On Tuesday, Lewis Collins, of Butler Pappas, and I gave a speech titled, TENSION IN THE TROPICS: PROPERTY INSURANCE TREPIDATION IN FLORIDA, at the Annual Convention of the International Association of Claims Professionals.
Continue Reading...I was the "token" consumer advocate at the Annual Convention of the International Association of Claims Professionals, where Bob Hartwig provided a fast paced presentation, After the Crisis: Overview & Outlook of the P-C Industry. His presentation is worthy of study and not necessarily because of the factual content. Hartwig is the President of the Insurance Information Institute and a chief propagandist for the insurance industry's efforts to reduce consumer protection and allow insurers to wrongly delay or deny claims without accountability.
Continue Reading...Most commercial landlords require new tenants to purchase a property insurance policy that will provide coverage during the tenants’ lease period. By requiring the tenant to purchase property insurance, the landlord does not bear the responsibility of purchasing a broad, all-encompassing insurance policy – an “all risk” policy – that would cover every possible activity that could take place on the landlord’s property. All risk policies tend to be expensive, and instead of passing that cost to the tenant, the tenant can purchase a less expensive insurance policy tailored to his business. However, as the landlord in the case below discovered, just because a tenant purchases an insurance policy does not mean all the landlord’s property interests are properly covered.
Continue Reading...Insurance coverage is available for purchase in many varieties. Two options for large, commercial, or other properties with multiple insurable assets are blanket and specific coverage. Last week, the type of coverage purchased was an important factor in determining benefits available for the Sunrise Condominium Association. Florida Ins. Guaranty Ass’n v. Sunrise Condo. Ass’n, Inc., No. 4D09-5300, 35 Fla. L. Weekly D2124b (Fla. 4th DCA Sept. 22, 2010).
Continue Reading...Business interruption recovery is typically denied if a policyholder is not able to show an actual loss of income as a result of a covered peril. Accordingly, most courts will deny recovery under a business income provision if an insured building serves as a rental property and is fully unoccupied at the time of the loss. See, e.g., Farm Bureau General Ins. v. Dynamic Land, LLC, 2009 WL 454961 (Mich. 2009)(where the court rejected the insured’s argument that it was entitled to “fair rental value” during the period of restoration because the building was unoccupied and undergoing renovations at the time of the loss and it was not able to show an “actual loss of income”).
Continue Reading...On Tuesday, the Wall Street Journal Published the article, "Sinkhole Claims Threaten To Engulf Florida Insurers." Chip Merlin promptly provided this story to you in his post, Public Adjusters and Sinkhole Claims Topic of Wall Street Journal Story.
There were several comments on the post which provided perspective from the field. The public insurance adjuster mentioned in the newspaper article was Tim Zeak, of Florida Public Adjusting.
Continue Reading...There are many different practices implemented by an insurer that can be used to prove bad faith. An appellate court in California was faced with a case where just about everything about the examination under oath (EUO) -- among other things -- pointed to bad faith and the types of damages at issue actually helped the Insureds. Let’s take a look…
Continue Reading...Reporting claims which may just be beyond the deductible is a recurrent discussion with policyholders. Insurance agents and brokers are asked these delicate questions all the time. Independent Agent Magazine ran a story in 2005, Gray Area of Reporting Claims, discussing the issues that arise in reporting and not reporting a claim. Insurance agents and brokers should be wary about not reporting losses without full disclosure of all the consequences to the policyholder.
Continue Reading...Values of loss often have components which seem small but add up to millions of dollars to insurers over the long run. In Holden v. Farmers Ins. Co. of Washington, 2010 WL 3504821 (Wash. Sept. 9, 2010), the Washington Supreme Court affirmed that sales tax should be considered when determining Actual Cash Value. Noting that terms of Actual Cash Value and Fair Market Value would be referred to as ACV and FMC, the significant facts of the case are as follows:
Continue Reading...What judges say is contemplated under an insurance policy is not always what adjusters are taught and do in the field. Jeremy Tyler noted in Prevention of Performance with Replacement Cost Value, that a new appellate decision involving QBE rewrites how insurance companies may adjust property losses in Florida. Many will read Buckley Towers Condo., Inc. v. QBE Insurance Corp., No. 09-13247, 2010 WL 3551609 (11th Cir. Sept. 14, 2010), to stand for the proposition that an insurer does not have to pay anything towards replacement costs under a replacement cost policy, when replacement is elected but repairs have not been made.
Continue Reading...WASHINGTON (Dow Jones)--The U.S. Senate unanimously agreed on Tuesday night to approve a popular flood insurance program for a year, taking a crucial step to ensure the federally-backed program isn't allowed to run out when it expires on Sept. 30.
Continue Reading...Many potential clients are concerned about the attorney’s fee they will have to pay when we successfully resolve their claim. Their concern is understandable, given that any fee would be taken out of their gross recovery. Most potential clients are under the impression that my attorney’s fees will lower their overall recovery. I try to assure them that if we recover, we are entitled to attorney’s fees from the insurance company. At the end of the day, my goal is to make my clients whole by returning them to the financial position they held before their loss occurred. So it is my duty, as an advocate, to aggressively pursue recovery of attorney’s fees. Fortunately, Texas case law allows a successful claimant to recover attorney’s fees. And yes, that even applies to a percentage-based fees.
Continue Reading...Florida's sinkhole issues have hit the national news. In an article in today's Wall Street Journal, "Sinkhole Claims Threaten To Engulf Florida Insurers," the public adjusting industry takes some hard hits.
Continue Reading...With the twists and “turns” that this hurricane season has challenged us with so far, those of us in Florida and the Southern United States have been fortunate. There have been a few close calls this 2010 season, and for the first time since 1926, we witnessed two category 4 systems in the Atlantic basin at the same time. Hurricane Igor battered Bermuda and may have an effect on the Eastern coastline of Newfoundland, which is predicted to be next in its path.
Continue Reading...QBE Insurance Corporation claims its condominium customers commit fraud virtually every time a lawsuit is filed against it for payment of a property insurance claim in Florida. Last week, a federal trial court judgment against QBE was upheld in Vantage View, Inc. v. QBE Ins. Corp., No. 09-12128, 2010 WL 3550030 (11th Cir. September 14, 2010). The Eleventh Circuit Court of Appeals found the following:
Continue Reading...Our firm subscribes to IRMI Online, which is an excellent source of information for any insurance claims professional. In doing research, I came across an interesting article by Daniel Torpey, from Ernst Young, LLP, Dealing with a Difficult Claim: Breaking the Gridlock of the Property and Business Interruption Claims Process.
Continue Reading...Last month, the Indiana Court of Appeals held that a public insurance adjuster could not be personally liable to an insurance company for tortious interference with a contract and that an alleged destruction of property did not give rise to an independent spoliation of evidence claim.
Continue Reading...Tampa, FL – September 15, 2010 – U.S. News Media Group and Best Lawyers have released the 2010 Best Law Firms rankings, marking the inaugural publication of this highly-anticipated annual analysis. Merlin Law Group is pleased to receive a number 1 metropolitan ranking for Tampa, FL, Insurance Law.
Continue Reading...Getting billing information regarding insurance company experts and consultants is crucial. In Tuttle v. Perry and Berry, 82 S.W. 3d 920 (Ky. 2002), the Court examined the issue of whether the plaintiffs in a medical malpractice action could cross-examine defense expert witnesses as to the amount of fees earned, where evidence of the fees paid to the expert was relevant to the issue of the witness’ potential bias. Last week’s post, An Insurer's Use of an IME Can Serve as Evidence of Bad Faith Against the Insurer, analyzed Hangarter v. Provident Life and Accident Ins. Co. and Paul Revere Life Ins. Co., 373 F.3d 998 (9th Ct. App. 2004). There, the Court evaluated evidence with regard to the defense’s expert, who had rejected insureds’ claims that they were totally disabled in thirteen out of thirteen cases. In Tuttle, the plaintiffs learned through discovery that one of the defendant’s expert witnesses testifies 85-90% of the time for the defense in medical negligence cases. The defense expert’s rate of compensation was $2,000 per day during trial, $500 for the first hour of deposition and $300 per hour thereafter, and $250 per hour for a case review. The lower Court in Tuttle granted a motion in limine excluding information regarding expert witness compensation, so the plaintiffs appealed.
Continue Reading...Divorce is devastating. It can get worse when a couple has an insurance claim. Often, one spouse refuses to participate in the claim process, leaving the one attempting to collect in turmoil with the insurance company. This was the case in a recent decision, Heike Blake v. First Home Ins. Co., No. 09-245 (Fla. 11th Cir. Ct. May 12, 2010.)
Continue Reading...Jim Greer, President of the Association of Property & Casualty Claims Professionals (PCCP), issued a press release this morning indicating that the Department of Financial Services would drop the proposed administrative regulations pertaining to adjusters.
Continue Reading...Proof of loss requirements are becoming a more frequent topic of conversation, and questions regarding proofs of loss are frequently asked of members in our law firm. Proofs of loss are conditions precedent to recovery under virtually all property insurance policies. Unless waived or not demanded under some forms, proofs of loss should be filed.
Continue Reading...When a home or business is damaged by a covered peril (windstorm, fire, hail, etc.), the insured typically makes a claim with its insurance carrier. The insurance carrier then sends either an insurance adjuster or an independent adjuster to estimate the damage and issues a check to the insured. From this common scenario, it would be logical to conclude that the insurance carrier has the burden of showing what is and is not covered under the insurance policy. However, this is not the case in Texas.
Continue Reading...Last week, Shaun Marker brought up the case of Chalfonte Condo. Apartment Assoc., Inc. v. QBE Insurance Corp., 561 F.3d 1267 (11th Cir. 2009), in his post titled Enforceability of Large Hurricane Deductibles in Florida. As indicated by the title, Shaun’s post focused on the issue of enforceability of hurricane deductibles, which was only one of the issues appealed in Chalfonte. This week, I would like to continue Shaun’s exploration of Chalfonte, but turn your attention to another issue in that case: the implied warranty of good faith and fair dealing.
Continue Reading...Merlin Law Group supports the Florida Consumer Action Network. Known as FCAN, it is a grassroots consumer organization which attempts to influence public policy by organizing and educating government leaders on matters of consumer interests. In a democratic government where corporate business interests are constantly bombarding our leaders with self-interest propaganda, these non-profit consumer groups are important and deserve support.
Continue Reading...After non-catastrophic losses, most insureds are able to restore operations in a fairly short period of time. In those cases, the measure of recovery will be limited to any business income loss and incurred normal operating expenses during the period of restoration. However, in many cases, businesses are not able to return to their pre-loss income levels after they resume normal operations for weeks or months to follow.
Continue Reading...The anticipation of litigation is the trigger used in Florida to determine when a party to an action can claim a work-product privilege in connection with a documents production.
Continue Reading...We have been lucky so far this 2010 Hurricane Season. Strong northern turns have moved powerful hurricanes away from Gulf and Atlantic shores. Next Friday, I might be writing something else as Igor moves towards the United States.
Continue Reading...Expanding on last week’s blog, Did You Know That An IME Provider Can Be Liable To The Insured, I want to show how an insurer’s use of a medical provider to conduct an independent medical examination can serve as evidence of bad faith against the insurer.
Continue Reading...Many insurance policies will not cover a loss if a building was unoccupied at the time damage occurred. That could mean bad news for many property owners out there. But, before anyone begins to worry, it is important to know how Texas defines “unoccupied.”
Continue Reading...The Florida Department of Financial Services regulates those licensed to adjust claims in Florida. One of those licensed, is a long time friend and a person very familiar with the regulatory process, Mark Boardman. Boardman recently filed a unique Petition for Declaratory Statement with the Florida Department of Financial Services, asking fifteen pointed questions regarding the propriety of various property adjustment practices that are common in the field.
Continue Reading...As discussed in, According To Florida Statute An Insurer Cannot Apply A Policy Hurricane Deductible More Than Once During A Calendar Year For Personal Lines Residential Claims, in Florida, the hurricane deductible can be 2%, 5%, or even 10% of the dwelling policy limit. These percentage deductibles can be very large on personal lines residential claims, and even larger on condominium and commercial hurricane claims. Condominium and commercial hurricane deductibles can be well over a million dollars per loss.
Continue Reading...Before I proceed, I must caution the reader with a caveat-the actual policy language in any given claim is of critical importance, therefore, a careful reading of the applicable provisions should be the first step in any claims practitioner’s book.
Continue Reading...In the true spirit of Labor Day, I hope all of you take time to reflect on your work and still find time to relax. For today’s blog, I encourage you to take a look at the article, Small Public Adjusting Firm—Big Results. It is an inspiring story of one public adjuster who became a public adjuster after having built “his world around serving insurers.”
Continue Reading...My posts over the last few weeks focused on how an insurer’s breach of its duty to its insured can result in the insurer’s liability for bad faith. This week, I would like to write about how someone hired by the insurer in connection with the investigation of your client’s claim can also have obligations to your client. Specifically, a medical provider hired to conduct an Independent Medical Examination (“IME”) can be liable to an injured insured for breach of a duty.
Continue Reading...Tina Nicholson is based in our Houston office. She wrote a very basic article "Steps For Handling an Insurance Claim" for the Hotel World Network. With Hurricane Earl winds beating the mid-Atlantic coast, her tips may be helpful for many policyholders:
Continue Reading...Since 2004, the majority of our law firm's large insurance battles have focused on hurricane loss insurance disputes. It is not surprising that we are getting phone calls from people asking whether our firm will open offices somewhere between North Carolina and Boston as Hurricane Earl is projected to hit that area. I was surprised by a recent newspaper article that indicated our firm "specializes" in sinkhole losses.
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