In Belsito v. Allstate Property & Casualty Insurance Company, the U.S. District Court for the Northern District of Ohio denied the carrier’s motion for summary judgment that it did not act in bad faith when using fraud as a basis to deny coverage for a fire loss.
Continue Reading...Many insurance policies contain coinsurance clauses which require policyholders to purchase an amount of insurance that accurately reflects the value of their insured property. If less than a certain percentage of the accurate value is purchased, policyholders may not be able to fully recover in the event of a loss..
Coinsurance clauses can be confusing and often leave policyholders in distress. The good news for policyholders is that a little education can go a long way in this area of insurance law. If you understand the basic principle that you must maintain insurance on a certain percentage of the value of your property, then you will be fully insured when disaster strikes.
Continue Reading...I wanted to take a moment to thank all who participated in the movement against Citizens' proposed rate hikes. All of your hard work advocating on behalf of policyholders across the state truly made a difference. Thanks to you, Floridians were saved from one of the largest insurance rate hikes this state has ever seen. You should be proud!
Continue Reading...Public Insurance Adjusters often have backgrounds and expertise in fields other than insurance claim adjustment. Their skill may include experience or expertise in accounting, construction, roofing, engineering, and estimating, in addition to insurance adjusting. Public adjusters are often involved in claims from day one of the loss, or early in the adjusting and investigation claims process. In many cases, the public adjuster has developed the claim, gathered evidence and financial documentation, and compiled a file of materials essential to the lawyer if the insured’s claim requires litigation against the insurer. For these reasons, public adjusters should always be aware of the basis for their findings and conclusions, and retain documentation that supports these findings and conclusions.
Continue Reading...Many of you are aware of the devastating fires that severely damaged central Texas during the past few months. In Bastrop County alone, the fires consumed 34,000 acres and 1,600 homes, according to an investigation released by the Texas Forest Service. If you are one of the thousands who has suffered fire damage, you may be wondering what to expect with your insurance claim. Over the course of the next few weeks, I will be writing exclusively about how Texas law deals with fire losses. Today, I will focus on total losses.
Continue Reading...Hurricanes are known for outrageously destructive forces that can reduce manmade structures to rubble in the blink of an eye. If man can build a structure once, man can rebuild it or repair it after a hurricane damages it. When repairing or rebuilding, it is important to keep track of the construction, especially if insurance is paying for those repairs. Records of what was damaged, what was not, what has been repaired, and what still needs to be repaired will help a property owner avoid complications if the owner changes insurance companies or if another hurricane hits. Unfortunately for the property owner, in Landmark Am. Ins. Co. v. Moulton Properties, Inc., 09-15396, 2011 WL 3962636 (11th Cir. Sept. 8, 2011), a second hurricane hit and it had just changed insurance companies.
Continue Reading...Hiring qualified experts to assist policyholders in the presentation of a business interruption claim is a sine qua non condition for success. An expert’s inexperience or poor work product could cause irreversible damage and destroy any viability of what would have been an otherwise valid claim.
Continue Reading...Buz Livingston is a certified financial planner who works to enrich the quality of his clients' lives by improving their financial awareness and increasing their financial knowledge by providing his clients with professional, unbiased, and objective financial planning and investment management.
Continue Reading...Most property insurance policies include an appraisal provision that may be invoked by either the insurer or the insured to determine the value of a loss. Courts generally agree that “valuation” is the task of an appraisal panel, and “coverage determinations” are the province of courts. However, courts are inconsistent as to whether the scope of damage falls under “valuation” (which may be decided by appraisal) or falls under “coverage determination” (which must be decided by a court).
Continue Reading...Floridians won a great victory on Tuesday. Against the wishes of powerful legislators in Tallahassee and the exceptionally influential insurance lobby, Florida Insurance Commissioner Kevin McCarty struck down most of Citizens Property Insurance Corporation’s proposed 447% sinkhole insurance rate hikes.
Continue Reading...After spending the past several weeks looking at common exclusions to the all-risk policy, this week’s blog will focus on more basic requirements that must be met in order for coverage to exist. Some will seem very straightforward, but others actually raise interesting legal issues when the right circumstances arise.
Continue Reading...In 1999, Brae Burn Construction Company (“Brae Burn”) was hired to build a nursing home for Concierge Care Nursing Centers (“Concierge”). Brae Burn subcontracted with four vendors, each individually and independently insured by their respective insurance carriers. In August 2000, Brae Burn issued a Certificate of Substantial Completion, indicating that the building was complete. After Brae Burn issued the certificate, Concierge took possession and control of the newly-constructed nursing home.
Continue Reading...Clients often ask me if it is possible to recover attorney fees when they bring an action in California against their insurance company. I let them know it is possible to recover attorney fees, if bad faith is at issue.
Continue Reading...Some insurance policies contain water exclusions or limitations of coverage to the interior of the building, or the property contained in the interior of the building, unless a windstorm damages the exterior roof or walls of the structure through which the water enters. This policy limitation/exclusion is often referred to as the wind-driven rain exclusion. It is important for insureds to be aware of this common provision when reporting claims to their insurers or giving statements about the details of a loss. This is particularly important for the many policyholders along the East Coast who were affected by Hurricane Irene.
Continue Reading...Many commercial lessors have unexpected losses at the insured premises when the premises are vacant or when leases are about to expire. Unless there is verifiable proof of anticipated rental income (i.e., future leases or agreements), the business income calculation will likely yield a zero recovery, making the series of unfortunate events financially unbearable. As with many other things in life, perspective can make a difference and it can actually pay off.
Continue Reading...Julie Patel of the Sun-Sentinel continues her dedicated investigative reporting series looking into insurance issues in her recent article, Expect low and slow claims payments if your insurer folds.
Continue Reading...Many cases settle in mediation because of costs associated with trial and the inherent unpredictability of a jury panel. Mediation is a very common alternative dispute resolution process used by policyholders in obtaining owed insurance benefits from their carriers. In mediation, the parties frequently agree to a settlement amount in exchange for a release of claims under the insurance policy. It is important to understand what needs to be included in a “Release” and just as pertinent, what is not to be included. Many insurance companies incorrectly consider “Release” synonymous with “Indemnification.” The distinction is critical because the terms result in different outcomes for the policyholder.
Continue Reading...This week’s review of common exclusions found within all-risk insurance policies focuses on the latent defect or inherent vice exclusion. While other exclusions are somewhat more straightforward – we all may have a good idea of what mold is – this exclusion first raises the question: What is a latent defect or inherent vice?
Continue Reading...At roughly 3:30 p.m. yesterday, hundreds of folks from Pasco and Hernando County descended on downtown Tampa for one purpose. They were fighting for their financial future; they were fighting to keep their homes.
While I am in Houston working on Hurricane Ike litigation, the view from my Tampa office overlooking the Tampa Convention Center will demonstrate that organized policyholders can make a difference in Florida's insurance landscape. As Tampa Tribune reporter Catherine Whittenburg reported in Citizens to Phase in Sinkhole Hikes - First Year at 50 Percent:
Continue Reading...Fasano said that he and Policyholders of Florida, a consumer advocacy group headed by former state Insurance Consumer Advocate Sean Shaw, are loading up 150-200 consumers on three buses to attend today's hearing, which will be held at 4 p.m. in Ballroom D at the Tampa Convention Center, 333 South Franklin St.
Last November, in A House on the Beach, Literally, I wrote about the Texas Supreme Court decision in Severance v. Patterson, 09-0387, 2010 WL 4371438 (Tex. 2010), reh'g granted (Mar. 11, 2011), in which the Texas Supreme Court held that public beach rights could not “roll” up over private property rights when a hurricane or other force changes the vegetation line on a Texas public beach. Normally, a decision by a state court’s highest tribunal ends the dispute, however, this case was procedurally different from a traditional state court action. In Severance, the plaintiff sued Texas state officials in federal court. When the federal court had questions regarding the correct interpretation of Texas law, it certified those questions to the Texas Supreme Court. The Supreme Court then provided answers to the federal court so it could resolve the federal lawsuit. After providing its decision to the federal court, the Texas Supreme Court granted a rehearing on the merits of its decision, which could potentially change it.
Continue Reading...Millions of businesses have been affected directly or indirectly this hurricane season. Hurricane Irene and Tropical Storm Lee caused significant structural and infrastructure damages, expansive floods and lengthy power outages. Many so-called coverages will play important roles in the adjustment and recovery process. Proper training and in depth understanding of all available coverages and remedies will ensure quick and proper resolution of the slew of claims related to these storms. The flip side will cause delays and headaches.
Continue Reading...Yesterday, the Florida Supreme Court heard oral arguments in Jeffery H. Atwater v. Frederick W. Kortum. Our prior posts detailed this case as it made its way through trial and the First District Court of Appeals. But if you are not yet acquainted with the case, the “48 hour rule” restricted public adjusters from soliciting insureds for 48 hours after a loss. Fred Kortum argued the ban violated his commercial free speech under Article I, § 4, of the Florida Constitution. The Supreme Court heard from both sides.
Continue Reading...Last week, I wrote about whether a tarp constitutes a part of the structure during repairs. In response, Jeff Petrucci of Bloomfield Construction, posted a very interesting question which lead to this week’s topic: Whether roof damage caused by a raccoon is covered under an insurance policy?
Continue Reading...Herb Albert and the Tijuana Brass produced an album, Whipped Cream and Other Delights, which has been on my mind lately. While a number of my less academic colleagues would simply be interested in the album cover and the music--
--my insurance coverage nerd personality drove me to research insurance coverage cases involving whipped cream or honey.
Continue Reading...Florida’s new Insurance Consumer Advocate, Robin Smith Westcott, emailed a press release to the media highlighting her attendance at our Policyholders of Florida rally in Tampa, where we protested Citizens’ massive proposed sinkhole coverage rate hikes. After this rally, when Westcott heard firsthand from policyholders, she accepted our argument that 2000% rate hikes just don’t make sense and are dangerous to our state’s economy.
Continue Reading...Last week, I discussed a common discovery battle in bad faith insurance litigation—the battle for the attorney’s files in cases where the attorney acted as an adjuster on the claim. Policyholders prevented from obtaining discovery of these adjustment activities should, at a minimum, motion the court and ask that the file be subject to an in camera review to determine which portions of the attorney’s file are business records of the insurer or reflect any information that is relevant to the policyholder’s bad faith and statutory claims, including all documents that indicate how thoroughly the claim was considered and why the company took the action it did.
Continue Reading...The Wall Street Journal reports the news of American business. Brian Goodman, General Counsel for the National Association of Pubic Insurance Adjusters, forwarded me a Wall Street Journal article warning that Hurricane Irene claimants should expect their insurance companies to be slow paying.
Continue Reading...On September 1, 2011, the Fifth Circuit delivered an opinion which should remind everyone to renew their insurance policies if they expired or are about to expire.
Continue Reading...The Southern District Court of Florida recently issued an opinion discussing the amount of detail required to state a claim for breach of contract in Florida in a Hurricane Wilma claim. Galison v. Fireman’s Fund Ins. Co., No. 10-81522, 2011 WL 3419620 (S.D. Fla. August 4, 2011). The insurer in the case filed a motion to dismiss, claiming that the insured’s complaint was too vague and ambiguous for it to respond or bring a defense.
Continue Reading...This past week, Bloomberg News reported that U.S. utility companies are struggling to restore power in the areas affected by Hurricane Irene. Over 1.7 million homes and businesses will remain without power for days to come. Entire towns are still underwater and the phrase “business as usual” will not be heard for months in those areas.
Continue Reading...Last weekend, all eyes were focused on Hurricane Irene. Now, concerns are being raised about the potential damage, destruction, and deluge that could result from Tropical Storm Lee and Hurricane Katia.
Continue Reading...In my last post titled Does an Insured Have to Wait to Pursue Bad Faith? Part II, I analyzed the issues addressed in Brethorst v. Allstate Property and Casualty Insurance Company. This week I will continue an evaluation of this case.
Continue Reading...Many policyholders use tarp as a temporary roof while performing improvements or construction, but are policyholders protected when a storm blows off the tarp, allowing wind driven rain to enter a structure and damage personal property?
Continue Reading...Austin, Texas Federal Judge Sam Sparks recently issued a novel Order in response to a fairly routine discovery dispute:
Continue Reading...Greetings and Salutations!
You are invited to a kindergarten party on THURSDAY, SEPTEMBER 1,2011, at 10:00 a.m. in Courtroom 2 of the United States Courthouse, 200 W. Eighth Street, Austin, Texas.
The party will feature many exciting and informative lessons, including:
How to telephone and communicate with a lawyer
How to enter into reasonable agreements about deposition dates
How to limit depositions to reasonable subject matter
Why it is neither cute nor clever to attempt to quash a subpoena for technical failures of service when notice is reasonably given; and
An advanced seminar on not wasting the time of a busy federal judge and his staff because you are unable to practice law at the level of a first year law student.
Invitation to this exclusive event is not RSVP. Please remember to bring a sack lunch! The United States Marshals have beds available if necessary, so you may wish to bring a toothbrush in case the party runs late.
Accordingly,
IT IS ORDERED that defense counsel Jonathan L. Woods, and movants' attorney Travis Barton, shall appear in Courtroom 2 of the United States Courthouse, 200 W. Eighth Street, Austin, Texas, on THURSDAY, SEPTEMBER 1, 2011, at 10:00 a.m., for a memorable and exciting event
1-877-449-4700
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