The Games Insurance Companies Play
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.”
A footnote in the opinion serves as a warning to all insurance defense counsel that the conduct and questioning of the insurance company attorney in De Leon should never occur:
The record shows that the following, which is quoted as a never-to-be-emulated model of its kind...
The holding is important:
…De Leon “refused” to respond to wholly impertinent and improper questions which had nothing to do with the merits of the claim. And we think he was right to do so. To hold in these circumstances, as did the trial court, that it was not necessary to file the action and thus that section 627.428 is inapplicable, is to turn reality upon its head. What actually happened is that De Leon took [defense counsel] up on his challenge (and the propriety of his conduct of the sworn statement) and sued the company because, as was obvious, there was no other way to be paid. So far from being improperly employed, the statute was enacted for the very purpose presented by this case—to discourage the games insurance companies play.
The insurance defense counsel’s improper questions and the threatening conduct were not unusual. As many policyholders have experienced, this behavior during examinations under oath is standard operating procedure for many insurance defense lawyers. Hopefully, this opinion will curtail the games and abuse many policyholders with legitimate claims endure.
No question the policy holder is tired of the games. The reason for the games is transparent. But they will continue. This is a certainty. You can hang your hat on that!
Wanna guess who my bet's
on?
I have been elected as an appraiser for the insured. The loss is with Fireman's Fund. During the hail storm of October 5, 2010, several windows were broken and glass shards entered several of the apartments. The carrier states that the carpet did not sustain damage and that since the apartment owners had not replaced the carpeting in these units there is no damage or liability regarding the glass particles embedded in the carpeting.
Fireman's Fund further states that now that it has been over a year since the date of loss, there is no reason to consider covering the replacement of the carpeting.
How do I argue the contention that the carpeting in these units needs to be replaced by the carrier due to broken glass that may still be a liability in the future, therefore, the carpets need to be covered for replacement under the policy?
The loss location is in Arizona.
I've had the unpleasant experience of being examined under oath as a PA for my client. The Carrier had already taken a recorded statement and did an investigation of the loss.
I won't mention the carrier's name because of St. John's words which say that love covers a multitude of sins, but this carrier's attorney tried to grill me for over two hours asking me questions which had nothing to do with the claim. Also, when I stated I would not answer the question because it had nothing to do with the claim, the Attorney lashed out at me saying I was jeopardizing the claim by not cooperating. At long last this attorney made a statement to me saying, " oh, so now that there are no more hurricane claims to exploit, you're going after sinkhole claims"!
Of course I did not answer because it was not phrase it in the form of a question. This abuse of the EUO provision delayed the investigation for over a month. The carrier ultimately met the statutory requirements for investigating the claim, but was rude and agressive toward the policyholder and anyone else who was helping them. Why?