Are Computerized Estimates by Pilot Catastrophe Adjusters Low Because of a Special Database?

Some Mondays are more interesting than others. When I go to conferences with adjusters, I make a point to ask about "in the street" information on insurers I am litigating against. The information and leads to witnesses or evidence are often extremely valuable to my clients. Adjusters know when the orders from claims management are wrong and aimed at paying less than what is fairly owed. Most want to disclose facts about insurers that wrongly demand underpayment.

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Alex Sink Appears Before the Florida Association of Public Insurance Adjusters

Alex Sink, Florida's CFO and candidate for Governor in 2010, was the keynote speaker at the 2009 Summer Conference of the Florida Association of Public Insurance Adjusters (FAPIA) yesterday.

Sink has not failed in her job as CFO and has an excellent chance to become Florida's next governor. Her opponent in the race, Bill McCollum, seems to be the darling of the insurance industry. Sink, on the other hand, is setting out a course as a champion for consumers.

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FC&S Says Ensuing Loss Coverage Applies to Chinese Drywall Claims

The insurance industry is probably calling and writing the editors of the FC&S Bulletin because the June 2009 edition correctly notes that Ensuing Loss Damage is covered under the ISO form policies for typical Chinese Drywall losses. I recently noted various coverage issues related to Chinese Drywall. A number of these cases are coming to our office because insurers are not affording first party coverage.

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The Growing Trend and Problem of Contractors Adjusting Claims for Policyholders

The Florida Association of Public Insurance Adjusters Annual Convention starts today. I have been asked to speak to their Board of Directors this afternoon regarding their concerns about restoration companies and repair contractors acting as policyholder representatives in the negotiation and settlement of insurance claims. It is a growing trend and one which generally is not good for the insurance companies or the policyholders because of inherent conflicts of interest.

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Federal Court Finds Lack of Diversity For Subject Matter Jurisdiction Against USAA

ISIDORE v. USAA INSURANCE COMPANY
No. 09-1333, 2009 U.S. Dist. LEXIS 51410
(E.D. La., June 2, 2009)

 

Isidore’s home in Slidell, Louisiana was damaged in Hurricane Katrina. Isidore was originally included as one of several hundred improperly joined plaintiffs consolidated in the Federal District case, In re: Katrina Canal Breaches Litigation. When that case was administratively closed, all plaintiffs were ordered by the court to file separate amended complaints. After settlement negotiations with USAA, Isidore’s insurer, failed, Isidore refiled suit in the United States District Court for the Eastern District of Louisiana. USAA moved to dismiss for lack of subject matter jurisdiction. 

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United Policyholders Continues its Good Work

I received the United Policyholders newsletter today. It is full of valuable information to policyholders with a variety of different concerns. While many individuals are concerned about hurricanes, the newsletter covers a myriad of topics. For example, the current newsletter highlights issues involving wildfires.

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Federal Court Makes "Erie" Guess as to Louisiana's Valued Policy Law

Watson v. Allstate Ins. Co.
Slip Copy, No. 2:07-cv-3462, 2009 WL 1704730, 2009 U.S. Dist. LEXIS 50993,
(E.D. La., June 17, 2009).

Vivian Watson’s home was covered by an Allstate “Deluxe Homeowners” policy when Hurricane Katrina hit on August 29, 2005. Following Hurricane Katrina, Watson filed suit against Allstate in Federal District Court, alleging that her property suffered a total loss caused by wind, wind driven rain, flooding and waters entering New Orleans and surrounding parishes. She sought the full face value of the homeowner's policy for dwelling and other structures, personal property, and additional living expenses without deduction or offset, pursuant to Louisiana’s Valued Policy Law. Allstate filed a motion for partial summary judgment, arguing that Watson’s case should be dismissed because the damages were not caused exclusively by a covered peril (like most homeowners policies, Watson’s did not cover flood damage). 

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An Insurance Risk Manager Gives Fantastic Advice to Policyholders Getting Ready for a Potential Hurricane Claim

At the Greater Delray Beach Chamber of Commerce Hurricane Seminar this morning, Brent Winans of the Plastridge Agency gave a fantastic presentation, "10 Ways to Get Ready for a Hurricane Claim in 10 Minutes." Winans holds the coveted CPCU designation and is Vice President of Risk Management Services.

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Crist Makes the Correct "Consumer Choice"

Governor Charlie Crist just vetoed HB 1171, which was euphemistically titled the "Consumer Choice Bill."

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State Farm Tells Governor Crist It Will Not Leave Florida If Bailout Bill Is Signed

I do not know why the State Farm Florida President would write a letter to Governor Crist telling him State Farm will remain in Florida if Crist signs the bailout bill. Of course it would. What a competitive advantage a few large insurers would have over the rest of the domestic competition.

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Trends in the Florida Insurance Market That Business Managers Must Consider In Hurricane Preparations

(This post is part of a presentation I will provide to the Chambers of Commerce in Del Ray Beach and Boca Raton over the next two weeks.)

Since 1985, I have had the pleasure of providing legal counsel to hundreds of different companies with virtually every type of insurance claim problem and concern following a disaster. There are recent trends in the Florida insurance industry regarding insurance coverage that many do not appreciate. Without the perspective gained by experience, I find many providing advice do so from a limited, and often self serving, perspective. Many of these advisors are unknowingly part of one of the newer trends.

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Does Your Public Adjuster Have to Appear for an Examination Under Oath?

Public adjusters hate to appear and be questioned for an examination under oath. Whether they can be compelled to, should, and the legal consequences for doing so (or not) are of considerable debate.

Following my discussion regarding examinations under oath last week, Dealing with Questions that Seem Irrelevant in an Examination Under Oath, this seems to be a ripe property insurance coverage topic.

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Texas Appeals Court Holds Contractual Two-Year Limitations Void if it Begins to Run Before Insured Can Bring and Maintain an Action

Spicewood Summit Office Condominiums Ass'n, Inc. v. America First Lloyd's Ins. Co.,
--- S.W.3d ----,
Tex. App.-Austin, June 12, 2009

On March 25, 2005, a hailstorm damaged the Spicewood Summit Office Condominiums. Spicewood reported the damage to their insurer, America First Lloyds, on March 28, 2005.

On June 13, 2007, after several inspections and supplemental payments, Spicewood filed suit against the insurer for breach of the insurance contract, violation of the prompt-payment statute (Tex. Ins. Code 542.051) and attorneys’ fees.

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Rocco Calaci Questions Current Models Used to Determine Wind Damage

(*Chip Merlin's Note--Rocco Calaci has been a noted meteorology expert witness in the Katrina Legal Wars. After meeting him at a recent FAPIA Convention, I invited him to write a series of guest blogs. Click here to read his previous guest blogs)

Why
Rocco Calaci

Why do people forget that the atmosphere reacts to weather changes at all levels besides the standard heights of 1000, 925, 850, 700, 500, 300, 250 and 200 millibars? If someone doesn’t evaluate the entire column of air at all levels, how can an accurate analysis be performed? How can you trust algorithmic results from incomplete data?

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Dealing with Questions that Seem Irrelevant in an Examination Under Oath

I received a comment that was an important and recurrent question regarding examinations under oath. The issue concerns the seemingly endless questions of possible immaterial nature asked by the insurer: 

"Question concerning Examinations Under Oath.

The attorneys for the insurance companies doing the EUO seem to be asking questions that have nothing to do with the loss, (i.e., How long have you lived in this state, request a list of previous addresses, what high school did you attend, where were you born. Also they request tax returns for three to five years).

We have seen the EUO’s last one to four hours with questions that seem to have nothing to do with the fact that the insured filed a claim for damages that they have bought insurance to cover.

Are there guidelines for questioning during a EUO?"

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The Dirty Secret of Exclusions Some Major Insurance Companies Like State Farm, Allstate, Nationwide and even USAA, Do Not Want You to Think About

Why are major insurance companies selling insurance with "feel good" messages rather than explaining how many different types of accidents and catastrophes they will not cover? If they were honest, wouldn't they explain to customers what is not covered before the purchase? Sandy Burnette wrote a comment to "Is the State Farm Policy Really Worth Anything?" As I indicated in yesterday's "Some Public Adjuster and Insurance Attorney Concerns and My Blogging Mistakes," he made a valid criticism which I corrected and appreciate him calling to my attention.

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Some Public Adjuster and Insurance Attorney Concerns and My Blogging Mistakes

When you write things for the public, mistakes and opposite views will be pointed out. The public nature of blogging is a relatively new experience for me. I speak, write, and advocate in private all the time. Indeed, most of what I do on behalf of clients is very private. Further, some public matters and cases later become private matters much to the chagrin of third parties. So, regarding this Blog, I appreciate comments that point out when I am wrong or when there is a differing opinion or explanation.

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Insurance Industry Does Not Agree on State Farm Bailout Law

The Insurance Journal ran an article, Florida Domestic Insurers Urge Veto of 'Dangerous' Deregulation Bill, which indicates a significant portion of Florida's insurance industry opposes State Farm, State Farm agents, and the other big insurers trying to get a competitive advantage from this legislation. The article outlined many of the competing views and stated in part:

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Depreciation Should Not Be Taken for Partial Losses That Are To Be Repaired

My presentation at NAPIA's Annual Meeting was titled, "The Legal, Ethical, and Practical Adjustment Issues from Windstorm Claims to Walls, Windows and Roofs." I asked three others, New York attorney Jonathan Wilkofsky, New York public adjuster Ron Papa, and Maryland public adjuster Randy Goodman, to participate as an expert panel on these adjustment issues. I have found that this type of presentation keeps the audience involved with dialogue, questions and differing views and emphasis. It was a high level nuts and bolts analysis of adjustment issues that occur regularly in windstorm claims.

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David Berardinelli's Fight Against Allstate's Claims Culture

David Berardinelli made a presentation at NAPIA's Convention on Friday. His topic, "From 'Good Hands' to Boxing Gloves: How Allstate Changed Casualty Insurance in America," was an excellent and updated version of a speech I have seen before. Many of his points are important to understanding why the claims culture has changed so much over the past twenty years. Sadly, part of the story he tells reflects the greed of some executives in the financial industry.

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The Big Insurance Industry Propagandists Support the State Farm Bailout Bill

I received an email from a right wing group that has ties to the insurance industry. It is a call to lobby Governor Crist to support State Farm's bailout legislation. Every consumer group I know of has called the bailout another giveaway to the insurance industry at our expense. But the insurance propagandists are still pushing their illogical arguments.

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Policyholders Need to Obtain Independent Counsel Regarding Subrogation and Litigation Agreements

Property insurance policies usually contain cooperation clauses regarding subrogation rights. Subrogation occurs when an insurer pays a policyholder a loss for which a third party may be responsible. The insurer becomes interested in getting its money back from the responsible third party. Accordingly, most property insurance policies have a clause which reads similar to this:

"The insured shall cooperate with the Company and, upon the Company's request, assist in...the conduct of suits....; and the insured shall attend hearings and trials and assist in the securing and giving evidence and obtaining the attendance of witnesses."

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Crist Signs Surplus Lines Bill

Governor Crist has signed the flawed Surplus Lines Bill (HB 853) into law. The story was reported today by the Insurance Journal in an article, Gov. Crist Signs Florida Surplus Lines Regulation Bill:

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Federal Hearings On Insurance Oversight Set for June 16

Congressman Paul Kanjorski, Chairman of the Financial Services Subcommittee on Capital Markets, Insurance and Government Sponsored Enterprises, announced that his Subcommittee will hold a hearing to protect insurance consumers from risks in the insurance system and to prevent insurance companies from posing a systemic risk and threatening the American financial system. This systemic risk may be the federal government’s only legitimate concern when it comes to regulating insurance.

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NAPIA's Annual Meeting Provides Great Information About Claims Trends

I am in Del Mar, California, meeting with a hundred public adjusters at NAPIA's Annual Convention. At the first NAPIA convention I went to, I spoke about Examinations Under Oath. That was in 1985, in Carmel, California. Since then, I have learned at these meetings how some of the brightest minds apply insurance policy language to maximize benefits for policyholders. You'd think the insurance industry would have its adjusters do the same, but most of their conferences involve how to not overpay.

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National Flood Regulations Have to Be Followed and Policyholders Must File "Adverse Proofs of Loss"

My work day started at 4:30 am EDT in Tampa, with a trip to South Padre Island regarding a Hurricane Dolly dispute. It will end at sunset following meetings on Hurricane Ike matters. As my pilots are working on getting me safely home through the summer Gulf Coast weather, I am wondering how Judy Guice did in her argument earlier today before the Mississippi Supreme Court.

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Concurrent Causation and Burdens of Proof are Argued Today in the Mississippi Supreme Court

Judy Guice will argue the policyholder's position in Corban v USAA at 1:30 p.m., Central Time today. You can read the briefs at our prior post and watch the oral argument here. Judy Guice is bright and dedicated to this cause--she was denied her own claim based on similar reasons as her client.

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Senator Mike Fasano's Battle for Affordable Insurance

Have you ever visited one on one with an elected legislator for more than 30 minutes? I have a number of times, and the results are mixed. Yesterday, I had a surprisingly pleasant and rewarding experience talking with Mike Fasano, a Florida Senator.

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Is the State Farm Policy Really Worth Anything?

What is the value of insurance if it does not pay for insured losses? Imagine if you had a significant accidental water damage to your home or business, do you know whether your insurance company has your back? Will it really be there to help you? Don’t count on it. Today, modern insurance companies are re-writing their insurance policies to limit what is covered and excluding many losses that used to be covered under all-risk policies. State Farm, as an insurance industry leader, is leading the charge of making an insurance product that no consumer should trust as providing the amount of coverage the insurance product afforded 25 years ago. It is always important to remember that Policyholders Buy Insurance for Peace of Mind and Not Economic Advantage and that concept is being defeated as carriers try to gain economic advantage by changing small print in the policy that may have significant consequences discovered by the policyholder only after disaster happens. To be Fair And Balanced with State Farm, I could have substituted Allstate, Nationwide and USAA into the title.

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Wrong Application Information May Lead to Denial of an Otherwise Covered Loss

Policyholders and their agents need to make certain that an application for insurance coverage has the correct answers and information. While some states require the intent of fraud in the application to rescind coverage, many states merely require  materially wrong information to void an otherwise valid claim. Indeed, in Florida, even an unintentionally wrong answer which results in a higher premium charge can be the basis for denying an otherwise valid claim, even though the wrong information and the loss have no relationship at all.

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Public Adjusters Sued in Class Action for Wrongful Conduct--Are Unauthorized Practice of Law Class Action Suits Next?

At our recent seminar on insurance adjustment techniques and practices, Texas Hold 'Em" #2: Merlin Law Group's Seminar for Texas Public Insurance Adjusters, I warned public adjusters that wrongful practices, especially the unauthorized practice of law by giving legal advice, would probably result in lawsuits against them. Yesterday, I found an article, Class Action Lawsuit Targets Fees Charged by Public Adjuster, that addresses some of my concerns.

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Common Law Good Faith Duty Before Florida Supreme Court

The issue whether Florida will join the majority of states recognizing an insurer's duty of good faith at common law is squarely before the Florida Supreme Court. In Citizens Property Ins. Co. vs. Louis Bertot, the Third District Court of Appeal noted the issue before it:

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FEMA Grants An Additional 60 Day Extension For Ike And Gustav Victims To File Flood Proofs Of Loss

As I mentioned in yesterday’s afternoon blog, FEMA issued a signed memorandum authorizing an additional 60 day extension for Ike and Gustav victims to submit a proof of loss. Now a policyholder has a total of 330 days from the date the damage was incurred to file. The memorandum notes that FEMA will be closely monitoring the extension to determine whether additional extensions are warranted. This 60 day reprieve may be your last chance to file a proof of loss and recover the insurance proceeds you are owed. Failing to timely and properly file a flood proof of loss is a bar to recovery of the claim.

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Proposed Law Drops Sinkhole Coverage

One way to get cheaper rates is to buy an insurance policy that covers nothing. An article shows this is how the Florida legislature is tackling the insurance rate problem:

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Federal Flood Deadline Allegedly Extended 60 Days

Tina Nicholson received word that the Federal Flood Deadline for Hurricane Ike Claims has been extended 60 days from the impending deadline next Monday. As I indicated in a post last week, oral promises mean nothing in National Flood claims. So, I instructed Ruck DeMinico, of our firm, to call the one person I know well enough in the National Flood program to get the story--Russ Tinsley.

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Texas TWIA Bill Passes with Consumer Protections and Crist has Surplus Lines Bill

The Texas Windstorm Insurance Association (TWIA) has a new operations plan and laws that affect it, assuming Governor Perry signs the legislation. The good news for TWIA policyholders is that the consumer protections of Chapter 541 are still in place. The bad news is that I predict rates are going to increase substantially.

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Mississippi Supreme Court Hears Corban Oral Argument Next Week

Last November, I wrote a post, A Chance For Mississippi Courts To Get It Right, about a very important case that will be argued before the Mississippi Supreme Court next Tuesday, June 9, 2009, at 1:30 p.m. I know many must think that justice sometimes moves at a snail's pace because six months have passed since I first wrote about the case and we are only arguing the appeal. Corban v USAA is important to all Mississippi policyholders, and the arguments can be watched live over the Internet.

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Brad Ashwell States the Case to Veto the State Farm Bailout Bill

The Consumer Advocate for the Florida Public Interest Research Group,  Brad Ashwell, wrote a letter published in the Gainesville Sun calling on consumers to urge Governor Crist to veto the State Farm bailout legislation. He clearly explained how the bill will harm Floridians:

"The problem is that this bill would remove consumer protections by no longer allowing the OIR to protect Floridians from excessive or discriminatory rate hikes as Kevin McCarty and his office have successfully done time and time again.

If HB 1171 becomes law, major insurance carriers would not only be able to charge whatever they like, they would also be able to game the system by manipulating rates, quoting excessive premiums to coastal homeowners, then dropping those policies if they choose to so they can maintain and grow inland policies where there is less exposure. The lack of predictability this would create is exactly what we don’t need in a state with an already fragile and overstrained property insurance market.

And perhaps the most troublesome provision is that the bill would help further grow the surpluses of these larger insurers while preventing small Florida-based carriers from doing the same. In this way the bill aims to provide an unfair competitive advantage to larger companies by discouraging across the board competition with smaller carriers. This would ultimately harm consumers and businesses by fostering an insurance market offering fewer choices in terms of dependable insurers. It’s also important to recognize that there’s no guarantee these large companies will continue writing policies in Florida.

Rather than deregulating the market, which hasn’t worked out in the past, we should be working on policy goals that support a more competitive insurance market that provides consumers with more affordable options. In short, we need more Florida-based companies competing, not fewer large insurers who dominate the market, essentially holding homeowners hostage, charging any rate they choose."

He is right, and nobody disputes his facts. Proponents of the bill argue it gives consumers the “choice” to pay excessive rates if they want. The legislators who voted for the bill did so because of political pressure, without understanding the consequences, or because they like the incentives offered by insurance companies for their votes. Either way, the “choice” is just a way to justify this bad legislation.

Objectionable Senate Language Struck From Final TWIA Bill

Another day, another twist as the TWIA / Windstorm bill winds its way through the Texas legislature.

In its latest incarnation, the Windstorm bill, now found in HB 4409, does not contain the language that would have stripped consumers of the ability to bring an action under Chapter 541 against Texas Windstorm Insurance Association (TWIA) for wrongfully denying or delaying payment of claims.

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