How to Insure Condominium Associations - A Series By Christopher J. Boggs, CPCU, ARM, ALCM October 5, 2009
Completing the condominium insurance picture necessitates “jigsaw puzzle” tenacity. Quite a few pieces must be snapped together to assure the proper insurance picture is presented; any missing information can leave a gaping hole in either the association’s or unit owner’s coverage picture. Regardless of the client’s status as the association or individual unit owner, the puzzle cannot be completed until the agent can connect the answers to two questions:
Who is responsible for what property?
What is the value of the insured property?
Who Insures Which Property? Associational responsibility is divided into three levels: “Original specifications,” “all-in” and “bare walls.” Remember, each definition presented in this article is from the association’s perspective - delineating which part of the real property it is responsible to insure. Real property not insured by the association must be protected by the unit owner’s insurance policy. To fully understand the three levels of associational responsibility first requires the four categories of condominium real property be specifically described. The four categories are: 1) “common elements;” 2) “limited common elements;” 3) “unit property” and 4) “unit improvements and betterments.”
Condominium Real Property Definitions ”Common elements” are owned by and benefit all members of the association. Land, parking lots and the building’s structural foundations and load-bearing walls are examples of common elements. Also included in this definition are club houses, pool houses, pools, fences, gates, playground equipment, tennis courts and other property owned by and allocated to all unit owners. Not all property categorized as a common element is insurable in standard property policies (i.e. land), but most can be scheduled. “Limited common elements” are beneficial to more than one but less than all unit owners. Common hallways or corridors providing access to several units, walls and columns containing electrical wiring or sprinkler piping serving or protecting multiple units or a plenum enclosure providing heating and cooling to multiple units are examples. Doorsteps, stoops, decks, porches, balconies, patios, exterior doors and windows or other fixtures designed to serve a single unit but located outside the unit’s boundaries are often categorized as limited common elements because the appearance and safety of these fixtures directly affects multiple unit owners although connected to just one unit. “Unit property” is defined by the association’s declarations or statute and is limited to and benefits none but the unit owner. The inside of the exterior walls, interior partition walls, counter tops, cabinetry, plumbing fixtures, appliances and any other real property confined to the unit are examples. “Unit” property’s definition can vary widely with no universal designation. “Unit improvements and betterments,” like “unit property,” benefit none but the unit owner. The three definitions of associational responsibility classifications require improvements and betterments be classed separately - excluding improvements and betterments from the definition of covered property under the association’s policy. A unit improvement and betterment is created by the unit owner’s engagement in any activity or improvement that increases the value of the real property within an individual unit - such as updating the flooring from carpet to hardwood, laminate countertops to granite or other such improvements.
Levels of Associational Responsibility Explained Original specification requirements, known as “single entity coverage,” make the association responsible for the common elements, limited common elements and unit property. Unit improvements and betterments are not the responsibility of the association. Connecting the pieces: The association insures the common elements, limited common elements and unit property; Unit owners insure unit improvements and betterments and their personal property within the unit. A majority of states default to some form of original specification wording as recommended by the Uniform Common Interest Act governing the insurance requirements of condominium associations. “All in” (“all inclusive”) statutes differ from original specification wording in one major aspect: the association’s additional responsibility to insure unit improvements and betterments. In addition to insuring common elements, limited common elements and unit property, associations are also charged with insuring unit improvements and betterments in “all in” jurisdictions. Snapping the parts together: Associations subject to “all in” wording insure common elements, limited common elements, unit property and unit improvements and betterments; Unit owners insure only personal property within the unit. Approximately half of the states not applying “original specification” requirements utilize some form of “all inclusive” wording. Only a few of those states apply statutory terminology that could be exclusively interpreted as “all in.” “Bare walls” wording limits associational insurance responsibility to the common elements and limited common elements. To complete the puzzle: The association insures the common elements and the limited common elements; Unit owners are tasked with insuring unit property, any unit improvements and betterments and the owner’s personal property within the unit. At issue in bare wall situations is the definition of “unit.” “Unit” does not have a universal or even uniform definition. Unit boundaries, the beginning of the area the association is NOT responsible for insuring, can be everything from the studs; or the unfinished walls (meaning the paint is insured by the unit owner); or the sub-floor and underside of the ceiling; or any other variation. Dividing responsibility for insuring real property may not be the most advantageous for the association or the unit owner; however, there are several states and individual associations that apply some form of bare walls wording.
NFIP - A Special Case Two standard flood insurance policies (SFIP’s) connect in condominium forms of ownership: the Residential Condominium Building Association Policy (RCBAP) provides coverage for the association and the Dwelling Form is purchased by the individual unit owner to cover personal property. These forms apply as per NFIP standards regardless of any statutory or associational declaration regarding insurance responsibility. The RCBAP policy form specifically states that coverage is provided for all real property to include real property that is part of the unit. FEMA guidelines further clarify in rule IV. COVERAGE: A. Property Covered: The entire building is covered under one policy, including both the common as well as individually owned building elements within the units, improvements within the units, and contents owned in common. Contents owned by individual unit owners should be insured under an individual unit owner’s Dwelling Form. In essence, the RCBAP is “all in” coverage. Flood insurance policies do not have to necessarily comply with statute or associational guidelines. When insuring a condominium association or unit owner, agents must be aware of the differences mandated by the NFIP.
Default Setting Bylaws and declarations are the governing documents of all condominium or unit owner regimes. These documents supersede statute as per the subject statutes themselves. Division of ownership and insurable interest is dictated by these documents. Statutory wording is only the “default setting” if the bylaws or declarations are silent or are ambiguous regarding the insurance requirements.
ISO Changes Make Utility Service Coverage Required
Christopher J. Boggs, CPCU, ARM, ALCM November 30, 2009 One year has passed since the approval and implementation of the revised Cause of Loss Special Form (CP 10 30), yet many agents still do not recognize the utility service coverage their clients lost under the new wording. Prior editions of the cause of loss special form (2002 and previous forms) extended coverage to include protection against the financial consequences of property losses caused by damage to utility service devices located on the insured’s premises; only utility service-related losses that originated off the insured’s premises were excluded. But this changed with the late-2008 adoption of the 06 07 edition of the commercial property Cause of Loss Special Form (CP 10 30 06 07). Now the commercial property cause of loss special form excludes damage resulting from the failure of or damage to any utility service device, regardless of where the damage occurs (on or off premises). In fact, five changes were made to the utility service exclusion when the new forms were adopted in November or December (depending on the jurisdiction) of 2008: ·The Cause of Loss Special Form for both property and time element coverages now exclude damage resulting from the failure of on-premises equipment used to supply the utility service from an off-premises source. Thus, there is no coverage for damage caused by an on-premises transformer since it is used to supply power from an off-premises source. ·The exclusionary wording is now identical for both the property coverage and the time element coverage. Previous editions of the commercial property form used different exclusionary wording (based on the location of the damage causing the loss) for each. ·Communication and water services are specifically added to the list of utility services (only “power” was scheduled previously). ·The form specifically states that damage caused by power surge is excluded. ·The new exclusionary wording extends communication services to include Internet access or access to cellular or satellite networks. The year-old utility service exclusion reads, in part (not the entire exclusionary wording): e. Utility Services The failure of power, communication, water or other utility service supplied to the described premises, however caused, if the failure: (1) Originates away from the described premises; or (2) Originates at the described premises, but only if such failure involves equipment used to supply the utility service to the described premises from a source away from the described premises. One key term in this exclusionary wording is, “however caused.” This means that even if the service interruption is caused by an otherwise covered cause of loss (i.e. lightning), the resulting damage attributable solely to the interruption of utility service is excluded. Also contained in this language is an exception to the on-premises exclusion. Note that the on-premises exclusion applies only if the damaged equipment is used to supply utility service “from a source away from the described premises.” Essentially, the exclusionary wording does not preclude coverage for damage resulting from damage to on-premises generators (for example). Direct property loss caused by damage to an on-premises “utility service,” like a generator, is covered under this wording. Claim Example A severe thunderstorm rolls through releasing damaging cloud-to-ground lightning until the storm finally passes. During the storm, a transformer on the premises of the local restaurant is struck and damaged by lightning resulting in the spoilage of thousands of dollars of food. Will the loss be covered in the unendorsed property policy applying the Cause of Loss Special Form? As per the above policy wording, the loss to the food would be EXCLUDED by the current (06 07) edition of the form. However, if the insured were covered under the 2002 or earlier edition of the cause of loss special form (CP 10 30), the loss would be covered because these forms excluded only interruptions originating off-premises. This change in the breadth of utility service protection necessitates the increased need for the Utility Services – Direct Damage (CP 04 17) and the Utility Services – Time Element (CP 15 45) endorsements. Utility Services – Direct Damage (CP 04 17) Like the Cause of Loss Special Form, the Utility Services – Direct Damage endorsement was among those updated in the 06 07 revision. The endorsement was altered to dovetail with the new exclusionary wording found in the cause of loss form and the revised wording removed the qualifying statement that the utility service property be located off premises. Coverage provided by this endorsement hinges on three main concepts: 1) the utility services contemplated; 2) the amount of coverage purchased; and 3) the property covered by the endorsement. Utility Services Contemplated Losses arising out of the interruption of three main utility services divided into five classifications are eligible for coverage in this endorsement. Direct loss arising out of the interruption of water, power and communications are eligible for protection. Power and communications are further divided to include or exclude coverage for overhead power or communication lines. If coverage for overhead transmission lines is chosen, the premium is higher due to the increased exposure; however, if the insured location is served by overhead lines, this inclusion is necessary as these lines are more susceptible to covered damage than underground lines. Amount of Coverage Insureds have the option of choosing a specific limit of utility service damage protection. However, this is a sublimit of the total business personal property limit purchased in the underlying commercial property policy and not an additional limit of protection. For example, the insured with a $500,000 business personal property limit and a $200,000 utility services sub-limit has limited the amount of coverage available for a utility service loss to $200,000. These limits are not added together, the utility service coverage amount serves only as a sublimit. An amount does not have to be chosen, it can be left blank. If no amount is indicated, the insured has the full limit (based on the classification of “covered property”) to cover the loss. The coinsurance condition does not apply to this limit and there is no separate deductible. The advantage to the insured of using a lower limit for utility service losses is that the premium for this endorsement will be lower since it is not based on the full policy limit. Covered Property Within the endorsement the insured can specify the type of property to which the utility service coverage is to attach. There is no apparent limitation on what can be written in as covered property. Examples of acceptable categories of covered property may include: ·“All machinery and production equipment;” ·“Perishable stock;” ·“Business Personal Property;” or possibly ·“All property.” Before listing the property to be covered by the endorsement, a thorough analysis of the insured’s property subject to damage by the interruption of a chosen utility is required. Additionally, the limit chosen as discussed above must be adequate to cover the value of the property scheduled in this section of the policy. Utility Services – Time Element (CP 15 45) This endorsement was likewise updated in the most recent property coverage revisions. It was altered to dovetail with the new exclusionary wording found in the commercial property policy and cause of loss form by removing the qualifying statement that the utility service property be located outside a covered building. The “suspension” of “operations” leading to a business income loss caused solely by an interruption of a supplied utility (water, communications or power) is excluded in the unendorsed business income policy. This endorsement removes that exclusion, extending business income and extra expense protection should the supply from the chosen utility be interrupted. This endorsement, like the direct damage form, allows the insured the option of extending coverage to overhead transmission lines for both communication and power supply - for an additional premium. A separate limit of coverage must be chosen to cover the suspension caused by disruption of the covered utility service(s). This loss does not fall under the policy’s business income or extra expense limit but neither does the coinsurance condition apply to the coverage provided by this endorsement. The Need for Utility Service Coverage ISO’s changes to the cause of loss form narrowing the available coverage from its previous breadth must first be recognized and then remedied. The two utility service endorsements are two answers to the newly created coverage gap.
Understanding the Valuations of Condo Association Property
By Christopher J. Boggs, CPCU, ARM, ALCM October 7, 2009
Statutes and even associational declarations differ on the valuation method required when placing insurance coverage on the association's property. Actual cash value (ACV), replacement cost (RC) and even market value are mandated options in statute and associational declarations and bylaws. Most statutes require actual cash value as recommended by the Uniform Common Interest Act. Ohio statute (5311.16) requires the association property be insured based on fair market value and other statutes mandate replacement cost. Again, statutes are only the default setting. Insurance limits should be no less than the amount developed when the valuation method required by the declarations is applied to the property. However, replacement cost is recommended regardless of the amount required by statute or covenants, conditions and restrictions (CC&R's).
Defined Values Three distinctly different property "values" can be assigned to associational property: actual cash value, replacement cost and market value. Two are common to insurance, and one generally has no relevance in insurance, until the government or an unknowing attorney gets involved. Actual cash value (ACV) is the cost new (replacement cost) on the date of the loss minus physical depreciation. Physical depreciation results from use and ultimate wear and tear meaning that the insured does not get paid for the "used up" value of the property. Attention must be paid to the beginning point in the calculation of ACV, the cost new on the date of the loss. ACV is not based on the value when it was built or at any point between the construction date and the date of the loss. Only the cost new on the date of the loss matters; this is key when choosing limits. Replacement cost is the cost to replace with new material of like kind and quality on the date of the loss. There is no allowance or penalty for age, depreciation or condition. The insured must simply insure the property at what it will cost to buy or build it today. Market value is negotiated between and agreed to by a willing buyer and a willing seller. It can fluctuate up and down based on the economy, condition, use or need and has little relation to the true cost to rebuild a particular structure. Normally market value has little relationship to insurance. The rise and fall of the market value does not necessarily change the cost to rebuild a building following a loss. If the market value is the rule applied in a particular state or association's declarations, the agent must be prepared for and be able to explain this concept regardless of the fact that such value is not normally associated with property insurance values.
Values and Coverage Provided by the Unit-Owners Form (HO 00 06) Unendorsed the Unit-Owners Form provides replacement cost coverage on the building (Coverage "A") and actual cash value on personal property (Coverage "C"). Coverage "A" is limited to a specified amount ($1,000 or $5,000) unless specifically increased by the unit owner. The owner's need to increase Coverage "A" is a function of the coverage required to be provided by the association based on the level of associational responsibility defined above. Both Coverage "A" and Coverage "C" apply Broad Form Named Perils coverage unless endorsed to cover "Special" causes of loss. Expansion to "open perils" coverage can be accomplished by attaching HO 17 31 to Coverage "C" and the HO 17 32 to Coverage "A." Coverage "C" can be transformed from actual cash value to replacement cost with the attachment of the HO 04 90 - Personal Property Replacement Cost Loss Settlement endorsement.
Tips for Developing Condo Property Insurance Values
By Christopher J. Boggs, CPCU, ARM, ALCM
October 9, 2009
Establishing associational and unit owner property values requires knowing who is responsible for insuring which property and which valuation method (actual cash value, replacement cost, or market value) is being applied.
Cost estimators are effective tools for developing accurate values in most replacement cost and actual cash value settlement scenarios, as are discussions with knowledgeable builders in the area. If market value is the method of valuation, a market analysis by a licensed appraiser may be required to develop the necessary value (it is not recommended that market value ever be used as the insurance value). The accuracy of these calculations varies based on the level of associational responsibility.
Original Specifications: Developing relevant values may be easiest when single entity requirements apply as the valuation program and original specification requirements overlap in their result and mandate. Property valuation programs calculate the cost of rebuilding the structure utilizing modern materials of like kind and quality; original specification insurance requirements limit associational responsibility to the cost of replacing original construction materials with modern materials of like kind and quality.
All-In: All inclusive statutes and associational bylaws increase an association's standard of care. Associations subject to this insurance settlement mandate are forced to closely monitor building and unit values (including value increases created solely by a unit owner) to avoid inadequate insurance and a possible coinsurance penalty that could arise because they (the association) are insuring all real property regardless of location or who installed it. Cost estimators work well in these associations provided the association and the agent are aware of any individual unit owner upgrades.
Bare Walls: Conflict arises if the unit owner does not have coverage, or enough coverage, to rebuild what is defined as the "unit." The association is only responsible for the common elements and limited common elements. To arrive at the insurance value, a cost estimator has to be completed and the value of each "unit" must somehow be subtracted out of the calculation.
Two questions arise regarding the value of property in a bare walls association:
Who deciphers the definition of a "unit" allowing the unit owner, the association and the respective insurance carriers to know who is responsible for insuring what property? and
Who calculates the ultimate amount of coverage needed? There is no available method to produce a verifiably "unit" property value.
Attorneys, appraisers, agents and other professionals may be required to answer these questions and design the correct programs (one for the association and a separated program for each unit owner). A lot of professional expertise is required up front to avoid future disputes and the valuation answer is still just a little better than a guess.
Completing the Picture - Series Conclusion
Agents for both the association and the unit owner require the same mass of information to complete the condominium puzzle. All the pieces must be available; agents must have:
A copy of the association's declarations or covenants, conditions and restrictions;
A copy of the applicable state statute;
An official letter documenting the definition of a unit's boundaries detailing who is responsible for insuring which property. Many agents forego this step, depending on their own experience and knowledge to make this determination. This decision could prove detrimental in court; and
A verifiable or signed property valuation calculation. Due to the intricacies of ownership and various combinations of responsibility to which condominium associations and unit owners are subject, getting a written valuation from a specially trained professional or approval from the insured will be beneficial should any question arise. When insuring personal property only, let the insured value his property.
Insuring individual unit owners requires gathering and piecing together the same detail as does insuring a condominium association. Association and unit owner programs must dovetail seamlessly; unless both sides utilizing the same data, such a clean connection and complete picture is impossible.
More Insureds Need Spoilage Coverage
Christopher J. Boggs, CPCU, ARM, ALCM December 2, 2009
Spoilage coverage is most commonly thought of in relation to restaurants and other such establishments. But the need for spoilage coverage goes far beyond food-based risks; in fact, there is a myriad of risk types that need the protection offered by the Spoilage Coverage (CP 04 40) endorsement.
To effectively recognize a spoilage exposure first requires knowledge of the breadth of coverage provided by the CP 04 40. Coverage provisions found in the Spoilage Coverage form are discussed in the upcoming paragraphs.
Self-Contained Coverage – Sort Of
Although the Spoilage Coverage endorsement is attached to the commercial property policy, in some respects the CP 04 40 can be viewed as a self-contained policy. The endorsement specifically defines and narrows the breadth of covered property and goes on the limit the causes of loss available for that "covered property" to two named perils. Additionally, the endorsement is subject to its own limit and deductible.
Covered Property Only "perishable stock" located at the premises described on the declarations is extended coverage in this endorsement; no other type of property is protected within its wording. "Perishable stock" is defined to mean personal property "Maintained under controlled conditions for its preservation; and Susceptible to loss or damage if the controlled conditions change."
Just a review of the definition of "covered property" opens up the broad realm of possible risk types in need of spoilage coverage.
Covered Causes of Loss The CP 04 40 limits protection to two named causes of loss: 1) Breakdown or Contamination; and 2) Power Outage. One or both can be chosen when building the coverage (it's better to combine the two). Each is defined by Insurance Services Office as follows:
Breakdown or Contamination means: 1) change in temperature or humidity resulting from mechanical breakdown or mechanical failure of refrigerating, cooling or humidity control apparatus or equipment, only while such equipment or apparatus is at the described premises; and 2) contamination by the refrigerant.
Power Outage means change in temperature or humidity resulting from complete or partial interruption of electrical power, either on or off the described premises, due to conditions beyond your control.
On the surface the protection extended from these definitions appears very limited; however, the effective coverage is actually quite broad in relation to the purpose of the endorsement. The endorsement protects the insured against the financial consequences of direct loss to listed personal property damaged or made unusable by: 1) nearly any change in temperature; or 2) contamination caused by a release of a refrigerant (which might be considered a pollutant otherwise).
Deductible Simply, the deductible applicable to the underlying property coverage form is not applicable to the spoilage endorsement. The insured can choose to use a deductible lower, the same or higher than the deductible found in the underlying property coverage.
Compared to Equipment Breakdown Coverage
Could an equipment breakdown policy be used in place of the Spoilage Coverage endorsement? A reasonable question; however, there are limitations in an equipment breakdown policy that make it an ineffective substitute for the CP 04 40.
Equipment breakdown (EB) forms define a covered loss as a "breakdown" to "covered equipment." Initially this appears rather broad, but the definition of "breakdown" severely limits the coverage for perishable stock when compared to the spoilage coverage endorsement.
"Breakdown" within the EB forms is defined as: "…direct physical loss that causes damage to 'Covered Equipment' and necessitates its repair or replacement." The key phrase in this definition is, "and necessitates its repair or replacement." If the power just goes out or the equipment just wears out (this is not direct physical damage), any resulting spoilage loss is not covered; there must be some actual physical damage to equipment for the coverage to apply.
Protection provided by the spoilage coverage endorsement does not require that the equipment sustain physical damage necessitating repair. It only requires a failure or a power outage. Review the above definitions from the spoilage coverage form.
Another possible issue with depending on an EB policy to provide spoilage coverage is that spoilage is not automatically provided. To acquire spoilage coverage, the must be a limit chosen or the value of the raw material must be included in the limit of coverage and "Included" entered next to Spoilage on the EB's declaration page.
Equipment breakdown forms cover a lot of gaps in the protection present in commercial property policies using the special cause of loss form; however, EB should not be used as a substitute for the spoilage coverage as it is severely limited in its scope in relation to what triggers coverage. Insureds should consider using EB in conjunction with spoilage coverage to assure the broadest protection.
Two Major Spoilage Coverage Policy Provisions
"Selling price" and the presence of a "refrigeration maintenance agreement" are the two remaining major policy provisions found in the spoilage coverage form. Neither grants nor limits coverage. The "selling price" provision alters the valuation of the covered property falling a loss; and the "refrigeration maintenance agreement" wording alters the rating and ultimate price of the coverage.
Selling Price Property covered by the spoilage coverage endorsement is valued using the same valuation method applied to personal property in the underlying commercial property policy. However, insureds do have the option to alter the method of valuing its covered property ("perishable stock") following a covered loss by choosing the "selling price" option.
As its name suggests, this option changes the valuation method to the amount for which the insured was selling the product. Any applicable discounts and usual expenses (i.e. commissions) are subtracted from the selling price to arrive at the final value (to assure that the payment does not violate the principle of indemnification).
If the selling price option is chosen, the insured must consider that value when choosing the limit of coverage. Although there is no coinsurance penalty, the insured should be fully protected.
Refrigeration Maintenance Agreement Insureds can receive a 25 to 33 percent rate credit on the Breakdown/Contamination coverage, depending on the insured's classification, for having in place a refrigeration maintenance agreement. The rate credit does not apply to Power Outage coverage (if chosen).
Essentially, a refrigeration maintenance agreement is a contract between the insured and a refrigeration service or maintenance company. The agreement must be maintained in full force for the entire policy period else there are extreme consequences in relation to the coverage; the spoilage coverage form states: "You must maintain a refrigeration maintenance or service agreement. If you voluntarily terminate this agreement and do not notify us, the insurance provided by this endorsement will be automatically suspended at the involved location."
If the insurance carrier discovers the cancellation of a maintenance agreement following an otherwise covered loss, they have the contractual right to deny coverage for failure to comply with policy provisions.
Only five exclusions applicable to the underlying policy's property cause of loss form cross over to apply to the spoilage coverage endorsement. These are: earth movement, governmental action, nuclear hazard, war and military action and water.
There are, however, five additional exclusions that apply specifically to this coverage endorsement. The policy reads: "We will not pay for loss or damage caused by or resulting from:
The disconnection of any refrigerating, cooling or humidity control system from the source of power.
The deactivation of electrical power caused by the manipulation of any switch or other device used to control the flow of electrical power or current.
The inability of an Electrical Utility Company or other power source to provide sufficient power due to:
Lack of fuel; or
The inability of a power source at the described premises to provide sufficient power due to lack of generating capacity to meet demand.
Breaking of any glass that is a permanent part of any refrigerating, cooling or humidity control unit.
Examples of Spoilage Exposure Risks
One simple question can pinpoint those risks that have a spoilage exposure. "If you experience an extended loss of power, will any of your stock be destroyed, made unusable or die?" The answer may reveal spoilage exposures where not previously considered. Common and uncommon examples of risks with a spoilage exposure include:
Obviously, this is not an all-inclusive list of risks with a spoilage exposure, but this may prove that there are a lot of insureds with a spoilage exposure needing this coverage.
Please review carefully!
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