While working on and researching for answers to questions posed by Professor Feinman regarding the growing insurance coverage gaps crisis, I came across a very pointed article published about how modern insurance company claims practices are destroying the construction restoration industry. Continue Reading Policyholders and Contractors Unite Against Wrongful Insurance Company Claims Practices

Insurance estimators, appraisers, and adjusters of roofing claims should read the attached partial specifications of a commercial roofing project. There has been some discussion of what a “reasonable” cost should be, but I think most would require that the scope of a commercial roofing job involving insurance be one that is going to result in a “quality” job. So, how do you determine what a quality commercial roofing job would be? I suggest you would look at specifications that the construction industry has come up with to prevent non-quality work from occurring. Continue Reading Roofing Project Specifications—The Details Required For Quality Roofing Insurers Rarely Pay For Or Mention in Estimates

Some of the more interesting discussions about property insurance losses which I have read lately come from Steve Patrick’s “Level The Playing Field” Facebook Group. Recently, Leland Coontz wrote the following:

I’ve been triggered again. Someone mentioned on Facebook that ‘The insured is not allowed to profit from their loss.’ Show me your law license and I might respect your wrong opinion. But it would still be wrong.

His post triggered over 130 comments with very different opinions. Continue Reading Can A Policyholder Profit From A Loss?

It is not uncommon in a condominium complex for a unit to be damaged due to a failure in a neighboring unit. With units tightly packed together, water can quickly flow from one unit to another, causing damage along the way. Determining the cause of damage is often the first step in evaluating an insurance claim. If evidence relating to the cause of the damage, such as maintenance records or a breached window or door, is owned and controlled by a third-party, when is there a duty imposed on the third-party to preserve the potential evidence? Continue Reading Spoliation: A Non-Party’s Potential Duty to Preserve Evidence

The Villas at Winding Ridge v. State Farm Fire and Casualty Company1 opinion is a good reminder to appraisers that they need to timely raise any issues related to the appraisal, or risk having those issues waived. Continue Reading Appraiser’s Introduction of “Matching” Evidence after Proposed Appraisal Award is Untimely

Almost every federal court requires parties to mediate their case before trial. The purpose of mediation is to place all interested parties in the same room to determine whether an amicable resolution of the case is possible.

A mediator is an individual who works with the parties to highlight strengths and weaknesses of the parties’ respective cases and facilitate settlement. Either the court or the parties may select the mediator. For the former, the court will appoint a district-approved mediator who has proven success in helping to resolve cases. If the parties select the mediator, both sides will have to agree on one person to serve.

Mediations must take place before the deadline outlined in the court’s case management order. The parties’ attorneys will coordinate the mediation date and location. Absent an extraordinary circumstance, mediations usually take place in the policyholder’s home county.

As insurers are corporate entities, they must certify with the court or with the mediator that the representative attending mediation has full settlement authority. That means that the individual representing the insurer must have the ability to make the final decision on whether to offer, reject, or accept settlement proposals. Usually, all named insureds on the policy must attend mediation. For cases involving businesses or condominium associations, the governing bodies of those entities normally appoint a single individual and provide him or her full settlement authority. Every member of the board of directors for a condominium is authorized to attend the mediation, but in practice this is rarely done.

Before attending mediation, it is important for policyholders to have a frank discussion with their attorneys about the merits of the case and a fair settlement figure. The final decision to settle a case always remains with the client.

At mediation, the mediator will convene all attorneys and the parties together in one room. The mediator will then discuss the strict requirement of confidentiality, their understanding of the case, and the general process. At that time, the mediator will invite counsel for the parties to make an opening statement. Counsel for each side will make a brief statement to the others explaining the reasons the other side’s position is untenable or unsustainable. Next, the mediator will place the parties in separate rooms, and the real negotiations begin.

As the party seeking relief, policyholders generally (but not always) make the first offer. The mediator will then take the offer back to the insurers for consideration. The insurers usually then counteroffer and provide the mediator with additional information for the policyholder to consider. This back-and-forth will continue until there is an agreement or it becomes clear that resolution is not possible. The hope for mediation is that the parties will reach a mutually satisfactory resolution through these exchanges and offers.

Eventually, the process will conclude, and the mediator will file a notice of settlement or notice of impasse with the court. If settlement is reached, federal courts will often administratively close the case while the settlement paperwork is finalized. If the mediation resulted in an impasse, the case will continue.

It is important to understand that federal courts may order multiple rounds of mediation, and many often require the parties to mediate a second time before trial. Moreover, although a case might not settle during the mediation conference, meeting together often provides the impetus to resolve the case in the coming weeks.

Photograph taken during the Waldo Canyon Fire

After a fire loss you would expect your insurance company to complete a full and fair adjustment of the damages, right? So did the Normans, however, as admitted by a corporate representative of State Farm, “had State Farm not received additional information [from an industrial hygienist], the payments made in July 2012 would have been the settlement of the Normans’ claim” stemming from smoke and soot damage to their home as a result of the infamous Waldo Canyon fire of 2012 in Colorado.1 Eventually State Farm did pay a lot more in covered damages in May of 2013. Continue Reading After A Fire, You May Need An Industrial Hygienist

I want to pass along a Thanksgiving Wish sent today by Angel Rivera, an attorney in our San Juan, Puerto Rico office, to everyone in the firm:

To all of my fellow attorneys at MLG Puerto Rico, and at MLG everywhere, and to all the excellent assistants at MLG Puerto Rico, whom I consider friends, may you all have a great Happy Thanksgiving weekend with your loved ones. Give thanks that you are still able to enjoy your folks, brothers, sisters, and some of you even your grandparents. Several years from now some of them will not be around, so take advantage that you have them all with you and enjoy each and every one of them to the fullest. Even your children, you don’t know if they’ll be with you in the future, since they, like mine, may choose to live in another state and may not be present at your table for this most American of all our celebrations!

Give thanks for the very nice meal, for your health, for the miracles, both large and small that happen every day around you, from waking up every day, being able to see beautiful flowers and the sunlight, to the birth of another child, give thanks!

Happy Thanksgiving to you all, enjoy the great day and greater company, Un abrazo a todos y muchas gracias por ser mis amigos, Angel.

Louisiana federal courts have been split on the issue regarding the applicable prescriptive period (statute of limitation) for first-party insureds’ bad faith claims against their insurers. Recently, the Louisiana Supreme Court granted review of Smith v. Citadel Insurance Company, to definitively rule on the primary legal issue presented: “the proper prescriptive period applicable to a first-party bad faith claim against an insurer.”1 Continue Reading What Is the Prescriptive Period for Louisiana First-Party Bad Faith Claims?

The National Association of Insurance Commissioners (NAIC) drafted a model law named the “Unfair Claims Settlement Practices Act.” These standards include fair and rapid settlement of claims as well as the procedures and practices constituting unfair claim adjustment practices. Section 9 of the Model Act outlines language pertaining to the replacement of undamaged items when the damaged items cannot be replaced in a way that achieves a reasonably uninform appearance. Continue Reading Matching Considerations in Utah