Hurricane Losses and the Statute of Limitations

Chip brought up the five year anniversary of Hurricane Katrina in his post last week titled, “The Hurricane Katrina Five Year Anniversary is Noted as New Hurricanes Lurk in the Atlantic Ocean.” The anniversary of Katrina will have special meaning to all who were affected by it, but this five year anniversary also has a practical importance to anyone in Florida that is still attempting to put the pieces back together after Katrina, thanks to Florida’s five year statute of limitations on contract lawsuits. Fla. Stat. § 95.11(2)(b) requires that “[a] legal or equitable action on a contract, obligation, or liability founded on a written instrument…” must be commenced within five years.

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Louisiana Citizens Property Insurance Loses Overhead & Profit Case

Louisiana Citizens Property Insurance Company has settled a state class action case, Press v. Louisiana Citizens Fair Plan Property Insurance Corp., for failing to fully pay overhead and profit to insureds. The proposed settlement, for $23 million, covers claims from Hurricanes Katrina and Rita.

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Flood Adjustment Methods Discovered in Qui Tam Case

Slabbed has been dogged regarding its reporting on the Mississippi qui tam litigation involving State Farm. A recent post, Rigsbys file “Motion to Reconsider Scope of Proceedings in Light of Evidence Adduced in Discovery” – ask Court for additional time to conduct Discovery into “the Scheme,” provides some insight regarding the flood adjustment techniques required by National Flood versus how flood adjusters in the field actually do their job.

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The Hurricane Katrina Five Year Anniversary is Noted as New Hurricanes Lurk in the Atlantic Ocean

The media is trying to scoop each other on the five year anniversary of Hurricane Katrina. In State Farm's hometown of Bloomington, Illinois, the Pantagraph ran a story about State Farm's Hurricane Katrina litigation. A massive and unfinished novel could be written on that subject. I found the article by Ryan Denhem, How State Farm Fought Through the Second Storm, to be far too light an analysis of some of the most important insurance coverage litigation ever waged.

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Court Reduces Continuing Charges and Expenses From Net Profits When a Business Resumed Partial Operations After a Loss - Understanding Business Interruption Claims, Part 35

The Fifth Circuit Court of Appeals recently issued a 21-page opinion in the case of Consolidated Companies, Inc. v. Lexington Insurance Company, No. 09-30178, ___ F. 3d ___ (5th Cir. August 17, 2010). The opinion is dense, to say the least, but it resolves an issue that sometimes can make or break a settlement in business interruption claims.

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Will Flood Insurance Insurers Lose AntiConcurrent Cause Language?

Mississippi Representative Gene Taylor successfully placed language into House Bill H.R. 1264—“the Multiple Peril Insurance Act”— which would require "Write Your Own" insurers participating in the National Flood Program to remove anti-concurrent causation language from their all risk insurance policies. Taylor's house was destroyed in Hurricane Katrina. Many of his neighbors’ insurance claims were denied based on the continuing wind versus flood insurance coverage controversy which I noted recently in Texas Windstorm Insurer Settles 2,400 Hurricane Ike Slab Claims.

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Condominium and Homeowner Associations' Fiduciary Duties Particularly in Light of Approaching Statutes of Limitation

(Note from Chip Merlin: This guest blog is by Shaun Marker, an attorney with Merlin Law Group in our West Palm Beach office)

As many homeowners, condominium owners, directors, property managers, and public adjusters are aware, the Florida statutes of limitation are approaching for Hurricanes Katrina and Wilma. There has been much litigation in Florida related to these catastrophic events, however, we are not out of the woods yet…and we may not be even once the limitation periods pass. The scope of this post relates to the fiduciary duties that condominium and homeowner associations and their boards of director have to maintain and repair damages to the common areas of these communities.  

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Anticoncurrent Causation Clause Explained in Relation to Hurricane Losses

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. MISSING SOURCES 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.

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Learning from Other's Mistakes -- Understanding Business Interruption Claims, Part 15

(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.

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Tina Nicholson Gets a Well Deserved Note in Slabbed

The Hurricane Katrina insurance coverage litigation along the Mississippi Coast was a once in a lifetime event for most attorneys. For me, it was obvious from the first day we landed at Stennis airport that this was where the Super Bowl of insurance coverage litigation was going to be waged for the next several years. With a lot of help from Florida panhandle trial attorneys Larry Keefe and Sparky Lovelace (Sparky quickly left our venture and started work with his long time friend, Dickie Scruggs), we decided to build two law offices--one in Bay St. Louis and the other in Gulfport. Teenage friends of mine who were local attorneys without law offices as a result of Katrina, Randy SantaCruz and William Weatherly, agreed to sign on with our efforts after Cindy Cady recruited them. With insurance claim denials and low payments running rampant, we were overworked with cases and clients. We already had transferred Jason Ciofalo from Tampa to work full time in Mississippi, and Deborah Trotter was working full time with Randy Santa Cruz out of the Bay St. Louis office.

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When the Saints Go Marching In -- Finally!!

September 1970 was a time of big personal change for me. We were living outside Washington, D.C. and my father had just received orders to the National Data Buoy Project at NASA’s Mississippi Test Facility, now known as the Stennis Space Center. My mother, who grew up in Philadelphia, Pennsylvania, was in tears wondering how her children were ever going to get an education in Hancock County, Mississippi. Three years later, she was crying as we left for Southern California. Rather than follow my father right away, we stayed an extra year, using an excuse that my father would be gone for nine months on a Coast Guard icebreaker. The best education and lessons I have ever had were from brothers of the Sacred Heart at Saint Stanislaus during seventh and eighth grades. Drew Brees had it right when he spoke of how much the New Orleans Saints football team means to New Orleans and the Mississippi Gulf Coast Region.

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Good News for State Farm--Maybe

While taking the deposition last week of a Pilot Catastrophe flood adjuster that was a former State Farm claims representative, I was thinking about some recent good news for State Farm. The first had to do with a Palm Beach Post report concerning State Farm possibly continuing to write insurance in Florida. The second had to do with a Hurricane Katrina jury verdict in Gulfport, Mississippi.

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A Katrina Love Story Involving a Very Talented Young Public Adjuster

Tragedy is sometimes followed by emotional and heartwarming stories overcoming the consequences of the initial disaster. In my line of work, I have seen survivors embrace each other, genuinely surprised each made it through a life threatening disaster. I have witnessed the compassion and caring that otherwise strangers show to their fellow brother and sister in time of need. Yesterday, I attended a wedding of two that only occurred because Hurricane Katrina brought them together.

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Corban Part Three: A Win for Policyholders and a Decision Following Rossmiller's Causation Analysis of the Anti-Concurrent Causation Clause

My initial and simple impression posted in Corban Mississippi Supreme Court Case Decided, Part 2 stands. My emotions and thoughts during my three readings of this decision kept reminding me of people I have met, represented, debated and lived out this saga with in Mississippi since the fall of 2005.

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Corban Mississippi Supreme Court Case Decided, Part 2

My initial impression is that this is a huge win for policyholders because the decision correctly defines the burdens of proof in an all-risk insurance situation. The Court correctly noted what I have been advocating regarding the burden of proof since the date I first landed at Stennis Airport outside Waveland a week after Hurricane Katrina:

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Corban Mississippi Supreme Court Case Decided

Details in the morning. Here is the decision.

Insurance Agents and Policyholders Need to Communicate and Share Information to Get Coverage Right

A recent Louisiana decision, Isidore Newman School v. J. Everett Eaves Inc., No. 2008-1368, 2009 La. App LEXIS 1469 (La. App. 4 Cir., Aug 5, 2009), underscores the need for insurance agents and policyholders to fully discuss insurance needs when selecting types and amounts of coverage. Insurance agents generally have a duty to exercise reasonable care and competence in obtaining and communicating information to policyholders. Interestingly, this case also demonstrates that business policyholders have a similar duty as well.

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Are There Going to Be Any Hurricanes in 2009?

I get asked that question quite often. Doing what I do for a living, given my last name, and having proven my prognostication prowess (with money backing up my opinion) by opening our Texas office BEFORE the first of two major hurricanes to hit Texas, I can understand why many come to me for that answer rather than professional meteorologists and psychics. I am not betting on any “major” hurricanes this year. El Niño seems to be preventing tropical storms from making the trek across the Atlantic Ocean. Upper level wind shear has been destroying the movement towards the coastal United States and Gulf regions. Let’s hope it stays that way. And, as I suggested in May with a post, Weak El Nino and Cooler Tropical Waters Lead to Predictions of Fewer Hurricanes, who really knows?

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Total Destruction Caused By Hurricane Wind and Flood May Be Covered Under the Additional Coverage of Collapse: Why Defining a "Hurricane" as a "Windstorm" is Significant

Insurance defense attorneys will not agree with this post. However, they fear the argument enough to falsely argue in some cases that a hurricane is not a “windstorm,” in order to avoid policy language that may provide coverage for total losses where wind and water combine to destroy a structure. As promised in yesterday morning’s post, The Insurance Industry Recognizes Hurricanes are "Windstorms"--An Important Admission, I am providing legal suggestions to help TWIA policyholders and others “slabbed” to obtain full coverage for their losses. Randy Santa Cruz, William Weatherly, and I came up with this idea while working in Mississippi following the devastation of Hurricane Katrina. I've attached a draft memorandum of law so others may use this argument with their own facts and policy language.

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Texas Coastal Areas are Still Reeling From Hurricanes Ike and Gustav: Insurance Claim Denials and Delays are Prevalent

I just finished a two day settlement conference of a commercial insurance claim dispute held on the 51st floor of Fulbright & Jaworski in Houston. The view from the conference room was beautiful and in juxtaposition to the manner my client felt the insurance claim was handled. As is becoming customary for many of my cases, the terms of the settlement are confidential. The resolution ended very amicably, although the process was somewhat frustrating. The significant aspect to others is this was a matter whose facts are similar to, and seem repeated in, thousands of other Texas losses, no matter if the loss is small or a complex middle eight figure claim. Insurance claim denials and delays seem commonplace in Texas.

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Two Recent Florida Cases on Prejudgment Interest

In the last week, two Florida cases have been released which discuss prejudgment interest.

In Sunshine State Insurance Co. v. Davide, 34 Fla. L. Weekly D1422a (Fla. 3d DCA 2009), Florida’s Third District Court of Appeal held that when an insurer erroneously withholds a portion of a payment due, the insured is entitled to prejudgment interest on the amount not timely paid from the date the payment became due under the policy, not from the date the property was damaged. As I will explain at the end of the case summary, this case applies only to pre-2007 claims. On July 11, 2007, consumer friendly legislation took effect which would have provided Davide with a statutory right to interest from the date Sunshine received notice of the claim.

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Is One Practical Answer to Many Coverage Disputes Involving Storm Surge Versus Wind to Raise National Flood Limits and Underwrite Insurance to Value Properly?

As we have seen with the Katrina and Wilma litigation, courts will enforce the anticoncurrent causation clause, standard in most all risk and wind insurance policies. Many who suffered total losses could not fully recover because they did not have adequate flood insurance. Generally, policyholders with insufficient flood coverage limits fall into three categories:

  1. Those who did not purchase flood coverage.
  2. Those who underestimated the value of full replacement cost.
  3. Those correctly estimating replacement coverage but not able to purchase the amount through National Flood.
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Slabbed Keeps Pounding on Policy Coverage Problems and the Litigation Discovery Policy in Southern Mississippi

Coastal Mississippi policyholders are well served by the daily and in depth reporting by Slabbed. Writing daily for this blog is time consuming; posting two to five in-depth discussions each day must border on a full time job. Lately, Slabbed’s posts have highlighted two important issues regarding insurance coverage and insurance coverage litigation in Mississippi. One, if insurance companies want to pay nothing under the all-risk policy because of the anti-concurrent causation clause, a new form policy is needed--even if the government has to sponsor it. Two, the insurance industry is winning the lawsuits in Southern Mississippi because they are winning the discovery battle over key information.

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FC&S Says Ensuing Loss Coverage Applies to Chinese Drywall Claims

The insurance industry is probably calling and writing the editors of the FC&S Bulletin because the June 2009 edition correctly notes that Ensuing Loss Damage is covered under the ISO form policies for typical Chinese Drywall losses. I recently noted various coverage issues related to Chinese Drywall. A number of these cases are coming to our office because insurers are not affording first party coverage.

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Concurrent Causation and Burdens of Proof are Argued Today in the Mississippi Supreme Court

Judy Guice will argue the policyholder's position in Corban v USAA at 1:30 p.m., Central Time today. You can read the briefs at our prior post and watch the oral argument here. Judy Guice is bright and dedicated to this cause--she was denied her own claim based on similar reasons as her client.

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Mississippi Supreme Court Hears Corban Oral Argument Next Week

Last November, I wrote a post, A Chance For Mississippi Courts To Get It Right, about a very important case that will be argued before the Mississippi Supreme Court next Tuesday, June 9, 2009, at 1:30 p.m. I know many must think that justice sometimes moves at a snail's pace because six months have passed since I first wrote about the case and we are only arguing the appeal. Corban v USAA is important to all Mississippi policyholders, and the arguments can be watched live over the Internet.

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State Farm "Qui Tam" Hearing Raises Issues of Wrongful Adjustment

An important evidentiary hearing concerning alleged wrongful claims practices is taking place in Mississippi. Since the allegations partially involve an insurance company obtaining altered or biased reports from experts, it should be studied by those with similar concerns in other areas of the country. The primary issue in this case is whether State Farm adjusted flood losses so that the Federal Government paid too much on those flood claims through the National Flood Program. The lawsuit contends that State Farm had a motive for doing so because it could minimize the amount owed under its own all risk insurance policies which exclude flood damage.

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State Farm Whistle-Blower Suit Regarding Altered Expert Reports Continues

There are still a number of Hurricane Katrina cases we are actively litigating in Mississippi. One of the cases being followed closely by Slabbed is the Qui Tam litigation, brought by the two Rigsby sisters that worked for State Farm following catastrophes. The Rigsbys claim that the federal government paid more in National Flood payments than what was owed because State Farm altered engineering reports and made outcome oriented adjustments, which maximized flood related damaged so that the amounts paid under State Farm's policies would be minimized.

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Slabbed Reports on a Blockbuster State Farm Bad Faith Case

This week I noted the recurrent problem of outcome oriented insurance company claims conduct in Adjusters Cannot in Good Faith Rely Upon Biased or Outcome Oriented Opinions. In Does It Stay or Does It Go? State Farm's Assault on Florida, I then noted a finding regarding State Farm's fitness to conduct insurance which stated:

"State Farm’s actions raise serious questions regarding the fitness and trustworthiness of its officers and directors to engage in the business of insurance."

State Farm is challenging that finding by asking for an administrative review.

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Adjusters Cannot in Good Faith Rely Upon Biased or Outcome Oriented Opinions

Would you expect Americans to get a fair trial in Iran? Probably not, because most would believe that the judge and jury would rule against Americans no matter what the evidence showed. Many policyholders first call our office while waiting for a conclusion from the insurance company's expert. Usually, the expert becomes involved after the policyholder complains about the insurance adjuster’s first conclusion. The policyholder, now worried about cementing an already bad situation with a bad finding from an alleged expert, calls to see how we can help.

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A Call To Reassess How We Gauge Damage From Hurricane Winds

(*Chip Merlin's Note--Rocco Calaci has been a noted meteorology expert witness in the Katrina Legal Wars. After meeting him at a recent FAPIA Convention, I invited him to write a series of guest blogs. Click here to read his previous guest blogs)

We Are Using the Wrong Ruler
Rocco Calaci

Whenever a hurricane strikes a community, we obsess over the maximum wind speed and storm surge depth. In my last blog, I mentioned many other weather elements within a hurricane that can cause damages. Now I want to speak my mind on how we need to look at hurricane damage from another perspective.

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"It's an Ill Wind that Blows No Good"

One of the most fascinating parts of my job is learning of the extraordinary events that happen to people. Just when I think I have heard it all, I catch myself saying, "you've got to be kidding!" The client's typical response usually is, "I know, I wouldn't have believed it either, but…," and the remaining details are explained. Sometimes, I notice that I am smiling at the story and thinking hard about how the catastrophe can be covered under an insurance policy. Then, I end up apologizing for not seemingly being more empathetic to their predicament, but the mental exercise of applying a theory of financial insurance recovery to the facts is fun for me. This is how I use my limited talents; it has become my life’s work.

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Why Damages Caused by "Windstorm" Hurricane Ike are Going to be Difficult for TWIA to Exclude

This is a Blog and not a book. So, I will try to give everybody the Readers Digest version of some thoughts I have on the very complex and important coverage topic.

The Texas Windstorm Insurance Association covers "windstorms." One of the most classical types of windstorms are the hurricanes that menace those of us living along our country's Southern waters in the summer and early fall.

Some modern policies exclude, charge higher deductibles, or cover certain aspects of "Named Windstorms," which are hurricanes or tropical storms named by the National Weather Service. Those policies even limit how long windstorm coverage lasts or is effected after the "Named Windstorm" diminishes.

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Katrina Policyholders that Hired Attorneys Came Out Far Ahead

I was honored to be given the Policyholder Attorney Honorable Mention Award from the Insurance Law Center. It was meaningful because I am a policyholder attorney in every case. However, some who read the comment posted by the Insurance Law Center with the award might have the wrong impression about the success that our firm, not just me, had in the Katrina Cases we litigated. This is what was said:

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Insurers Using New Claims Handling Tricks To Deny Payment

(*Note:  This Guest Blog is by Jean Niven, an attorney in the Tampa office of Merlin Law Group).

Hurricane season is fast approaching, leaving coastal residences and businesses vulnerable to the whims of Mother Nature. Surviving natural disasters should not be just a warm up to the difficulties encountered in filing an insurance claim. The purpose of insurance is to provide peace of mind. When disaster strikes the insurer is tasked, pursuant to Florida law, with providing prompt assistance in the form of a competent adjuster who has the best interest of the insured as its first priority. Sadly, that scenario has become a fairy tale for many insureds. Instead of providing the friendly professional assistance advertised in TV commercials and on bill boards, the insured is frequently faced with obstructionist tactics designed to wear down even the most stalwart of personalities. This at a time when a person is most vulnerable and frequently has limited financial capability.

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The Value of Networking and Sharing Insurance Claims Information Between Policyholders

Formal discovery in insurance lawsuits is replete with protracted discovery battles, insurers motions for protective orders, and evasive responses from insurers trying to avoid turning over information damaging to their case. Historically, some of our biggest breakthroughs have come from "alternative" sources and by organizing other policyholder attorneys with similar cases against the same insurance company. The value to policyholder attorneys networking to uncover the motives of an insurer seemingly engaged in repeated denials of meritorious claims cannot be overstated.

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Broussard's Bad Faith Decision Impaired by the Mississippi Supreme Court

Fonte vs Audubon Insurance Company, is an important win for policyholders against the arbitrary adjustment of insurance claims. The following is significant language pertaining to the wrongful claims practice to which the policyholders were subjected:

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Is National Flood Going To Be In Business?

An article in the Insurance Journal, National Flood Insurance Program Set to Expire Tomorrow, caught my eye. I think the threat of expiration is political gamesmanship, as indicated in the piece: 

“John Prible, government affairs for the Independent Insurance Agents and Brokers of America, says the omnibus bill funding is currently being debated in the Senate but there's "a little game of chicken" happening between the House and Senate on any changes that may be made to the omnibus bill in the Senate. The debate could potentially derail the bill, he said.”

I wonder whether Mississippi Congressman Gene Taylor will try to use this opportunity to get the Multiple Peril Insurance Act of 2009, into law. I am not holding my breath, but stranger things have happened in the political arena lately. Taylor’s website has a summary of what he hopes his proposed legislation will accomplish: 

“The Multiple Peril Insurance Act would allow coastal homeowners to buy comprehensive insurance and know that hurricane damage will be covered without lengthy legal disputes over how much damage was caused by wind and how much was caused by flooding.

After Hurricane Katrina, insurance companies overbilled taxpayers and underpaid homeowners by blaming flooding for some damage that had been caused by hurricane winds and wind-driven debris.

The bill will reduce future property damage by requiring participating communities to adopt International Building Codes.”

I recommend Slabbed’s excellent article, HR 1264 - One policy. One premium. One claims adjuster. Protecting America’s home & business owner. Protecting America’s taxpayers, which explains Taylor’s Bill.

Hurricane Ike Insurance Litigation Gets Organized in Galveston

Coordination between litigants following catastrophic losses is becoming increasingly frequent. This is good if the result speeds the resolution of claims and reduces the expenditures to policyholders and insurance companies. However, the Devil is in The Details, as with most things in life.

It is not uncommon for insurance companies to try to get an advantage through case management and discovery orders applicable to all cases. I imagine insurance defense lawyers are thinking the same skeptical thoughts about policyholders’ attorneys.

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Is The Saffir-Simpson Scale Still Relevant

(*Chip Merlin's Note--Rocco Calaci has been a noted meteorology expert witness in the Katrina Legal Wars. I met him at a recent FAPIA Convention where he presented a speech about hurricanes. I invited Rocco to write on today's topic after he briefly mentioned it in his speech.)

Since the release of the Saffir-Simpson Scale in the late 1960’s, it has been considered the “standard” in how hurricanes have been categorized. It is my personal opinion that the Saffir-Simpson Scale is no longer relevant due to new technologies and the fact that the estimated levels of destruction rarely match the actual destruction observed from hurricanes over the past decade.

The use of the Saffir-Simpson Scale, along with other meteorological “beliefs”, must be put aside and replaced by factual and verifiable research.

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Bad Faith Litigation Meeting And New Orleans Party

There is nothing like combining business with pleasure. I suppose if your business is fun, you are always having a party at work. Today, I am meeting with my bad faith insurance attorney colleagues. Tonight, I will celebrate the Port of New Orleans litigation with my client, co-counsel and legal staff.

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Why Causes Of Loss Are Important To You

The probability of a ruinous event happening may change behavior or cause you to insure to reduce the misery. The greater the financial misery, the more likely you are to insure yourself when it strikes. The greater the chance of the event happening, the more likely you will take measures to avoid the misery.

The American Association of Insurance Services recently published its Homeowners Cause of Loss Report. It details the cause of reported losses from 2005 through 2007 for property and liability payments on Homeowners policies. While the expanded version which lists the cause of loss by state is not available to the public, the property loss statistics are informative:

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Hurricane Ike - The Forgotten Disaster

The national media can be fickle. Hurricane Ike devastated Galveston and the Bolivar Peninsula. Those communities and people in them are suffering as much as those in Louisiana and Mississippi following Hurricane Katrina. Yet, I have seen little in the national media regarding this story.

The Houston Press ran an excellent article, Hurricane Ike's Wake, detailing the effects of Hurricane Ike. It also questioned why there is so little national media attention to the devastation. Even the charitable contributions to Hurricane Ike relief efforts has been minuscule compared with Hurricane Ike.

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Mississippi Needs A Strong Policyholder Bill Of Rights

Most people do not look at their insurance policy until loss or damage forces them to. And most will agree that trying to find confirmation of coverage is not as easy as expected. Typically, insurance policies are very long and the various coverage provisions and exclusions can be confusing and sometimes ambiguous.

This scenario became glaringly apparent in the aftermath of Hurricane Katrina. Many policyholders found themselves in a very uncertain world, trusting solely on their relationship with their insurance carrier only to be denied coverage based on an exclusion they had never heard of. And oftentimes worse, many policyholders did not receive many benefits under their policy because their insurance adjuster did not inform them of the coverages and benefits available to them. 

In an effort to prevent this unnecessary chaos in the future, several Mississippi lawmakers have recognized the importance of legislation to ensure that the citizens of Mississippi are aware of their rights as policyholders and informed of any exclusions in their policies that would be cause for denial of coverage. Unfortunately, these measures have not yet made their way to the Governor.

The Mississippi lawmakers started back in Session on January 6, 2009. We are in the process of preparing and pitching an Insurance Modernization Package to our lawmakers that will include, among other measures, a Policyholder Bill of Rights and other important legislation that will provide for timely payment of claims and penalties for noncompliance and unfair trade practices.

So far, this has proven to be an uphill battle in Mississippi, but one worthy of pursuing. The citizens of Mississippi are not insisting on anything that the insurance carriers are not already obligated to do in many other states across the nation.  

In the typical, hospitable Mississippi fashion, Mississippi has focused on the needs of their business guests first. As Mississipians rebuild their beautiful coast, they are acutely aware of the need for a fair and balanced co-existence with their insurer. It is now time to focus on the needs of the citizens of Mississippi.

Stay tuned....we are in for a promising year!

Deborah
 

Influence And Persuasion, Part 2

As indicated in my previous blog, everybody can benefit from understanding some basics of intellectual influence. While my speech was given to trial attorneys who typically represent people against insurance companies, anybody can use them, and should, if they want better results with dealing with people who have different views. Some may question why I would publish the "secret" to getting great resolutions from insurance companies. Frankly, if everybody practiced these principles, the world would be a lot more progressive.

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Moving From Insurance Regulator Of State Farm To State Farm's Counsel

I met Ralph Nader in San Diego about a decade ago. He remarked that a major problem with Departments of Insurance is that most have a revolving door to and from the insurance companies they supposedly regulate. Nader implied that unless laws prevent insurance companies, their vendors and law firms from hiring those who supposedly regulate their activities, actual regulation that supports consumers will not exist. The practice of insurers hiring former employees of Departments of Insurance must stop in order to accomplish honest regulation without an appearance of a conflict of interest.

The revolving door is working for at least one employee of the Department of Insurance in Mississippi. Anita Lee, of the Sun Herald, recently reported that the deputy insurance commissioner who "oversaw" the Mississippi Insurance Department's Market Conduct Study of State Farm following Hurricane Katrina has left the Mississippi Department of Insurance. Guess who hired him? The lawyers who represent State Farm in Hurricane Katrina matters.

Given this, you do not need to be a psychic to guess how well State Farm did in the Study. I noted the serious problems with the Mississippi Insurance Department study in a previous blog. In an article published in the Sun Herald, a noted consumer advocate wrote that State Farm could have written the report itself. Only legislation which prevents those regulated from hiring, directly or indirectly, those who recently regulated them can prevent this kind of conflict of interest.
 

Effective Endgame Communications

Most cases resolve before a trial. While thorough preparation for trial is paramount, most of our policyholder clients want a resolution as quickly as possible and for a much as possible. Settling a case for less than its value is an easy way to get a quick resolution. Settling a case for more than its value in a short period of time is a lot more difficult, and, that is what some of our clients expect us to magically accomplish.

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Key West And Galveston

I spent the Thanksgiving Holiday in Key West. For those that have never been there, it is a unique part of Florida. You will not find prettier water anywhere in the United States, and the sunrises and sunsets are spectacular. Key West is the Southern most point of the United States and only 90 miles from Cuba. Everybody should visit Key West for a long weekend. Like Hawaii, many never go back to the mainland.

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The Port of New Orleans Employees

Life's lessons can be very beneficial if you actually remember them and change your behavior according to what you have learned. I was lucky to watch my father as he lead various tours of duty in the Coast Guard. Both the ordinary seaman and the Chiefs that ran the ships seemed to respect him. He always treated everybody as important because they were. He always thanked them, and then showed his appreciation.

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A Chance For Mississippi Courts To Get It Right

On Tuesday, we filed an amicus brief in the Corban v. USAA case. A copy of it is here for anyone to view. This case is important because the Mississippi Supreme Court is going to rule on how anti-concurrent causation language is interpreted. Previously, only federal courts have made such rulings. Mississippi Court's ruling is binding on federal courts and can overrule the Fifth Circuit's poorly reasoned decisions in Broussard and Leonard.  Judy Guice represents Dr. Corban. Judy is an excellent attorney and I have enjoyed her collegiality for the past several years. Her appellate brief is great and I look forward to seeing her argue this very important case.  The only problem is that the Mississippi Supreme Court should have expedited this matter. Indeed, the Fifth Circuit should have sent these issues to the Supreme Court two years ago when Dick Scruggs requested it in the Leonard case. Since Hurricane Katrina three years ago, we have all been guessing at what the Mississippi Court will decide. It is about time Mississippi judges ruled on these matters.

What Do Katrina, Ike, And The California Wild Fires Have In Common?

As the New York Times explained, mobile homes burn easily. Governor Arnold Schwarzenegger called for a review of building standards following the complete destruction of 500 manufactured homes in the Oakridge Mobile Home Park. California building officials have noted that building regulations must be strengthened to account for the wildfire hazards in California. Regulators asking for tougher building codes to prevent widespread catastrophe are nothing new and, in the long term, are generally good for society and insurance companies.

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Our Federal Government Gets It Wrong Again

After receiving a Bestwire News Report that indicated a Homeland Security Inspector concluded  that "Write Your Own" Insurance Companies did not overpay flood claims following Hurricane Katrina, I waded through the 48 page report to find out why the Inspector came to that conclusion. As I have said in earlier blog posts, flood adjusters paid and paid and paid some more. They gave every benefit of the doubt to policyholders. In some "slab" cases, they simply reviewed satellite photographs and then paid policy limits. They never went to the loss site.

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Are We Doomed To Repeat This Again?

If another hurricane the size of Katrina or stronger strikes a metropolitan area this summer or fall, I am certain that we will have a repeat of the litigation and problems associated with Katrina.  On May 8, the United States Senate voted against increasing the role of the National Flood Insurance Program to include coverage for "wind" peril. (See Miami Herald, Chicago Tribune, Biloxi Sun Herald) The Senators supporting the measure were from the coastal states most effected by hurricanes.  These southern Senators and their constituency are increasingly facing the problem that private property insurance carriers will not sell a policy that covers the perils posed by a hurricane.

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The $500 Billion Hurricane

Is the Insurance Industry Trying to Justify Increases in Rates or Simply Justifying Leaving the Risk Business Along Coastal areas?  These questions came to my mind after reading an article in the February 2008 edition of Natural Hazards Review.  The article, Normalized Hurricane Damage in the United States: 1900-2005 , claims that by 2020 a $500 billion dollar hurricane loss could happen in South Florida.  Of course, those are in 2020 dollars -- but that is off the charts compared to any previous loss. The study was made primarily by people working for the insurance industry.  Accordingly, some bias may exist and consumer activists may find my questions justified.  The $500 million figure seems surreal given the Katrina's calculated damage was $156 billion dollars.  The study has two undeniable findings and conclusions.  First, the population along coastal areas has grown.  Thus, more property is in potential danger of hurricanes.  The most concentrated areas are South Florida, Tampa, and the greater Houston area.  All three areas have experienced significant population increases over the past century.  Second, the per capita wealth has also increased over that period.  Not only are more people and properties in harm's way, these people have more and more expensive properties at risk.  In simple terms, we have more and better stuff to insure on an individual basis. These statistics are important.  Determining the amount at risk and the amount of available insurance is important to a community and state. Since we cannot expect people are going to move away from the coast, the obvious long term solution is better risk management.  The enforcement of building codes and stronger building codes are inevitable.

Changing The Focus

 A year ago the news from Mississippi largely concerned insurance claims practices, trials, and significant settlements. Except for the recent article of our firm's settlement of twenty two cases against State Farm, the media focus has been on alleged corruption of some policyholder attorneys, especially Dickie Scruggs. Insurance industry leaders must be smiling because this news coverage has completely derailed efforts for meaningful claims practice reform and protective legislation for policyholders.

 

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Broussard Oral Argument: Warming The Bench Is No Easy Task

I, along with two attorneys from my law firm, attended the appellate oral argument in the Broussard vs State Farm case on Wednesday. Last winter, the three of us also attended much of the trial to learn and strategize about how we could improve upon our clients cases. We know the Policyholder attorneys representing the Broussards, the issues, and the facts of the case well. The Sun Herald quoted me following the verdict in the Broussard trial as saying that State Farm was not going to give up, that they would appeal, and that everyone should be ready for a drawn out battle.  Most people do not realize that the landmark bad faith punitive damage case of Campbell vs State Farm lasted well over a decade before State Farm paid a penny in punitive damages.  I can't imagine that this case will be any different. State Farm is a very large corporation with significant assets and resources, which it seems all too happy to use to litigate and defend its position.

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Merlin Law Group Settles 103 State Farm Claims

The Merlin Law Group has settled the claims of 103 State Farm policyholders.  While the terms of the individual settlements and total amount paid by State Farm are confidential, attorney Chip Merlin noted that each settlement amount was negotiated on a case-by-case basis and according to each client's unique situation."This was not a 'cents on the dollar received by all' negotiation," said Merlin.   "An enormous amount of work went into this negotiation which proves that every policyholder can get what they deserve as long as each case is approached individually."  The members of the Mississippi Merlin Law Group team include Chip Merlin, William Weatherly, Randy Santa Cruz, Deborah Trotter, and Tina Nicholson.  They worked tirelesly conducting 119 depositions regarding State Farm and filing over 50 litigated lawsuits against the insurer so far on behalf of Mississippi policyholders. Despite this tremendous success Merlin cautions "those with unresolved claims to be mindful of Mississippi's Statute of Limitations which will run out at the next anniversary of Hurricane Katrina." Media coverage about the settlement may be found at:

Personal observations of the Tuepker vs. State Farm oral argument

Our firm filed an amicus brief in this case on behalf of Untied Policyholders. We have followed this case quite closely and I, along with several of our attorneys, decided to attend the oral arguments on Thursday, September 6th. Watching and listening to law being argued is a difficult task when you are used to being a player rather than a spectator. I found myself shaking my head and muttering. It is a grueling exercise to not answer questions when you have the feeling that the participants, especially the jurists, do not fully understand the law of a very specialized area with so much at stake.

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Fifth Circuit Got it WRONG!!

In their rationale for upholding Judge Senter's verdict, the 5th Circuit provides a less than stellar (okay really absurd) example of non-coverage that virtually all insurance companies issuing an all-risk policy would heretofore pay. After finding that the anti-concurrent causation language was not ambiguous, Judge Edith Jones went too far and provided the following (see full decision here):

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Race to beat Katrina lawsuit deadline

Hurricane Katrina turned Aug. 29 into a red-letter date in New Orleans history, but storm victims should circle Aug. 28 on their calendars.  In Louisiana, August 28th is the deadline for filing suit against your insurance company for damage caused by Hurricane Katrina, and the state is bracing for an onslaught of last minute lawsuits being filed prior to the impending deadline. Louisiana has a one year prescription period (aka "statute of limitations"). The effect of the law would have been to force thousands of insurance disputes into litigation prematurely and much hardship on already burdened insureds.

 

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Policyholders file RICO suit against State Farm in handling of Katrina claims

21 policyholders filed a lawsuit yesterday alleging that State Farm Mutual Automobile Insurance Co. violated the federal Racketeer Influenced Corrupt Organizations Act (RICO) by defrauding them of approximately $4 million in insurance benefits related to Hurricane Katrina claims  by producing false inspection reports.   The 101-page complaint, filed in the U.S. District Court for the Southern District of Mississippi, alleges that State Farm conspired with adjusting and engineering firms to deny Hurricane Katrina claims that should have been paid by the insurer. Read more...

Arguments begin in State Farm case alleging anti-trust violations

Preliminary arguments in a lawsuit brought against State Farm Fire and Casualty Co. by Louisiana policyholders Gordon and Kathleen Schafer, which allege the insurer underpaid Hurricane Katrina claims by colluding with software manufacturer Xactware Solutions Inc. to keep property replacement costs artificially low, were recently heard in U.S. District Court.  The lawsuit alleges that Utah-based Xactware Solutions Inc., also named as a defendant, provided State Farm with assessment and estimating software programs that had a "special profile" which quoted prices for building materials consistently lower than standard market value when adjusting and tallying payment for Katrina claims while using the software.  Read more....

Mississippi AG sues State Farm for breach of contract

Back in January, Mississippi's attorney general, Jim Hood, agreed to drop State Farm Mutual Fire and Casualty Company from a lawsuit that his office filed against several insurance companies for refusing to cover damage to homes from Katrina's storm surge.   The dismissal of the orignial lawsuit was part of a deal in which State Farm was to seek certification of a class of some 36,000 policyholders, and settle the class action by setting up a new claims adjudication process that would reexamine the claims of people who had not sued State Farm.  Judge L.T. Senter Jr., reviewed the agreement and rejected it.  Hood has filed suit against State Farm again, saying the company failed to honor the mass settlement agreement.  Read more about it... 

House Hearing on Hurricane Issues on 6/12/2007

The House Financial Services Subcommittee on Oversight and Investigations, and the Homeland Security Subcommittee on Management, Investigations and Oversight have scheduled a hearing for Tuesday, June 12, 2007 to discuss the National Flood Insurance Program and the interaction between the NFIP and private insurers and the allocation of wind vs. water insurance claims in light of preliminary findings from Government Accountability Office and Department of Homeland Security, Inspector General reports.

Court unseals Whistleblower suit accusing insurers of overbilling federal government

A group of former insurance adjusters filed suit (see full text of the complaint) last year accusing insurers of misrepresenting claims to the National Flood Insurance Program to limit their financial losses in Katrina's aftermath.  The suit was legally required to remain under seal while federal officials reviewed the case.  A federal judge in New Orleans unsealed the suit last week, after U.S. Attorney, David Dugas decided that his Baton Rouge-based office will not intervene. Dean Starkman, Insurance Transparency Project, ties together several great examples of the alleged fleecing of the National Flood Insurance Insurance Program, including compensation for flood damage where there was no damage, 300% charge up for building materials, insurer flood claim additions for items insureds never owned or filed for. Click here for related story....   

State Farm to setup shared electronic repository

The U.S. District Court in Gulfport has ordered that an electronic document repository be set up for pre-trial records in more than 200 lawsuits against State Farm Fire & Casualty Co.  According to Chip Merlin of the Merlin Law Group, "if we can put our professional jealousies aside, we should be able to help our clients by sharing information." Read more from the Anita Lee of the Sun Herald...  Click here for the full-text of the Judge's CMO

Fla. Plaintiffs Settle with State Farm on Hurricane Damaged Screen Enclosures

A Broward County Court has approved a class action settlement on behalf of more than 12,000 State Farm Insurance policyholders in Florida who will receive 100 percent of the damages they requested in a $6.8 million settlement of claims filed last year in which they alleged the insurer refused to pay replacement costs of screen enclosures damaged by Hurricanes Katrina and Wilma, attorneys for the plaintiffs announced. Read more....