Exclusionary Clause Literature Review

Am. Fam. Mut. Ins. Co. v. American Girl, Inc., 673 N.W.2d 65, 268 Wis. 2d 16, 2004 W.I. 2 (2004).
In summary, when there is a question of law where the interpretation of a contract is at issue, the court must determine whether there was a meeting of the minds to determine the intent of the parties to the contract. The court’s determination is based on a standard of what is reasonable and  the court has determined that insurance policies are not intended to provide coverage for damaging events which are not expressly covered or implied to be covered. In analyzing this resource, we see that it presents important issues to evaluate when pursuing a cause of action for an insurance claim denial. The most important issue is whether the policy expressly excludes or grants coverage for certain events.  Another important issue is whether language in the policy is ambiguous. When the language of the policy is clear, void of ambiguity and explicitly details which events are covered and or excluded,  the objective standard can be invoked where it would seem reasonable to conclude that there was a meeting of the minds. Thus, the court would be correct to find that both parties knew or should have known that the insurer’s denial of coverage for those excluded events would be enforceable under the contract. This resource is useful as we begin to compile research on the question of whether a denial of coverage is appropriate under the contract. While the subject matter is not very complex, it is helpful and in the case where an event is expressly excluded from coverage, because of this resource I would possibly look at whether the language could contain some ambiguous elements.

Arkansas Farm Bureau Ins. Companies v. Jackson, 770 S.W.2d 178, 27 Ark.App. 273 (Ark. App., 1989).
The primary concern of this resource is the strength of exclusionary clauses in insurance policies. While the subject of this resource does not specifically involve damage to a home, the principles espoused here are applicable across the contract law spectrum. The resource reminds us that the exclusionary clauses in insurance policies are subject to strict interpretation by courts.
In analyzing this resource, when we consider an argument that the language in an insurance policy exclusionary clause is ambiguous, the resource reminds us of the strict interpretation standard applied by the courts. Courts hold that ambiguous language which reasonably casts doubt upon what was intended in the writing is to the benefit of the insured party. Because if this fact, when the basis of a denial claim concerns itself with ambiguous language, research efforts should be focused on discovering case law concerning favorable treatment by the court to the insured because of the ambiguity.
How useful is this resource? The resource provides some relevant case law supporting favorable treatment to the insured when the insurer includes ambiguous language into the policy. Yet, for the purposes of our fact pattern, possibly there is some ambiguity in the meaning of “construction over the top of fill dirt is excluded.” Does the term mean anything constructed that has an elevation above that of the fill dirt? Does it then mean that anything which sits in the fill dirt is covered? When terms are said to be explicitly stated, we must remember that disputes usually arise over the interpretation of something which was seemingly thought to be explicitly stated. This resource is a spring board for the insured to begin to research cases where policy language was determined to be ambiguous, resulting in a court decision in favor of the insured.

Columbia Ins. Group v. Cenark Project, 491 S.W.3d 135, 2016 Ark. 185 (2016).
In summary, the court provides guidance for a question of law where there is a dispute pertaining to the types of events a home insurance policy was intended to cover. When there is damage to the home, the court understands that a home insurance policy specifies in its contract with the homeowner the types of occurrences that would trigger coverage under the policy. The court defines the criteria for determining whether the event is one which qualifies as something that would be considered an occurrence which gives cause to invoke coverage under the policy. In analyzing this resource, I find the resource invaluable as it defines and discusses the criteria which would be relied upon for a court to decide a question of whether an event that caused damage to a home is covered under the insurance policy. Furthermore, where a third party is involved, the court considers the actions of third party actors. The question the court seeks to answer is whether the third party actors factor into the damages to the property and whether the insurance policy expressly excuses from coverage those acts. If so, the cause of action will not be between the homeowner and the insurance company. Rather, such damage would give rise to a cause of action between the homeowner and the third party actor, whether it is under a breach of warranty action, or negligence claim When it has been determined that no coverage for an event under the policy exists, in the scheme of a cause of action asking the court to compel the insurer to provide coverage, the insurer cannot be held liable for damage caused by the third party. Because of these facts this resource is seemingly an essential resource to review when damage to a home has occurred and the homeowner’s insurance policy denies coverage. While reflecting on this resource, I see the importance of using it as a starting point when a denial of coverage dispute arises in that it provides criteria for pursuing a cause of action whether the cause of action is against the insurance company or a third party actor.

Ford v. Safeco Ins. Co. of America, 522 S.W.3d 857, 2017 Ark. App. 363 (Ct. App. 2017).
This article deals with causation. Specifically, when the floor of a home incurred damage of which the insured was denied coverage, the court determined that summary judgment in favor of the insurer was not appropriate. It cited that before the insurer could invoke the exclusionary clause, a cause for the damage must be determined and that cause must be explicitly excluded under the terms of the policy. The analysis of this resource tells us that causation is an important factor which courts must consider when the issue of the appropriateness of invoking an exclusionary provision is before the court. In applying the information presented in this resource to our fact pattern, we can understand that as long as there is no ambiguity in the language which calls for “construction over the top of fill dirt to be excluded from coverage,” the mere fact that the home was built on top of fill dirt negates any requirement to determine the proximate cause of any subsequent damages. In retrospect, for the purposes of our fact pattern, this resource would be useful if the “built on fill dirt” exclusion did not exist. This exclusion negates the need to assign a cause to the damages.

Se Arnold & Company v. Cincinnati Ins. Co., 507 S.W.3d 553, 2016 Ark. App. 587 (Ct. App. 2016).
Exclusionary clauses are strictly interpreted by courts. This resource once again affirms the weight exclusionary clauses carry when the insured challenges denial of coverage under an insurance policy. Courts consider whether there is a right to claim coverage based on whether the policy does indeed grant coverage. When the policy does grant coverage, a subsequent question then arises as to whether a denial of coverage notwithstanding the provisions in the policy is appropriate. Yet, in this resource as well as the others listed in this annotated bibliography, a properly written exclusionary clause will serve to defeat the insured party’s claim. Just as in the other cited resources, the analysis to answer the question of whether the insured has coverage for the damages in question hinges upon what is or is not expressly stated as being either covered or excluded. Yet, where ambiguity exists in the policy language, the ambiguity is held against the insurer and the benefit of doubt is afforded to the insured. In our fact pattern, the overriding fact is that the exclusion for “construction over the top of fill dirt” does exist and in order for the insured to prevail, the insured must show that the exclusion has some type of defect which would render it unenforceable. To prevail against the insurer, this resource, just as others, suggests that the court must conclude that the language in the clause is ambiguous. Because of this fact, this resource is also useful as it does support the seemingly absolute weight a properly drafted exclusionary clause holds.




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