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Marijuana is currently legal in varying degrees in 29 states and the District of Columbia, with legalization pending in two additional states. Attempts to legalize marijuana failed in 2017 in 13 states, as it is still federally illegal as a Schedule 1 controlled substance.
A Schedule 1 controlled substance is illegal to possess or use under federal law. As it has historically been illegal, growing and selling marijuana operations have been considered uninsurable due to general policy provisions excluding coverage for illegal activities, or the public policy against insuring illegal actions.
Related: When marijuana collides with the claims industry
According to the McCarran Ferguson Act, though, regulation of insurance is to be left to the individual states. Most state statutes that legalize marijuana expressly grant an insurable interest in marijuana up to the legal quantity. Since recreational use of marijuana is currently legal in eight states plus Washington, D.C., those state statutes can legalize insuring marijuana. The laws are not uniform across the states where medical or recreational marijuana is legal, and this becomes a confusing issue for both policyholders and insurers.
This increase in legalization has created a new realm of coverage issues for insurers that are willing to insure marijuana risks. One of those known coverage issues is that of currency. Since marijuana is still federally considered a Schedule 1 controlled substance, and banks are federally insured through the FDIC, banks are required to function under the current federal laws. One such law prohibits banks from accepting money that is suspected to be associated with the illegal drug market.
As a result of these laws, it’s estimated that about 70% of businesses participating in the flourishing marijuana industry do not have a bank account.
One example of how the banks not accepting marijuana money affects the insurance industry arose in a case a few years ago. In an attempt to get the bank to accept the money the insured had collected from his marijuana business, the insured washed his drug money in his washing machine, and then transferred the money to his dryer. During the drying cycle, the dryer exploded. The insured then filed a claim with his insurance company under his homeowners policy.
A claim like this cannot be denied simply because the insured was in a federally illegal business. The insured in this case wasn’t doing anything illegal at the time, he was just doing something reckless, but by paying out this claim, an insurer may be guilty of aiding and abetting in the use of marijuana, and perhaps conspiring to violate federal law under the federal Controlled Substances Act. The banking issue is just one that increases risk for insurers in the marijuana field.
Two of the largest areas where insureds expect coverage for marijuana losses, or due to marijuana activity, are theft and vandalism. In a case called Bowers v. Farmers Insurance Exchange, Farmers Insurance Exchange denied the insured landlord coverage for mold damage to a rental house.
The damage occurred when the tenants converted the house into a marijuana growing operation. The marijuana cultivation caused damage to the house, including mold growth. The landlord filed an action against Farmers for refusing her claim. The trial court found in favor of Farmers.
The insured landlord appealed and contended that the purpose of her policy was to insure from accidental loss to the rental property, and as far as she was concerned, the damage was accidental. Farmers argued that the damage was from mold, which was excluded under the policy, and not vandalism, which was covered under the policy. The court determined that the tenants’ acts constituted vandalism and the insured landlord won the case. The case is Bowers v. Farmers Ins. Exch. 99 Wash. App. 41, 991 P.2d 734 (2000).
In one of the most well-known marijuana and insurance law cases, Tracy v. USAA Cas. Ins. Co., USAA issued a homeowners policy to Barbara Tracy, a medical marijuana patient permitted under Hawaiian law to possess and grow her own marijuana. After a thief stole 12 marijuana plants, valued at approximately $45,600 from Tracy’s property, she filed a claim with USAA. USAA denied the claim, and Tracy sued them for breach of contract.
Related: Marijuana growers at risk of being wiped out by California fires
USAA contended that Tracy did not have an insurable interest in the plants. Hawaiian law defined an insurable interest to be any “lawful and substantial economic interest in the safety or preservation of the subject of the insurance.” USAA argued that any interest in marijuana is not lawful, as Hawaii’s medical marijuana law at the time did not legalize the use of marijuana, it simply provided an affirmative defense for marijuana-related crimes.
USAA had a policy provision covering theft of “trees, shrubs and other plants,” which Tracy argued should also cover her marijuana plants. USAA also argued that it could not purchase medical marijuana using insurance proceeds, as that violates federal law. The court agreed with USAA, concluding that Tracy’s possession and use of marijuana violated federal law, despite compliance with the state law. The court also stated that the insurance policy that was supposed to cover her marijuana was an unenforceable illegal contract. This case is Tracy v. USAA Cas. Ins. Co., No. 11-00487 LEK-KSC, 2012 U.S. Dist. LEXIS 35913 (D. Haw. Mar. 16, 2012)
Due to its illicit nature, marijuana historically has not been covered by insurance; therefore, few cases involving marijuana and insurance have made it to the high levels of litigation. We can be sure that with the growing legalization of the drug, more court cases and insurance disputes will soon follow.
Hannah Smith (hsmith@alm.com) is an editor with FC&S Online, the authority on insurance coverage interpretation and analysis for the P&C industry. It is the resource agents, brokers, risk managers, underwriters, and adjusters rely on to research commercial and personal lines coverage issues.
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JAN 29, 2018 | BY ELANA ASHANTI JEFFERSON
Despite the fact that not everyone loves American football — particularly in light of its recent politicization via the “Take a Knee” campaign — most everyone loves a party.
That makes the ad hoc holiday known as Super Sunday a time for football fans and foes to come together to eat, drink and play armchair TV critic.
This year, roughly 45% of Americans plan to host or attend a Super Bowl party, according to the National Retail Federation (NRF).
“As a favorite American past-time, the Super Bowl is a great chance for viewers to reconnect with friends and family,” says NRF Analyst Pam Goodfellow. “Even though the number of viewers is slightly down this year, plenty are still planning to enjoy the day by watching it at their favorite bar or friend’s place.”
Related: Super Bowl short-term home rentals & insurance coverage
Insurance experts advise homeowners who choose to host a Super Bowl party to anticipate potential liabilities — on the chance something unexpected occurs that results in an insurance claim.
“Parties and holidays are times to celebrate and enjoy each other’s company,” says Heather Bolyard, vice president of Claims for American Modern. “Unfortunately, guests on your property are also a risk for which you may be held responsible.”
Related: How to plan ahead for a safe, claims-free Super Bowl
Should an accident happen, she advises taking the following steps:
“You put a lot of work into hosting a party,” Bolyard continues. “Do your best to be prepared… Then, enjoy the party knowing that you are insured in case an accident occurs.”
Related: Hosting a Super Bowl 50 party? Watch out for these 5 risks
Here are six tips from insurers regarding potential homeowner liabilities when hosting a Super Bowl party, as well as how to address them.
Depending on the location, social host liability laws, or the criminal and civil responsibility of a person who furnishes liquor to guests, are applicable to events such as in-home Super Bowl parties, according to the Insurance Information Institute.
American Modern’s Heather Bolyard notes that hosts can be liable for guests who over-imbibe and then drive home while intoxicated:
“There have been some very sad claims where after leaving a party with family and friends the guest drove drunk causing an accident, injuries, and even death. A Super Bowl party with friends and family is going to be a great event. If you’re serving alcohol, do so early in the game and be sure to serve food as well; put the alcohol away before the end of the game and switch to coffee and dessert.
For those that over-imbibe ensure they don’t drive; consider asking another guest to give the person a ride or order a ride from a local taxi or ride-sharing service. There are so many services that are quick and convenient. Go ahead and have an app or phone number handy if you need one for a guest. You want to remember the great party, not the results of car accident.”
Many parts of the country are heading into the coldest, snowiest part of winter. That means anyone hosting a Super Bowl party could be liable should a guest slip and fall on their steps, driveway or walkway.
But that becomes much less likely when a homeowner has taken extra precautions to clear and salt snowy, icy outdoor paths.
Related: 10 ways to reduce slips, trips and falls in your business
Farmers Insurance data also indicates that skidding on ice or snow and hitting an object or pedestrian claims both increase by more than 5% on Super Bowl Sunday compared to the three Sundays prior.
Grilling food is easy, fast and delicious, but it also can be dangerous.
Between 2009 and 2013, U.S. fire departments responded to an average of 8,900 home fires involving grills, hibachis, or barbecues per year, according to the National Fire Protection Association (NFPA), and these fires accounted for annual averages of 10 civilian deaths, 160 reported civilian injuries, and $118 million in direct property damage.
Related: Time for a cookout! Grilling safety & homeowners insurance basics
Super Bowl party hosts should make sure grills are clean and operational before the party, as well as positioned away from people and property.
Keep fire safety tools on hand, just in case.
Popular party foods containing dairy, such as dips or potato salad, can quickly sour once they come to room temperature, and Super Bowl party hosts could be liable should a guest become sick from something served at the event.
These food storage tips from the U.S. Department of Agriculture will go a long way toward avoiding the spread of foodborne illness:
— It is vital to keep foods out of the “Danger Zone,” which is the temperature range between 40°F and 140°F.
— When foods are left in the “Danger Zone,” bacteria can multiply rapidly, causing a single bacterium to multiply to 17 million in 12 hours.
— Avoid serving Super Bowl favorites, such as pizza and chicken wings, at room temperature for the entire game.
— If warm takeout foods are to be served immediately, keep them at 140°F or above by placing in chafing dishes, preheated warming trays or slow cookers.
— If take-out foods will not be served immediately, either keep them warm in a preheated oven, or divide the food into smaller portions or pieces, place in shallow containers, and refrigerate. At serving time, reheat to 165°F.
— Cold foods that are served should be kept at 40°F or below, which can be done by nesting serving dishes in bowls of ice. Avoid storing food outside, where the sun can quickly warm foods in plastic storage containers and animals can get into them.
— Use a food thermometer to ensure foods being served to guests are not in the “Danger Zone.”
Related: Win big with these 7 food safety tips for your Super Bowl 50 party
Dogs are especially sensitive to crowds and noise (like touchdown cheering), and an agitated animal is more likely to bite.
When pets join the party, owners should monitor them for signs of stress such as panting, pacing or hiding. It also may also be wise to keep older or anxious dogs away from Super Bowl party guests altogether.
Related: 8 tips for preventing dog bites
Farmers Insurance warns that homeowners’ policies generally cover a limited amount of liability for injuries that occur at the home. So homeowners may want to consider a personal liability umbrella policy as a supplement.
Farmers also advises Super Bowl party hosts that any intentional act resulting in damage to home or property may not be covered under a homeowners policy. And there are limits to certain types of homeowner losses, such as theft.
To that end, Super Bowl party hosts may want to consult with their insurance specialist before Super Sunday to determine whether supplemental insurance, knowns as a floater, may be prudent.
“Parties and holidays are times to celebrate and enjoy each other’s company,” says American Modern’s Heather Bolyard. “After doing your best to prepare for an entertaining event, insurance can help you have peace of mind and enjoy the time with your friends and family.”
See also:
Where do insurance company Super Bowl ads rank with viewers
Nationwide defends its position over controversial Super Bowl ad
For your home insurance review, call us at (317) 886-0081 or visit our website: Scott Lynch Agency
