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RUNNER HEROES The curse of night and day Review ,Walkthrough and Gameplay
The Co-insurance Clause
Of the more important clauses in current use, the one most frequently used, most severely criticized, most mis¬ understood, most legislated against, and withal the most reasonable and most equitable, is that which in general terms is known as the “co-insurance clause.”
Insurance is one of the great necessities of our business, social and economic life, and the expense of maintaining it should be distributed among the property owners of the country as equitably as it is humanly possible so to do.
Losses and expenses are paid out of premiums col¬ lected. When a loss is total the penalty for underinsurance falls where it properly belongs, on the insured who has elected to save premium and assume a portion of the risk himself, and the same penalty for underinsurance should by contract be made to apply in case of partial loss as applies automatically in case of total loss.
If all losses were total, liberality on the part of the insured in the payment of premium would bring its own reward, and parsimony would bring its own penalty; but the records of the leading companies show that of all the losses sustained, about 65%—numerically—are less than $100; about 30% are between $100 and total; and about 5% are total. The natural inclination, therefore, on the part of the public, particularly on the less hazardous risks, is to under¬ insure and take the chance of not having a total loss; and this will generally be done except under special conditions, or when reasonably full insurance must be carried to sustain credit or as collateral security for loans. There were several strik¬ ing illustrations of this in the San Francisco conflagration, where the amount of insurance carried on so-called fireproof buildings was less than 10% of their value, and the insured in such instances, of course, paid a heavy penalty for their neglect to carry adequate insurance.
Co-insurance operates only in case of partial loss, where both the insurance carried and the loss sustained are less than the prescribed percentage named in the clause, and has the effect of preventing one who has insured for a small percentage of value and paid a correspondingly small pre¬ mium from collecting as much in the event of loss as one who has insured for a large percentage of value and paid a correspondingly large premium. We have high authority for the principle,
“He which soweth sparingly shall reap also sparingly, and he which soweth bountifully shall reap also bountifully.”
and it should be applied to contracts of insurance. Rating systems may come, and rating systems may go; but, unless the principle of co-insurance be recognized and universally applied, there can be no equitable division of the insurance burden, and the existing inequalities will go on forever. The principle is so well established in some countries that the general foreign form of policy issued by the London offices for use therein contains the full co-insurance clause in the printed conditions.
The necessity for co-insurance as an equalizer of rates was quite forcibly illustrated by a prominent underwriter in an ad¬ dress delivered several years ago, in the following example involving two buildings of superior construction:
“A’S” BUILDING “B’S” BUILDING
Value $100,000 Value $100,000
Insurance 80,000 Insurance 10,000
Rate 1% Rate 1%
Premium received— Premium received—
one year, 800 one year, 100
No Co-insurance Clause No Co-insurance Clause
Loss 800 Loss 800
Loss Collectible 800 Loss Collectible 800
“B” pays only one-eighth as much premium as “A,” yet both collect the same amount of loss, and in the absence of co-insurance conditions both would collect the same amount in all instances where the loss is $10,000 or less. Of course, if the loss should exceed $10,000, “A” would reap his reward, and “B” would pay his penalty. This situation clearly calls either for a difference in rate in favor of “A” or for a difference in loss collection as against “B,” and the latter can be regulated only through the medium of a co-insurance condition in the policy.
At this point it may not be amiss incidentally to inquire why the owner of a building which is heavily encumbered, whose policies are payable to a mortgagee (particularly a junior encumbrancer) under a mortgagee clause, and where subrogation may be of little or no value, should have the benefit of the same rate as the owner of another building of similar construction with similar occupancy, but unencum¬ bered.
In some states rates are made with and without co- insurance conditions, quite a material reduction in the basis rate being allowed for the insertion of the 80% clause in the policy, and a further reduction for the use of the 90% and 100% clauses. This, however, does not go far enough, and any variation in rate should be graded according to the co-insurance percentage named in the clause, and this gradation should not be restricted, as it is, to 80%, 90% or 100%, if the principle of equalization is to be maintained.
Various clauses designed to give practical effect to the co-insurance principle have been in use in this country for nearly forty years in connection with fire and other contracts of insurance. Some of these are well adapted to the purpose intended, while others fail to accomplish said purpose under certain conditions; but, fortunately, incidents of this nature are not of frequent occurrence.
There are, generally speaking, four forms, which differ quite materially in phraseology, and sometimes differ in prac¬ tical application. These four clauses are: (1) the old co- insurance clause; (2) the percentage co-insurance clause; (3) the average clause; (4) the reduced rate contribution clause.
Until recently, underwriters were complacently using some of these titles indiscriminately in certain portions of the country, under the assumption that the clauses, although differently phrased, were in effect the same, but they were subjected to quite a rude awakening by a decision which was handed down about a year ago by the Tennessee Court of Civic Appeals. The law in Tennessee permits the use of the three-fourths value clause and the co-insurance clause, but permits no other restrictive provisions. The form in use bore the inscription “Co-insurance Clause,” but the context was the phraseology of the reduced rate contribution clause, and although the result was the same under the operation of either, the court held that the form used was not the co- insurance clause, hence it was void and consequently inop¬ erative. Thompson vs. Concordia Fire Ins. Co. (Tenn. 1919) 215 S.W. Rep. 932, 55 Ins. Law Journal 122.
The law of Georgia provides that all insurance companies shall pay the full amount of loss sustained up to the amount of insurance expressed in the policy, and that all stipulations in such policies to the contrary shall be null and void. The law further provides that when the insured has several policies on the same property, his recovery from any company will be pro rata as to the amount thereof.
About twenty years ago, the Supreipe Court of Georgia was called upon to decide whether under the law referred to the old co-insurance clause then in use, which provided
“that the assured shall at all times maintain a total insurance upon the property insured by this policy of not less than 75% of the actual cash value thereof . . . . and that failing to do so, the assured shall
become a co-insurer to the extent of the deficiency,”
was valid and enforceable, and it decided that the clause was not violative of the law. Pekor vs. Fireman’s Fund Ins. Co. (1898) (106 Ga. page 1)
The Georgia courts, however, have not passed upon the validity of the reduced rate contribution clause in connection with the statutory law above referred to; but it is fair to assume that they will view the matter in the same light as the Tennessee court (supra), and hold that it is not a co-insurance clause, even though it generally produces the same result; that it contains no provision whatever requiring the insured to carry or procure a stated amount of insurance, and in event of failure, to become a co-insurer, but that it is simply a clause placing a limitation upon the insurer’s liability, which is expressly prohibited by statute. The fact that the insurers have labeled it “75% Co-insurance Clause” does not make it such.
It is, therefore, not at all surprising that the question is frequently asked as to the difference between the various forms of so-called co-insurance clauses, and these will be considered in the order in which, chronologically, they came into use.
Probably in ninety-nine cases out of one hundred there is no difference* between these clauses in the results obtained by their application, but cases occasionally arise where ac¬ cording to the generally accepted interpretation the difference will be quite pronounced. This difference, which will be hereinafter considered, appears in connecton with the old co-insurance clause and the percentage co-insurance clause, and only in cases where the policies are nonconcurrent.
The first of the four forms is the old co-insurance clause which for many years was the only one used in the West, and which is used there still, to some extent, and now quite generally in the South. Its reintroduction in the South was probably due to the Tennessee decision, to which reference has been made (supra). This clause provides that the insured shall maintain insurance on the property described in the policy to the extent of at least a stated percentage (usually 80%) of the actual cash value thereof, and failing so to do, shall to the extent of such deficit bear his, her or their pro¬ portion of any loss. It does not say that he shall maintain insurance on all of the property, and the prevailing opinion is that the co-insurance clause will be complied with if he carries the stipulated percentage of insurance either on all or on any part of the property described, notwithstanding the fact that a portion of said insurance may be of no assist¬ ance whatever to the blanket, or more general policy, as a contributing factor.