Hurricane Michael Rumor—Category 5 Status and Deductible Refunds

A relatively inexperienced attorney from another law firm asked in an open forum whether a Category 5 hurricane mandates that no hurricane deductible can be applied and if Hurricane Michael policyholders can get a return of their hurricane deductible. Corey Harris has been involved in hurricane work with our firm since 2005. He quickly replied that the deductible is going to be returned only if the Easter Bunny is bringing a present. Continue Reading

Statute of Limitations: How Much Time Do I Have to File a Complaint Against My Insurance Company For Breach of Insurance Contract in New York?

The statute of limitations period applicable to a breach of contract cause of action in New York is ordinarily six years. However, parties to a contract may agree, in writing, that any lawsuit must be commenced within a shorter period of time. Moreover, while the statute of limitations on a breach of insurance contract generally starts to run on the date that coverage is disclaimed by the insurance company, the parties to an insurance contract are likewise free to include distinct language in their agreement demonstrating that they intend for the limitations period to run from the date of the underlying loss as opposed to the date of the disclaimer of coverage. Continue Reading

Does a Requested Proof of Loss Have to Be Provided Before Demanding Appraisal or Filing Suit?

Proofs of loss were a topic of my first speech to the National Association of Public Insurance Adjusters at Carmel, California, in 1985. Generally, if an insurance company timely demands a proof of loss or if it is required under a policy, and the insurer does not waive the requirement, a proof of loss must be provided.

So, what is the downside to filing a proof of loss if demanded by an insurer? Generally, nothing. What is the downside by refusing to file a proof of loss? Maybe losing the entire claim. So, if an insurer properly asks for a proof of loss, provide a proof of loss.

A public adjusting firm and lawyers for the policyholder learned that proofs of loss are important in a decision issued this week.1 In this case, the lawyers and public adjusters for the policyholder refused to file a proof of loss before filing suit. The insurer moved to dismiss the action for failing to do so and then the lawyers on behalf of the policyholder asked for appraisal.

In the brief regarding the proof of loss, the policyholder lawyers argued the following:2

The notion that the lack of a sworn proof of loss is essential for purposes of complying with conditions precedent is nothing more than a red herring designed to unnecessarily delay these proceedings. The information requested in a sworn proof of loss is the equivalent of the estimate that the Appellee submitted to the Appellant prior to the EUO.

The appellate court disagreed that a proof of loss is a “red herring” and held:

[T]his Court held that appraisal and suit are premature when the Insured has failed to comply with a residential insurance policy’s post-loss conditions. We have applied that principle through multiple hurricanes and the subsequent claims. See, e.g., State Farm Fla. Ins. Co. v. Fernandez, 211 So.3d 1094, 1095 (Fla. 3d DCA 2017) (“It is well-settled in Florida that all post-loss obligations must be satisfied before a trial court can exercise its discretion to compel appraisal.”). The Insured’s generalized description of loss at her EUO does not constitute a “sworn proof of loss” in compliance with the Policy, and the Insured has offered no reason for the failure to submit the public adjuster’s itemized claim report before, rather than after, the EUO and lawsuit.

All members of the Florida Association of Public Insurance Adjusters have heard me teach (after I demand that they listen) on numerous occasions that one of the first things which should be done is to determine if a proof of loss is a “demand proof” or a “time limit proof.” Time limit proofs should be filed within a time frame (ask for an extension if one cannot be made on time) and demand proofs should be filed if demanded. The forms insurance companies provide sometimes are not what is required under the policy. So, read what the policy requires and file an appropriate proof of loss.

Have a Happy Easter Weekend!

Thought For The Day

Life is full of a thousand red herrings, and it takes the history of a civilisation to work out which are the red herrings and which aren’t.
—Peter Greenway
_______________________________
1 Safepoint Ins. Co. v. Sousa, No, 3D18-1842, 2019 WL 1646100 (Fla. 3d DCA April 17, 2019).
2 Safepoint Ins. Co. v. Sousa, No. 3D18-1842, 2018 WL 6575860 (Fla. 3d DCA, Appellee’s Answer Brief).

How to File A Complaint with the New Jersey Department of Banking and Insurance About Your Denying, Delaying and Bad Treating Insurance Company

New Jersey suffers from a wide breadth of property damage claims. The most common of them being flood, fire, frozen and/or burst pipes, water damage from appliance leaks and damage from storms. New Jersey residents should always be mindful of their homeowners insurance policy and the protections it affords and coverage that is excluded. Continue Reading

Are There Ethical Conduct Standards Between Public Adjusters and Independent or Company Adjusters?

An excellent and successful insurance company defense attorney, Bill Berk and I were on a panel presentation at the 2019 Windstorm Insurance Conference earlier this year. Berk reminded the audience of adjusters that under Florida law, they should not be saying or implying bad things about each other. He noted this Florida regulation:

A public adjuster shall not represent or imply to any client or potential client that insurers, company adjusters, or independent adjusters routinely attempt to, or do in fact, deprive claimants of their full rights under an insurance policy. No insurer, independent adjuster, or company adjuster shall represent or imply to any claimant that public adjusters are unscrupulous, or that engaging a public adjuster will delay or have other adverse effect upon the settlement of a claim. Continue Reading

Hail Storms and Hail Damage Assessment—Policyholders Should Be Safe and Call Professionals to Do Roof Inspections

Joey Childress and Chip Merlin at the 2019 First Party Claims Conference West

Joey Childress of Childress Engineering Services from Richardson, Texas, was attending the First Party Claims Conference in Marina Del Rey, California. He came up to me and showed a video and photographs of an extreme hailstorm hitting the greater Dallas Fort Worth area.

Continue Reading

How to File a Complaint with the Connecticut Division Of Insurance About Your Delaying, Denying and Bad Treating Insurance Company

The mission of the Connecticut Insurance Department is consumer protection. The Department carries out its mission by enforcing state insurance laws to ensure policyholders are treated fairly, by providing assistance, outreach, and education to help consumers make sound choices, and by regulating the industry in a fair and consistent manner that fosters market competition for availability of insurance. Continue Reading

Can Labor Be Depreciated When Considering Actual Cash Value?

In an opinion issued yesterday, the Tennessee Supreme Court held that labor cannot be depreciated when considering actual cash value.1 Merlin Law Group participated in this victory for policyholders by writing an amicus curiae brief on behalf of United Policyholders. Continue Reading

How to File a Complaint with the Arkansas Department of Insurance About Your Delaying, Denying, and Bad Treating Insurance Company

The Arkansas state motto is “Regnat Populus” which means “The People Rule.” With the state motto in mind, Arkansas policyholders can seek assistance with their insurance claims through the Arkansas Department of Insurance at www.insurance.arkansas.gov.

When a policyholder has been mistreated by having their claim delayed, denied or handled in bad faith, Arkansas provides an Online Consumer Complaint Form that can be submitted to the Department of Insurance. The Consumer Complaint Form can be filled out online.

The form can also be submitted by mailing to this address:

Arkansas Insurance Department
Consumer Services Division
1200 West Third Street
Little Rock, AR 72201-1904

Or Faxed to: (501) 371-2749

The Arkansas Department of Insurance can be reached by phone at the following numbers:

  • (800) 282-9134, or
  • (501) 371-2600

If you have questions about your insurance claim, please do not hesitate to contact Merlin Law Group.

LexBlog