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Commercial Servicer: Force-Placed Insurance Sparks Terrorism Dispute.(Brief Article)
While the final version of legislation to provide a government backstop for terrorism insurance awaits enactment, some servicers have gone ahead and force-placed the insurance on properties which they deem to not have adequate coverage for terrorism insurance.
In one case of litigation involving the Four Times Square property in New York City's Midtown Manhattan - on which CIGNA Investments is the servicer, and a co-lender on a $430 million mortgage, and the Durst Organization is the borrower - a New York state court had ruled initially that the lender could reach into reserves to pay for insurance while the case appealing against forceplaced insurance is being fought in court. Keith Dunsmore, a partner with the Washington-based law firm of Akin Gump Strauss Hauer & Feld, said, "A temporary restraining order has been put back to prevent that."
Mr. Dunsmore noted that the key issue in such cases is whether the loan documents themselves permit the lender to require the borrower to have such insurance in place. He said, "I don't believe the court has ruled that the loan documents can require the borrower to maintain the insurance. That's the issue before the court. If the loan documents do permit the lender to require the insurance, then if the borrower refuses to maintain the insurance they would be in default, especially if the lender forceplaced it and the borrower did not pay the premium." Prior to September 11, the provision for all-risk insurance did not specifically say that the all-risk coverage would include insurance against terrorism, Mr. Dunsmore pointed out. But a second provision, he added, allows lenders to require "any additional reasonable insurance that they can require."
Mr. Dunsmore said, "In the Four Times Square case, they have said that the all-risk provision doesn't require them to maintain terrorism and the additional insurance provision is not applicable since it is not reasonable. It is a loan ...
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