The Devil’s in the Details: Dispute Resolution and Attorney’s Fees Contract Clauses

Kent B. Scott | Babcock Scott & Babcock | December 13, 2018

            If you are a business owner, a property owner, or you work in the real estate industry, you have undoubtedly signed, drafted, reviewed, or negotiated many contracts. At their most fundamental level, written contracts are nothing more than the memorialization of the parties’ agreement, and more importantly, the allocation of risk. Much of that risk shifting is often intended to limit each party’s exposure to lost time and money in the future. Considering that, and in an effort to reduce your exposure to risk, there are two key clauses that should be considered in every contract you sign: a dispute resolution clause and an attorney’s fee clause. In this article I will briefly discuss both of those clauses and how they can eliminate uncertainty in business and real estate transactions.

 

Dispute Resolution Clause

 

            Unfortunately, a fact of contracting life is the inevitability of disputes, disagreements, and differing opinions. Even with existing clients or customers with whom you have a good working relationship, disputes undoubtedly arise. Knowing that such disputes are not only foreseeable, but inevitable, if you sign a written contract without any type of clause that addresses a process for resolving those disputes, then you are exposing yourself to the unnecessary risk of a lengthy and expensive legal battle. So, we must first start with the premise that every contract you sign should provide some mechanism for resolving disputes. Unfortunately, little if any time is devoted to the drafting of dispute resolution clause which is the first clause you run to when a dispute does arrive. After all, isn’t everything going to work out just as you planned them? With that in mind, an effective dispute resolution clause will typically address resolving disputes in a graduated manner from the approach you have the most control over, and is least expensive and time consuming, to the approach where you have the least control over, and is most expensive and time consuming. That framework usually follows three general categories: negotiation between the parties, then mediation, then arbitration or litigation.

 

Negotiation. When a dispute arises between contracting parties, the easiest, least expensive, and usually preferable method of resolving that dispute is to get the decision makers in a room together or on the phone and negotiate a solution. At this stage of a dispute, both parties have complete control over the outcome and usually have complete ability to craft whatever solution will make the most business sense for themselves or their companies. They are not beholden to a third-party decision maker (like an arbitrator or a judge) and they are not bound by any formal rules that might limit or affect their decision (like the rules of arbitration or civil procedure). So, in your dispute resolution clause it is wise to state that when a dispute arises, the parties must first make a good-faith attempt at negotiating a solution.

 

Mediation. If negotiations fail, then it is also wise to requires parties take the second step in your dispute resolution procedure: mediation. Mediation is nothing more than non-binding, formalized negotiations with a neutral third party. In other words, in a typical mediation, the parties mutually agree upon a third party (ideally a former judge or an experienced attorney in the applicable area of law) who will meet with the parties together and help both sides understand the pros and cons of their positions with the intent of facilitating a settlement. With few exceptions, there are usually no formal rules or other requirements of how a mediation is conducted, other than the personal preferences of the mediator. Mediation is a consensual, confidential and creative process. Nothing happens in mediation without the consent of both parties. Most mediations end successfully with the parties moving on with their lives having saved some time and money on legal fees. Investing in the resolution rather than the litigation of a commercial dispute benefits all parties. Including a contract provision that requires mediation can go a long way to reducing a lengthy and expensive legal dispute.

 

Arbitration. The final category of dispute resolution to address in your contract is either arbitration or litigation, both of which are generally the more time consuming, expensive, and uncertain methods to resolve disputes (though, in some cases, they may be the best option). Arbitration is more formal than mediation, but less structured than going to court (i.e., litigation). Arbitration is similar to mediation in the sense that the parties get to select who the arbitrator is and, to some extent, the parties get to choose the rules that govern the proceeding. However, Arbitration differs from mediation because typically the parties agree to vest decision making power in the arbitrator and the parties usually agree to be bound by the decision. Arbitration can be an effective method of resolving disputes, but it does take some autonomy away from the parties and it is generally a more expensive and time-consuming process than mediation.

 

Litigation. The other, more involved, option for resolving disputes is litigation in court. To be sure, keeping litigation as an option for dispute resolution may be a wise choice, depending on the type of contract and the parties to that agreement. But, litigation is generally the most expensive and time-consuming option. And it’s also the option where the litigants have the least amount of control over the process: you don’t pick your judge, you don’t pick the rules, and you don’t set the schedule. Nevertheless, the judicial system in the United States may provide certain benefits that you want to have available such as the option of a jury trial. So, depending on your circumstances, you may want to either keep litigation open as an option, or keep it off the table entirely.

 

By including a dispute resolution clause in every contract you sign, and by understanding the pros and cons of each method of resolving disputes, you can be better equipped to evaluate the risks you face with foreseeable disputes, and the risks you are comfortable with regarding the resolution of those disputes.

 

Attorney’s Fees Clause

 

In our system of jurisprudence. the “American Rule”, both parties to a lawsuit pay their own way, no matter who wins. There are reasons for this rule. For one, we as a society do not want to discourage individuals from bringing meritorious claims for fear of having to pay the other side’s attorney’s fees. Related to that is the possible benefit society may lose if the party with a meritorious claim did not bring that claim because it did not want to risk paying the other side’s attorney’s fees. Whether we agree with these reasons is a debate for another day. But whatever the reason, the rule means that a plaintiff can file a lawsuit against a defendant, which the defendant may spend tens of thousands of dollars to successfully defend, and the defendant will be required to pay all of its own attorney’s fees.

 

There are two exceptions to the American Rule that each party is responsible for their own attorneys’ fees. The first is the statutory exception. This exception is that a prevailing party can recover its attorney’s fees (i.e., make the losing party pay for them) if a statute allows for it. For example, Utah’s mechanic’s lien statute states that the prevailing party on any action to foreclose a mechanic’s lien is entitled to an award of the reasonable attorney’s fees it incurred to prevail in that action. There are many statutes that similarly provide for attorney’s fees, but the problem is those statutes are out of your control. In other words, your situation may or may not fall within a governing statute, which is why the second exception should be your default approach.

 

The second exception is that a prevailing party can recover its attorney’s fees if a contract says so. This exception is entirely within your control, which is why, if you are concerned about being liable for another party’s attorney’s fees, you should seriously consider whether every contract you sign should state that the prevailing party in any lawsuit or dispute that arises out of that contract will be entitled to be paid its attorney’s fees by the losing party. To answer that question—whether it is in your best interests to include an attorneys’ fee clause in your contract documents—we recommend that you discuss this matter with legal counsel. Cases may vary depending upon the nature of the contract relationships involved and the particular business interests of the parties.

 

 

 

Conclusion

 

A fact of life in the world of construction, real estate, or owning a business involves inherent risks. There are risks that you will end up in a lengthy and expensive dispute with the party you contracted with. Also, there is the risk that you will prevail in a lawsuit, but still be stuck with a legal bill that far exceeds anything you gained by prevailing in that suit. By recognizing these foreseeable risks and ensuring that every contract you sign has a dispute resolution clause and addresses attorney’s fees to address your company’s needs, you will significantly reduce your exposure to these all-too-common risks, which should help you continue to survive and thrive in an uncertain industry.

 

Kent Scott is a shareholder in the construction

Law firm of Babcock Scott & Babcock. He may

Be reached at kent@babcockscott.com

Move Out and Lose Coverage—Common Property Insurance Minefields Caused By Changes of Residency

Chip Merlin | Property Insurance Coverage Law Blog | December 10, 2018

Insurance agents, divorce attorneys, elder law attorneys, wills, trusts and estate attorneys, and real estate attorneys need to read this post. They also need to read “Where You Reside” – The “Where’s Waldo®?” Catastrophic Homeowners Policy ‘Exclusion’ That Could Bankrupt Your Insureds, by insurance coverage expert Bill Wilson. Wilson’s article shows how often coverage can be lost just by common changes of where people are living.

Wilson lists 16 very common situations which can cause a “nonresidency” which then leads to losing coverage:

  • Nursing Homes
  • Relocations
  • Foreclosures
  • Rentals
  • Child Occupies Parents’ Home
  • Parent Occupies Child’s Home
  • Divorce
  • Illness or Infirmary of Insured
  • Death of Insured
  • Trusts
  • Homes Owned by LLCs and Corporations
  • Seller Remains After Closing
  • Seller Moves Out Before Closing
  • Buyer Moves In or Takes Possession Before Closing
  • Renovations / Homes Under Construction
  • Vacancy and/or Unoccupancy

These situations happen all the time. What most people, including many insurance agents, fail to realize is these common changing circumstances can also lead to policyholders having no coverage. For example, a friend of mine is buying a house for her son to live, but she is keeping the title in her name and does not intend to live there. An insurance agent tried to sell her an ISO Homeowners form policy which would have left her uninsured because while she is the owner, she is not residing at the home. I told her to find a “Trusted Choice” trained insurance agent and explain the coverage issue to make certain she has coverage.

Christopher Boggs wrote a wonderful book, “Property and Casualty Insurance Concepts Simplified—The Ultimate ‘How To’ Insurance Guide for Agents, Brokers, Underwriters and Adjusters.” One of the basic questions he teaches is to ask whether the property is covered. When the policy requires the insured to “reside” at the premises and the insured is not residing at the premises because of various life circumstances, lack of coverage problems often occur.

An insurance agent expert, Brent Winans, sent me some research on the issue. He noted that the ISO has produced six endorsements to help remediate the problem. One article, “New Homeowners Endorsements Help Solve Huge Coverage Gap,” written by Mike Edwards, noted:

[I]t is important to note that the ISO Homeowners forms have included the “where you reside” language in the Definitions section since the 1984 edition was introduced, replacing the HO-76 edition. And in the 1984 ISO filing made with state insurance regulators, ISO made no mention of its intent to have the “where you reside” language be interpreted to deny Coverage A claims.

Additionally, it wasn’t until around 2001 that the first denials of claims based on the “where you reside” language began to become known in the industry. In the years following, a growing number of questions from agents across the country began coming in to the IIABA’s (Independent Insurance Agents Brokers of America) Virtual University “Ask An Expert” service. In 2005, IIABA’s national Technical Affairs Committee began discussions with ISO on the problem. The end result was the ISO filing of the 6 new Homeowners endorsements, which many states have adopted for October 1, 2015.

The lesson is obvious for professionals who deal with clients on the move for one reason or another—insurance policies must be analyzed and possibly changed if the owner of property is not living at the insured property.

Get Your Experts Opinions Nailed Down Ahead of Trial, or Else!

Erin Dunnavant | Property Insurance Coverage Law Blog | December 8, 2018

Recently, Florida’s Third District Court of Appeal found that a trial court abused its discretion by allowing the trial testimony of an insured homeowner’s expert when he expanded on his opinions during trial. The case is Citizens Property Insurance Corporation v. Vazquez.1

The loss dealt with an explosion inside a marijuana grow house located across the street from the insured homeowners’ residence. The explosion at the grow house occurred on September 22, 2012. Just after the explosion, the homeowners reported their claim to Citizens. After Citizens’ experts inspected they found the cause of damage to be wear and tear, excluded causes under Citizens policy and not due to the explosion. As such, Citizens denied the claim.

The homeowners then sued Citizens for breach of contract based on the denial. Although the trial was originally set in June of 2014, it was continued four times allegedly at the request of the homeowners and their counsel and the case did not actually go to trial until August 17, 2015. To support their position, the homeowners hired Dr. Calvin Konya, a blaster from Ohio to testify on their behalf. Mr. Konya was finally produced for his deposition on the eve of trial, despite several attempts by Citizens to depose him prior to that, according to the record. Mr. Konya’s deposition testimony was that the explosion at the house across the street could have caused damage to the home. He also admitted that he had never been to the insured property and could not testify regarding specific damages. According to the record, Dr. Konya arrived in Florida on day two of the trial (August 18, 2015) and went to the homeowners’ property that evening to finally inspect. The homeowners’ counsel did not disclose Konya’s visit to Citizens. On August 21, 2015—three days after Dr. Konya’s inspection, the homeowners’ counsel called him to testify. There Citizens learned for the first time he had been out to the property. Having now observed the property, Dr. Konya was able to expand on his previously given opinions and found that with certainty the explosion had caused specific damages. (A significant step beyond could have caused the damage).

During Citizens’ lawyer’s cross examination, Dr. Konya also admitted that without the inspection, he could not have given an opinion on specific damages. Citizens moved to suppress the witness’ testimony, but the trial court denied the motion. Then once Konya’s testimony came out, and the “beans were spilled” Citizens moved for new trial and that was also denied. After the jury awarded the homeowners $100,000.00, Citizens appealed.

Ultimately the appellate court agreed with Citizens, finding that the trial court had abused its discretion in allowing Dr. Konya’s testimony as it not only resulted in “unfair surprise” to Citizens but it was also “prejudicial” and required reversal. The appellate decision was based on the notion that parties have the right to rely on discovery deadlines and that expert opinions will not change after those deadlines. The mid-trial inspection of the homeowners’ expert that ultimately caused him to expand on his opinions given at deposition violated the discovery deadline and caused unfair surprise to Citizens. This was exhibited by the fact that Citizens’ trial counsel relied on the testimony during opening statement, particularly during a part where he stated that the jury should be listening to the homeowners’ experts who could not prove causation with certainty. In addition to causing unfair surprise to Citizens and their counsel, the appellate court found the allowance of Dr. Konya’s trial testimony to be prejudicial as the previously undeveloped and never disclosed opinion of Dr. Konya became the foundation of the homeowners’ case. The court also found that the timing of the testimony did not permit Citizens to challenge Dr. Konya’s qualifications or rebut this critical testimony.

Ultimately the appellate court summed up its holding:

Accordingly, we conclude that the trial court abused its discretion when it allowed Konya to testify because Konya’s opinion was based on information obtained post-discovery and mid-trial. Because Konya’s trial testimony both surprised and prejudiced Citizens during trial, we reverse the final judgment and remand for a new trial.

While writing about a loss for insured policyholders is not my favorite task, I feel like I need to make my fellow policyholder advocates aware of “what not to do” when issues like this cause both parties to expend the time and resources to start over with a trial. However, I am unaware of the facts and circumstances surrounding why the trial was continued so many times and why the expert couldn’t appear sooner. It may have concerned an illness or events that occurred outside of everyone’s control. (I am giving homeowners’ counsel the benefit of the doubt here).

Here are some tips to avoid what happened in this case:

  1. Obtain your experts early and picture your case going before a jury from the onset; ironically it may help your case settle early if the insurance company knows you are coming in well prepared;
  2. Conversations regarding your expert’s obligations should always include the chance that the claim might have to get tried. You never know when an insurance carrier is going to dig their heels in or when your client is going to just get so fed up that they want to go to trial on principal. However, your expert should expect to be visiting the property and needs to know that he will have to sit for deposition at some time prior to the discovery deadline. In an ideal world, their initial opinions should be thorough enough to support your case in chief on the off-chance that their deposition is not taken prior to trial.
  3. If you are a trial lawyer, some work on the weekends is inevitable as preparing a Civil Case for trial is a massive undertaking. As such, be willing to produce your expert on a weekend prior to the discovery cutoff in an absolute pinch as its better than violating the Court’s discovery deadline.
  4. If some emergency happens requiring a during trial inspection, the homeowners’ counsel here MIGHT have been able to salvage this one if they’d simply disclosed to Citizens that he’d been out there and let Citizens lawyer depose him the night before he testified.

With all that said, I would also like to remind my friends, colleagues, and fellow lawyers out there representing Citizens that this is a very narrow holding based on these very particular facts and should not be applied too sweepingly.
______________________________
1 Citizens Prop. Ins. Corp. v. Vazquez, Case No. 3D15-2864 (Fla. 3d DCA November 21, 2018).

Waiver of Consequential Damages in Florida May Have Unintended Consequences

Jared Gillman | Construction Industry Counselor | December 7, 2018

In Florida, parties often negotiate and include a waiver of consequential damages in construction contracts and design professional contracts.  However, based on a recent decision by one Florida appellate court, waiving the right to recover consequential damages may have a broader impact than intended.

In Keystone Airpark Authority v. Pipeline Contractors, Inc., No. 1D17-2897, 2018 WL 6174666 (Fla. 1st DCA, Nov. 27, 2018), Florida’s First District Court of Appeals held that the concept of “consequential damages” in a contract between an owner and supervising architect included all damages caused by a non-party contractor, even foreseeable damages resulting from an architect’s or engineer’s failure to supervise construction.

Keystone Airpark Authority (“Airpark”) contracted with Pipeline Contractors, LLC (“Contractor”) to build airplane hangars and taxiways on its property.  Airpark entered into a second contract with Passero Associates, LLC (“Passero”) to provide engineering services, inspections, material testing, and observation of Contractor’s work.  The contract between Airpark and Passero contained a waiver by Airpark of consequential damages.

After construction was complete, Airpark discovered that Contractor used substandard material for below-grade support underneath the hangars and taxiways.  Ultimately, the structures and subgrade needed to be removed, repaired and replaced.  Airpark sued Passero and Contractor in the same case.  Airpark alleged that Passero had a contractual duty to ensure the materials Contractor used were proper and that Passero had breached that obligation. Airpark sought to recover from Passero and Contractor the cost to remove, repair and replace the hangars, taxiways and underlying subgrade.

Passero argued that the damages sought by Airpark were not a direct result of Passero’s alleged failure to supervise, but instead were caused by a combination of the alleged failure to supervise and the contractor’s improper work.  Passero took the position that Airpark’s damages were consequential damages, excluded by its contract with Airpark.  Passero contended a claim for damages against it was limited to the contract value for the engineering services.

Airpark responded that the repair costs were general damages, not consequential, because those damages were foreseeable.  Airpark argued that the failure to properly supervise the construction clearly could have resulted in construction defects going undetected, and as a result it was foreseeable that the defects would later require repair.

Agreeing with the trial court, the Appellate Court held that foreseeability was not the dispositive issue.  Instead under Florida law, direct damages are the direct or necessary consequence of the breaching party’s actions.  Consequential damages stem from losses incurred by the non-breaching party in its dealings, often with third parties, which were a proximate result of the breach and that were reasonably foreseeable by the breaching party at the time of the breach.  The consequential nature of loss is not based on the damages being unforeseen by the parties, but those damages that are caused by a third party, while still reasonably foreseeable at the time of contracting.

The Appellate Court ruled that Contractor could have completed its work correctly without Passero’s supervision, and therefore the need for repair did not arise within the scope of the immediate transaction between Passero and Airpark.  Rather, the need for repair stemmed from the loss incurred by Airpark in its dealings with Contractor, a third party.  While the damages were reasonably foreseeable, they were consequential and not general or direct damages as to Passero.

The First District Court of Appeals stated that this issue was a question of great public importance and asked the Florida Supreme Court to address the matter.  The Florida Supreme Court has not yet determined whether it will accept the case.

Based upon this ruling, it is important for all parties to understand what a waiver of consequential damages might mean in the context of an architecture contract or design/engineering professional contract.  A party should take care to pay close attention to these waivers and be sure the contract language accurately reflects its true intent on the types of damages that are recoverable and those that are not.

.  However, based on a recent decision by one Florida appellate court, waiving the right to recover consequential damages may have a broader impact than intended.

In Keystone Airpark Authority v. Pipeline Contractors, Inc., No. 1D17-2897, 2018 WL 6174666 (Fla. 1st DCA, Nov. 27, 2018), Florida’s First District Court of Appeals held that the concept of “consequential damages” in a contract between an owner and supervising architect included all damages caused by a non-party contractor, even foreseeable damages resulting from an architect’s or engineer’s failure to supervise construction.

Keystone Airpark Authority (“Airpark”) contracted with Pipeline Contractors, LLC (“Contractor”) to build airplane hangars and taxiways on its property.  Airpark entered into a second contract with Passero Associates, LLC (“Passero”) to provide engineering services, inspections, material testing, and observation of Contractor’s work.  The contract between Airpark and Passero contained a waiver by Airpark of consequential damages.

After construction was complete, Airpark discovered that Contractor used substandard material for below-grade support underneath the hangars and taxiways.  Ultimately, the structures and subgrade needed to be removed, repaired and replaced.  Airpark sued Passero and Contractor in the same case.  Airpark alleged that Passero had a contractual duty to ensure the materials Contractor used were proper and that Passero had breached that obligation. Airpark sought to recover from Passero and Contractor the cost to remove, repair and replace the hangars, taxiways and underlying subgrade.

Passero argued that the damages sought by Airpark were not a direct result of Passero’s alleged failure to supervise, but instead were caused by a combination of the alleged failure to supervise and the contractor’s improper work.  Passero took the position that Airpark’s damages were consequential damages, excluded by its contract with Airpark.  Passero contended a claim for damages against it was limited to the contract value for the engineering services.

Airpark responded that the repair costs were general damages, not consequential, because those damages were foreseeable.  Airpark argued that the failure to properly supervise the construction clearly could have resulted in construction defects going undetected, and as a result it was foreseeable that the defects would later require repair.

Agreeing with the trial court, the Appellate Court held that foreseeability was not the dispositive issue.  Instead under Florida law, direct damages are the direct or necessary consequence of the breaching party’s actions.  Consequential damages stem from losses incurred by the non-breaching party in its dealings, often with third parties, which were a proximate result of the breach and that were reasonably foreseeable by the breaching party at the time of the breach.  The consequential nature of loss is not based on the damages being unforeseen by the parties, but those damages that are caused by a third party, while still reasonably foreseeable at the time of contracting.

The Appellate Court ruled that Contractor could have completed its work correctly without Passero’s supervision, and therefore the need for repair did not arise within the scope of the immediate transaction between Passero and Airpark.  Rather, the need for repair stemmed from the loss incurred by Airpark in its dealings with Contractor, a third party.  While the damages were reasonably foreseeable, they were consequential and not general or direct damages as to Passero.

The First District Court of Appeals stated that this issue was a question of great public importance and asked the Florida Supreme Court to address the matter.  The Florida Supreme Court has not yet determined whether it will accept the case.

Based upon this ruling, it is important for all parties to understand what a waiver of consequential damages might mean in the context of an architecture contract or design/engineering professional contract.  A party should take care to pay close attention to these waivers and be sure the contract language accurately reflects its true intent on the types of damages that are recoverable and those that are not.

Federal District Court Weighs in on Whether Labor Can Be Depreciated in Arriving at an Actual Cash Value Loss Settlement

Edward Eshoo | Property Insurance Coverage Law Blog | December 7, 2018

Whether labor can be depreciated in arriving at an actual cash value property loss settlement has been a hot topic of debate over these past five years. A federal district court in Ohio recently weighed in on the issue in ruling on motions to dismiss two putative class action lawsuits, one against State Farm Fire & Casualty Company1 and one against Allstate Indemnity Company.2

The insureds in both cases challenged whether labor could be depreciated in arriving at an actual cash value settlement. In concluding that it was proper to do so, resulting in the dismissal of the lawsuits, the district court reasoned that the term “actual cash value,” which was undefined in the State Farm and Allstate policies, meant replacement cost less depreciation and that the plain and ordinary meaning of the term “depreciation” was inclusive of labor. The district court also found persuasive those decisions from other courts that had likewise found that labor should be included in depreciation.3

The results reached in Perry and Cranfield are contrary to the results reached in Hicks v. State Farm Fire & Casualty Company,4 and Titan Exteriors, Inc. v. Certain Underwriters at Lloyd’s, London,5 two recent decisions in which the Sixth Circuit Court of Appeals and a federal district court sitting in Mississippi concluded that labor costs should not be depreciated in arriving at an actual cash value settlement using a replacement cost less depreciation formula. Unlike the district court in Perry and Cranfield, the courts in Hicks and Titan Exteriors found no reason to decide which of the competing legal decisions were correct. Instead, they concluded that all of the interpretations offered by courts considering the labor depreciation issue were reasonable, rendering the term actual cash value ambiguous when defined as replacement cost less depreciation.

While the labor depreciation issue is an interesting legal debate, insurers can put this debate to rest simply by drafting its policy like State Farm has done in its “Actual Cash Value Endorsement” to clearly and unambiguously state that labor is subject to depreciation.6 Until they draft their policies to reflect their intent for labor to be subject to depreciation, insurers will be left to deal with decisions like Hicks and Titan Exteriors.
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1 Cranfield v. State Farm Fire & Cas. Co., No. 1:16-cv-1273, 2018 WL 6162900 (N.D. Ohio Nov. 26, 2018).
2 Perry v. Allstate Indem. Co., No. 1:16-cv-01522, 2018 WL 6169311 (N.D. Ohio Nov. 26, 2018).
3 The district court referred to these cases as the current majority view among state and federal courts. But, as the Hicks court observed, these cases are not similarly situated. Many of them were not decided using the replacement cost less depreciation formula; instead, they employed the broad evidence rule, or some form of fair market valuation. Seee.g.Wilcox v. State Farm Fire & Cas. Co., 874 N.W.2d 780 (Minn., 2016) . Under both the market value test or the broad evidence rule, all relevant evidence is considered in in calculating actual cash value.
4 Hicks v. State Farm Fire & Cas. Co., No. 18-5104, 2018 WL 4961391 (6th Cir. Oct. 15, 2018).
5 Titan Exteriors, Inc. v. Certain Underwriters at Lloyd’s, London, 297 F. Supp. 3d 628 (N.D. Miss. 2018).
6 Under this endorsement, all components of the estimated actual cash value, defined as the estimated cost to repair or to replace damaged property, are subject to depreciation, including labor, materials, taxes, and overhead and profit.