Residency and Personal Property Opinion Vacated

Michelle E. Gaston and Katherine MacCorkle Mullins | Steptoe & Johnson | October 5, 2017

Based upon the agreement of the parties, the United States District Court for the Southern District of West Virginia vacated and withdrew the memorandum opinion previously issued by the Court in Shank v. Safeco Ins. Co. of Am., No 2:15-CV-09033, 2016 WL 4534028 (S.D. W.Va. Aug. 30, 2016) (mem.).  See also Steptoe & Johnson Client Alert (Nov. 15, 2016).  Shank v. Safeco Ins. Co. of Am., No 2:15-CV-09033, 2017 WL 4118966 (S.D. W.Va. Aug. 22, 2017).

In Shank I, the Court addressed the following issues: (1) whether an insurer may deny coverage based upon actual residency rather than vacancy of a dwelling, and (2) to what degree an insurer may require an insured to detail personal property losses in the event of a “total loss” fire damage claim.

With respect to the first issue, the Court previously noted that West Virginia has adopted the 1943 New York Standard Fire Policy by statute.  W. Va. Code § 33-17-2.  For multiple line coverages, the language of the fire portion must be at least as favorable to the insured as the applicable portions of the standard fire policy.  Id.  In Shank I, the Safeco policy provided coverage for the “residence premises,” which was defined to include “where you reside.”  The Court found that the “residence premises” provision contained in the Safeco policy was unlawfully more restrictive than the standard fire policy’s vacancy provision.

With respect to the second issue, the Court found that the insureds had substantially complied with the policy’s requirements for describing their personal property loss, despite the fact that the insureds were unable to provide ages or costs for their itemized property.  The Court determined that because the real property was a total loss, the insureds were also entitled to the policy limits established for the loss of their personal property.

The Court’s August 22, 2017 decision vacates and withdraws the 2016 opinion.