W. Va. Code R. agency 115, tit. 115, ser. 115-01, app B
COAL MINE SUBSIDENCE COVERAGE PART FORM: WVMS-2(NON-DWELLING STRUCTURE) (Ed. 04-2016)
In consideration of an additional premium, the STRUCTURES are insured against direct loss which occurs within die effective policy dates caused by underground COAL MINE SUBSIDENCE for die limit of liability stated in the policy declarations applicable to COAL MINE SUBSIDENCE insurance.
COAL MINE SUBSIDENCE means loss to a STRUCTURE caused by lateral or vertical movement, including collapse which results therefrom, of STRUCTURES from collapse of man-made underground coal mine.
PROPERTY COVERED. This coverage applies to:
STRUCTURE, meaning any building or fixture permanently affixed to realty located in West Virginia, including:
(1) Cost of excavations, grading or filling; and
(2) Basements, footings, foundations, septic systems; and
(3) Underground pipes directly servicing the STRUCTURE.
PROPERTY NOT COVERED. This coverage does not apply to the following:
(1) Driveways, sidewalks, parking lots, land; and
(2) Trees, plants, crops or agricultural field drainage tile.
LIMIT OF LIABILITY. The limit of liability for loss under this coverage part shall not exceed the smallest of the following amounts (1), (2), (3), (4) or (5):
(1) The Limit of Liability stated in the policy declarations applicable to COAL MINE SUBSIDENCE INSURANCE;
(2) The replacement cost of the STRUCTURE or any part thereof identical with such STRUCTURE on the same premises and die same occupancy and use;
(3) The amount actually and necessarily expended in repairing or replacing said STRUCTURE or any part thereof intended for the same occupancy and use;
(4) The amount of fire insurance on the STRUCTURE; or
(5) The amount available in the West Virginia Mine Subsidence Insurance Fund to reimburse the company.
PERILS NOT INSURED AGAINST. The insurance afforded by this coverage part does not insure against loss caused by:
(1) Earthquake, landslide, volcanic eruption, collapse of storm and sewer drains and rapid transit tunnels or earth movement other than underground COAL MINE SUBSIDENCE;
(2) Any ensuing loss covered by the policy to which this coverage part is attached.
DEDUCTIBLE. The following deductible provisions apply:
(1) The sum of $250 shall be deducted from each loss separately occurring to the STRUCTURES insured.
(2) No other deductible provision contained in the policy to which this coverage part is attached applies to loss caused by COAL MINE SUBSIDENCE.
ARBITRATION PROVISION.
(1) In die event that the Insured and the Company, through the West Virginia Board of Risk and Insurance Management (hereinafter BRIM), as called for by statute, are unable to reach agreement as to: (1) whether the insured STRUCTURE has sustained damage, in total and/or in part, during the effective policy dates, due to COAL MINE SUBSIDENCE; and/or (2) the cost of repair of COAL MINE SUBSIDENCE damage to the insured STRUCTURE; and/or (3) the method of repair of COAL MINE SUBSIDENCE damage to the insured structure; and/or (4) the materials necessary to effect repair of COAL MINE SUBSIDENCE damage to the insured STRUCTURE, then either the Insured or BRIM may request that such issues(s) in dispute will be submitted to binding arbitration.
(2) A request for binding arbitration shall be made in writing and dispatched to the other party via certified mail, return receipt requested. At such time as the parties have mutually indicated their written consent to binding arbitration of the issue(s) in dispute, the arbitration process shall thereby commence as provided for herein.
(3) If die Insured and BRIM mutually consent to binding arbitration, then both the Insured and BRIM shall agree to submit to the findings and decision of the QUALIFIED ARBITRATOR or QUALIFIED ARBITRATION PANEL. Any award in an arbitration initiated under this clause shall be limited to monetary damages for COAL MINE SUBSIDENCE in an amount not to exceed two hundred thousand dollars ($200,000) dollars per insured STRUCTURE or an amount not to exceed the LIMIT OF LIABILITY as declared for COAL MINE SUBSIDENCE insurance coverage on the Policy Declarations, whichever is less. In no event can the QUALIFIED ARBITRATOR or QUALIFIED ARBITRATION PANEL award punitive damages, attorney fees, injunctive relief, consequential damages, incidental damages, and/or any other types or sorts of damages other than monetary damages for COAL MINE SUBSIDENCE to the insured structure. Moreover, each party shall bear its own costs and expenses and an equal share of the ADMINISTRATIVE FEES of arbitration, except that if the Insured is the prevailing party in the arbitration BRIM agrees to pay all of the ADMINISTRATIVE FEES of the arbitration; however in no circumstance shall BRIM pay the expenses, legal fees, or expert fees of the Insured. ADMINISTRATIVE FEES shall mean only those fees charged by the QUALIFIED ARBITRATOR or QUALIFIED ARBITRATION PANEL according to the fee schedule as mutually agreed to in writing by the parties at the time the QUALIFIED ARBITRATOR or QUALIFIED ARBITRATION PANEL is selected.
(4) Judgment upon the award rendered by the ARBITRATOR or QUALIFIED ARBITRATION PANEL shall be final and not appealable, but, if necessary, may be entered by the Circuit Court of Kanawha County, West Virginia as provided herein.
(5) Selection of an Arbitrator
(a) Within ten (10) days of die mutual written consent to binding arbitration, the Insured and BRIM shall select a QUALIFIED ARBITRATOR by mutual agreement to resolve the issue(s) in controversy between the parties. Said QUALIFIED ARBITRATOR shall be a professional registered engineer who can produce evidence of at least five (5) years experience in investigating and determining the existence of subsidence caused by underground coal mines, and, if requested by mutual agreement of the parties, shall also be qualified to determine the cost of adequate repairs to structures damaged by COAL MINE SUBSIDENCE.
(b) If the parties are unable to agree upon a single QUALIFIED ARBITRATOR, then within thirty (30) days after the mutual written consent to binding arbitration, each party shall select one (1) QUALIFIED ARBITRATOR and the two (2) selected shall select a third QUALIFIED ARBITRATOR within ten (10) days of their appointment. Those three (3) QUALIFIED ARBITRATORS shall be hereinafter referred to as the QUALIFIED ARBITRATION PANEL and will resolve the issue(s) in controversy between the parties.
(c) Prior to the commencement of hearings, each of the QUALIFIED ARBITRATOR(S) appointed shall provide an oath or undertaking of impartiality.
(6) Applicable law
This arbitration agreement shall be governed by the laws of the state of West Virginia. Furthermore, the parties hereto consent to the personal jurisdiction and venue of the Circuit Court of Kanawha County, West Virginia and further consent that any process, notice of motion, or other application to the court or a judge thereof may be served outside the State of West Virginia by registered or certified mail or by personal service, provided that a reasonable time for appearance is allowed.
(7) Arbitration Mechanism
(a) Thirty (30) days after selection of a QUALIFIED ARBITRATOR or a QUALIFIED ARBITRATION PANEL, both the Insured and BRIM shall make written submissions to the QUALIFIED ARBITRATOR or a QUALIFIED ARBITRATION PANEL in which the respective party presents die facts of die case, with a copy to be provided to the other party. These written submissions may be made by the party or die party's designated representative.
(b) Upon receipt of these materials, the QUALIFIED ARBITRATOR or QUALIFIED ARBITRATION PANEL may request additional materials from either party. Any request for additional materials shall be made within thirty (30) days from the date the written submission, required by paragraph (7)(a), was made.
(c) After due consideration of die facts, as presented by the parties, the ARBITRATOR or QUALIFIED ARBITRATION PANEL, by majority opinion, shall issue a written decision with regard to all of the issues presented by the parties. Upon receipt of the written decision, the parties shall have thirty (30) days to resolve the claim m accordance with the decision.
(8) Duration of Arbitration
The award of the ARBITRATOR or QUALIFIED ARBITRATION PANEL shall be made within nine (9) months of the filing of the notice of intention to arbitrate (demand), and each QUALIFIED ARBITRATOR shall agree to comply with this schedule before accepting appointment. However, this time limit may be extended by agreement of the parties.
OTHER PROVISIONS.
(1) In the event of loss to any STRUCTURE insured by this coverage part in excess of the deductible amount, this company shall be liable for no greater proportion of such excess than the amount provided by this COAL MINE SUBSIDENCE coverage part shall bear to all COAL MINE SUBSIDENCE insurance, whether collectible or not.
(2) The insurance afforded by this coverage part shall not be subject to the provisions of West Virginia Code Section 33-17-9, commonly known as the West Virginia Valued Policy Law. It is further agreed that no co-insurance clause shall be applicable to this coverage part.
(3) All claims shall be paid within 120 days after Proof of Loss is presented to the company unless otherwise agreed by the company and the insured.
(4) The insurance afforded by this coverage part shall become effective no earlier than 30 calendar days after the application date.
(5) Acceptance by the Insured of payment from the Company shall be proof of the Insured's agreement with the Company and BRIM as to the extent and scope of any and all covered damages under this coverage part, and the repair thereof; further, any and all such repairs to the insured STRUCTURE required by the Company and BRIM must be completed not later than 12 months after issuance of the settlement check by the Company to the insured. Failure by the insured to comply with this policy condition shall result in the right of the Company or BRIM to deny any further claim for damage to the insured structure caused directly or indirectly by such failure to complete the agreed on repairs.
(6) In die event of any payment under this policy, the Company or BRIM shall be subrogated to all of the Insured's rights to recovery therefore against any person or organization and the Insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The Insured shall do notiiing after loss to impair or prejudice such rights. At the request of the Company or BRIM, the Insured will bring suit or transfer those rights to the Company or BRIM and help the Company or BRIM enforce them.
(7) Except as modified by this coverage part, this insurance is subject to all the provisions of the policy to which the coverage part is attached.
W. Va. Code R. agency 115, tit. 115, ser. 115-01, app B