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Estate entitled to hearing on cause of fire

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A plaintiff is entitled to a hearing on whether vandalism caused the fire at an unoccupied home, the 7th Circuit Court of Appeals ruled today. The District Court never made a finding on the investigation that indicated it may have been burglars who started the fire.

In the Estate of Wavie Luster v. Allstate Insurance Co., No. 09-2483, Rick Gikas, personal representative of the estate, appealed summary judgment for the insurance company on his breach of insurance contract suit. Allstate insured Wavie Luster's home. The widow was injured in a fall and moved into an extended-care facility in October 2001. Gikas became her power of attorney and told the insurer to bill the premiums to his law office. She never returned the house and died nearly five years later. Three months after her death, a fire caused extensive damage to the unoccupied house. Gikas submitted a claim on behalf of the estate. Allstate then discovered the home had been empty that entire time and denied the claim. Allstate continued to bill Gikas, and Gikas paid claims for two more years after the fire until Allstate cancelled the policy retroactively to November 2001 and returned the premiums paid since then.

Part of the policy says there's no coverage for any loss consisting of or caused by any substantial change or increase in hazard, if it's within the control of the insured; and there's no coverage for loss caused by vandalism if the dwelling is vacant or unoccupied for more than 30 consecutive days immediately prior to the vandalism. The policy also requires an insured to notify the company of any change in occupancy in the dwelling.

The District judge ruled the duty of notification had been breached but based his grant of summary judgment on the increase in hazard portion of the policy by leaving the house unoccupied.

Based on Allstate's policy terms, if a homeowner went on a 31-day trip and a fire occurred during that time, the insured wouldn't be covered. It implies if you are away a lot, your coverage lapses. There is also the chance a homeowner put in special precautions to keep the house safe while away.

"There is no rule that moving out of a house per se increases the hazards against which the insurance company has insured you," wrote Judge Richard Posner.

Gikas is entitled to a remand because it's unknown whether vandalism caused the loss. Allstate is also entitled to a hearing on the applicability of the vandalism exception should the hazard exclusion be found inapplicable.

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  1. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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