Property Insurance Coverage Law Blog : Florida Insurance Lawyer & Attorney : Merlin Law Group Law Firm : Tampa, Houston, Coral Gables, Gulfport

The reason why it is important to go to seminars is get an edge and tips about your practice. I will go over cases and what the judges say. Still, the value of attending is to hear the practical analysis and how these cases can be used by adjusters, public adjusters, attorneys and others in the practice of their respective trades.

Here are the cases and the outline. I will be giving a similar speech in Houston at the Windstorm Conference, January 24-27. 2011. I promise that if you attend, you will come away with some practical tips you can use to help your clients--whether insurers or policyholders.
 

In March, I posted Texas Windstorm Insurance Network Symposium Set May 11 in Dallas. This is merely a reminder to attend a very exciting seminar regarding windstorm adjusting. Steve Pate and I promise to provide valuable practice tips to insurance and policyholder representatives.

Click here to Register.

Appraisal is an often debated topic in Texas. The Symposium will host a special class devoted to Certification of Umpires in the Appraisal process. For those actively participating as or wishing to be appointed as Umpires in Texas appraisals, you simply cannot miss the opportunity to enroll in this class.

WIND Umpire Certification®

This workshop will provide the necessary certification to any¬one who wishes to be included in the Windstorm Insurance Network Umpire Directory. The first segment will focus on eth¬ics and professionalism as an umpire in the appraisal process. Case law will be the subject of the second segment. The final segment will address forms and awards.

Faculty: Janet L. Brown, Esquire, Boehm, Brown, Fischer, Harwood, Kelly & Scheihing, P.A.; John Voelpel, Voelpel Claim Service; Jon Doan, Claims Consulting Group; Dick Tutwiler, Charles R. Tutwiler and Associates; Javier Delgado, Esquire, Merlin Law Group.
REQUIREMENTS: Space is limited to the first 100 registrants.

This is a double-session, Part 1 and Part 2 MUST be taken together.

Javier Delgado and Tina Nicholson have been writing on Texas insurance issues every week in this Blog. Tina addressed Texas appraisals in Recent Court Decision in Texas Regarding Appraisal. Javier is on the Umpire panel for this symposium and will certainly address some of the new issues that are being raised since State Farm Lloyds v. Johnson was decided last year by the Texas Supreme Court.

A highlight of the Symposium and session that nobody will want to miss features two stellar panelists. Fortunately, there is no limit to the registrant size of that workshop:

Gulf Coast Insurance Case Law Update: Texas, Mississippi, and Louisiana

This workshop will discuss and review recent property insur¬ance case law from Texas, Mississippi, and Louisiana. It will include interpretations of how courts in the various states are ruling on insurance related issues. Developments in the three states that take up the western part of the Gulf will become more and more important as the impacts of storms such as Ike, Gustav, and even Rita and Katrina become important on the legal landscape. This panel, composed of a policyholder and a carrier’s attorney, will update you on the latest legal develop¬ments in Texas, Mississippi, and Louisiana and also provide a lively debate on whether the trends are pro-insured or pro-carrier.

Faculty: William “Chip” Merlin, Jr., Esquire, Merlin Law Group; Stephen Pate, Esquire, Fulbright & Jaworski LLP

Dr. Robert Hartwig of the Insurance Information Institute, recently provided a presentation to the National Association of Mutual Insurance Companies. He indicated that Hurricane Ike was the fourth most costly insured catastrophe in the United States and the third most costly hurricane. Hartwig’s statistics indicate that Hurricane Ike resulted in approximately 1,350,000 insurance claims. As this symposium is taking place in Texas, I am sure the material will be especially relevant to adjusters and attorneys dealing with current windstorm claims issues. Don't miss it.

The agenda is listed here.

Barth is a dynamo and runs the Hospitality Law Conference. He convinced me that I needed to participate, become somewhat of a legal sponsor and speak at the 2010 Conference in Houston. It is a wonderful conference. I highly recommend that general counsel, risk managers, loss prevention managers, franchisees, developers and outside counsel of hotels, resorts, condo hotels, timeshare rentals, restaurants, bars and other businesses that provide a place to eat or stay attend this very specialized legal conference.

Many plan details of their travel agenda and logistics far in advance. Not me. I was surprised when I found out yesterday afternoon that this conference was at the Omni Hotel next to our firm’s Houston office. The professional and friendly Omni Hotel staff has come to know me over the past year, and they were laughing that I was speaking at “their” type of conference.

The insurance considerations that pertain to the hospitality services industry are extraordinarily unique and complicated. The risks and operations of these businesses require study by professionals to appreciate how the insurance should be placed and property insurance claims handled. I can appreciate that many of the lawyers attending this conference devote their entire practice to the myriad of significant legal issues facing the operators and owners of these businesses. I can also appreciate the need for insurance agents and brokers who specialize in only this industry. Without such specialization, insurance brokers and agents would be much more likely to sell insurance coverage with gaps, leaving hospitality policyholders uninsured or underinsured.

My presentation was the “Insurance Litigation Survey.” I presented trends and lessons from recent hospitality property insurance cases. My co-panelist, David Shaneyfelt, taught about third party liability coverage. Just as last week at the Windstorm Conference, we presented practical points from cases rather than explaining legal reasoning. While I could cite from the eight case examples, this post will be a lot more important to most if I provide an outline of the points:

I. Insurance Disputes can be voided if Proper Coverage is Purchased.

A. Get an insurance agent or broker who thoroughly understands the hospitality industry. Most owners are not aware of all the risks facing them and needed coverages to properly insure their business. Most have little knowledge of or appreciation for the impact of exclusions and limitations contained in policies.
B. Develop and demand that the agent thoroughly review your particular business and push your agent to do so with letters and agreements setting forth exactly the type of relationship and service expected, the broadness of coverage desired, and the thoroughness of value investigation needed to be fully and safely insured.
C. Most property underinsured and uninsured situations occur because of:

1. Improper values for replacement/reconstruction.
2. Wrong ownership/title/ipterest on the Policy
3. Not covering all the property—some do not appreciate that many coverage forms exclude certain types of property or limit recovery. Endorsements or separate stand alone policies are often needed to have all the insurable property actually insured.
4. Inclusive coverage of all perils. For example, flood and earthquake are often not covered under a standard form, but may be insured through a difference in conditions policy. Economic loss arising from criminal or fraudulent conduct may have to be insured under various Crime Forms.

II. Trends of Concern Where Coverage and Claims are at Issue:

A. Occupancy and Vacancy clauses must be met or losses otherwise covered may be excluded. See my post FC&S Warns Agents and Policyholders to Watch the Vacancy Exclusionary Clause.
B. Post loss duties have time limits with harsh penalties in some states if not timely met.

1. Provide timely notification of a loss.
2. Proofs of loss time frames should be met or extended in writing.
3. Hire experts to segregate covered amounts from uncovered perils.
4. With any significant loss, consider whether the causation sequence could lead to a possible excluded loss. Hire coverage counsel if the insurer starts investigating anything other than value. Concurrent causation clause interpretations in some states provide insurers an incentive to retain engineers and experts to opine a cause or result of the loss is excluded.

III. Insurers are Starting to Place “Dispute” Clauses into Contracts. Check for:

A. Choice of law agreements.
B. Choice of forum for litigation.
C. Arbitration agreements.
Many of these are invalid under state insurance codes. However, many state insurance code protections do not apply to surplus lines policies. These types of provisions are becoming very common in excess or layered policy formats. Demand that these not exist and list that request to the agent or broker. The law where the property exists is usually the best because that is typically how the property is being underwritten and expected to be adjusted when calculating premium.

IV. Claims Practice Lawsuits are increasingly brought by Commercial Policyholders Following Delay and Partial Denial

A. Insurers increasingly are taking more time and denying parts of claims—even to the largest of clients. My post Large Complex Losses Invariably Suggest that the Policyholder Hire Licensed Professionals shows that even the business insurance media have surveyed support for this claims trend.
B. Document every person, activity, verbal promise, and statement made by the insurance company representative and consultants.
C. Obtain independent valuations promptly.
D. Obtain lines of credit to repair and operate because insurers may be slow to pay partial losses or will hold those to leverage or bargain for agreements lowering benefits otherwise owed.
E. Claims practice actions (wrongly dubbed “bad faith” lawsuits long ago) can often be brought to provide compensation for the various wrongful conduct by claims departments that refuse to do their job in good faith. Extracontractual losses and expenses are often incurred by businesses when the insurance company adjustment performance is delayed and otherwise wrongful.

The only economic incentive most insurers have today to provide a sufficient number of trained and motivated adjusters that will promptly investigate the loss and evaluate the damage so that the policyholder will be promptly paid the full amount of the benefits the insurance product was designed to provide is to have such “bad faith” claims brought and hold insurance companies accountable when they fail to properly perform.

Do not support Chamber of Commerce efforts to repeal laws that provide for such lawsuits because they hurt businesses and support notions that people should not be responsible for the harm they cause when they break rules they promise to perform. What kind of society would we have if rules could be broken and nobody accepted personal responsibility? Insurance industry interests in the Chamber of Commerce are behind some of these recent lobbying efforts, but such efforts are bad for corporate and business policyholders.

The last point I made was highlighted by reported hospitality case decisions. It was supported by the panel presentation that followed me. Further, I had a friend and very able colleague in the audience, Gary Thompson, who represented a large hotel chain at trial last year. The hotel chain won a $24 million verdict after litigating a partially denied claim. This major hotel chain actually did the reconstruction at its own expense and the insurer still would not honor its obligation. There are not many businesses that can go out and finance $24 million worth of construction in today’s business climate. Imagine how much leverage an insurer has to force a wrongfully compromised settlement upon a business when that business was only requesting the benefit it purchased: full and prompt payment for a covered loss. Knowing of that matter, I used his real life situation to demonstrate what is going on in the field during many claims adjustments.

I will write a separate post about the following panel lead by the excellent Arthur J. Gallagher hospitality insurance broker, Wes Brandt. If any insurance adjuster thinks that my rhetoric is pointed about the current condition of commercial claims practices, they should have been in the audience when Brandt and his panel delved into this topic. 

Here is what he has to say:

Background

I have been very involved over the past two years in conducting forensic engineering investigations for public adjusters, attorneys and individual policyholders that have had and are still having problems with their roofs from the effects of Hurricane Wilma, particularly in Palm Beach, Broward, and Dade counties. I have conducted over 500 such investigations in the past year and half. In this work, I have also reviewed dozens of "engineering reports" prepared by licensed Florida Professional Engineers on behalf of their insurance company clients. As a result, I have written over 80 effective rebuttals of their work which generally can't stand up under scrutiny.

In many cases, a homeowner gets one of these reports and not being a skilled professional reads the report and gives up on proceeding with a claim. Probably for the 500 such clients I have worked for there are thousands more homeowners that read the "engineer's report" prepared on behalf of their insurance company and just gave up. I probably am just working the tip of the iceberg.

In particular, the engineers and the different casualty companies all come up with the same reasons for why damage observed is not a result of hurricane actions and all use the "same" reasons. It would seem that they all got together and decided to tell the "same" story.

As you may recall, in 2005 Hurricane Katrina first crossed the Florida peninsula before making landfall in the Gulf Coast region. In October, 2005, Hurricane Wilma made a path from just south south east of Naples traveling northeast and exiting the state just north of West Palm Beach. It was a large storm and during its transit produced many strong wind gusts that reached from 100-110 MPH that lasted for a brief period.

As a result of the impact of Hurricane Katrina on the Gulf Coast, most Florida based adjusters were dispatched there. After Hurricane Wilma produced widespread damage to southeast Florida, adjusters were brought here from many different locations throughout the US. In many cases, these adjusters had very little knowledge of the construction of tile roofs that were mortar adhered or mechanically fastened with nails or screws. Also, I know, based on discussions with homeowners, many insurance adjusters did not even look at the roofs and offered small sums for "repairs" or told them the problem was "wear and tear" and not covered by their policy.

There are literally hundreds of thousands of tile roofs that were either mechanically fastened with nails or screws and adhered to the roof with mortar patties that were affected by this storm.

The result for mechanically fastened tile roofs is that the lifting action of the wind gusts move the nails creating leak points into the roof or the mortar patties are un-bonded in a particular pattern that occurs on the roof. This empirical evidence is supported by research conducted by the International Hurricane Research Center at Florida International University.

Un-bonded mortar roofs will be flying missiles in the next storm. Due to the slow nature of the leaks from mechanically fastened roof, evidence of the failure will ultimately show up in the house's interior first as stains on the ceiling. This latter effect is a slow process and droughts in 2006 and 2007 have delayed the occurrence of these symptoms.

However, insured clients only have till October, 2010 to make a claim as the statutory limit of 5 years after the storm comes into play.

I can assure you there are going to be many hundreds of thousands of policy holders that are going to be left holding the bag as a result of what appears to be collusion on the part of the insurance industry and the apparently complicit licensed Professional Engineers that work for them.

I have encouraged many clients to file complaints with the Florida Board of Professional Engineers regarding these "engineering reports". To date, the Board has done nothing that I am aware of. As a result of this experience, I am disgusted and ashamed to say that I am a licensed Professional Engineer having been so for the past 33 years.

Proposal For Action
This will be a two pronged approach.

First, We will be developing a web site with multiple domain names directed to it relating to individuals that have had claims denied, improperly settled, or gave up after getting the insurance company's "engineering report". The goal will be to identify such individuals for a potential class action and provide incentive for political action. We will gather names, addresses, contact info, claim information/denial/partial settlement info etc. for a potential class action described below.

Second, another action would be to obtain a ground swell of support by homeowners, public adjusters and attorneys working for claimants to extend the 5 yr. statutory limit for Hurricane Wilma claims by say.....two more years as a result of the 2006 and 2007 droughts and pursue this through the Legislature.

Potential
Casualty Insurance Action
In Florida
related to Hurricane Wilma

Possible Claim and Action:
Fraud and collusion to commit fraud

Global Allegation:
The casualty insurance industry has apparently acted in a manner to defraud its clients of full and proper payment of their rightful claims under their policies for damages incurred from Hurricane Wilma. This includes directions to employees and adjusters to not fully investigate claims, offer minimal settlements for such claims and collude with Florida licensed Professional Engineers they retained in order to deny claims on the basis of fallacious reasons for damage observed.

Specific Allegations:

1. Adjusters were employed that were knowingly not competent to assess damages being adjusted and/or were directed to not investigate damages including not assessing roofs for damage and to offer minimal settlements to clients while assuring clients that such funds offered was sufficient to “repair” damages.
2. Florida licensed Professional Engineers were engaged by the industry and encouraged and/or directed to offer assessments of damages that would result in limited or minimal settlements for roof damages by unsubstantiated allegations of reasons for damages observed that were not related to Hurricane Wilma. Such unsubstantiated reasons include but are not limited to “foot traffic”, “wear & tear”, “thermal expansion”, “improper installation”, etc.
3. Many casualty insurance companies have resisted or refused to open or reopen claims for damages from Hurricane Wilma that are now showing effects of damages from Hurricane Wilma which in many cases result from insufficient settlements for damages and/or their apparently fraudulent efforts to limit initial claims by not properly assessing damage or assigning unfounded reasons for damages in order to limit the financial effect on the companies.

One of the interesting aspects of this conference is the varied opinions of the attendees. I was speaking with an insurance defense attorney who told me that he implores his clients to come to this conference, rather than the PLRB, because the adjusters and claims managers can hear the other side of an issue and anticipate or develop a response.

I am certain that many will disagree with Bruce Holmes. On the other hand, I am quite certain many agree and are pondering how to deal with the issues he has raised.

I will be speaking on Wednesday afternoon in two sessions involving the same topic, "Gulf Coast Case Law Update: Texas, Mississippi, and Louisiana." The recent case decisions from these three states have many practical applications for adjusters and claims managers. I look forward to the banter and discussion that will undoubtedly occur between myself and my co-presenter, insurance defense attorney, Steve Pate of the Fulbright Jaworksi firm in Houston.

Michelle Griffin has reported that there are over 1300 registrants for the Conference. Our firm is sponsoring the Opening Reception tomorrow night and I hope to see you there.

On another note, Corey Harris who has been blogging every Saturday regarding Proofs of Loss and other post loss obligations, was at the 2010 Community Association Law Conference in Tucson this week. Corey specifically went to the insurance related seminars and events and has promised a report on developments of Condominium and Association insurance.

I plan on reporting in this blog regarding the events, speakers and practical aspects of what the members of the firm learn from the conferences we attend. I have found there is very valuable subtle knowledge shared and learned at conferences such as these. In our firm, we discuss those ideas and knowledge to better serve our clients.

Professionals and those wanting to be the best in a chosen field typically go to such events. I encourage those who want to be the best to do so. For potential clients deciding upon any professional to hire, I suggest looking into whether the professionals you are considering for have such dedication.

I wrote about Frank Artiles in Merlin Law Group Hosting Public Adjuster Ethics Seminar Followed by a Political Fundraiser for a Public Adjuster Running for Public Office and noted:

“Imagine if our legislatures had truly knowledgeable insurance consumer advocates. Do you think the insurance industry would have tried to pass laws in Texas and Florida that allowed insurance rates to unfairly rise or allow immunity for wrongful conduct after a loss occurs like TWIA is attempting in Texas?

By electing Frank Artiles, a Florida public adjuster, for the Florida House of Representatives in South Florida, I don't see those kinds of things happening. My law firm is dedicated to helping this become a reality, and we need your help.
…
You never know what can happen in life until you try. We need your help on this endeavor for Frank.”

As a personal philosophy, I believe in that highlighted sentence and applaud a true consumer advocate for taking the jump into politics. Frank Artiles is engaging, with strong conservative beliefs and a true sense of the need for accountability. Please join us next Tuesday night.

This is not the first time that Berk's firm has obtained a zero verdict for QBE. Yesterday, I noted a number of case decisions involving QBE in my post, QBE Lawsuits are Unilaterally Redefining Property Insurance Law Coverage Cases in Florida. Berk also noted that QBE may have not obtained zero verdicts in other lawsuits but still offered more than what was obtained through trial. Sometimes, newspapers only report that a party won a civil lawsuit without reporting that the winner may have lost because it turned down a better pre-trial settlement.

Being Fair And Balanced, I am reporting this result because it represents a significant win for QBE against a trial attorney for whom I have a great deal of respect. As I learn more about this case, I will report on it.

My suggested thought for those not certain if a settlement offer is fair:

PIGS GET FAT, HOGS GET SLAUGHTERED!

If you are involved in hurricane claims in any manner, you need to register and go to the 2010 Windstorm Insurance Conference. It will be held from January 25 through 28, at the Hyatt Regency Riverfront in Jacksonville, Florida. It is the only Conference devoted solely to windstorm insurance issues.

The Conference has special training sessions for those seeking Umpire Certification in appraisal disputes. There is also a special Flood Adjusters program leading to certification as well.

The bottom line is that the Conference offers valuable instruction on how to handle windstorm insurance claims from a number of different perspectives. If you want to know what the top people working in the insurance industry are doing, go to this conference.

A January 6, 2010 article in Claims Magazine, "Conference Preview: Go With the Wind," had an interesting question and answer section with the Executive Director of the Windstorm Network, Michelle Griffin:

What sessions/speakers are you most excited about this year?

We offer a fresh group of workshop topics each year, which is a source of excitement and pride for us. This year is no exception. The presenters and educators leading the workshops are among the top in our industry. Each of our 30 workshop classes will be fair and balanced, with at least one representative from the insured/plaintiff side and another from the carrier/defense side. Our general session speakers will offer a range of topics to appeal to varied professional backgrounds. Aside from the new classes, we always strive to offer additional continuing education credits for as many states and professional organizations as possible.

Last year, you noted that the Umpire Directory and Certification Program was an area you desired to expand. Have you made headway?

Our WIND Umpire Program is constantly evolving to reflect industry needs. In fact, we’ve made some updates and additions to the WIND Umpire Directory, which we will be announcing at the conference. Long term, we are analyzing ways to move the program forward to reflect industry changes and concerns. I expect these areas to be announced in the near future.

What’s the typical profile of a Windstorm Conference attendee?

Our attendees come from all facets of the insurance industry, from senior management to the independent adjuster. Attorneys, engineers, underwriters, contractors, as well as other related professions attend the WIND Conference to obtain information about industry trends and accumulate continuing education credits. This year marks our 11th annual conference, and it’s important to note that in such a short time, it has become a national event, attracting professionals from more than 35 states and Canada, and England. About 1,400 professionals from all areas of the windstorm insurance industry attended last year’s event.

In what areas of training are you seeing the most demand?

We are always listening to our members and attendee suggestions for classes, and of course we keep abreast of industry hot topics in order to offer relevant and timely educational sessions. One topic in particular is estimating software training. Each year, new claim professionals join our organization and seek out training about how to use the most widely employed estimating software programs. We also receive feedback to provide better training about general claim issues, for a range of experience levels, from the beginner to the well-seasoned professional. These areas include scoping property damage, large loss adjusting, sink holes, and appraisal/umpire training.

I was a little disappointed that she did not feel that my seminar topic, "Gulf Coast Case Law Update: Texas, Mississippi, and Louisiana," was one of the more exciting workshops. Compared to the "Advanced Building Code Update," my seminar presentation with co-presenter, Steve Pate, will be thrilling. Just show up, and you'll see why. 
 

The Conference has special training sessions for those seeking Umpire Certification in appraisal disputes. There is also a special Flood Adjusters program leading to certification as well.

The bottom line is that the Conference offers valuable instruction on how to handle windstorm insurance claims from a number of different perspectives. If you want to know what the top people working in the insurance industry are doing, go to this conference.
 

There are two recent and very interesting posts regarding hurricanes worth reading. One is found on Dr. Jeff Masters' WunderBlog regarding storm surge misconceptions. Everybody should read this important discussion of storm surge. Dr. Master’s correctly noted:

The storm surge is usually the most dangerous threat of a hurricane. The ten deadliest U.S. hurricane disasters, including the Galveston Hurricane of 1900 (8000 killed), the Lake Okeechobee Hurricane of 1928 (2500 killed), and Hurricane Katrina of 2005 (1833 killed), were all primarily storm surge disasters.

He then listed and discussed a number of storm surge misconceptions:

Misconception: Call 911 and you can be rescued, while the water is pouring into your home.
How? No one will be able to get to you. Water rises quickly--sometimes six to ten feet within minutes; cars can't drive in it, and it is usually unnavigable by boats when it is coming ashore.

Misconception: Just stuff towels under the door jambs. Then rush around to start picking up things that are close to floor level, so you can save them.
Bad idea. In a minute or so the surge will burst open the door, and instead of standing in a room with four inches of water, you'll be knocked off your feet and into whatever piece of furniture is closest, and will suddenly be in three or four feet of moving water that you can't make any headway into...just before the refrigerator, quickly rushing through the water towards you, knocks you cold.

Misconception: You'll be able to maneuver around in the rushing water.
Probably not. Some people who drowned were not even able to get out of the room they were in, when the water started pouring into the home. The speed of water in surge can be equivalent to a Class III or IV rapids (Class V is hardly navigable by expert kayakers and canoers, and Class VI is not navigable at all).

Misconception: You'll know in time.
The surge is usually not a wall of water as is often assumed, but rather a rapid rise of water of several feet over a period of minutes. It can sneak in unexpectedly, on little cat feet. Most people that were not completely taken by surprise simply happened to look out the window at the right time.

Misconception: You can outrun the storm surge in your car.
Here's an email I got last year from a resident in the Florida Keys who ignored the evacuation order for Hurricane Ike in 2008: I hate to bother you again, but we live on Marathon in the Florida Keys on the Atlantic side, and my husband says that if we see water coming up from storm surge and have an inch of water in our house, that we can outrun the storm surge in our car. Can you please tell me if there is any way this can possibly be true? P.S., I don't know of anyone who lives down here who is planning on evacuating for Ike. Everyone says they are staying. If you wait until the water is an inch high before trying to outrun the surge, the odds are that the surge will rise to over a foot high before you get your car out of the driveway. If the water is a foot high, the typical 10 - 15 mph speed of the storm surge's current has enough force to sweep a car away. In many places along the coast, there is only one road out of a low-lying region prone to storm surges, and the surge will cut off one's only escape route. The Keys have only one road, and the storm surge will likely be moving perpendicular to the road, cutting off the only escape route. One of these days, there are going to be a lot of people who fail to evacuate caught and killed in the Keys by the storm surge from a major hurricane.

The other post, Tornado Threat Increases as Gulf Hurricanes Get Larger, verifies a number of observations that a Guest Columnist, Rocco Calacci, has made in six previous posts to this Blog. Those posts are:

1. Is The Saffir-Simpson Scale Still Relevant
2. Hidden Causes of Hurricane Damage: Meteorologist Rocco Calaci Explains That Hurricanes Are More Than Just High Winds And Water
3. Part 2: Hidden Causes of Hurricane Damage: Meteorologist Rocco Calaci Explains That Hurricanes Are More Than Just High Winds And Water
4. A Call To Reassess How We Gauge Damage From Hurricane Winds
5. Rocco Calaci Questions Current Models Used to Determine Wind Damage
6. Tropical Storm Erika? - Rocco Calaci Gives His Plain-Talk Interpretation of the National Hurricane Center Bulletin

Rocco will be giving an update on the wind speed data this Friday at our seminar, Hurricane Ike--What a Difference a Year Makes, on September 11, 2009. The Insurance Journal article noted:

Currently, it's well known that when hurricanes hit land, there's a risk that tornadoes may form in the area. Until now, no one has quantified that risk because observations of tornadoes were too sporadic prior to the installation of the NEXRAD Doppler Radar Network in 1995. Belanger along with co-authors Judith Curry, professor and chair of the School of Earth and Atmospheric Sciences at Tech and research scientist Carlos Hoyos, decided to see if they could create a model using the more reliable tornado record that's existed since 1995.

The model that they developed for hurricane-induced tornadoes uses four factors that serve as good predictors of tornado activity: size, intensity, track direction and whether there's a strong gradient of moisture at midlevels in the storm's environment.

"The size of a tropical cyclone basically sets the domain over which tornadoes can form. So a larger storm that has more exposure over land has a higher propensity for producing tornadoes than a smaller one, on average," said Belanger.

While some may suggest that tornado activity is well accepted, I have sat across from Dr. Max Mayfield and debated this topic at a Windstorm Conference. The better the measuring devices are becoming, the better we understand how some very unique strong winds and gusts are more prevalent than previously thought in hurricanes.

Following my post, Umpires Following Unfavorable Appraisal Awards May be Subject to Suit, I wrote one of the most active umpires in property insurance appraisals and a teacher in the Umpire Program, John Voelpel. Voelpel is one of the busiest property insurance umpires in Florida. He was part of a roundtable discussion on “Umpires and Umpiring” at the Florida Association of Public Insurance Adjusters 2009 Annual Convention. I asked John if there were any written procedures regarding the appraisal process. He indicated no, but directed me to the Wind Umpire Directory.

The Wind Umpire Directory has been widely distributed to judges in the coastal areas of the United States and to the members of the Windstorm Network. It lists certified umpires and is a far better source for a policyholder find an umpire than a list provided by an insurance company. The appraisal procedures explained in the Wind Umpire Directory are rather basic and barely more than what is written in standard insurance policies:

What is the appraisal process?

The appraisal process is a contractual process for resolving valuation issues. Appraisal provisions have been included in insurance contracts for over 100 years. Most appraisal clauses in insurance contracts provide that if the insurer and the insured cannot agree on the value of the property or the amount of the loss, either party may make a written demand for an appraisal. Each party then selects their own appraiser and the appraisers perform their own independent evaluation. Prior to the evaluation, the umpire is selected by the appraisers or the Court is petitioned to appoint an umpire. If the two appraisers can agree on the value of the property or the amount of the loss, that amount is established and the process is concluded. If they cannot agree on the value of the property or the amount of the loss, then the matter is submitted to the Umpire for resolution. The Umpire’s decision becomes binding only by a majority agreement (2 of 3).

The most admirable work other than the teaching Voepel and others have done with the Windstorm Network has been to develop an Umpire Code of Ethics. More than anything else, this Code of Ethics provides some semblance of fairness to the individual required to be the “judge” of this very informal and important process. While not truly a judge, an umpire’s powers in the appraisal process cannot be overstated. The individuals that painstakingly worked on the Code should be proud--as should the Windstorm Network. I should point out that this Code is copyrighted.

The Code of Ethics for Umpires in Insurance Appraisals^© was prepared in 2004 by the Umpire Directory Committee of Windstorm Insurance Network, Inc. The Officers and Board of Directors approved the Code on August 3, 2004. Pursuant to the Bylaws of the organization, the Code was adopted by the members at the Annual Business Meeting in February 2005, at the annual Windstorm Insurance Conference. The Code was revised in September 2007.

I encourage all to read the Code in its entirety. I think the most important provisions of the Code are:

PREAMBLE:

The use of appraisal to resolve insurance disputes has grown extensively. Persons who act as Umpires therefore undertake serious responsibilities to the public, as well as to the parties. Those responsibilities include important ethical obligations.

…

Although most proceedings are Appraised pursuant to an insurance contract and voluntary agreement of the parties, certain disputes are submitted to Appraisal by the Court. In all such cases, the persons who have the power to decide should observe fundamental standards of ethical conduct… Umpires, like judges, have the power to decide cases. However, unlike full-time judges, Umpires are usually engaged in other occupations before, during, and after the time that they serve as Umpires. Often, Umpires are purposely chosen from the same trade or industry as the parties in order to bring special knowledge to the task of deciding the pending issues. This Code recognizes these fundamental differences between Umpires and judges.

…

CANON I. AN UMPIRE SHOULD UPHOLD THE INTEGRITY AND FAIRNESS OF THE APPRAISAL PROCESS.

A. An Umpire has a responsibility not only to the parties but also to the process of appraisal itself, and must observe high standards of conduct so that the integrity and fairness of the process will be preserved. Accordingly, an Umpire should recognize a responsibility to the public, to the parties whose rights will be
decided, and to all other participants in the proceeding.

B. One should accept appointment as an umpire only if fully satisfied:

(1) that he or she can serve impartially;

(2) that he or she can serve independently from the parties, potential witnesses, and the appraisers;

(3) that he or she is competent to serve; and

(4) that he or she can be available to commence the appraisal in accordance with the requirements of the proceeding and thereafter to devote the time and attention to its completion that the parties are reasonably entitled to expect.

C. After accepting an appointment and while serving as an Umpire, a person should avoid entering into any business, professional, or personal relationship, or acquiring any financial or personal interest, which is likely to affect impartiality or which might reasonably create the appearance of partiality. For a reasonable
period of time after the decision of a case, persons who have served as Umpires should avoid entering into any such relationship, or acquiring any such interest, in circumstances which might reasonably create the appearance that they had been influenced in the appraisal by the anticipation or expectation of
the relationship or interest. Existence of any of the matters or circumstances described in this paragraph C does not render it unethical for one to serve as an Umpire where the parties have consented to the Umpire's appointment or continued services following full disclosure of the relevant facts in accordance
with Canon II.

D. Umpires should conduct themselves in a way that is fair to all parties and should not be swayed by outside pressure, public clamor, and fear of criticism or self-interest. They should avoid conduct and statements that give the appearance of partiality toward or against any party.

…

F. An Umpire should conduct the appraisal process so as to advance the fair and efficient resolution of the matters submitted for decision. An Umpire should make all reasonable efforts to prevent delaying tactics, harassment of parties or other participants, or other abuse or disruption of the appraisal process.

…

H. Once an Umpire has accepted an appointment, the umpire should not withdraw or abandon the appointment unless compelled to do so by unanticipated circumstances that would render it impossible or
impracticable to continue. When an Umpire is to be compensated for his or her services, the Umpire may withdraw if the parties fail or refuse to provide for payment of the compensation as agreed.

...

Umpires do not contravene this Canon if, by virtue of such experience or expertise, they have views on certain general issues likely to arise in the Appraisal, but an Umpire may not have prejudged any of the specific factual determinations to be addressed during the Appraisal.

During an appraisal, the Umpire may engage in discourse with the parties or their counsel, draw out arguments or contentions, comment on the law or evidence, make interim rulings, and otherwise control or direct the appraisal. These activities are integral parts of an Appraisal…

CANON II. AN UMPIRE SHOULD DISCLOSE ANY INTEREST OR RELATIONSHIP LIKELY TO AFFECT IMPARTIALITY
OR WHICH MIGHT CREATE AN APPEARANCE OF PARTIALITY.

A. Persons who are requested to serve as Umpires should, before accepting, disclose:

(1) any known direct or indirect financial or personal interest in the outcome of the appraisal;

…

(4) any other matters, relationships, or interests which they are obligated to disclose by the agreement of the parties, the rules or practices of an institution, or applicable law regulating umpire disclosures.

B. Persons who are requested to accept appointment as Umpire should make a reasonable effort to inform themselves of any interests or relationships described in paragraph A.

C. The obligation to disclose interests or relationships described in paragraph A is a continuing duty which requires a person who accepts appointment as an arbitrator to disclose, as soon as practicable, at any stage of the appraisal, any such interests or relationships which may arise, or which are recalled or discovered.

...

E. Disclosure should be made to all parties unless other procedures for disclosure are provided in the agreement of the parties, applicable rules or practices of an institution or by law.
…

CANON III. AN UMPIRE SHOULD AVOID IMPROPRIETY OR THE APPEARANCE OF IMPROPRIETY IN COMMUNICATING WITH PARTIES.

…

B. An Umpire or prospective Umpire should not discuss a proceeding with any party in the absence of any other party, except in any of the following circumstances:

(1) When the appointment of a prospective Umpire is being considered, the prospective Umpire:

(a) may ask about the identities of the parties, counsel, or witnesses and the general nature of the case;

and

(b) may respond to inquiries from a party or its counsel designed to determine his or her suitability and availability for the appointment. In any such dialogue, the prospective Umpire may receive information from a party or its counsel disclosing the general nature of the dispute, but should not permit them to discuss the merits of the case.

C. Unless otherwise provided in this Canon, in applicable arbitration rules or in an agreement of the parties, whenever an Umpire communicates in writing with one Appraiser, the Umpire should at the same time send a copy of the communication to other Appraisers.

CANON IV. AN UMPIRE SHOULD CONDUCT THE PROCEEDINGS FAIRLY AND DILIGENTLY.

A. An Umpire should conduct the proceedings in an even-handed manner. The Umpire should be patient and courteous to the parties, their representatives, and the witnesses; and, he or she should always encourage similar conduct by all participants.

B. The Umpire should allow each Appraiser a fair opportunity to present its evidence and arguments.

C. When the Umpire determines that more information than has been presented by the parties is required to decide the case, it is not improper for the Umpire to ask questions, call witnesses, and request documents or other evidence, including expert testimony.

D. Upon the request of either or both Appraisers the Umpire should personally inspect any available damaged property.

…

CANON V. AN UMPIRE SHOULD MAKE DECISIONS IN A JUST, INDEPENDENT AND DELIBERATE MANNER.

A. The Umpire should, after careful deliberation, decide all issues submitted…

B. An Umpire should decide all matters justly, exercising independent judgment, and should not permit outside pressure to affect the decision.

C. An Umpire should not delegate the duty to decide to any other person.

D. In the event that both appraisers agree upon a settlement of issues in dispute and request the umpire to embody that agreement in an award, the umpire may do so.

CANON VI. AN UMPIRE SHOULD BE FAITHFUL TO THE RELATIONSHIP OF TRUST AND CONFIDENTIALITY INHERENT IN THAT OFFICE.

A. An Umpire is in a relationship of trust to the parties and should not, at any time, use confidential information acquired during the Appraisal process to gain personal advantage or advantage for others, or to affect adversely the interest of another.

B. The Umpire should keep confidential all matters relating to the Appraisal process and decision. An Umpire may obtain help from an associate, a research assistant or other persons in connection with reaching his or her decision.

C. It is not proper at any time for an Umpire to inform anyone of any decision in advance of the time it is given to all parties. It is not proper for the Umpire to inform anyone about the substance of the deliberations of the Appraisers. After an appraisal award has been made, it is not proper for an umpire to assist
in proceedings to enforce or challenge the award.

CANON VII. AN UMPIRE SHOULD ADHERE TO STANDARDS OF INTEGRITY AND FAIRNESS WHEN MAKING ARRANGEMENTS FOR COMPENSATION AND REIMBURSEMENT OF EXPENSES.

…

B. Certain practices relating to payments are generally recognized as tending to preserve the integrity and fairness of the arbitration process. These practices include:

(1) Before the Umpire finally accepts appointment, the basis of payment, including any cancellation fee, compensation in the event of withdrawal and compensation for study and preparation time, and all other
charges, should be established.

(2) Umpires should not, absent extraordinary circumstances, request increases in the basis of their compensation during the course of a proceeding.

(3) Umpires should not withhold any decision or award pending payment by any or either party for the services of the umpire.
....

I urge any person interested in becoming an Umpire to take the certification course and then get listed in the Wind Umpire Directory. The classes will be offered at the Windstorm Insurance Conference January 25-28, 2010, in Jacksonville, Florida.

Brian Kingman, managing director for Gallagher Entertainment, a division of Arthur J. Gallagher & Co., said coverage for Mr. Jackson’s shows may not have been too difficult to secure, as the market is fairly soft for nonappearance contingency risks.

Mr. Kingman has previously served as a broker for Mr. Jackson as well as for Madonna on one of her tours.

In the case of Mr. Jackson’s tour, Mr. Kingman said he believes the risk was placed in London, and depending on how the policy was written will ultimately decide whether loss is covered. Every concert or series of concerts can be structured differently, he noted, and factors such as how much money is at risk, who could be out of money, and who is willing to insure the risk and under what circumstances are just a few considerations for events like Mr. Jackson’s tour.

The health of the performer also comes into play, Mr. Kingman said. It is typical, he explained, for a sickness to be covered only if the performer undergoes a medical examination before a tour. In the May Reuters story, Mr. Phillips said Mr. Jackson passed a physical “with flying colors.”

Mr. Kingman said he is uncertain of the terms of coverage placed for Mr. Jackson’s tour, or how much was, in fact, covered, although he said he has heard placement was somewhere around $20 million.

Outside the jet setting world of celebrity entertainment, many more mundane events are covered by this type of insurance. One such event that ended up in litigation was the annual “Defeat the Beat Battle of the Bands.” See Defeat The Beat, Inc. v. Underwriters At Lloyd's London, 669 S.E. 2d 48, (N.C. App. 2008). The facts are cited at length from the policyholder’s brief. They show a typical situation where many policyholders are given inaccurate information about the policy by their agents, they do not review the policy before the loss, and claims are delayed far beyond any reasonable time frame:

Defeat the Beat was established by Karen Blackmon…Its purpose was to host an annual “Battle of the Bands” competition that would bring together marching bands from historically black colleges and universities throughout the southeast. In 2003, Defeat the Beat hosted its first competition at Memorial Stadium in Charlotte, North Carolina. The event was a success, with approximately 22,000 people in attendance.

Following this successful debut, Ms. Blackmon …began planning a second competition …Ms. Blackmon contacted Stacy Fields, an insurance agent …about the possibility of obtaining insurance coverage for the 2004 Event. Ms. Blackmon communicated to Mr. Fields that she desired to obtain a policy that would protect her investment and eliminate the possibility of Defeat the Beat losing money on the Event.
…
…Ms. Blackmon…she inquired about the additional premium for the adverse weather coverage. After seeking clarification from Defendant Petersen, Mr. Fields informed her that the only difference between the adverse weather policy and the policy that she was purchasing was one of control. With the adverse weather coverage, Mr. Fields told Ms. Blackmon, she would be the person in charge of deciding if and when to stop the Event due to poor weather; without paying for that extra coverage, that choice would be made by the manager of the stadium where the Event was held. Based upon these representations, Ms. Blackmon elected to pay the Basic Premium of $8,805….

On August 21, 2004, the second “Defeat the Beat: Battle of the Bands” competition took place at Memorial Stadium in Charlotte. The local weather stations were predicting rain for the day, as the Hurricane Ivan storm system was traveling through the area. At 5:30 p.m., half an hour before the start of the Event, the officers of Defeat the Beat (CEO Karen Blackmon, Chief Operations Officer Duncan Gray, and Stadium Operations Director Robbie Nixon) met with Greg Clemmor, the manager of Charlotte Memorial Stadium, to discuss the weather. It was determined that the Event would continue as scheduled despite the forecasted rain.
…
At 6:30 p.m., thunder and lightning began. …At 6:40 p.m., the thunder and lightning became more pronounced, and those in charge became concerned for the safety of the spectators and participants. It was at that time, upon the recommendation of stadium manager Clemmor, that the decision was made to place the Event on hold until the lightning subsided. …At this announcement, many of the spectators returned to their cars, while others took shelter in various corridors and tunnels beneath the concrete steps of the stadium.

After making this announcement, Defeat the Beat's officers noticed that a number of fans who had departed the stadium were leaving permanently; they also became aware that many of the patrons who were waiting in line to purchase tickets were leaving as a result of those people coming out of the stadium who were saying that the event had been cancelled. Accordingly, at 6:45 p.m., Ms. Blackmon made an announcement over the public address system in which she stated: “The event will resume in a few moments per weather conditions. The event is not cancelled.”

At approximately 7:15 to 7:30 p.m., the lightning subsided and the Event resumed. The competition continued through to completion, ending around 11:00 p.m.

As a result of the bad weather and the interruption of the Event, the 2004 Battle of the Bands competition was considerably less successful than its predecessor in 2003…

Several days after the Event, Ms. Blackmon contacted Stacy Fields to discuss submitting a claim under the Policy. At that point, it was discovered that neither Blackmon nor Fields had a copy of the insurance policy. Accordingly, Stacy Fields contacted Defendant Petersen and received a copy of the Policy, executed September 2, 2004, sometime in early September 2004...

After receiving Plaintiff's claim, Defendant Underwriters assigned it to Michael Tocicki of Crawford Technical Services to be adjusted. …

On November 21, 2004, Mr. Tocicki came to Charlotte to inspect the stadium...During this meeting, multiple witnesses report that Mr. Tocicki said that the Plaintiff's claim was a valid one and that he was recommending to Defendant Underwriters that they pay Plaintiff's claim. In response to a question from Ms. Blackmon regarding how long it would take to receive payment of the claim, Mr. Tocicki stated that he would be submitting a request for payment to Defendant Underwriters following the Thanksgiving holiday, and that Ms. Blackmon would receive payment within two to three weeks following that submission.

On December 8, 2004, Mr. Tocicki submitted a Preliminary Report …Tocicki concluded that although the Plaintiff had elected not to purchase adverse weather coverage, Plaintiff nonetheless had a valid claim for a least a portion of its losses due to an “interruption” pursuant to Clauses 1.1 and 2.8 of the Policy.…Tocicki suggested setting aside a precautionary reserve of up to $124,000 to cover Plaintiff's loss.

…E-mail records show that Defendant Underwriters decided to deny Plaintiff's claim as early as December 16, 2004; however, there is no evidence that this decision was ever communicated to the Plaintiff at that time. Instead, still believing that it would receive the full amount of its claim, Plaintiff continued to work with adjuster Tocicki in his efforts to determine the amount of loss caused by the interruption of the event, providing Tocicki with the supporting documentation that he requested as it became available to the Plaintiff.

On February 2, 2005, by letter to Plaintiff's counsel, Defendants' counsel advised that Defendant Underwriters had decided to honor the Policy as written and to provide coverage for losses due to the interruption of the Event

On May 3, 2006, Plaintiff's counsel received a letter from Defendants' counsel stating that Underwriters had completed its adjustment of Plaintiff's claim and was prepared to settle the undisputed portion. The letter stated: “Underwriters have determined that the event interruption resulted in a covered loss of $37,135.20.” The letter further stated that “acceptance of this payment will in no way prejudice [Plaintiff's] right to pursue a claim for the disputed amount of coverage.”

Plaintiff received a check for $37,135.20 on May 30, 2006…Plaintiff instituted this suit for breach of contract, bad faith, and unfair or deceptive trade practices. 

There should be a good basis for a bad faith claim based upon claim delay, if nothing else. However, one never knows for certain how others view a fact pattern. The Appellate Court noted the policy language:

1.1 This insurance is to indemnify the Assured for their Ascertained Net Loss (as defined herein), should the insured Event(s) described in the Schedule, be necessarily Cancelled, Abandoned, Postponed, Interrupted or Relocated, in whole or in part, which necessary Cancellation, Abandonment, Postponement, Interruption or Relocation is the sole and direct result of any cause beyond the control of the Assured and the participants therein (except as hereinafter excluded), subject always to the terms, conditions and exclusions contained herein or endorsed hereon.

* * * *

2.1 Ascertained Net Loss means such sums as represent:-(a) Expenses which have been irrevocably expended in connection with the insured Event(s), less any savings the Assured is able to effect to mitigate such loss, and (b) Profit (where insured and stated in the Schedule) which the Assured can satisfactorily prove would have been earned had the insured Event(s) taken place.

* * * *

2.4 Profit (where insured) means Gross Revenue less Expenses.

(Emphasis added.)

The schedule of benefits attached to the policy provides in part:

Limit of Indemnity Excluding Profit:     US$540,000
Limit of Indemnity Including Profit:
(Profit insured only if this section completed) N/A

* * * *

Exclusion: TERRORISM COVERAGE

The Court found the issue of whether the weather was covered or excluded was moot because the insurer paid for the event being postponed in part by weather:

It is clear from the record that plaintiff purchased the basic coverage, rather than the adverse weather coverage; however, because only terrorism and not adverse weather is listed as an exclusion on the schedule of benefits, it is not clear whether adverse weather was an exclusion under the policy. We resolve this ambiguity in favor of the non-moving party and assume that any ascertained net loss which resulted from the adverse weather is insured under Section 1.1 of the Policy. Nonetheless, plaintiffs have produced no evidence demonstrating that the adverse weather resulted in an ascertained net loss, as defined and insured under the terms of the policy.

This is a key point I raise in many cases involving business interruption and lost revenue. Policyholders must provide evidence of the lost revenues. The best method is through accountants and economists along with testimony from the policyholder about expectations of business operations. In this case, the policyholder was in an impossible situation because the right type and full amount of coverage was not purchased. I do not think accountants could have helped because expenses did not change much with a 35 minute postponement---but the revenues certainly did. Who would pay to watch bands in the rain with a Tropical Storm approaching? As many agents would say, “penny wise and pound foolish” is the policyholder who does not opt for full coverage of likely perils:

[D]efendant produced evidence demonstrating that an essential element of plaintiff's claims is nonexistent. Specifically, our examination of the record before us reveals that plaintiff has failed to show that the loss complained of is embraced within the insuring language of the policy. First, defendants produced the document entitled “A Proposal for Event Cancellation Insurance” that expressly provides that the coverage is “for Non Refundable costs and expenses only (i.e. no cover for profits).” Likewise, defendants produced a copy of the policy, and under the terms of Section 2.1 of such policy, it is clear that the insured loss or “ascertained net loss” only includes profit “where insured and stated in the Schedule.” Defendants introduced a copy of the schedule of benefits, showing that profit is not stated on such schedule, and therefore, is not insured under the policy. Thus, defendants met their burden in establishing that the lost profit from low ticket sales, low DVD sales, low T-shirt and souvenir sales caused by the 35-minute interruption, which plaintiff asserts as damages under its breach of contract and bad faith claims, are not insured under the terms of the policy.

Given that defendants established that essential elements of the non-moving party's claims are nonexistent, the burden then shifted to plaintiff, the non-moving party, to forecast evidence or specific facts that demonstrate the existence of some sort of loss, insured under the terms of the policy, which defendants refused to pay. Under Section 2.1 of the policy, this would include “[e]xpenses which have been irrevocably expended in connection with the insured Event(s), less any savings the Assured is able to effect to mitigate such loss[.]” While plaintiff alleged in an interrogatory response that “Plaintiff has received $37,135.20, an amount that is woefully less than Plaintiff should have been paid under the insurance policy in question [,]” plaintiff has failed to set forth specific facts or forecast evidence that it incurred any non-refundable expenses and costs as a result of the 35-minute interruption in excess of the $37,135.20 that defendants have already paid. The only facts set forth by plaintiff demonstrate an uninsured loss consisting of lost revenue. Because plaintiff failed to meet this burden of establishing a net loss that defendant was obligated to pay under the terms of the contract, yet refused to pay, there is no issue of disputed fact with respect to the damages element of the breach of contract claim. Accordingly, the trial court's grant of summary judgment in defendant's favor with respect to this claim was proper.

This case did not turn out well for the policyholder. I hope Michael Jackson’s promoters and others who invested in his performance have better luck and much better coverage. This type of coverage is very valuable when you have a lot riding on an event. Death, weather, and all types of risks can happen at the worst possible time. “Safe is better than sorry,” and that is why this coverage exists.
 

I will suggest that the Windstorm Network look into this coverage at our Board Meeting this Wednesday. The Windstorm Conference is being held in Jacksonville, Florida, next January 25 through 28, 2010. Register and book your room early so you do not miss it. It is typically sold out several months in advance.

After yesterday's post, I received a number of private questions as well as a public comment from Eric Hyman, an experienced public adjuster. I replied to his comment:

Eric,

I really have no idea how they go about classifying what you have stated. I have no idea how much Citizens pays in attorney’s fees to defend its cases nor how much it pays policyholders for attorney’s fees when it loses. Do you have any evidence to support your allegations? Send it to me, and I would be more than happy to share it.

I appreciate that you are upset that the manner in which you resolve cases with Citizens may no longer be available. You have told me that most of your cases go to appraisal because Citizens never comes close to agreeing with amounts you provide. And, you get significantly more money back for the policyholder.

Indeed, I predict there will be considerable "push back" because a cottage industry of appraisers for each side and umpires may no longer be making fees from the number one source of appraisal--Citizens.

Still, the process is inherently flawed. There is no due process. I have said that since there are no rules, the only rule is to be honest, but do everything you can to win.

In Florida, when the appraisal result is unfair, there is little either party can do about it. Unfairness may occur in arbitration or litigation, but I can assure everyone that they will be able to present their case, subject the opposing view to critical review, and submit the matter to a somewhat independent panel or jury. All of this guaranteed by the due process clauses of the United States and Florida Constitutions.

The other truth is that Citizens management may feel that the appraisal process results in unjust awards favoring policyholders. If so, they should explain why and how the appraisal process favors policyholders over insurers.

My impression is that the cases going to appraisal now have a policyholder who knows to get evidence and make a presentation to show the validity of the claim amount. In the past, insurers would run over policyholders, thinking their appraiser would do all this work. The appraisal process is no longer a "winning" proposition for insurers as it was in the past, and now some insurers are seeking other ways to game the system to lower claims payments to customers.

Citizens makes several valid points in its report, although I disagree with its publicly stated motive for requesting eliminating the appraisal clause.

Given that public adjusters are obtaining more money for policyholders through appraisal and that so many others, such as appraisers and umpires, have made careers in the appraisal process, you can bet those individuals with such significant financial interests oppose Citizens’ move. This is a normal reaction to the possibility significant change.

My opinion of appraisal has not changed much over the past fifteen years since I chaired a sub-committee of the American Bar Association's Property Loss Insurance Committee involving a study of the fairness and procedures of the appraisal clause. The procedures vary by state. Many states have noted the due process concerns and have required the process to be more of an arbitration. Florida's procedure for appraisal is what I call the wild west method. There are no rules. Shoot 'em out, and you better be standing when the smoke clears because there are no second chances for the dead.

I essentially said this when I was asked to be on a Keynote Panel regarding the appraisal process at the Windstorm Conference. While various attorneys, umpires, appraisers, and insurers have tried to set rules through a "Memorandum of Appraisal," that is not required under the terms in insurance policies, statute, or common law.

As an attorney, I always point out that the United States has long held many informal methods unconstitutional. One of the great protections to individuals is a right to have a jury decide controversies. This is a fundamental right with a longstanding history. Alternative methods to resolve controversies must satisfy due process safeguards. I have questioned how a system with no rules does this. Some States, like Florida, allow the informality without addressing constitutional concerns.

Dan Luby, of Precision Adivisors, sent me a private follow-up. It is pertinent to this issue:

"I read your blog today concerning the changes to the Citizens Appraisal clause. I appreciate the attribution.

As a follow up, attached is an excerpt from a recent Citizens filing with the OIR that details the proposed changes to the Appraisal clause in the ‘Homeowners 4 Contents Wind Only Form.’

Appraisal will now be an option available to either party provided that both parties agree to the “terms of a written agreement” to be determined at a later date.

I read this to mean a negotiated ‘Memorandum of Appraisal’ detailing what would be submitted to appraisal, how the appraisal would be conducted and the form of the award. Either party is not obligated to accept a “request” for appraisal.

Scroll down to page 10 of 12 in the policy form. While this filing deals with only one policy form, I would speculate that all of the Citizens policies will be similarly amended.

The complete filing (No. 09-11984) is available at http://www.floir.com/edms/temp1/SessionsPDFs/OnlyOrig09-11984.PDF

Additionally, this new form would require that “any one you hire in connection with your claim” must submit to an EUO if requested. I assume this is targeted towards public adjusters."

This is an important issue and will likely significantly change the way many claims are handled and resolved. I will try to keep everyone informed of these changes.

Representing policyholders in the presentation and adjustment of a claim is very demanding. Public adjusters have to be experts at coverage interpretation, construction methodologies, construction pricing, contents pricing, understand how statutes and case law effect recovery, negotiation, and hundreds of other technical fields. A person could spend a lifetime on just one aspect. It takes dedication and experience to do the job right.

A number of the public adjusters in the audience were former insurance company adjusters. The experience of working for, and being trained by, an insurance company is invaluable to a public adjuster. I paid former State Farm adjusters who switched to the "side of angels" a compliment by remarking that I believe State Farm has more thorough training available for its first party property adjusters than any other personal lines insurer. States need to make certain Public Adjusters have rigorous requirements for continuing education. As in any trade dealing with the public where serious issues are at stake, the consumer can be harmed by those who ineffectively perform their job. Public adjusters need more education--especially those with minimal experience in the insurance industry.

Ethics was the first topic of the seminar. Public adjusters have a tendency to practice law without realizing they do it. It is hard to prevent because insurance contract interpretation requires an understanding of statutes and cases interpreting insurance regulations and policies. Public Adjusters must understand insurance contracts. Knowing how they effect an adjustment can be used to provide greater benefits to the policyholder, and is the public adjuster’s job. However, the interpretation and providing legal advice to consumers is not adjustment, but the practice of law.

Many insurance adjustment issues involve overlapping practical and legal coverage issues. Here are some of the other topics we covered in Friday’s seminar:
 

• Flood Insurance Claims and Regulations
• Proofs of Loss
• Replacement Cost
• Replacement at Another Location
• Overhead and Profit Calculations
• Increased Cost of Construction Calculations
• Roof Losses
• Getting Coverage for Matching of Damaged Structural Parts
• Depreciation
• Actual Cash Value Determinations
• Sales Tax of Labor
• Building Codes
• The Use of Engineers and Architects in Claim Submittal
• Appraisal
• Selection of the Best Appraiser for a Claim
• Appraisal Process, Procedures and Forms
• Question and Answer on Adjustment

Based on past experience and seeing the misinformation regarding wind speeds from Hurricane Ike, we thought a presentation by a meteorologist would be interesting and relevant. We are finding that some insurance companies are providing engineers with low estimates of wind and gusts in the Houston area. The insurance company engineers seem to rely upon these outcome-biased reports of wind speed to come up with improper findings that damages were not caused by Hurricane Ike . We wanted to show the public adjusters the value of having an experienced meteorologist who can dispel those reports.

Texas has some unique issues regarding construction, building codes, and building regulations. An engineer with experience in certified wind inspections gave a presentation on these issues. Retaining engineers, meteorologists, architects, estimators, and other experts should be common place in claim presentation of serious loss cases. Frankly, the insurance companies should be doing this as well, if they truly want to fulfill their obligation to conduct a full investigation.

Most policyholders hope their company insurance adjusters have the motivation of public adjusters to fully investigate a loss to find every penny that should be paid under the policy. Our seminar was intended to help public adjusters with the tools to use that motivation. While the listed topics may seem strange and boring to most, they must be fully understood if policyholders are to receive full coverage benefits. I believe that most policyholders have no business trying to learn these issues by themselves when so much is at stake.

The next wind insurance event for insurance adjusters and vendors of all types will be hosted on April 2nd in Houston by the Windstorm Network. I strongly urge those in the industry handling Hurricane Ike claims to register for this symposium of experts analyzing many of the day to day issues adjusters face in the field.

Last week, the Citizens Property Insurance Corporation's General and Assistant General Counsel met with me regarding a number of claims topics. At the time, I knew my blog regarding recent complaints about Citizens and TWIA was about to be published. I told them about the complaints. They seemed bewildered. They explained their belief that the recent change in claims management had been very positive and a good move towards improving Citizens. I promised to send them examples of our findings so we could determine if what I was hearing from others is accurate.

The point is that my views are largely shaped by an upset or wronged policyholder's view. My livelihood is made representing them. My most significant daily activities are trying to figure out how to prove that insurance companies act in bad faith and why our firm's clients are entitled to more money.

Comments to this blog, are often "atta boy" cheers from policyholders and colleagues when I write about or expose instances of insurance company misconduct. Sometimes, my colleagues criticize my comments regarding the good business of insurers or when I empathize with an insurer point of view. I am certain that these cheers and jeers have some impact upon my view.

I am writing this at the 2009 Windstorm Insurance Conference. It is the most diverse claims conference in the country because the 1,300 plus attendees represent both sides of the claims process. The debates and viewpoints regarding claims handling and insurance coverage interpretation are fascinating because the panelists and attendees are policyholder representatives and the insurance industry. To the extent possible, the ability to share different views makes the Windstorm Conference a fair and balanced opportunity to learn and share information about windstorm coverage and claims.

My viewpoint is not so balanced. If you make your living from insurance companies, you probably will never admit it is fair--at least not publicly. I receive plenty of private "atta boy" praise from insurance adjusters and attorneys for writing and saying what some are afraid to say. Many insurance company adjusters, attorneys and vendors will not be seen with me or acting friendly towards me because they fear retribution by their insurance company clients. Some insurance executives view the claims world as an "us versus them" scenario; the customer with a claim problem and the customer's attorney is "them."

So, similar to Bill O'Reilly, I am making a fair and balanced report on the world of insurance. If the insurance industry would show more instances of good faith claims conduct for me to write about, I am certain it would seem more balanced. Perhaps the executives running the insurance companies should adopt my view and see things from the view of their customers. What a novel approach to running an insurance enterprise that would be.

Fortunately, she had the brilliant idea to start a Windstorm Insurance Network whose membership was inclusive of all trades and professions dealing with windstorm claim issues. There is not another group or association like it in the insurance business. Most insurance groups, seminars, and conferences are exclusive of others. The advertisement for this year's conference describes its inclusive nature:

"Each year, WIND holds its annual Windstorm Insurance Conference which provides an opportunity for professionals from many disciplines to discuss and educate themselves on a variety of subjects important to those engaged in windstorm insurance claims.

Representatives from all segments of associated businesses and organizations convene for this three-day event to review and address the impact of past hurricane seasons, lessons learned, future trends, and other relevant topics including, windstorm damage, insurance losses and claims, mitigation efforts, disaster response, and alternative dispute resolution. The conference, which is co-sponsored by the Tort Trial and Insurance Practice Section (TIPS) of the American Bar Association, offers continuing education credits for numerous professional designations. Nearly 1,300 professionals attended the 2008 WIND Conference in Jacksonville, Florida.

By bringing together all segments of the property insurance arena which deal with the aftermath of a windstorm, the 2009 WIND Conference will develop and promote a greater understanding of windstorm claims issues among property insurance professionals."

The Conference has special training sessions for those seeking Umpire Certification in appraisal disputes. There is also a special Flood Adjusters program leading to certification as well. I am on a panel that will analyze the nuances of electronic discovery litigation in insurance coverage and claims practice disputes.

The bottom line is that the Conference offers valuable instruction on how to handle windstorm insurance claims from a number of different perspectives. If you want to know what the top people working in the insurance industry are doing, go to this conference.