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Post-Election Unrest: Property Damage Coverage Issues

If an insured's property is damaged by post-election riot, civil unrest, insurrection or war, is there coverage? Simply put, yes. Here's why.
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post-election unrest: property damage coverage issues

News reports from across the country tell of retailers boarding up their buildings in attempts to curtail damage from post-election rioters. 

Over the past several days, insurance coverage questions being asked in preparation for the election have centered around several common terms, including: riot, civil unrest, insurrection and war.

Each read similarly, “If my insured's property is damaged by—fill in the blank from above—is there coverage?" Understand that no, or very few, coverage questions are answered with a simple “yes" or “no." There is always a “however."

In this short article, the “however" is avoided where possible. Simply put, yes, there is coverage in the ISO Causes of Loss—Special Form (CP 10 30) for any loss caused by disgruntled groups following the election, regardless of which of the above terms is used.

Below is a quick, term-by-term review of each potential cause explaining why coverage does exist.

Riot. Notice that riot is not excluded in the CP 10 30. In the Special Form, a loss is covered unless it's specifically excluded. As further proof, the Broad Named Peril form (CP 10 20) specifically covers damage caused by riot; it's illogical to think that a named peril form would provide more coverage than an open peril form. Thus, damage caused by riot is covered in the unendorsed CP 10 30.

Civil unrest. This term is not found in any ISO cause of loss form, neither covered nor excluded. Because it's not excluded, any damage arising out of civil unrest must be covered.

But what is civil unrest? Essentially, it can be classed as a riot. The broad named peril policy uses the term civil commotion, which is specifically covered. Again, damage caused by civil unrest is covered by the unendorsed CP 10 30. 

War and insurrection. These exclusions raise a few eyebrows because both causes are specifically excluded within the Special Form (CP 10 30):

f. War and Military Action

(1) War, including undeclared or civil war;

(2) Warlike action by a military force, including action in hindering or defending against an actual or expected attack, by any government, sovereign or other authority using military personnel or other agents; or

(3) Insurrection, rebellion, revolution, usurped power, or action taken by governmental authority in hindering or defending against any of these.

Can the actions of malcontents be considered war? It is unlikely that such actions meet the intent or meaning of the war exclusion. War is defined, in part, by Black's Law Dictionary to mean, “Hostile conflict by means of armed forces, carried on between countries, states or rulers…." Notice that war involves and requires organized and armed governmental authorities with a common agenda.

Participants in these post-election protests and riots are largely unrelated groups without a common leader, direction or goal. The actions do not appear to be within the meaning of war, nor do they appear to activate the war exclusion.

But do these acts qualify as an “insurrection" triggering the insurrection part of the exclusion? First, what is an insurrection and who is an insurrectionist?

  • Insurrection: A violent revolt against an oppressive authority, usually a government. “Insurrection is distinguished from rout, riot, and offense connected with mob violence by the fact that in insurrection there is an organized and armed uprising against authority or operations of government, while crimes growing out of mob violence, however serious they may be and however numerous the participants, are simply unlawful acts in disturbance of the peace which do not threaten the stability of the government or the existence of political society," according to Black's Law Dictionary.
  • Insurrectionist: A person who takes part in an armed rebellion against the constituted authority, according to the Merriam Webster dictionary.

Based on the supposed purpose of the threatened protests, the acts do not appear to qualify as acts of insurrection, nor are the participants insurrectionists. The various groups are not necessarily organized and often don't have a singular goal. Note again the meaning of “insurrection" taken from Black's Law Dictionary.

Two legal concepts also apply to limit the application of the insurrection exclusion, “Noscitur A Sociis" and “Ejusdem Generis." Both concepts essentially state that a term within a list is judged by the words around it and are not given their broadest possible meaning. More specifically, these concepts are defined as follows:

  • Ejusdem Generis: Latin for “of the same kind." In the construction of contracts, when certain things are enumerated, and then a phrase is used which might be construed to include other things, it is generally confined to things of the same type. General words are not to be construed in their widest extent but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned.
  • Noscitur A Sociis: Latin for “the meaning of a word may be known by its accompanying words." The word or phrase is defined in its context.

Based on these legal concepts and given the context of the term “insurrection," it's apparent that the exclusion applies only when there is armed conflict in an attempt to revolt and or overthrow a government by the actions of another recognized government or militia. Even if overthrowing the government is a stated goal of one of these protest groups, they are not a government or state-sanctioned group.

There does not appear to be any specific exclusion in ISO's unendorsed CP 10 30 (Causes of Loss – Special Form) applicable to any protests arising out of the election results. Don't let news media accounts of “insurance issues" scare clients.

Chris Boggs is Big “I" executive director of risk management and education.

Thursday, November 5, 2020
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