Oftentimes it is difficult to decipher between normal wear and tear–a non-covered loss–versus damage due to an occurrence.  Experts may be needed to show the difference.

In Fazio v. State Farm Fire & Cas. Co., the insured submitted a claim for property damage following a storm.  The insurer denied claim on the basis that the damage was actually caused by age, wear and tear or improper installation, which was barred from coverage by a policy exclusion.  During discovery, the insurer produced an expert report evidencing its position that the insureds’ loss was caused by age, wear and tear or improper installation – as opposed to weather damage – thus, providing expert evidence that the insureds’ loss fell squarely within one of the policy’s exclusions.  The insureds did not produce any expert reports.

The insurer moved for summary judgment seeking a declaration of no coverage, and the court granted the motion.  In reaching its decision, the court noted that, while the insureds may have presented sufficient information to meet their initial burden that their claim fell within the purview of coverage, the insureds failed to produce any evidence refuting the insurer’s expert report that the insureds’ damage fell within a policy exclusion.  As such, the court concluded there was no coverage since no question of fact existed regarding the cause of the insureds’ loss.

Accordingly, this case illustrates the importance of retaining an expert to opine on the cause of an insured’s loss, as the failure to produce an expert report or rebuttal expert report could result in a court determining there is no question of fact regarding the cause of an insured’s loss – and thus, potentially resulting in a finding of coverage.

Thanks to Colleen Hayes for her contribution to this post.