Insurer Found Not To Have Waived A Policy Exclusion That Was Omitted In Initial Coverage Letter

The New York Appellate Division, Second Department on April 6, 2016, reaffirmed in Provencal, LLC v Tower Ins. Co. of N.Y, 2016 N.Y. App. Div. LEXIS 2529, 4-5 (N.Y. App. 2d Div. Apr. 6, 2016), that whether an insurer will be precluded from raising an exclusion omitted in the insurer's initial disclaimer in a property damage case will be governed by the common law principles of waiver and estoppel rather than strict standards imposed on an insurer under Ins. Law §3420, which is applicable to matters involving bodily injury and wrongful death arising out of an accident. This decision supports the long-standing principle outlined in Schiff v. Flack, 51 N.Y.2d 692 (1980) where the New York Court of Appeals held that coverage cannot be created by waiver where the subject matter of the complaint does not fall within the net coverage created by the insuring agreement of a policy, less exclusions. The recent ruling in the Provencal matter again demonstrates in a