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21.07.2015
The appraisal process is to provide a plain, speedy, inexpensive and just determination to an insurance dispute.
The insureds withdrew their first appraiser on the basis that the individual selected did not handle appraisals. Following a renewed demand for appraisal which was refused by American Family, the insureds filed suit, seeking an order compelling American Family to comply with the policy’s appraisal provision. A party on the wrong end of an appraisal award has thirty days to appeal the award or it will be confirmed. I was recently approached by policyholders that had suffered a rather severe water loss to their property. This begs the question, under what circumstances will the Pennsylvania courts set aside an appraisal award? The second situation in which an appraisal award may be set aside is when the appraisers exceed the scope of their authority.3 In Maiden Creek, the parties resolved one portion of the claim but could not resolve the building portion of the claim. It is plain to see where it can be difficult to determine when an appraisal panel exceeds its authority as in Maiden Creek.
The Church went forward with its suit and the trial court granted summary judgment against the Church.
To support its allegation that the Church invoked appraisal during the claims handling process, which was denied by the carrier, the Church pointed out two instances in the claim file where the Church or its public adjuster hinted at appraisal during the claims handling process.
Insurance is a heavily regulated industry and everyone who reads our daily blog knows that insurance rules and regulations vary by state and fall under each individual state’s jurisdiction. In many states, appraisal is very informal and does not take on the form of a truncated trial like arbitration.
In Hawai’i, the appraisal award is treated just like a binding arbitration award and a party can move to vacate the award only on the grounds provided under HRS section 658A-23. The leading case on appraisal in Hawai’i as it pertains to property insurance claims is Christiansen v.
In Texas the general rule seems to be that either the insurance company or the policyholder may invoke the appraisal clause (before or after suit is filed). First the court looked at prior cases, which indicated that appraisal awards are binding on both parties. Why shouldn’t this analysis be used in all appraisal contexts, regardless of whether appraisal clauses are imposed by the legislature of various states?
I suggest the right to trial by jury be used when trying to set aside bad awards where the carrier invoked appraisal and the award comes back against the policyholder. 1 I have previously blogged about the fact that Texas cases are mixed on the policyholder’s right to maintain a post-appraisal lawsuit on issues of bad faith and Prompt Payment.
4 This is an interesting point because it assumes the policyholder has the ability to negotiate whether his insurance policy contains an appraisal clause. In the property insurance world, appraisal is a commonly used procedure to resolve disagreements over the amount of a loss.
The insured also submits to the insurer the names and addresses of three potential referees. A referee must be disinterested, a resident of the commonwealth, and willing to act as referee. Within ten days of the appointment or selection of the third referee, the referees must meet to hear evidence in the case. A reference proceeding does not waive any of the insurer’s legal defenses to the claim. If an award is rendered by the referees in favor of the insured, the insurer and the insured are each liable to the third referee for one half of his or her charges for compensation and expenses. House Bill 79 and Senate Bill 336 would have set up a new regulatory framework regarding the appraisal process and would have added specifics about who could serve as an umpire.
Although the bills did not ultimately make it to the finish line, they got far enough in the process to likely keep this issue in play for next session. State Farm and Farmers have created new property insurance policy forms which significantly change the rules of appraisal. If the appraisers do not agree on the selection of an umpire within 15 days, they must request selection of an umpire by a judge of a court having jurisdiction. Compare this simple clause with the two appraisal provisions authored by State Farm and Farmers. You and we do not waive any rights by demanding or submitting to an appraisal, and retain all contractual rights to determine if coverage applies to each item in dispute. Departments of insurance should question the need and impact of the proposed language before approving such clauses. Most times, Policyholders and Consumers don’t get intimately familiar with their insurance policies and the provisions until a claim destroys or damages their home or business. House Bill 79 addresses a provision called appraisal, the alternative dispute resolution process that is in some policies. While the appraisal clause goes back over 100 years and was in the standard policies in the early 1900’s In Florida, the trend has been for insurance companies to yank out this policy provision from your insurance contract so policyholders either had to take the dish the insurance company was serving (denial, low ball payment or delay), or file suit.
Some companies have started to add back this appraisal provision to the policies written in Florida. But the question I pose this Sunday morning is whether our legislature is making sure it protects consumers? We have not had a hurricane hit the state in over nine years and memories seem to be fading about those losses. Also look at the video of the presentation made on Thursday to the Regulatory Affairs Committee. Generally, absent a statute or enforceable policy provision mandating a different result, an insured should be able to hire an appraiser on a contingent fee basis. If a policy provision precludes an appraiser from working on a contingency fee basis then the policy controls and any appraisal agreement should not contain compensation based upon a contingency. However, if the policy contains no provision regarding how an appraiser is to be compensated, then the answer is less clear. On the flip side though, insurance carriers are looking for any argument to overturn an award that favors the policyholder. I am certainly not endorsing the insurance company’s position that compensation on a contingent fee basis equals partiality. The homeowners argued that the appraisal process may not be used to resolve coverage issues because that would constitute arbitration which is not allowed in Missouri pursuant to RSMo. Further, the court found that appraisal may be demanded by either party, but that right is limited to resolve differences in the amount of damages for a covered loss. If you and we fail to agree on the amount of damages as the result of a covered loss, either may demand that the actual cash value and the amount of the loss be set by appraisal. 2 A written agreement to submit any existing controversy to arbitration or a provision in a written contract, except contracts of insurance and contracts of adhesion, to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract. The reasoning was that the policyholder cannot use the difference between what was paid before appraisal and what was awarded in the appraisal as evidence of breach of contract. In June 2015, Judge Boyle of the United State District Court for the Northern District of Texas decided Graber v.
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Adjustment of Claims is 100 Percent Policyholder Service--Is The Insurance Industry Providing This Service? Property claims adjusters are supposed to promptly evaluate damage, investigate coverage, and provide full benefits to policyholders.
Many claims organizations will say they do all this already, when in truth it is their greatest weakness. As survivors of Superstorm Sandy start cleaning up the estimated $20 billion in destruction, homeowners need to prepare for another possible squall—with their insurance company, according to the latest data from the Consumer Reports National Research Center.
When disaster strikes, your home insurer might not live up to your expectations, especially if you have a large claim, based on the results of our 2011 survey of 11,250 subscribers who filed claims in the past few years. Overall, almost 10 percent of respondents reported disagreements with their insurer over the amount of a claim payment. In my speech last week in Manhattan, I referred to many claims organizations as the Three Monkeys (--see no damage, hear nothing from the policyholder explaining damage, and never ever speak about all the benefits available under the policy and how to maximize recovery).
No wonder the public insurance adjuster industry has seen tremendous growth over the last decade. It’s no secret that Citizens Property Insurance Corporation routinely treats policyholders like numbers on a page.
Early this week I was asked by Fox 13 in Tampa Bay to discuss a situation involving a client represented by my colleague Kelly Kubiak at Merlin Law Group. Insurance companies and insurance industry advocates consistently point to insurance fraud as a reason for higher insurance premiums. Are insurers increasing profits by instituting a program of delaying, denying and litigating against legitimate insurance claims? Often, the insurer’s reason for delaying or denying payment of claims is alleged insurance fraud by the claimant. In Chubb Calls Competitors Cheap And Unfair, I congratulated Chubb for pointing out claims handling problems within the insurance industry. In fairness to other insurance companies, we are making a bibliography of cases, witnesses, and evidence regarding Chubb's claims and litigation pracitces. Dennis Wall is a veteran commentator on various claims practice issues and on advice to avoid bad faith accusations.
The clear lesson from these recently enacted and revised state laws is this: Good faith claim handling -- particularly of claims for policy benefits and proceeds in the aftermath of a hurricane or another catastrophe -- requires prompt payment for any part of a claim that is reasonably covered.
In an article published this week, Avoiding Bad Faith When Handling Catastrophe Claims, Wall makes a number of excellent points that are sometimes overlooked in the rush of adjustment that follows widespread disasters. Experienced adjusters have explained to me privately how they use similar techniques to help insurance customers get paid, despite company protocol which would mandate otherwise.


In several of my older posts, I wrote about different ways some insurance companies have tried to make a profit by changing the way a claims handling department is operated. The decision to hire an attorney can be a difficult one for policyholders, particularly for those who really have not had much exposure to the legal system and have never been involved in any sort of lawsuit or court proceeding. And, it seems that in the claims department of many insurance companies, every element of the claims process was, in fact, transformed.
The adjuster is not advised to tell the claimant that the attorney will not just take part of the recovery but will earn it, because claimants who are represented by an attorney receive two to five times more money from the company.
These are very compelling issues that policyholders and victims should be aware of and strongly consider when pursuing a claim against an insurance company.
A very fine insurance defense attorney, Brian Hunter, made a comment to yesterday’s post, Do Insurance Companies Overpay Claims? Assuming this is true, and it probably is based on the law of averages, how can we have any meaningful data? Of course, in most cases, an appraisal award is a legal fiction that may or may not bear a rational relationship to the amount necessary to repair the property; but it is certainly and merely an estimate.
What we do not have is reliable data in Florida during the past several years comparing claim payments with amounts spent by policyholders to actually accomplish like kind and quality repairs. It is foolish to think that insurance companies do not track and audit closed claims files. Nowhere in the article is there any mention of a problem caused by adjusters underpaying their customers' claims. Instead, claims management is for reducing claims severity or lowering the loss ratio to premiums.
As you can see LIC (Life Insurance Corporation) has the best Claim Settlement Ratio of more than 97% while Future Generali has the worst payout ratio of 50.5%.
Life insurance companies have a very high rate of rejection in the ‘early claims’ – so if there is a claim made within 2 years of taking the policy, there is a far greater chance of it being rejected. He told me that from this portability you will have total amount in the company which you choose otherwise if you surrender your policy, you will be charged surrender charges and get less amount. We talked about 20 mnts and mostly he advised me to surrender my policy from Kotak and portability in any 4 companies mentioned above. Some of company i researched for term plans based on low premium rate and claim settlement are. HDFC click to protect,Aviva I term, SBI shield etc need your advice to plan my stretigies . You would agree that its very difficult to make a plan for someone without knowing the entire background, the goals and risk tolerance of an individual. However, as many first party property lawyers and homeowners have experienced, appraisal is not necessarily speedy, inexpensive or just. Following the selection of their second appraiser, the insureds withdrew their demand for appraisal advising American Family that they did not understand the appraisal process and were unable to obtain information on the appraisal process from American Family Agents. American Family asserted, in part, that it did not need to comply with the policy’s appraisal provision because the conditions of the insured property were substantially altered without notice to American Family. In relevant part, the Court concluded that American Family had been shown the damage twice before the insureds began construction allowing American Family to make a determination as to the amount of loss at that time. Now that we have discussed the grounds upon which the award may be vacated, the next question is the procedure.
Section 7302(d)(2) (relating to special application) shall not be applicable to proceedings under this subchapter. The problem is, the appraisal process is often very short and it may well take much longer than the length of the appraisal and the thirty days post-award for the aggrieved party to learn of the facts that could be grounds for appeal.
The appraisers took it upon themselves to appraise the entire loss, including the portion of the claim resolved prior to appraisal. Philadelphia Indemnity Insurance Company,1 from the Dallas Court of Appeals, is an interesting case.
However, neither statement put Philadelphia Indemnity on notice that the Church was making a present demand that the appraisal process set forth in the policy be followed for determining the amount of the loss. Typically, appraisal occurs in California property insurance claims when there is a disagreement on the amount in controversy of the worth of a claim and not in the scope of a claim. The grounds are similar to those in other jurisdictions -- if the award was the product of corruption or fraud, there was partiality or an abuse of power by the arbitrator, the arbitrator refused to consider material evidence, etc. After the award both parties are generally bound by the award, unless they can prove the award was arrived at as a result of fraud or some other recognized basis for challenging the award. However, the court pointed out those cases were decided before Oklahoma law mandated the inclusion of the appraisal clause. As I said before, even in states where appraisal clauses are not mandated by the legislature, they are no less mandatory for the policyholder.
Insurance policies are contracts of adhesion, which means the policyholder has no ability to negotiate any part of his policy. The Senate Bill has not been voted on yet and there are still some possible changes that may occur. One of the trends of insurance coverage is that new policies are not being written with standard language, where years of case law have interpreted meanings of phrases used by all insurers. You and we must notify the other of the appraiser selected within twenty days of the written demand for appraisal. The Farmers appraisal endorsement is written over four pages and even has the American Arbitrations Association appointing the Umpire.
My other prediction is these more detailed clauses will lead to more litigation, even after an appraisal award is made. I can guarantee you that the insurers are not writing the new language to help policyholders get full benefits paid quicker and sooner. Georgia doesn’t have a statute addressing whether insurance appraisers can be compensated on a contingency. Georgia is generally conservative when it comes to appraisal; for example, Georgia disallows the determination of causation in appraisal. However, this is an argument carriers make to the courts and many courts have agreed with the insurance companies. Insureds and their appraisers must consider the benefits and potential downfalls of compensation on a contingent fee basis. In this event, each party will choose a competent and disinterested appraiser…The appraisers will appraise the loss, stating separately actual cash value and loss to each item. I handled many Ike cases where the carrier had been completely recalcitrant for a year or two before I was hired to file suit. State Farm Lloyds.3 The facts in Graber are the typical fact pattern in first-party claims.
State Farm Lloyds.6 Not only did Cavazos involve the same insurance company as Graber, but near identical facts. Yet, there are some promises you have to fulfill, such as taking your family for a vacation, or buying that dream house. Adjustment is about giving the customer the service promised and paid for when the policy was purchased.
But when damage was $25,000 or more, 19 percent disagreed with their insurer's assessment of what was due. Last week, I again asked for construction estimates and analysis Zurich Insurance Company consultants made last fall regarding a governmental claim. The case is a sad one -- Karina Wilson, who lives in Plant City, lost her house and everything she owns in an accidental fire. By faithfully representing clients against insurance companies like Citizens, you’re helping those who need it most. But, if insurance fraud is such a problem, why are property insurers still reaping massive profits?
Reporter Drew Griffin interviewed insurance insider, Jim Mathis, who stated that during his time in the insurance industry some insurers took a position of delaying, denying, and then forcing legitimate claims into litigation, and reaped billions in profits in doing so. However, in the Allstate cases discussed in the CNN report, the insurer’s allegation of insurance fraud was pretext for denying payment of small, legitimate claims. We are making a survey of all bad faith cases pending against Chubb over the past decade and will only share the information with attorneys representing policyholders in litigation with Chubb. It may vary from place to place, depending upon the local law, but the same concept still holds true. This can potentially include failure to request, investigate or evaluate information obtained and payments made on such other similarly situated claims. I often ask public adjusters what type of treatment or practice a particular insurance company may undertake with policyholders who are similarly situated to my clients. If a policyholder has access to this type of information at the time of the claim, wrong claims decisions can more easily be determined.
I can only imagine how daunting it could be to stand in the shoes of a policyholder who has paid hard-earned money for premiums only to find that it is necessary to sue the carrier to recover the benefits rightfully owed.
Feinman addresses the goal behind various cost saving methods implemented by carriers, and he writes about yet another way that carriers can cut costs and keep more of the premiums paid by homeowners. Some people choose to hire an attorney, but we would really like the opportunity to work directly with you to settle the claim. Indeed, has anybody seen an industry article questioning that the claims industry should be concerned about underpaying claims? He would critique the claims handler's activities to show where claims payments could have been reduced so that new adjusters would learn and the higher paying adjusters would be brought back in line with the group.
With a claims management overly concerned about one side of claims inaccuracy, the answer is pretty obvious.
This becomes even more critical for Life Insurance as you would like your dependents to run pillar to post to claim your sum assured in case of unfortunate death.
So all the companies which have started operation in last five years would obviously have low settlement ratio. The person asked me about my policies and my nominee and advised me that surrender your current policy & portability is best option for you. I would advise you to buy any of the mentioned term insurance plans online, only if you have dependents. In fact, many times the insurer will refuse to participate in the appraisal process requiring the insured to bring a lawsuit to force the insured to participate. After conducting an inspection, American Family advised the insured of the estimated amount of the loss.
Moreover, American Family was unable to substantiate its claims of impossibility of performance given the fact that its appraiser had not even looked at the insured premises since the additions. When it became clear that the insurance carrier was not interested in properly adjusting the claim, the policyholders decided to submit the claim to appraisal. The insured challenged the award as it reduced the payment for the resolved portion of the claim.


First, the Church alleged that the carrier breached the policy contract because the Church demanded appraisal during the claims handling process and the carrier refused to appraise.
We conclude the Church has not presented any evidence showing it made a demand for appraisal under the policy. Although appraisal is definitely not an arbitration process, in Hawai’i, the rules of arbitration apply. In California, once an appraisal aware is reached, each side may choose to perfect the award by filing the appropriate documents in court to convert the award into a judgment.
First Insurance asserts that because an appraisal process is as binding as is arbitration, the ongoing appraisal process barred the Christiansen’s from filing an action for bad faith pursuant to the strictures of HRS chapter 658 (governing arbitrations and awards).
It is very difficult to set aside an award.1 I was recently asked by a policyholder about setting aside an unfavorable award in Oklahoma. If you and we fail to agree on the amount of loss, either may demand an appraisal of the loss.
So you could argue, without a statute or policy provision on point, that the appraiser can be hired on a contingent fee basis. Given this consideration it is likely courts would vacate an award where the appraiser was compensated on a contingent fee basis under claims that the appraiser was not impartial.
The courts further held that because the policyholder had to prove an independent injury (breach of contract) as a pre-requisite to recovering on extra-contractual claims,2 once the carrier paid the appraisal award and breach of contract was out then all extra-contractual claims were out. The policyholder filed a claim and State Farm low-balled the policyholder, who had to hire a lawyer and file suit.
After paying the appraisal award State Farm moved for summary judgment arguing that payment of the award eliminated all causes of action for Cavazos.
Perhaps the insurance industry should consider the pictorial maxim of the Three Wise Monkeys sometimes has a fourth monkey symbolizing the principle of do no evil. Now, 8 months later, she has yet to see a dime from Citizens -- the insurance company she dutifully paid claims to for years.
A claim should be paid within either a reasonable amount of time or within a specific time period dictated by local laws -- usually 30 days -- of that portion of any claim that is reasonably proven as covered by the proof-of-loss statements.
I can often find this information regarding insurance company practices and patterns within our firm. I know that many good insurance claims managers debrief their field adjusters and have up-to-date roundtables to raise information about claims issues.
Some insurance companies also determined that they generally pay less on claims when the policyholder or victim is not represented by an attorney. In some instances, homeowners have had policies with the same carrier for years and have never previously filed a claim, but, when they do, their claim is denied or the insurer fails to pay funds sufficient to conduct the necessary and covered repairs. The various evaluations conducted by McKinsey of the different aspects of claims handling at Allstate revealed an important factor: whether the claimant was represented by a lawyer.
Attorneys commonly take between 25-40% of the total settlement you receive from an insurance company plus the expenses incurred. Is it the proof of loss, or the public adjuster's estimate, or the appraisal award, or something else? Regrettably, few court-appointed umpires have any specialized training in the construction fields, and many have never written an estimate of their own nor done any kind of construction work.
The entire culture seems to be about driving down claims payments rather than getting the payment right. I asked him if State Farm ever returned money to a policyholder where he found a mistake that resulted in an underpayment. The recently published Insurance Regulatory And Development Authority – IRDA Annual report 2010-11 has the settlement ratio for the following life insurance companies in India.
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The insured disagreed with American Family’s estimate and provided the insurer with its own estimate which identified additional damages.
Careful consideration must be given to the choice of appraisers, and the umpire selected by the appraisal panel should be researched and vetted.
The parties chose their appraisers and ultimately an appraisal award was entered that was not favorable to the insured.
The appellate court disagreed and felt that a bad faith case could not be dismissed and that bad faith allegations against an insurer could still be heard. The rules are different in Oklahoma because the appraisal award is only binding on the party who invoked appraisal. In this event, each party will choose a competent appraiser within 20 days after receiving a written request from the other. In April 2012, the property was damaged in a wind and hail storm and the homeowners made a claim for damages done to the driveway, porch, and deck.
However, I like to think they are harbingers of a trend toward reasoned opinions, which take into account the real world truths of how some carriers unfortunately handle many claims. These types of inquiries are not novel, but they are rarely discussed in writing, as Dennis Wall properly observed. These informational sessions make the claims group better and more knowledgeable about how to properly handle claims issues. As a result, it has become more appealing to an insurance company to resolve a claim with an unrepresented individual, and some carriers have spent money, time and energy implementing policies or procedures with the goal of dissuading policyholders or victims from hiring an attorney. Unfortunately, many homeowners find themselves in a situation where the only options they have left is to let the claim go or file a lawsuit and pursue payment. If you settle directly with Allstate, however, the total amount of the settlement is yours. Again, the study never discussed any problem with adjusters cheating customers by underpaying claims. Following a second inspection, the insured and insurer continued to disagree on the amount of the loss and American Family directed the insured to the appraisal provision within the policy. The award was not sufficient to repair the damages to the property and the policyholders wanted to file suit against the insurance carrier to recover funds sufficient to make the repairs to the property. The court reasoned that as the parties did not disagree on the amount of the loss for the resolved portion, appraisal was inappropriate as to those damages. Therefore, the important thing to understand from Christiansen is that if the parties agree to appraisal, and an action is pending or filed, then the action must be stayed until completing the appraisal, and an insured's bad faith claim is not referable to appraisal or arbitration so an insured does not waive a bad faith claim by participating in appraisal. This rule was discussed in an interesting case out of the Oklahoma Supreme Court, Massey v. The court further reasoned and held that the appraisal award is binding on the party who invoked it because appraisal is permissive to him and he chose the appraisal tribunal as his forum. American Family did not find damages so they asked the homeowners if they wanted to go to appraisal. It reminded me of a popular song during my high school days by Nona Hendryx called Transformation. Interestingly, the court did not automatically dismiss the breach of contract cause of action. So long as it is used properly, I think this type of claims information-sharing helps prevent less experienced adjusters from making major mistakes and should be a regular part of catastrophic claims management.
Then the Church hired lawyers, who filed suit, but before filing suit the Church filed a formal demand for appraisal. However, appraisal is not binding upon the party who did not invoke it because the binding nature of the appraisal award would violate that party’s constitutional right to trial by jury.
When the carrier invokes appraisal, especially after the policyholder has filed suit and invoked his right to trial by jury, the policyholder is forced to go to an appraisal he doesn’t want.
American Family then hired someone to draft an estimate of damages and later filed a motion to have an umpire appointed. The court, and the policyholder, agreed that the policyholder could not use the difference between what State Farm originally paid and what was paid in the award to show breach of contract. If the carrier followed the rules before and after appraisal then there is a basis for dismissing the policyholder’s suit. Feinman’s book is that for some uninsured motorist claims, policyholders who were represented by a lawyer recovered ninety percent (90%) more than those without lawyers.
Isn’t it a violation of his constitutional right to trial by jury if a bad award comes back and he is stuck with it?
Homeowners moved to dismiss the motion and filed counterclaims for breach of contract and vexatious refusal. Judge Boyle granted the judgment on breach of contract, common law bad faith, and some claims under statutory bad faith and DTPA. However, citing Graber, the court found that the policyholder was not barred from litigating his breach of contract claim using other evidence.
However, it is not fair to dismiss every case out of hand simply because, after years of poor claims handling by the carrier, one of the parties invokes appraisal. For cases involving minor impact, soft tissue type injuries, unrepresented claimants recovered an average of $3,464, as compared to claimants who retained an attorney and recovered $7,450.
In states where appraisal clauses are not mandated, but the insurance company inserts an appraisal clause into the contract, then the insurance company has permissively inserted that clause. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. The court found a fact issue on causes of action based upon the Texas Prompt Payment Act.4 More importantly, the court held that paying an appraisal award is no defense for the insurance company on Texas Prompt Payment Act damages. The policyholder pointed out that damage in the award was greater than damages initially offered by State Farm. As such, the insurance company should never be able to walk away from an award in favor of the policyholder, even if the policyholder invoked appraisal. In doing so the court clarified the true holdings in Breshears and Higginbotham,5 and didn’t dismiss all extra-contractual causes of action simply because breach of contract was dismissed.
Setting aside the difference in what was paid, the policyholder argued that State Farm minimized the scope at the beginning of the claim constituted separate evidence of breach of contract and had nothing to do with the difference between what was paid and what was awarded.
Having denied the summary judgment on breach of contract, the court also denied summary judgment as to all of the policyholder’s bad faith extra-contractual claims.



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