Nicole Vinson has just joined Merlin Law Group. Nicole’s first party insurance advocacy began in Jacksonville, and now she will be handling claims throughout Florida from our Tampa office.
Continue Reading..."Laws are like sausages, it is better not to see them being made."
-Otto von Bismarck
Our law firm's Knowledge Manager, Ruck DeMinico, was commenting to me that the new property insurance bill passed by the Florida House of Representatives yesterday was over a hundred pages long and that it would take a while to read through the entire document and analyze the changes from the last minute amendments. We joked that most of the Florida Representatives who voted on the bill had not yet read the entire bill either. Indeed, if they had read it, most would not understand what they were voting on because the complexity and subtlety of insurance law is not learned over several months.
Continue Reading...Many property insurance policies cover "Volcanic Action." In Volcano Fiasco - Understanding Business Interruption Claims, Part 17 and Possible Coverage to Obtain Recovery from Volcanic Activity - Understanding Business Interruption Claims, Part 18, Michelle Claverol wrote regarding the possibility of collecting for business loss caused by volcanic ash. My friend, Mark Nation, wrote about travel coverage in Travel Insurance Claims Expected As a Result of Volcano Eruption.
Continue Reading...(Note: this Guest Blog is part of a series on sinkhole issues).
Have any of you been involved in a neutral evaluation where the neutral evaluator appointed by the Department of Financial Services is an engineer or geologist that you have worked against many times? This begs the question – how “neutral” is neutral evaluation? Depending on the situation, you can wind up with a not-so-neutral evaluator or, worse yet, an evaluator who you have an adversarial relationship with from past claims. I have a few tips that can help you get more information about whether your prospective or appointed neutral evaluator is “neutral.”
Continue Reading...Policyholders know when they have been "ripped off" by the fine print of an insurance policy. The most common "rip off" is when insurance companies sell replacement cost insurance and then do not immediately pay replacement cost value. A number of insurance companies, like Chubb and AMICA do not play this "bait and switch" game in other jurisdictions. However, the insurance industry wants to change Florida law to make it legal in Florida.
Continue Reading...An excellent post by Brandon McWherter, of the Tennessee Insurance Litigation Blog, correctly noted an important point regarding insurable interest and title. The general rule is that title is not necessary to establish an insurable interest in property.
Continue Reading...Tempus fugit. Two weeks to go before the Windstorm Insurance Network holds its Dallas Symposium.
Continue Reading...(Note: This Guest Blog is by Michelle Claverol, an attorney with Merlin Law Group in the Coral Gables, Florida, office. This is the part of a series she is writing on business interruption claims).
Yesterday, I wrote about how swiftly the insurance industry has decided to shut down the possibility of recovery on business interruption claims resulting from the recent volcano eruption in Iceland. As reported, it is estimated that having to close Europe’s busiest airports may cost the airline industry in excess of $2 billion. While the insurance companies’ message of non-recovery was heard loud and clear, coverage fights will likely ensue, depending on the language of each individual policy.
Continue Reading...(Note: This Guest Blog is by Michelle Claverol, an attorney with Merlin Law Group in the Coral Gables, Florida, office. This is the part of a series she is writing on business interruption claims).
On April 14, 2010, a volcano that was silent for almost 200 years spewed a massive plume of ash thousands of feet into the Icelandic sky. The volcanic ash quickly spread throughout Europe’s atmosphere, forcing the cancellation of 81,000 flights and the closure of airports in U.K., France, Germany and Scandinavia. Millions of passengers were stranded and flights did not resume until almost a week after. The International Air Transport Association and the Centre for Asia Pacific Aviation estimated that the disruption may cost the airline industry in excess of $2 billion.
Continue Reading...(Note: This Guest Blog is by Corey Harris, an attorney with Merlin Law Group in the Tampa, Florida, office. This is part of a series he is writing on post-loss duties).
In Florida, discovery in breach of contract actions usually centers around the mystical “claim file” which insurers guard more closely than their first born child. As most who read this blog already know, the “claim file” has been held to be generally protected by Florida courts, and usually undiscoverable in a breach of contract action.
Continue Reading...Senate Bill 2264 passed yesterday on a 37-1 vote, with Senator Rudy Garcia casting the lone "No." A corresponding bill must pass the House before the legislation can be sent to the governor.
Continue Reading...The Associated Press reported today that Senate Bill 2044 and House Bill 447 have stalled in the Florida legislature.
The article, published at Insurancenewsnet.com, states:
Continue Reading...Florida Farm Bureau Casualty Insurance Company appealed a final judgment in favor of the Mathises, awarding them their homeowners policy limits. Hurricane Ivan caused substantial wind and flood damage to the Mathises’ home. The home was insured with a flood insurance policy with policy limits of $250,000, issued pursuant to the National Flood Insurance, and with a Florida Farm homeowners policy with policy limits of $295,600, which covered windstorm damage but excluded flood.
Continue Reading...Florida legislators will be debating insurance on the Senate floor today. The Senators are likely to have significant debate because recent indications are that there is extraordinary controversy about how to “fix" all of Florida's property insurance problems.
Continue Reading...(Note: This Guest Blog is by Kristin Demers-Crowell, an attorney with Merlin Law Group in the Tampa, Florida, office. This is part of a series that she and fellow attorney Donna DeVaney are writing on sinkhole issues).
I haven’t seen a ghost, but the new insurance legislation pending in the Florida legislature is almost as scary. There has been a flurry of activity in the Florida House this week regarding HB 447. The Florida Senate is considering a similar bill, SB 2108. It is helpful to review the Florida Senate Bill Analysis and Fiscal Impact Statement for an overview of the major reforms.
Continue Reading...This is a continuation of State Farm Agrees With Chip Merlin Regarding Claims Handling Obligations and State Farm Claims Handling Standards. These are some of the standards, which are the recognized insurance industry obligations of good faith claims handling, that State Farm teachs to its claims adjusters.
Continue Reading...State Farm has a First Party Coverage Seminar which sets forth the claims handling standards that are fairly standard throughout the insurance industry. The instructor's manual to this seminar should be studied by insurance coverage counsel. It sets forth very explicit claims adjustment standards and even explains the purpose for many of them. I will be going over these claims standards because they are extremely important in understanding how an adjuster is supposed to go about handling a first party insurance claim.
Continue Reading...I have been in a networking seminar regarding Safeco and Liberty Mutual insurance companies all day. One of my colleagues provided me some materials from State Farm. I am posting a couple of them for your review.
Continue Reading...(Note: This Guest Blog is by Michelle Claverol, an attorney with Merlin Law Group in the Coral Gables, Florida, office. This is the part of a series she is writing on business interruption claims).
New York-based drugstore chain, Duane Reade, must feel like it is Ground Hog Day every time their attorneys call to give status on their case against St. Paul Fire and Marine Insurance Company. Duane Reade, recently acquired by Walgreens, owns and operates 200 drugstores in and around New York City, including 124 in Manhattan. Duane Reade has been battling its carrier for almost 8 years in a protracted insurance coverage dispute arising from the September 11, 2001, destruction of its single most profitable store, formerly located on the main concourse of the World Trade Center. After a bench trial, four Federal District Court opinions, an appraisal and two appeals, the business interruption saga finally came to an end.
Continue Reading...(Note: This Guest Blog is by Corey Harris, an attorney with Merlin Law Group in the Tampa, Florida, office. This is part of a series he is writing on post-loss duties).
One of the most daunting tasks in submitting an insurance claim is the production of documents. Most insurance policies have language similar to the following:
Continue Reading...The insured, as often as may be reasonably required, shall produce for examination all writing, books of account, bills, invoices and other vouchers or certified copies thereof if originals be lost, at such reasonable time and place as may be designated by the company or its representatives, and shall permit extracts and copies thereof to be made.
A new Committee Substitute version of SB 2264 was filed yesterday. Attached is the new version of the proposed bill and the staff analysis on the version.
Continue Reading...Circuit Court Judge Tony Black was appointed to the Florida Second District Court of Appeal by Governor Charlie Crist. Here is what the press release stated about his selection:
Continue Reading...(*Chip Merlin's Note--Rocco Calaci has been a noted meteorology expert witness in the Katrina Legal Wars. Click here to read his previous guest blogs)
In about six weeks, the 2010 hurricane season will begin. As most of you already know, the National Hurricane Center and Dr. William Gray are predicting an "above average" year for hurricane activity. This was similar to last year's forecast for the 2009 hurricane season and we had a very quiet year. This year should be different.
Continue Reading...(Note: this Guest Blog is by Donna DeVaney, an attorney with Merlin Law Group in the Tampa, Florida, office. This is a series that she and fellow attorney Kristin Demers-Crowell will be writing on sinkhole issues).
Most homeowner policies in Florida are "all risk" policies, which means the peril that caused the damage is covered unless specifically excluded in the policy. Generally, to defeat coverage under an "all risk" policy, an insurance company must prove that a specifically excluded peril caused all of the damage.
Continue Reading...Have you ever become so frustrated with government red tape that you simply lost your composure? Most of us have. While many swear they will do something legally about the governmental problem, most never follow up. The old phrase, “you cannot fight City Hall,” does not apply to a few of us who fight, and then fight some more. It does not apply to a special client of mine, Suzanne Harris, who brought Okaloosa County to its knees in legal proceedings and has garnered national recognition for her successful efforts. Her work underscores the importance of open public records, and our efforts for policyholder requests of those records from Departments of Insurance.
Continue Reading...Today’s deposition of Professor William Spelman starts a series of depositions in the Texas slab cases involving TWIA. Several weeks ago, policyholder attorneys, including myself, met in Galveston to organize a series of depositions and decide upon the work assignments for these cases. This will be the first of many depositions and discovery attempts by policyholder attorneys to gain additional recovery for those individuals who suffered the most devastation caused by Hurricane Ike.
Continue Reading...Law Reviews are where the academic discussions of law are openly published. While in law school, I was fortunate to serve as the Executive Editor on the University of Florida Law Review. The experience enabled me to research, correct and debate with law professors and scholars about points of law and how they should be framed for public review. Last week, the Mississippi Law Journal published an article, William F. “Chip” Merlin, Jr., Corban v. USAA: A Case Providing Far Too Little Because It Was Rendered Far Too Late, 79 MISS. L.J. Supra 129 (2010), which I humbly suggest may help many understand the issues related to the anticoncurrent clause in cases involving storm surge. I strongly urge you to read it if you are an attorney representing policyholders. For everybody else, it is another example of how I can make sleep potions better than anything you can find at the pharmacy.
Continue Reading...(Note: This Guest Blog is by Michelle Claverol, an attorney with Merlin Law Group in the Coral Gables, Florida, office. This is the part of a series she is writing on business interruption claims).
“Experience is the name everyone gives to their mistakes” – Oscar Wilde
I picked up a couple of pointers worth sharing in an article published by the University Risk Management and Insurance Association titled, "Case Study-Business Interruption: An Exposure by Many Names," by William Austin, et al., (2005). The article examined a case study similar to what some academic institutions near the Gulf Coast experienced in the aftermath of Hurricane Katrina. The business interruption case study, however, was analyzed in a scenario where a catastrophic fire damaged a state of the art research facility at a higher education institution that thrived on revenue from its prestigious research and development programs.
Continue Reading...(Note: This Guest Blog is by Corey Harris, an attorney with Merlin Law Group in the Tampa, Florida, office. This is part of a series he is writing on post-loss duties).
These days it is hard to find a topic on property insurance law that has not been previously discussed in some way on this blog. However, many new people join our blog each day, so I feel it is important to bring up previous posts in order to learn and build on what has been said before. In a previous blog, (Cooperation Clause Does Not Require Policyholder’s Slavish Obedience), Chip discussed the growing trend of insurers’ threatening letters to policyholders stating that a failure to comply with every single request could void coverage under the cooperation clause.
Continue Reading...Safeco and Liberty Mutual Insurance Company claims practices impact the lives of millions of claimants. Over the past several months, we have been coordinating efforts with others to learn why so many of the claims are paid slowly or not for the amounts which claimants have demanded. This has been a national effort and a relatively enormous project for any one person with other matters to attend. Some prior posts have alluded to this effort we have initiated:
Safeco and Liberty Mutual Claims Practices Questioned on a National Basis: Policyholders Organize Against Wrongful Claims Practices
Should Liberty Mutual and Safeco Insurance Company Customers Expect Great Rates for Poor and Wrongful Claims Performance?
Sandy Burnette won an appeal and had a matter remanded for appraisal. In American Capital Assurance Corp v. Courtney Meadows Apartment, 35 Fla. L. Weekly D802a (Fla. 1st DCA April 7, 2010), the court held:
Continue Reading...[T]here is no language in the policy that requires appraisal to be invoked, if at all, within any set time from receiving or waiving the sworn proof of loss. Thus, under the terms of the instant policy, the insurer's demand for appraisal was not untimely. Furthermore, the insurer has not waived its right to appraisal as it has not acted inconsistently with that right from the time of demand...
Accordingly, because the insurance contract provided for appraisal, the insurer's demand for such was not untimely, and the insurer did not waive its right to appraisal, the trial court erred in partially denying the motion to compel appraisal.
These are actual photographs of damage to the ceiling and walls of one of my client’s homes. A carrier denied this sinkhole claim based on a report from an engineering firm that opined that the damage wasn’t caused by sinkhole activity. In addition to the numerous 2-4” wide openings to the walls and floors of the home, the floor elevation survey revealed a 7.25 inch floor elevation differential. Note that these photos show only a fraction of the actual damage to the house. Indeed, several veteran attorneys on both sides of the case and a well-respected retired judge who mediated the case all agreed that this was one of the worst sinkhole damage cases that they had come across.
Continue Reading...(Note: This Guest Blog is by Javier Delgado, an attorney with Merlin Law Group in the Houston, Texas, office. This is the eighth in a series he and fellow attorney Tina Nicholson will be writing on Texas property insurance issues).
Often times, an insurance adjuster fails to properly investigate the damages to the insured risk and does not properly evaluate the obvious insurance exclusions for many reasons. After suffering a loss, the insured a business owner is making decisions to get the business up and running as soon as possible, and many of those decisions are based upon the representations of the adjuster, or the lack of information given by the adjuster. The business decisions of whether to move to new location, lease more of the building to offset the additional costs or debt, replace or repair the improvements and betterments installed by a tenant, hire security to protect the premises, purchase a new policy that will cover theft and vandalism on a vacant building thought to be insured under the existing policy, etc., have a significant impact on the amount of money the insured will pay out of pocket and may never recover under the policy.
Continue Reading...Insurance coverage disputes are often decided by laws and regulations made outside the insurance contract. Insurance companies have known this for years. They employ an army of lawyers and seemingly have an unending treasury to lobby for laws and regulations that favor insurance company interests.
Continue Reading...A Proposed Committee Substitute bill significantly impacting sinkhole claims was drafted over the weekend and has been filed this morning.
Continue Reading...This Property Insurance Coverage Blog set record visits last month. Thank you! I noticed a significant drop as the Easter weekend started. The Florida legislature took a well deserved breather last week as well. So, it seems like it is a good time to get caught back up.
Continue Reading...(Note: This Guest Blog is by Michelle Claverol, an attorney with Merlin Law Group in the Coral Gables, Florida, office. This is the part of a series she is writing on business interruption claims).
Several weeks ago, in a blog titled To Consider the Economy, or Not to? ‘That is the Question’, I examined two diverging legal views regarding the use of post-loss market conduct in business interruption claims. In that blog, I borrowed information from an article published in the July/August 2009 issue of Coverage titled “Measuring Business Interruption Loss in Wide-Impact Catastrophes: Insurance Against Catastrophes or Only Against Insured Damage from Catastrophes?” by Richard Chattman and Gregory Miller and I explained that:
Continue Reading...(Note: This Guest Blog is by Corey Harris, an attorney with Merlin Law Group in the Tampa, Florida, office. This is part of a series he is writing on post-loss duties).
“In the event of loss or damage, we will adjust the loss with you.” This is a common phrase in property insurance policies, but an important phrase nonetheless. The key word in this sentence is the word with. The insurer will adjust the loss with an insured, not the insurer will adjust the loss for the insured. While the word with may not seem too important at first glance, this phrase can play a very important role in determining whether an insurer or insured may have breached the policy.
Continue Reading...First party insurance claims involving Chinese drywall have been given some hope from recent Louisiana trial court rulings. Two trial court rulings in Simon Finger and Rebecca Finger vs. Audubon Insurance Company, No. 09-8071 (Civil District Court for the Parish of Orleans, March 22, 2010), struck three affirmative defenses of the homeowners’ insurance company that denied the insurance claim to a home with Chinese drywall. The three significant exclusionary provisions of the policy struck were cited as follows:
Continue Reading...The question posed in this title was the headline to a post by the St. Petersburg Times columnist, Robert Trigaux. It was pretty harsh against some of our elected representatives who are neither running the insurance companies nor conducting these actions. Still, here are some of the significant observations in his post:
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