In the recent case of Kurach v. Truck Ins. Exchange (C.P. Philadelphia 2017), a Pennsylvania Court held that under Pennsylvania law, insurance companies are required to include general contractor overhead and profits in actual cash value payments for losses where repairs would be reasonably likely to require a general contractor.
In this case, the homeowners sustained water damage to their homes. Both homeowners had purchased a higher cost insurance policy that provided that in the event of damage, they would receive “replacement cost”, a higher amount than the lesser insurance product which only provides for “actual cash value”. The policy provided a two step process whereby the homeowner would receive “actual cash value” upon getting an estimate for the repairs, and then upon completion of repairs would receive the difference between “actual cash value” and “replacement costs”. The policy defined “actual cash value” as replacement cost less depreciation. The insurance carrier agreed that repairs would require the involvement of a general contractor. However, the homeowners never actually went to step two of the policy to complete the repairs, and therefore never sought “replacement cost”. Rather they asserted that they were entitled to an “actual cash value” which included contractor overhead and profit, even though, by not completing the work, no such overhear or profit were ever incurred.
The court agreed with the homeowners, finding that the definition of “actual cash value” allowed the insurance carrier to subtract only depreciation from the “replacement cost” and that replacement costs necessarily included contractor overhead and profit, even if not actually incurred. Noteworthy is the fact that the policy language actually provided that “actual cash value settlements will not include estimated general contractor fees or charges for general contractor’s service unless and until you actually incur and pay such fees and charges, unless the law of your state requires that such fees and charges be paid with the actual value settlement.”
Relying upon Gilderman v. State Farm, 649 A.2d 941 (Pa. Super. 1994), the court found that because the policy actually failed to define “replacement cost” but used that term in defining “actual cash value”, that the policy language was “unclear” and therefore the language purporting to exclude general contractor overhead and profits from “actual cash value” appeared to be attempting an “end run.”
The litigation attorneys at Houston Harbaugh, P.C., are accomplished business trial lawyers, providing comprehensive support in litigation across a broad spectrum of matters throughout Pennsylvania, West Virginia, Ohio and other jurisdictions upon a special admission basis. Our clients are regional and national small, medium and large companies and individuals who seek well planned and aggressive, but cost effective litigation. We counsel, we budget, we have a deep bench, we act quickly when needed and we have experienced trial lawyers who know the courts and bench. We serve regularly as local counsel for some of the largest law firms in the country when they have matters in this region.
Henry M. Sneath - Practice Chair
Co-Chair of Houston Harbaugh’s Litigation Practice, and Chair of its Intellectual Property Practice, Henry Sneath is a trial attorney, mediator, arbitrator and Federal Court Approved Mediation Neutral and Special Master with extensive federal and state court trial experience in cases involving commercial disputes, breach of contract litigation, intellectual property matters, patent, trademark and copyright infringement, trade secret misappropriation, DTSA claims, cyber security and data breach prevention, mitigation and litigation, probate trusts and estates litigation, construction claims, eminent domain, professional negligence lawsuits, pharmaceutical, products liability and catastrophic injury litigation, insurance coverage, and insurance bad faith claims.
Samuel H. Simon - Practice Chair
As co-chair of Houston Harbaugh’s Litigation Group, Sam focuses his practice on commercial/business litigation. Sam regularly represents clients in the construction, manufacturing, oil and gas, and wholesale/retail/ distribution industries, as well as individuals in matters such as:
- Construction litigation
- Environmental litigation
- Breach of contract disputes
- Oil and gas litigation
- Restrictive covenants (non-compete agreements)
- Civil rights
- Collections/creditors’ rights
- Lease disputes