Everyone knows what actual cash value (ACV) is, right? Everyone knows that ACV is replacement cost (RC) minus depreciation, right? Well, if everyone knows it, why does it seem that there are so many problems surrounding the issue of ACV at claim time?
Over the years, courts have defined ACV in one of three ways:
RC minus depreciation.
Fair market value.
According to the "broad evidence" rule—a judicious combination of numbers one and two.
Option number one is the traditional insurance industry definition. And, over the years, courts have upheld this meaning and interpretation. A Kansas court summed it up nicely: "The definition of 'replacement cost' stated in the policy as the 'full cost of repair or replacement (without deduction for depreciation)' implies that replacement cost is greater than actual cash value, and that actual cash value must mean 'full cost of repair or replacement (with deduction for depreciation)." Option number two—"fair market value"—also seems to be a rather straightforward method. It has always been thought of as "what a willing buyer will pay to a willing seller."
Turning to California
In the case of Cheeks v. California Fair Plan, 61 Cal. App. 423, 71 Cal. Rptr. 2d 568 (Ct. App. 1998), the California Appellate Court came down squarely on the side of using "fair market value" as the definition of ACV in California. In this case, Mr. Cheeks's home sustained earthquake damage in the Northridge earthquake of 1994. His policy with the California Fair Plan (CalFair) agreed to pay covered losses at "actual cash value at the time of loss, but not more than the amount required to repair or replace the property."
After determining the replacement cost of Mr. Cheeks's loss to be $563,888, CalFair applied depreciation and the deductible, to arrive at a final ACV payment of $44,343. Mr. Cheeks contended that the "value" of his home was considerably more than that figure and took the insurer to court. He knew what he could get if he were to sell the house.
Although Mr. Cheeks lost at the trial court level, he appealed. At the appeal level, the court quoted the State Supreme Court in Jefferson Ins. Co. v. Superior Ct. of Alameda Cty., 3 Cal. 3d 398, 90 Cal. Rptr. 608 (1970): "It is clear that the legislature did not intend the term 'actual cash value' in the standard policy form, set forth in section 2071 of the Insurance Code, to mean replacement cost less depreciation."
In deciding in Mr. Cheeks's favor—that ACV means "fair market value"—the appellate court gave this advice to insurers and to those who draft insurance policies: "If it [the insurer] wants to determine 'actual cash value' on the basis of replacement cost less depreciation, all it has to do is say so in the policy."
Turning to Kentucky
I consulted on a commercial property claim in 2005, where calculation of the ACV was the central issue. The risk was a commercial building located in Kentucky. It was insured with a standard commercial property policy for $590,000 on a replacement cost basis. After a loss, the commercial property policy gives the insured the option of proceeding with the replacement of the building or of taking an ACV cash settlement. Note that the option is the insured's and that the insurer may not dictate what path he must pursue.
In February of 2004, the Kentucky building was destroyed by a fire. After the fire, the insured obtained two estimates from local contractors who were familiar with the building. Both of these contractors estimated that the cost to replace the building would be around $750,000. At that point, the insured decided not to rebuild, but to take the actual cash value settlement, as allowed in the policy.
The policy was the standard commercial property policy, with at least one big exception: this policy actually defined ACV as "replacement cost less a deduction that reflects depreciation, age, condition, and obsolescence." By including this definition of ACV in the policy, both parties to the contract—insured and insurer—were limited to this use (and this use only) of the term.
When all calculations were finished, even after applying depreciation to the $750,000 replacement cost, the ACV was still more than the limit of liability. At this point, the insurer should have just proffered a check for the policy limit and walked away. But the insurer decided to reexamine the situation. It seems that this building was located in a deteriorating neighborhood and that, if he had tried to sell it, the building's owner could only have gotten about $294,000 for the building—nowhere near the limit of liability of $590,000. After finding out about the building's rather low market value, the insurer said it would pay no more than the estimated market value of the building, $294,000.
It was at that point that I became involved. Although I emphasized that I am not a lawyer, my take on the situation, from more than 25 years' experience, was that the definition of ACV in the policy bound both parties to it and that the insurer could not just "willy-nilly" decide to revert to market value for payment when it had already defined how it would pay. In appraisal, a settlement was reached for just under $590,000. The umpire even chastised the insurer for its efforts to circumvent the wording in its own policy.
An old saying goes: "Be careful of what you wish for—it might just come true." In this case, the advice to the insurer might have been: "Be careful of how you define a term—it may come back to haunt you."
Overhead and Profit
Another sticky point in negotiation between insured and insurer is the application of and payment for "overhead and profit" (O & P). When calculating ACV, some insurers start with replacement cost, then deduct depreciation, then deduct another 20 percent for contractor's overhead and profit.
In Gilderman and Gilderman v. State Farm, 649 A.2d 941, 437 Pa. Super. 217 (Pa. Super. Ct. 1994), the Pennsylvania Superior Court clearly said this practice was wrong. This decision was upheld in 1995 by the state supreme court's refusal to review the case. I think the important thing to remember is that the price of anything—a new roof for a home, a car, furniture, or clothing—includes a component for overhead and profit. If I were to go into a car dealer or a clothing store and tell the salesperson that I wanted to buy that car or that suit, but I would be taking 20 percent off the price for "overhead and profit," I'd be laughed out of the store. In the Gilderman case, the Pennsylvania Court advised insurers to be careful or they would be laughed out of town as well.
Unless otherwise dictated by statute or court decision, here is how I think overhead and profit should be handled in a homeowners loss:
RC of Damaged Property (no O&P):
Overhead and Profit:
Full RC of Damaged Property:
Depreciation, for example, 30%:
ACV Payment (RC-Depreciation):
Turning to Florida
In Florida, the issue of overhead and profit and how to pay for a loss had become so bad, so contentious, that the legislature stepped into the fray. Provision 2.d of "Loss Settlement" in the standard HO-3 homeowners policy from Insurance Services Office, Inc. (ISO), says that the insurer will only pay ACV for a homeowners loss "until actual repair or replacement is complete." Paragraph 2.e of the same policy allows the insured to make an initial claim for the ACV of the loss and then take up to 180 days to decide if he or she wants to replace the damaged property.
Again, because of all the problems with homeowner claims and calculation of ACV in Florida, the Florida Legislature took away the ACV option. As of January 2006, paragraph 2.d only applies to mobile homes and paragraph 2.e has been removed.
So what loss settlement options are now open to homeowner insurers in Florida? Forgetting any insurance-to-value problems, insurers are now left with paragraph 2.a of the Loss Settlement provision. There, the policy agrees that it will pay the least of the following amounts
The limit of liability.
The replacement cost of the damaged portion of the home.
The amount actually spent to replace the damaged portion of the home.
And without paragraph 2.d that requires rebuilding prior to payment of the replacement cost amount, insurers must now write a check to the homeowner for the RC of the damaged portion—even if the insured chooses not to rebuild or repair the home. The insurer no longer has any options. It must proffer a check to the homeowner in the amount of the replacement cost of the damaged property, or the limit of liability, whichever is less.
Although there are many complicated issues surrounding homeowners insurance in Florida, I'm convinced that the insurance industry could have avoided the legislature's rather drastic measures in 2006. How? By including a definition of ACV in the homeowners policy.
This content was verified by IRMI staff as of this date.
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