Overhead and Profit - Regulatory Criteria for When a Contractor is Required

Overhead and profit was recently mentioned by a colleague, Brandon McWherter, in, When Is Overhead and Profit Due in Tennessee? He noted that the general rule for when contractor overhead and profit is to be paid is when it is:

reasonably likely that the insured would be expected to hire a contractor to repair the property.


But he also noted the following Tennessee law requiring the hiring of a contractor:

Who Is Required To Be A Licensed

NOTICE! A Tennessee contractor's license is required BEFORE bidding or offering a price, for projects $25,000 and up (includes materials and labor), as a prime (general) contractor; and also subcontractors performing electrical, mechanical, plumbing, HVAC, roofing and masonry are also required to be licensed as a contractor, when the total portion on the project is $25,000 or more; masonry, when $100,000 or more. In addition, a sub to a sub would need to be licensed whenever there are more than one (1) subcontractors on the project. Reciprocal agreements do NOT allow using another state's license in Tennessee, but provides a trade exam waiver, only. License issuance takes 4 to 6 weeks and must be approved by the Board during regularly scheduled meetings (see Public Meeting Information for meeting dates).

A Contractor's license is required prior to contracting (bidding, offering to engage, or negotiating a price) for projects $25,000 or more, when acting as one of the following:

Prime (General) Contractor - Bidding or contracting directly with the “owner” of the project;

Subcontractor – Contracting directly with any contractor (not to the owner) to perform projects when the total cost of that portion on the project is

*$25,000 or more, for the following (includes all materials, equipment, and labor):

Electrical, Mechanical, Plumbing, HVAC, and

**Roofing; and Masonry when *$100,000 and up

Construction Management – When the value of the total project is $25,000 or more.

*Masonry subcontractors must be licensed as a contractor when the project is $100,000 or more.

**Roofing subcontractors must be licensed as a contractor, effective January 1, 2014, in addition to performing work currently as a prime, for projects $25,000 or more.

The definition of contractor is found in the statute at T.C.A. § 62-6-102 and covers a very broad area, which includes construction, installation, movement, repair, etc.

All contractor licenses are assigned a monetary limit and also a classification, such as: Building (Residential, Commercial and Industrial); Electrical; Mechanical (Plumbing and HVAC); Heavy Construction; Highway; Railroad & Airport; Masonry; Municipal Utility; Environmental; and Specialties (landscaping, excavation, roofing, cell towers, solar panels, audio visual, etc.,). Contractors must bid/contract in the exact name as licensed. See more information below in the "Summary of Contractor License Requirements". See the Law and Rules for legislative updates.

This would seem to indicate that contractors have to be hired on a lot more jobs than what most insurance companies will agree to do. Property insurance adjusters should check state regulations.

This regulation also seems to imply that some type of construction management is to be considered cost for projects $25,000 or greater. I have often said somebody knowledgeable needs to be hired to protect the policyholder owner and make certain that larger repairs are done correctly. This is usually a construction manager as an owner's representative, interior designer, or architect.

I will get back to my discussion of determining deprecation tomorrow.

Positive thought of The Day

Teachers can change lives with just the right mix of chalk and challenges. 
       —Joyce Meyer

Overhead and Profit Workshop For Restoration Contractors in Dallas on October 1

Insurance restoration contractors and public adjusters often complain that many insurance companies will instruct their field adjusters to do just about anything to exclude paying general contractor overhead and profit. Jacob Krahl, managing director of Elite Consulting Pro, has had so many contractors he consults with complain about this unique issue he is sponsoring an Overhead and Profit Workshop for restoration contractors in Dallas on October 1.

Many insurers are now telling field adjusters to withhold general contractor overhead and profit until it is incurred. Even insurance company attorney Barry Zalma has indicated this is wrong and that overhead and profit is a necessary item to be included not only in replacement cost calculations, but in actual cash value calculations:

There is no basis for simply withholding profit and overhead as a means of calculating actual cash value. In fact, modern insurance policies that actually provide a definition for actual cash value define it as (1) replacement cost less physical depreciation, (2) replacement cost less betterment, (3) fair market value, or (4) a combination of the various definitions. When there is no policy definition, courts will apply one or more of the four definitions above.1

I will be giving a presentation at this conference and providing attendees a country wide analysis of cases, regulations, and insurance industry references which indicate the tests for determining when overhead and profit is owed. I will also share ten tips to help prove that overhead and profit costs should be included within insurance restoration estimates.

Overhead and profit cases are plentiful because of insurance company claims initiatives. Accordingly, these claims denials are often ripe for class action status because insurers often use the same wrongful techniques in all property cases which delay or deny overhead and profit benefits to policyholders and their contractors.

Hope to see you in Dallas. Here is the link for registration. http://www.eliteconsultingpro.com/sign-up/

Yogi Bera Thought For The Day

"You should always go to other people's funerals; otherwise, they won't come to yours."

1 Barry Zalma, Representing Insureds in a Catastrophe, 41 Tort Trial & Ins. Prac. L.J. 817, 840 (2006).


Farmers Sells a Policy that Is Far Worse then Its Competitors - Review of the Farmers "Next Generation" Homeowner's Policy, Part 3: Overhead and Profit

The title of this blog is a quote by Chip Merlin after we discussed some of the issues that have been popping up in my continued review of the Farmers “Next Gen” policy. During this review, I realized this policy is really the gift that keeps on giving—that is, if you are the carrier. Hidden throughout the policy are changes, some major, some more subtle, that make the policy extremely carrier friendly and, in my opinion, anti-consumer in order to pay less on claims.

One such change is the below clause that deals with the payment of overhead and profit:

e. General contractor fees and charges will only be included in the estimated reasonable replacement costs if it is reasonably likely that the services of a general contractor will be required to manage, supervise and coordinate the repairs. However, actual cash value settlements will not include estimated general contractor fees or charges for general contractor's services unless and until you actually incur and pay such fees and charges, unless the law of your state requires that such fees and charges be paid with the actual cash value settlement.

I see two major issues with this clause. First, and perhaps most obvious, is the language that makes the decision to pay overhead and profit subjective. While the traditional view is that overhead and profit will be paid if three or more trades are involved in the repair, this policy states that overhead and profit will only be paid “if it is reasonably likely that the services of a general contractor will be required to manage, supervise and coordinate the repairs” (emphasis added). The insurance carrier will be the one to determine if a general contractor is necessary regardless of the number of trades or complexity of the work to be performed. I can only imagine the fights this will cause.

The second major problem with this clause: overhead and profit is only paid once incurred by the insured. Making overhead and profit an incurred coverage item can put a huge burden on an insured that may not have the means to front the expense. Imagine a homeowner has a fire that destroys their home. The replacement cost of the home is $200,000 and after overhead and profit is added the total rebuild cost is then $240,000. However, the home is older and the insurance carrier depreciates the home by $50,000 making an actual cash value payment of $150,000. In that instance, Farmers would write a check for $150,000 for a $240,000 loss. The insured can’t make a claim for the recoverable depreciation or overhead and profit until those costs are incurred. The insured would have to front $90,000 to secure full indemnification under the policy.

Finally, it should be noted that the policy form this clause was taken from is the one used by Farmers in Pennsylvania. I wonder why this provision is even in the policy as it states that overhead and profit will only be paid when incurred, “unless the law of your state requires that such fees and charges be paid with the actual cash value settlement.” As my learned colleague, Larry Bache, wrote in October, 2012, Pennsylvania law requires overhead and profit to be paid as part of the actual cash value payment. However, after conversations with some folks working claims in Pennsylvania, that does not seem to be how the claims are being administered.

If you have been following this series, you may be noticing a trend, the policy seems to have a lot more words and a lot less coverage. Reading it, I feel like I am entering the Twilight Zone.

Payment of Overhead and Profit

One common problem that has been arising is when overhead and profit should be paid in response to a property insurance claim. For those not aware, overhead and profit (generally estimated at 20% of the total amount of the estimate) is intended to cover the overhead/operating costs of a general contractor as well as the amount of profit that the general contractor typically receives. The two typical questions that arise are:

  1. Whether overhead and profit is owed at all on a claim, and
  2. Whether initial payments of actual cash value amounts should include these amounts.

The longstanding rule of thumb used in insurance adjusting for years is that overhead and profit is owed if more than three trades are involved in the repair process (e.g., a roofer, a stucco repair company, and an air condition contractor). Once there are three trades involved insurance carriers typically presume that a general contractor would be necessary to coordinate and oversee the repair process. Where and when this three-trade “rule” came into being will likely never be known, however it does not seem to have any binding authority in most states.

While jurisdictions take different approaches, Texas courts have answering overhead and profit questions in a common, but altogether unclear, way. In Ghoman v. New Hampshire Insurance Company,1 the federal court addressed the issue from the perspective of the interplay between overhead and profit and the amounts owed under the actual cash value and replacement cost value provisions of the policy. In determining what constitutes the “actual cash value” of the damage, the court noted that Texas law equates the undefined policy term with the “fair market value,” or the price a willing purchaser would be willing to pay. In application, however, the court concluded that the actual cash value of the damage should be determined by taking the full replacement cost and deducting any applicable depreciation – the standard in most states.

Going further, the court stated that the replacement costs, from which any depreciation would be deducted, should include any cost that an insured is “reasonably likely to incur” in repairing or replacing a covered loss. Overhead and profit and sales tax, it opined, clearly fit into this definition and should be included in both the replacement cost and actual cash value amounts.

While the issue is far from settled, the state of the law (in Texas, for now) is overhead and profit should be paid unless there is a finding that the services of a general contractor would never be necessary given the scope of the work to be completed. Even then, however, there is an argument to be made that the replacement cost of the property, which if factored in to determine the premiums to be paid, already includes overhead and profit. Therefore it would be inequitable to factor those costs in without taking it into account when a loss occurs.

1 Ghoman v. New Hampshire Ins. Co., 159 F.Supp.2d 928 (N.D. Tex. 2001).

Kelly Kubiak, Esq. Explains Overhead and Profit

Kelly Kubiak, an attorney at Merlin Law Group, talks about Overhead and Profit in this video. Overhead and Profit is when you have an insurance claim with an insurance company and they pay you for building damages. One of the things the insurance company must take into consideration is whether or not it is reasonably likely that you are going to hire a contractor to do the work, as estimated by the insurance company.

Overhead and Profit Issues--Ask a Winner Kelly Kubiak and Her Friends

Insurance companies hate to pay Kelly Kubiak’s clients because she is such a tough advocate for policyholders. Overhead and profit issues may be an interesting academic issue for insurance nerds, but Kelly Kubiak and her friends took the cause all the way to the Florida Supreme Court. Ask Kelly and her friends what it means to get full benefits, even overhead and profit benefits, for policyholders wrongly denied coverage, and you will find a bunch of happy policyholders.

The bottom line ruling is an insurer’s required payment under a replacement cost policy includes overhead and profit when an insured is reasonably likely to need a general contractor for the repairs. The insured would be required to pay costs for a general contractor’s overhead and profit for the completion of repairs in the same way the insured would have to pay other replacement costs he or she was reasonably likely to incur in repairing the property.

The opinion is a lot more complicated. The result is not--insurers should pay and not withhold overhead and profit expenses.

Kelly Kubiak, of Merlin Law Group, and her friends, Tom Elligett, Amy Farrior, and especially Adrian Neiman Arkin and Timothy H. Crutchfield for United Policyholders have much to celebrate.

Actions mean more than words, and they never gave up seeking justice. In the warm summer air, I think many of us think about what we are doing and whether we are helping our brothers and sisters. Kelly and her friends know they helped others.

I wonder if people who work for insurance companies think they are helping others with their talents or just making a living. An honest answer brings a blue feeling, which leads me to a summer blues and song:

Overhead and Profit versus Supervision

Monday's Superstorm Sandy Seminar for Public Insurance Adjusters had some very interesting discussions involving the fine details of adjustment. One of those had to do with the costs of supervision and whether those should be part of general contractor overhead and profit.

The insurance industry, through its estimating program Xactimate agrees that job related direct supervision is not included in General Contractor overhead and profit. It should be a line item cost:

General Overhead are expenses incurred by a General Contractor, that cannot be attributed to individual projects, and include any and all expenses necessary for the General Contractor to operate their business.

Examples (including but not limited to): General and Administrative (G&A) expenses, office rent, utilities, office supplies, salaries for office personnel, depreciation on office equipment, licenses, and advertising.

Including General Overhead expenses in an Xactimate estimate—General Overhead expenses are not included in Xactware’s unit pricing, but are typically added to the estimate as a percentage of the total bid along with the appropriate profit margin. These two costs together constitute what is normally referred to in the insurance restoration industry as General Contractor’s O&P, or just O&P. General Overhead and Profit percentages can be added in the Estimate Parameters window within an Xactimate estimate.

Job-Related Overhead are expenses that can be attributed to a project, but cannot be attributed to a specific task and include any and all necessary expenses to complete the project other than direct materials and labor.

Examples (including but not limited to): Project managers, onsite portable offices and restroom facilities, temporary power and fencing, security if needed, etc.

Including Job-Related Overhead expenses in an Xactimate estimate—Job Related Overhead expenses should be added as separate line items to the Xactimate estimate. This is done within the Line Item Entry window of an Xactimate estimate by selecting the proper price list items, or creating your own miscellaneous items.1

Keep this in mind next time when making estimates of building construction costs.

1 ©2009 Xactware Solutions, Inc.

When Is a Policyholder Entitled to Overhead and Profit?

The prevailing view is that overhead and profit is due if a policyholder can show the services of a general contractor is “reasonably likely.”

In Mee v. Safeco Insurance Company,1 James Mee purchased homeowners coverage from Safeco. Mee suffered a loss to his home when a toilet overflowed. Safeco prepared an estimate for repairs but did not include overhead and profit.

Safeco sent Mee a settlement payment that did not include overhead and profit. Mee filed suit for breach of contract, among other claims. Safeco filed for and won summary judgment on the issue of entitlement to overhead and profit. The trial court held that Mee was not entitled to overhead and profit because he did not use a general contractor to repair the damage. Mee appealed.

On appeal, Safeco cited to Gilderman v. State Farm Insurance Company2 in support of its argument that Mee was not entitled to overhead and profit. Gilderman “stands for the proposition that, in any claim where more than one trade is required to perform the repairs, it is 'reasonably likely' that the services of a general contractor will be required, and accordingly, the insurance company must include overhead and profit as part of its actual cash value payment, even if the insured makes the repairs himself, hires a handyman instead of a team of contractors, or chooses not to make the repairs at all."

The appellate court reversed the trial court’s summary judgment and found in favor of Mee. If repair will likely require multiple trades (commonly referred to the “three trade rule”) a policyholder can meet its burden to show the services of a general contractor is “reasonably likely” and overhead and profit are owed.

In Tritschler v. Allstate Insurance Company,3 an Arizona court followed the reasoning of the Pennsylvania Superior Court. Allstate took the position that it would only include overhead and profit if the insured actually used a general contractor to make repairs. The court disagreed with Allstate and held that if the services of a general contractor were likely, the contractor's overhead and profit fees should be included.

In Mee and Tritschler, the courts made it clear that overhead and profit is to be paid as part of the carrier’s actual cash value payment. The Tritschler court explained:

Actual cash value of loss covered by property insurance policy is an estimate of the needed repairs; since the determination of actual cash value is not based upon what the insured actually pays to repair or replace the damaged property, the amount an insured ultimately spends to make needed repairs, if any, is irrelevant.

The un-codified “three trade rule” is used in most jurisdictions.

1 Mee v. Safeco Ins. Co., 2006 WL 2623901 (Pa. Super. Sept. 14, 2006).
2 Gilderman v. State Farm Ins. Co., 649 A.2d 941 (Pa.Super. 1994).
3 Tritschler v. Allstate Ins. Co., 213 Ariz. 505, 144 P.3d 519 (Ariz. Ct. App. 2006).


Overhead and Profit Should Be Included in Actual Cash Value Payment to Policyholder

In many states that have addressed the issue, an insurance company is obligated to pay contractor overhead and profit as part of replacement cost coverage, regardless of whether the insured hires a contractor or pays overhead and profit to a contractor. In Mee v. Safeco Ins. Co. of America, 908 A.2d 344 (Pa. Super. 2006), policyholders brought an action against their insurer for bad faith breach of the insurance contract because the insurer failed to pay overhead and profit related to the insureds’ repair to their house. The insurer refused to issue payment for contractor overhead and profit without proof that the insured had actually hired a contractor. The Superior Court of Pennsylvania held, as a matter of law, that repair and replacement costs include overhead and profit where use of a contractor would be reasonably likely, and that the insured is entitled to payment for those items even if no contractor is used.

The court rejected the insurer’s argument that paying the policyholders the overhead and profit would result in a windfall to the insured.

Relying on Gilderman v. State Farm Ins. Co., 649 A.2d 941 (Pa. Super. 1994), the court reasoned that insureds who purchased replacement cost policies have paid an additional premium for such coverage so that the policyholders can afford to repair or replace their property at current value and effectively keep the value of their property the same. No windfall occurs where the policyholder receives coverage for which it has paid and to which it is entitled, even if the policyholder does not actually incur the costs of a general contractor.

[T]he issue is not whether a given cost is contingent. The issue is what [insurer] agreed to pay to its insureds prior to actual repair or replacement. It agreed to pay ‘actual cash value,’ which means ‘repair or replacement cost less depreciation.’ Thus, the real inquiry is what is included in ‘repair or replacement costs.’ We hold that repair or replacement costs include any cost that an insured is reasonably likely to incur in repairing or replacing a covered loss. In some instances, this will include use of a general contractor and his twenty percent overhead and profit.

Colorado courts have not directly addressed policyholders’ rights to actual cash value payments including contractor overhead and profit. However, the Colorado Division of Insurance issued a bulletin in 2007 regarding residential property policies and overhead and profit:

III. Division Position

Insurers shall be prohibited from deducting contractors’ overhead and profit in addition to depreciation when policyholders do not repair or replace the structure.

The relevant policy language states:

“We will pay the actual cash value of the damage to the buildings, up to the policy limit, until actual repair or replacement is completed.”

The Division of Insurance has learned that one or more insurers have interpreted this language, or substantially similar language, to permit deduction for contractors’ overhead and profit, in addition to depreciation, from replacement cost in calculating actual cash value.

The position of the Division of Insurance is that the actual cash value of a structure under a replacement cost policy, when the policyholder does not repair or replace the structure, is the full replacement cost with proper deduction for depreciation. Deduction of contractors’ overhead and profit, in addition to depreciation, is not consistent with the definition of actual cash value. The Division of Insurance will interpret policy provision containing the foregoing or similar language to prohibit deduction of contractors’ overhead and profit, in the calculation of actual cash value, where the dwelling is not repaired or replaced by the policyholder.

Nothing in this bulletin shall be construed as prohibiting the carrier and insured from explicitly agreeing to a different method for calculating actual cash value.

Although this Colorado Division of Insurance bulletin in not binding, in combination with much of the case law around the country, it provides strong support for policyholders’ entitlement to Actual Cash Value payments which include overhead and profit for a general contractor.

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.

In Louisiana, overhead and profit (O&P) is to be paid when repairs involve three or more trades, to cover the expense of a general contractor to coordinate the work. The lawsuit contended the O&P should have been paid to insureds who handled their own contracting. O&P is usually an additional 20% of the repair bill.

Insureds that want to opt-in on the class action settlement must submit a claim form by October 20, 2010.

There is more information at the settlement Administrator's website on how to go about making a claim or opting-out.

The Overhead Fight -- Understanding Business Interruption Claims, Part 8

(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).

Accountants usually define “overhead” as operation costs that are incidental to the production process. Generally, there are three categories of “overhead:”

(1) those directly associated with plant operations such as power, lease costs and insurance;

(2) general selling and administrative costs attendant to the production, sales and delivery of a product; and

(3) costs incurred for the benefit of multiple operating units, including debt service executive management compensation, investor relations costs and corporate advertising (usually larger corporations with individual units or operating entities). 

After a calamity or insured event, category one (1) and two (2) above are typically not the subject of much quandary, insofar as overhead is considered a necessary cost during the Period of Restoration.

Category three (3), however, could give some insurance claims professionals an ulcer, especially in non-manufacturing-business claims, where the overhead cannot be easily tied to a specific production activity. One should expect and prepare for hours and hours of meetings and telephone conversations and debates over the accounting method used to allocate overhead expenses of to the individual business units of a larger corporation, if the calamity is sustained at an individual business unit or operating entity.

As a practice pointer, the insured should always be “at the ready” to argue and prove how the sales (or production) of an operating unit contributes to the general corporate overhead of the organization. Once this is established, the issue is not whether the insured is entitled to recover its fixed overhead expenses, but rather how much should be attributed to the unit or operations affected by the loss. If the company’s accounting and allocation methods directly tie overhead costs to the operating units, the calculator should take care of the amount to be written on the check. However, if the overhead calculation included in a business interruption claim deviates from the normal overhead allocations of the corporation for the affected units, the ulcers will start bleeding until the accounting methods are explained and supported. For this I say, thank God for accountants!

Overhead and Profit Ike Cases in Class Action Status and Gaining Media Attention

Houston Chronicle reporter, Purva Patel, filed an article, "They Want ‘Profits' of Ike," noting that Hurricane Ike policyholders who have wrongfully been denied payments for expected costs of general contractor overhead and profit are bringing their actions in class action lawsuits. Our law firm has filed some of these cases with Javier Delgado taking the lead. Javier was noted in the article:

"Javier Delgado, the attorney spearheading the lawsuits, said many homeowners who don't hire general contractors for their repair jobs don't realize they may be entitled to overhead and profit payments.

“Oftentimes the insurer is leaving it off the estimates completely,” he said, adding that for some homeowners the money can make the difference between making repairs or letting damage deteriorate.

Manuel Quezada, lead plaintiff in the lawsuit against Farmers, said an independent adjuster estimated Ike caused $12,500 in damage to his Sharpstown home.

Farmers made three estimates and, after accounting for a $5,800 deductible, sent Quezada $915 in advance with $3,000 due after repairs were completed.

The advance check wasn't enough to buy the materials, Quezada said, let alone pay for the skilled roofer, fencing contractor and drywall installer needed to make the repairs.

“I had to fix it myself,” said Quezada, who patched up what he could.

But because he couldn't make full repairs, he said, he couldn't recover the additional $3,000.

And because he couldn't prove he made adequate repairs, Farmers dropped its coverage of the house.

“It becomes a self-fulfilling prophecy,” said Delgado, who is representing Quezada in the lawsuit against Farmers. “They don't give him enough to make the repairs, and then they stop insuring him for not making repairs.”

Quezada has since had his roof repaired by a contractor that agreed to await payment from potential proceeds from the lawsuit.

Because Quezada needed to hire three specialists, he was entitled to at least $1,600 in overhead and profits if he acted as his own general contractor, Delgado said, based even on conservative repair estimates."

For those interested in this coverage topic, I have presented seminars and written a paper, "Withholding Overhead and Profit is Wrong if Insurance Companies are Trying to Act Right," for your study.

I noted this in my 2002 paper:

On June 12, 1998, the Texas Department of Insurance issued Bulletin #B-004598, indicating that the deduction of a prospective contractor’s overhead and profit and sales tax, in determining the actual cash value under a replacement cost policy, is improper. The Department noted that the wrongful interpretation of language in the Texas Standard Homeowner’s Policy generated two class action lawsuits and various inquiries to the Department’s position on the matter.

In explaining its reasoning, the Department noted that “there is no situation in which the deduction from replacement cost of depreciation and contractor’s overhead and profit and/or sales tax on materials will be the correct measure of the insured’s loss.”

Further, the Department noted that insurance companies are not allowed to charge premiums in excess of the risk to which they apply. Thus, under a replacement cost policy, the value of the contractor’s overhead and profit, as well as sales tax on building materials, are included in the premium, and if the insurer receives a premium on insurable values which loss may never be paid, “the insurer reaps an illegal windfall.”

Finally, the Department dispensed with the common argument that contractor’s overhead and profit, as well as sales tax on building materials, should be excluded from Actual Cash Value settlements because the insured has not incurred these expenses as illogical:

"Using this logic, an insured who opts not to repair or replace damaged property would not incur any of the expenses necessary to repair or replace the damaged property, including the costs of building materials, and would collect nothing under an actual cash value loss settlement. This result would be contrary to the purposes of the subject insurance policy."

In 2009, this rule still applies, and insurers that violate it can expect to be sued.

"Texas Hold 'Em" #2: Merlin Law Group's Seminar for Texas Public Insurance Adjusters

On June 4, 2009, Merlin Law Group will host the second in a series of seminars for Texas-licensed public adjusters: Texas Hold ‘Em #2—Down to the Nitty Gritty of Adjustment—Nine Months After Ike, at the Hotel Derek in Houston, Texas. Response to the first seminar was very favorable with many public adjusters asking when we would do it again.

The format of the seminar seemed to work very well, so once again we expect this event to be very interactive. The agenda will include the following topics:

  • TWIA Issues – Status of Litigation, Whistleblowers, Overhead & Profit, Flood, Depreciation, Co-operation
  • Causation and Sufficient Proof, Texas-style—It’s Different Here
  • Valuation – Estimates That Have Impact and Hold Up in Appraisal or in Court
  • Update on TAPIA
  • Expert Panelist Analysis—Topics: Wind Speeds, Roof Damage, Wall Damage, Flood vs. Wind Damage, Sliding Glass Door or Window Damage, and Wind-driven Rain

The conference will begin with registration at 7:30 am and conclude at 2:00 pm. To register and receive additional details, you will need to go to www.adjusterlife.com. Please register by May 28, 2009.

This is an invitation-only event for Texas-licensed public adjusters. Be sure to register today, and please bring your Texas Public Insurance Adjuster license with you to the seminar.

It’s been nearly nine months since Hurricane Ike. Both Merlin Law Group and you, the public adjuster, have been working hard to hold insurance companies accountable so that policyholders see the results to which they are entitled.

Merlin Law Group is pleased to once again provide this free seminar as an opportunity to share knowledge we have gained by serving our clients and each other.

Recent Comments Worthy of Posts Regarding Insurance Coverage Issues

Comments are important in the Blogoshpere. What I may or may not write is relevant only if it is important to others. If some wish to comment with views from which we can all learn, progress is made. Sometimes, we do not read the comments to blogs which may be insightful and provide some food for thought. For this reason, I am posting some of those comments which in my opinion provide more provocative thoughts for your review and comment:

In a reply to a comment from a recent post I wrote:

"When reading the post in Slabbed, I felt Slabbed may be "jumping the gun" with Scot Spragins' character. That was my point.

I also know Scot personally from our work against each other in the Katrina matters. Like gunslingers, I expect him to try to beat me fairly, squarely, and by the rules. I enjoy the competition. I do not shy away from that aspect of litigation. It is fun, and I enjoy the study of good trial and litigation techniques.

I hate those that "cheat" in my line of work. It makes the entire process of justice break down when attorneys allow "cheaters" to win. It is a problem with discovery in many Courts, and the judges simply have to allow a more transparent and complete production by defense counsel. Delay and deny information is the technique of the day by insurance counsel because judges are allowing it to go on. We, the Policyholder's Bar, have to do a better job of persuading judges that more complete and faster justice will occur if they will stop being duped into limiting important discovery. Slabbed made a good implicit point on this as well.

I have never found Scot to be the way he was portrayed in the allegations, and I was surprised and saddened by those allegations of his alleged involvement.

From experience, I am not surprised that State Farm has been accused of trying to "pressure" its appraiser. I feel sorry for State Farm's customer, not State Farm."

One agenda of my blog is to provide an honest opinion of what is going on in the insurance coverage and claims field. I could "dump" on insurance companies to gain business, but that would be a false statement about the truth. Such propaganda would just placate those that want to say that insurance companies are bad. In my view, one of the major problems in our modern culture is not giving credit to those with different opinions just because you do not have the same view. We need to have more mature debate as well as transparency about the "elephants in the room" without fear of reprisal.

Slabbed is a great blog. Read it and think. Once in awhile I might think they have gone overboard, but their view is a little different than mine. By reading it, however, you will learn a great deal.

Bruce Smith is an expert we retain on business interruption matters and he is taking me on for debate in a recent comment to a post regarding State Farm. He said:

"First of all a disclosure, in my forensic accounting practice, I have been engaged by both State Farm and policyholders/public adjusters/plaintiff attorneys, to analyze business income and stock loss claims.

Ok..........let's look at the facts on the ground. I have been working with the insurance industry since 1990. Over the years, the number of "legitimate" property carriers in Florida has decreased from a strong group of national insurers to being able to write all of them down on a small post-it notepad.

Now, as it seems, State Farm will be leaving Florida due to a disagreement on the "facts". Both "sides" have their arguments and I'm sure both sides are mixing some truth and some fiction in their respective positions. However, the bottom line is this, Florida is losing one of its last "legitimate" insurers, and what will remain are a group of new, untested insurers that, although I do not own a crystal ball, will likely end up in receivership after the first major or maybe "semi-major" disaster that WILL be coming our way.

Just let the free market work and if State Farm does not provide VALUE to the policyholder...guess what... the potential policyholder will look elsewhere for it coverage..."

 I wrote back:


We need more good insurance companies. We do not need those that fail the public trust--no matter what the cost.

What do you mean a "free market?" Do you mean similar to the financial "free market" that made the credit default swaps? I want no part of a "free market" like that.

Historically, there is antitrust exemption contained in the 1945 McCarran Ferguson Act, which placed responsibility for insurance regulation with the States. Thus, insurers are permitted to engage in certain joint data collection, price trending, and form and policy development activities. That law makes possible rating organizations such as the Insurance Services Office, the National Council on Compensation Insurance and the American Association of Insurance Services where information can be shared among competitors.

Do you want a free market where competitors can price fix and engage in monopolistic practices? I assume not, but that was the "free market" in the late 19th Century.

I know you went to the same economics classes I went to. Where anti-trust laws do not apply, the consumer, in the long run, does not get the best price in a free market because the market can collude to price fix.

Since the insurance industry bargained for the state regulation of rates in return for exemptions of the anti-trust regulations, it is absurd to know say that this is a "free market" initiative or a bad deal for the insurance industry. They bargained for it.

This proposed law is all about State Farm getting to have its cake and eat it too."

He replied: 

"My comment on free market was meant to connote the government letting a business decide what it chooses to charge for its goods or services, not government mandating what they believe is the value of those goods and services and subsequently instructing what the company can charge. Is there a possibility of abuse by the company (price fixing...)? Yes, as you suggested, there is a potential for that to happen.

Now let's now get to the facts on the ground....and the $$ affect on the Florida policyholders. When I started my forensic accounting business in 1992, there were numerous large property and casualty insurers in Florida. Now there are few and soon to be fewer.

Chip, please explain why have so many large insurers left the State of Florida? I'd like to hear your opinion and then I'll reply with mine."

I will have a correct explanation to his question and put this to rest, but weekends are for relaxing. I am in no mood to think about the economics of insurance markets when the much more important NFL Draft has my full analytical attention.

Regarding Overhead and Profit, I am going to soon devote a full post to this comment and question:

"The insurance carriers do not pay O&P on roof replacement when a general contractor is not involved stating it is because there is only one trade involved.

Where did that come from and is it true that when the insurance co. calculates the premiums that they account for O&P in that calculation?"

For those who want 90% of the right answer, our website has the following paper I wrote on the topic a long time ago, Withholding Overhead and Profit is Wrong if Insurance Companies are Trying to Act Right.

Finally, my first legal assistant I hired in 1985 when I left Butler Pappas, with nothing, wrote in response to my post, A Few (four, and there are more) Suggestions From One In the Muck of 2009 Insurance Claims and Controversies:

"Wow, Mr. Merlin, you sure work hard.

Sure has paid off though. :)


She sure knows how to bring me back home and appreciate where I am from. It is an important lesson. All comments and thoughts can be important if we just do not close our minds. In response, I wrote:

"You got me. I was wrongly feeling sorry for myself after a long day.

Thanks for calling me on it."

I appreciate you reading through all this. We can all learn from sharing ideas and thoughts. While I study and practice in this field for a living, I hope you will share your ideas and call me on those when you feel I am wrong. We all learn when we are not afraid to express ideas.