43 Trial Lawyer • Spring 2023 By Fred Millard OTLA Guardian Early on in my legal career, after leav- ing the public defender’s office in 1999, my mentor, Dave Miller of Stoel Rives, suggested I build a law practice on what I know. I found that to be sound advice. Prior to going to law school, I was a building contractor for nearly 20 years and an insurance adjuster focusing on homeowner and other sorts of property damage coverages. As such, I put out my shingle specializing in construction and first-party property insurance disputes. As for first-party disputes, my practice of over twenty years is limited to representing insureds against their respective insurance companies. Most of my practice has to do with business and homeowners’ insurance policies. In many and in the more important ways, homeFred Millard owner and commercial losses deal with the same issues. For the most part, homeowner policies have two different coverages — personal liability coverage and property coverage. I anticipate that most readers of this article know and deal with liability coverage routinely. The other coverage part is first-party coverage, that being for claims brought by the insured against the insurer arising from damage or destruction to the insured’s property. Hence such coverage is known as first-party. Property claims I am frequently approached by colleagues asking questions about different aspects of a first-party property claim. Therefore, I thought it would be helpful to give folks a primer on property losses, reviewing some of the terminology and some of the pitfalls and options for our insured clients. Initially, the homeowners or business policy is a contract between the insurance company and the named insured, where the insurance company agrees to offer certain benefits to certain named individuals or businesses. An issue that we have had come up in various contexts has been determining whether our client is an insured under the policy. For example, where the policy is insuring a business, but the business is leasing the building from a landowner. One case we worked on years ago put the duty to repair and maintain the building entirely on the landowner, but the policy was only in the name of the insured. In that case, coverage for the landlord’s loss was not possible on a first-party type basis. Another circumstance where we’ve seen issues with who is or is not an insured involves unmarried persons living together. If only one of them is the named insured, then the non-named resident may not qualify as an insured under the policy. We encountered such a claim years ago where the household was made up of an unmarried couple — man and woman — and her young child. The policy was in the name of the man, and unfortunately, they suffered a fire that destroyed her and her child’s belongings. Using the policy’s definitions of “insured” or “additional insureds” we were able to convince the court that the man was a caretaker of the young child, thus making the young child an “insured” under the policy. The policy also provided that a “relative” of “any insured” who was living in the residence was also an additional insured. Thus, we were able to get the woman insured — and thus her contents — through her daughter. Even if you have an insured and a loss, you’ve still got more to do. You must find coverage. In general, you’re looking for an accidental physical loss to the “covered property,” meaning the described location, buildings, and contents inside/ Coverage of Homeowner Policies See Homeowner Policies p 44
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