United States District Court for the Northern District of Illinois Western Division 2012). This case includes some commentary on the meaning of “customary operations” as that term is used in the commercial property policy in reference to the requirement that at least 31 percent of the building is used by the building owner to conduct customary operations. • Travelers Casualty Insurance Company of America v. Wild Waters, LLC, Case No. 2:12-cv-00481-CWD (United States District Court for the District of Idaho 2013) • D & S Realty, Inc., appellant, v. Markel Insurance Company, 789 N.W.2d 1 (Supreme Court of Nebraska 2010) • Fidelity Co-operative Bank, individually and as assignee of Matthew Knowles and Sondra Knowles, Appellant, v. Nova Casualty Company, Appellee, No. 12-1572 and No. 12-2150 (United States Court of Appeals For the First Circuit 2013) • TRB Investments, Inc. v. Fireman’s Fund Insurance Company, 50 Cal. Rptr. 597 (California Supreme Court 2006) • 7th & Allen Equities v. Hartford Casualty Insurance Company, No. 11-cv-01567 (U.S. District Court for the Eastern District of Pennsylvania 2012). This case also discussed the meaning of “customary operations.” • Keren Habinyon Hachudosh D’Rabeinu Yoel of Satmar BP v. Philadelphia Indemnity Insurance Company, No. 08-CV-4726 (RRM) (JMA) (U.S. District Court Eastern District of NewYork 2011). Here is another discussion of “customary operations.” • Suder-Benore Co., LTD v. Motorists Mutual Insurance Co., WL 5211421 (Court of Appeals of Ohio, Sixth District, Lucas County 2013). This case examined the meaning of “renovation.” ____________________ 1 Insurance Services Office (ISO) Building and Personal Property Coverage Form, CP 00 10 06 07. 2 The term “customary operations” is not defined in the commercial property policy, so courts often have had to deal with the meaning of that term. Those cases are identified in the list of court decisions included at the conclusion of this article. In one case, Camelback Properties, Terry Wilbourn and James Lantz v. Phoenix Insurance Company, the court comments that the term is not defined in the policy. Consequently, the court will look to the intent of the policy based on the policy language. The declarations page in this case indicated that the property was listed as an office. It is reasonable to expect, therefore, that the insured would conduct operations customary for an office building. The court cites another case in which the insured was a restaurant where continued use of the building for office space did not constitute customary operations of a restaurant. 3 Although not defined in the policy, a general lessee is a lessee or tenant who has control of the building as an owner and typically contracts with sublessees. 4 Insurance Services Office (ISO), Homeowners Form HO 00 03 10 00. 5 Property Insurance Coverage Insights, Robinson & Cole, LLP, Attorneys at Law.