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2 for 2: 2nd Amendment for Felons; Catch-22 Fire Insurance Question

By William Peacock, Esq. | Last updated on

After a few days of a barren bench issuing no decisions of note, today we were graced with a handful. We're so excited by the ending of the drought, that today, we're giving you a double dose of Second Circuit fun: felons with firearms and insurance company windfalls.

Second Circuit Talks Second Amendment - For Felons

A felon is caught with both body armor and firearms. This is obviously a problem. Yet, Gary Bogle argued, with a straight face, that the Supreme Court's recent jurisprudence in the Second Amendment arena, namely District of Columbia v. Heller and McDonald v. City of Chicago developed a more expansive interpretation of the Amendment and by extension, gave the right to firearm possession back to felons.

He apparently didn't read McDonald and Heller. ("We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as prohibitions on the possession of firearms by felons ... We repeat those assurances here.")

The Second Circuit did. And in three pages, joined the rest of the Circuit Courts in holding that felons still can't have firearms. Appeal dismissed.

Will Bureaucracy Create Windfall for Insurance Company?

Peerless Insurance insured a building owned by Executive Plaza, LLC. It burned down. The policy provided that any legal action against the insurer had to commence within two years and that replacement costs for a lost or damaged building would only be paid until actual construction is completed.

Alas, zoning and building codes, and other fun bureaucratic nonsense meant construction took longer than two years. Before the time limit hit, however, Executive filed suit in state court against Peerless. The suit was removed to federal court and dismissed as not yet ripe (since construction was not yet complete).

The fire happened in February 2007. Construction was completed in October 2010. No need to count ... that's more than two years.

Shockingly enough, Peerless refused to pay and now asserts that the suit can't be brought under the plain terms of the policy. Executive's argument is essentially, "C'mon bro. Seriously?"

The Second Circuit's thoughts? They certified a question to the New York State Court of Appeals, as that court has only previously addressed time limitations periods, finding them enforceable. The question asks:

If a fire insurance policy contains

(1) a provision allowing reimbursement of replacement costs only after the property was replaced and requiring the property to be replaced "as soon as reasonably possible after the loss" and

(2) a provision requiring an insured to bring suit within two years after the loss; is an insured covered for replacement costs if the insured property cannot reasonably be replaced within two years?

If Executive Plaza thought the bureaucracy with the building and zoning commissions was bad, wait until it deals with the state and federal legal systems. Never underestimate our inefficiency!

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