There have been two recent federal district court decisions in the widespread class action litigation involving the application of depreciation to the labor cost component of replacement cost value on property insurance claims. (For background on this issue, see my February 21, 2017 blog post.) The “labor depreciation” litigation has been trending in favor of the insurers’ position, although these two decisions demonstrate that courts continue to reach conflicting results.

In Basham v. United Servs. Auto. Ass’n, 2017 U.S. Dist. LEXIS 118729 (D. Colo. July 28, 2017), a Colorado federal court recently granted a motion for judgment on the pleadings in favor of the insurer. The court explained that “[c]overed property, such as a roof, is often the product of both materials and labor. Accordingly, repair and replacement costs comprise the cost of materials (e.g., shingles and nails), and the cost of labor (e.g., roofing contractors). Both the cost of materials and the cost of labor are therefore subject to a depreciation deduction.” The court further reasoned that actual cash value coverage “is designed to avoid placing the insured in a better position than he or she was in before the” damage occurred, and that “[w]henever property is the indivisible product of materials (stuff) and labor (work), its physical components and the assembly of those pieces will decay over time.” The court rejected the plaintiffs’ argument that depreciation should be applied only to the cost of the materials.

In Arnold v. State Farm Fire & Cas. Co., 2017 U.S. Dist. LEXIS 122051 (S.D. Ala. Aug. 3, 2017), an Alabama federal district court denied the insurer’s motion to dismiss. The court wrote that “[t]he defendant certainly has not attempted to show that Alabama law requires insureds, before forming an understanding of what undefined policy terms mean, to discover and ponder the myriad and largely hidden commercial and societal considerations that underlie the insurance industry and its oversight by the three branches of state government. “ The court further explained that “[t]he defendant has identified no well-developed Alabama case law demonstrating that ACV encompasses depreciation for labor and [an Alabama Supreme Court decision] reflects that the common understanding of ACV does not encompass depreciation at all.” The decision in Arnold appears to conflict with the decision of another Alabama federal district court in Ware v. Metropolitan Prop. & Cas. Ins. Co., 220 F. Supp. 3d 1288 (M.D. Ala. 2016), which granted an insurer’s motion to dismiss in a “labor depreciation” class action.

In another recent development on this issue, on August 4, 2017, the Mississippi Insurance Department issued a bulletin stating as follows: “There is no statutory law in Mississippi prohibiting the practice of labor depreciation in the adjustment of property loss claims. If such a practice is used, the insurer should clearly provide for the depreciation of labor in the insurance policy. Likewise, if material and/or labor depreciation is applied, the insurer should clearly set out any such depreciation on the claim estimate furnished by the insurer.” Miss. Ins. Dep’t Bulletin 2017-8.