In a recent case, a Louisiana Court of Appeal decided, among other issues, what damages policyholders were entitled to in a Hurricane Katrina claim. That sounds like a typical scenario, however to add some spice to the mix, the policyholders had sold the property following the loss. The case is Jouve v. State Farm Fire & Cas. Co., 2011 WL 3611800 (La. App. 4th Cir.).
Continue Reading...Business income claims are not very emotional or passionate. Jurors will not get to weigh the credibility of wild and intriguing witnesses or examine the conclusions of a forensic medical examiner who will explain how a person died. These cases are dry and forensic accountants can only be so entertaining. Notwithstanding the dull topic, the role of a forensic accountant in a business income claim is very similar to the role of the medical examiner in a murder case: a business is dead or seriously injured and the jury needs to know the cause. It is always important to rely on experienced forensic accountants to assist the insured in this dry process.
Continue Reading...In Cherry v. Audubon Insurance Company, the Court awarded bad faith penalties against the carrier because it failed to timely pay a covered claim. In that case, Ms. Reilly was insured with Audubon Insurance Company when part of her home caught fire on May 4, 2002. Within a few days of the loss, Ms. Reilly submitted a proof of loss to Audubon that included part of her contents claim. Ms. Reilly then hired Carr & Associates to prepared a dwelling estimate of $149,589.50 and a $196,229.14 contents estimate. Both estimates were provided to Audubon on October 10, 2002. When Audubon finally paid the $40,000 policy limit on contents, almost five (5) months had passed since Ms. Reilly had submitted her proof of loss.
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Nicole will be back next week posting on her series regarding issues relating to public insurance adjusting. This weekend, Nicole and Merlin Law Group’s Sandy Baldinelli are walking in
Over the last few years, I noticed a growing trend among my California clients. More insured clients who suffered a property loss are finding that they need to retain attorneys at an earlier stage in the claims process. Instead of seeking the advice of an attorney after their claims are denied, they need the help of an attorney at an earlier stage, just to prove to the insurance company that they suffered a loss. Clients are voicing their opinions that insurance companies are investigating losses more aggressively, and sometimes, these insureds are vexed and outraged when conditions on coverage are imposed.
Continue Reading...Let’s say you are at your friend’s housewarming party, celebrating a big moment in your friend’s life. You go up to the second floor balcony and have a drink or two with your friends. At one point, you lean on the balcony’s railing, fall two stories, and injure yourself because the railing was not secure. You’re then rushed to the hospital and incur over $50,000 in medical bills. Who’s responsible?
Continue Reading...An insurer’s duty of good faith and fair dealing to its insured continues even after litigation is filed against the insurer. Colorado recognizes that an insurer’s litigation tactics may be considered by the jury in determining unreasonableness and punitive damages. See Tait ex rel. Tait v. Hartford Underwriters Ins. Co., 49 P.3d 337 (2001) (trial court increased punitive damages because during litigation the insurer committed discovery violations and delegated to counsel many of its continuing obligations to the insured despite insurer’s ongoing duty to insured pursuant to Southerland v. Argonaut Insurance Co., 794 P.2d 1102 (Colo. App. 1990); Dale v. Guaranty National Insurance Co., 948 P.2d 545 (Colo. 1997) (an insurer’s conduct even after an arbitration proceeding is relevant to a claim of bad faith breach of an insurance contract); and Coors v. Security Life of Denver Ins. Co., 112 P.3d 59 (2005) (Supreme Court upheld punitive damages award because insurer’s bad faith conduct continued after the lawsuit was filed).
Continue Reading...Recently, Kevin Healey continued his series on Deconstructing the All-Risk Policy and discussed the importance of the fortuity doctrine.
Continue Reading...The National Flood Insurance Program (NFIP) is a federal insurance program that offers flood insurance and is administered by the Federal Emergency Management Agency (FEMA). Although it is a federal government program, the insurance is actually purchased and serviced through private insurance companies and agents. Because the service is typically provided through private insurers, claims against the federal government may be limited if a problem arises under one of these flood programs.
Continue Reading...Earlier this month, I wrote about a few cases where insurance company motions for summary judgment failed. This week, I am writing about another. Although I prefer to write about reported appellate opinions, the state trial court opinion in Carden v. Allstate Insurance Company, issued by New York’s Supreme Court in Westchester County in December 2010, is of interest to policyholders both in New York and elsewhere.
Continue Reading...In a recent decision, Florida’s Third District Court of Appeal granted a directed verdict in favor of United Property and Casualty Insurance Company and reversed a trial court’s summary judgment ruling for the policyholders.
Continue Reading...Some of you that have been through a long insurance property insurance claim may have experienced foul play by some of your insurance carrier’s representatives. Whether or not foul play rises to the level of bad faith is a complicated question that involves a careful review of the claim process. Today I’ll present two cases where a court found there was no bad faith.
Continue Reading...Just last week, Florida’s Fourth District Court of Appeals held that the Florida Insurance Guaranty Association (“FIGA”) wrongly denied a policyholder’s claim and was obligated to pay attorney’s fees and costs. In Rahabi v. FIGA, the appellate court distinguished the holding from its earlier case, FIGA v. Ehrlich, which was just decided in May of this year. I wrote about Ehrlich in my May 9, 2011 post titled Recent Ruling Concerning Attorney’s Fees And The Florida Insurance Guaranty Association. In Ehrlich, the Court held that FIGA was not responsible for attorney’s fees since it did not deny the policyholder’s claim by affirmative action. In Ehrlich, the trial court had ordered FIGA to answer the complaint in the lawsuit, and pursuant to that order, FIGA raised affirmative defenses.
Continue Reading...Last week’s post included analysis of many courts’ interpretations of business interruption coverage and the conflict created by policy provisions requiring a suspension of hotel operations and mitigation of property loss. This week’s post provides tips to help hotel owners and risk managers avoid business interruption coverage gaps.
Continue Reading...Insurance policies contain words that become ambiguous as technology and building practices change, causing good faith disputes over coverage to arise. While a good faith dispute over coverage does not constitute bad faith, one court suggested that an insurance company can be liable for bad faith if it fails to fairly treat its policyholders during its investigation of the claim.
Continue Reading...I did not think of the title to this post. It was written in an opinion from Florida’s Third District Court of Appeal. In reviewing the transcript of an examination under oath in Jose De Leon vs. Great American Assurance Company, 3D09-646, --- So. 3d --- (Fla. 3d DCA October 12, 2011), the Court noted that “the carrier apparently decided to use the usual policy provision requiring a sworn statement as a license to make unwarranted and intrusive inquiries into the personal life of any insured who has the temerity to make a claim against it.”
Continue Reading...Insureds have a contractual obligation to mitigate damages after a loss occurs. Most businesses take drastic measures to resume operations swiftly and will spare no expense in minimizing the down time. In a market where delays are not tolerated and consumers are ever more demanding, the efforts to resume operations are more akin to survival strategies than contractual indulgences. These desperate efforts to keep doors open and machines running can eliminate business income losses in their entirety, a feat much appreciated by insurance companies. Even though these mitigation efforts usually save insurers business income benefits they would otherwise owe, some insurers refuse to reimburse these expenses because, although incurred within the period of indemnity, the payment obligations fall outside the period of restoration.
Continue Reading...Floridians are still awaiting a ruling from the Florida Supreme Court in Jeffery H. Atwater v. Frederick W. Kortum. The Court will decide whether the “48 hour rule,” the statute that bars public adjusters from soliciting policyholders until 48 hours after the loss, is a violation of commercial free speech under Article I, § 4, of the Florida Constitution.
Continue Reading...There were many insurance claims filed after the 2005 hurricanes that devastated Florida, Louisiana and Mississippi. Although many different legal issues arose in the ensuing insurance litigation, a bad faith case in Louisiana revolved around the issue of whether the insurance company applied the correct deductible. This week I will explain the Fifth District Court of Appeals’ March 2011 holding in SEACOR Holdings, Inc. v. Commonwealth Insurance Company.
Continue Reading...The 2012 session of the Florida Legislature will occur January 10, 2012, through March 7, 2012. Usually, the legislative session takes place from March to May, but since the Legislature is redistricting this year, the schedule has been moved up.
Continue Reading...Last week, in continuing my deconstruction of the all-risk policy, I wrote about the fortuity doctrine. This week, I want to begin looking at how courts apply the fortuity doctrine in certain circumstances.
Continue Reading...In the hospitality business, property loss can be financially difficult. Property loss combined with complete or even partial shutdown of hotel operations can be devastating. For these reasons, most standard hotel property polices include business interruption coverage. Business interruption coverage is intended to provide money to sustain a business while its operations are suspended or partially suspended due to damage to the insured property by a covered cause of loss (e.g., fire, tornado, hurricane). Business interruption coverage benefits are usually estimated by calculating a business’ pre-tax net profit that would have been earned had the loss not occurred, plus the normal operating expenses and payroll that continue during the period of restoration to the damaged property.
Continue Reading...Television Station KXAN of Austin, Texas, reported recently that the Texas Forest Service will be creating a system, the Texas Wildfire Risk Assessment Portal, to pinpoint wildfire damage anywhere in Texas. The Texas Wildfire Risk Assessment Portal is an online mapping tool that the Texas Forest Service will used to send risk information and create awareness about wildfires in the state. The system is set to launch in November or December.
Continue Reading...In yet another “which came first, the wind or the water” debate over hurricane damage, the Fifth Circuit Court of Appeals recently analyzed whether so called “self-serving” affidavits could be used to get the case past summary judgment and on to the jury.
Continue Reading...In the claims-handling business, everyone has his/her own style of “working a claim.” There are, however, a few healthy techniques that practitioners should uniformly follow to effectively present a business interruption claim:
Continue Reading...Adjusters International is a major disaster recovery consulting organization focused on the principles of maximizing and expediting their clients’ financial recovery from insurance and FEMA claims. AI helps policyholders by providing public adjusting services and also guides FEMA grantees and applicants through the FEMA public assistance program. Adjusters International is comprised of more than 35 offices. Many are family-owned firms, handed down from generation to generation, working to help their communities recovery after disasters. Many of the regional firms that are part of the Adjusters International family have kept their family name but have added Adjusters International to their titles. This team of disaster recovery consultants has helped after every major disaster in the United States for the past 25 years.
Continue Reading...Last week in my post titled Carrier's Motion for Partial Summary Judgment in Bad Faith Action Denied, I wrote about a court in Ohio that denied a carrier’s motion for summary judgment. In that case, the carrier asked the Court to find that it did not act in bad faith when using fraud as a basis to deny coverage for a fire loss. This week, I am writing about a case in South Carolina where another insurance company’s motion for summary judgment was also denied.
Continue Reading...The Chicago Tribune reported that State Farm allegedly defrauded the Illinois Supreme Court by covering up that it funneled millions of dollars into the campaign of Illinois Supreme Court Judge Lloyd Karmeier. After he was elected to the Illinois Supreme Court, Karmeier refused to recuse himself from a pending State Farm appeal and voted to overturn a billion dollar judgment against State Farm.
Continue Reading...In my last post, I mentioned that the fortuity doctrine creates many legal issues. Before going into those legal issues, it is important to understand exactly what the fortuity doctrine is.
Continue Reading...Last week, I wrote about insurance coverage and bad faith cases where public adjusters may need to be designated as experts at trial. Accordingly, a public adjuster’s expertise must be thoroughly considered by the insured’s lawyer when it comes time for designation of experts. Problems may arise, however, if the public adjuster is to offer expert opinion and the public adjuster has a contingency fee contract with the insured.
Continue Reading...Last week, I wrote about the devastating fires that ravaged central Texas last month. You or someone you know might have experienced fire damage to your home or business and are now wondering what to expect from the insurance claim process. If you read my post last week, you know that if you suffered a total loss to your home or business, your insurer should pay you at or near your policy limits. Some of you may be concerned about making a full claim for your policy limits because you may be in violation of a provision of your policy. You may think that if your insurer learns about your violation, it will somehow void your policy. But what does Texas law have to say about this issue?
Continue Reading...In litigation, insurers often try to exclude or limit policyholders’ experts’ testimony. This can be an aggressive tactic aimed to take the wind out of the policyholders’ sails, since it is difficult to refute insurers’ expert conclusions without your own.
Continue Reading...When it comes to damage, few things are more expensive to replace than windows and sliding glass door systems. Almost every condominium unit has at least one sliding glass door system, and most have more than one. Widespread damage from earthquakes or hurricanes can prove extremely costly for an association and lead to substantial assessments if not properly insured.
Continue Reading...The American Association of Public Insurance Adjusters is busy getting the word out about how hiring a public insurance adjuster can add value to a policyholder’s insurance claim. AAPIA prides itself on being a professional organization representing public adjusters from all over the United States. AAPIA sponsors educational, social, and networking programs throughout the year.
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