Restoration contractors, public adjusters and some attorneys feasting on "chipped tile claims" in South Florida got hammered yesterday in a very problematic decision Ergas v. Universal Property and Casualty Insurance Company.1 From a claims standpoint, South Florida is ground zero for "chipped tile claims." The frequency of that type of loss is geographically extraordinary because it infrequently occurs in other areas of the United States.

I noted "chipped tile claims" three years ago in Broken Tile Claims, Oil Spill Issues and Internet Problems:

The post, Public Adjusters Arrested in Broken Tile Insurance Fraud Scheme, set records for “hits” on this site. I also received all kinds of emails and discussion from others. At lunch with six attorneys in our firm, I mentioned that I have been doing this line of work since 1983 and have never handled a broken tile claim. Four others had the same experience, one attorney had a couple, and only Michelle Claverol, in our Coral Gables office, had more than a few.

I learned that some experts conducted tests regarding the breaking of tile. They found that breaking tile is not as easy at it may seem. A pot, shoe, or falling object has got to hit a tile just right or the tile has to be loose or set improperly for breakage to occur. They are not fragile. The back side of a hammer is sharp enough to cause the breakage quite easily with a strong strike.

I was reminded that an attorney friend of mine advertised for broken tile claims at the Windstorm Conference several years ago. Apparently, he had a fake million dollar check with his firm and that of a public adjuster as payees. The space in the bottom left had “one cracked tile’ written on the explanation line. The Florida Bar certainly would not have approved of such an advertisement. Indeed, it is quite unprofessional. To imply to public adjusters and the public that attorneys can help obtain large recoveries for a small cracked tile loss begs for the type of conduct that happened as indicated in the post. This past legislative session, some in the Florida Legislature mentioned this type of conduct as a reason to change longstanding consumer protections regarding insurance. If public adjusters and policyholder attorneys want a bad reputation to be developed, all we need is for some to continue this type of conduct. Insurance adjusters and insurance company management are rightfully upset, and so are the rest of us. A few bad apples are harming legitimate and law abiding public adjusters and consumers.

Nevertheless, the facts of Ergas are as follows:

Benjamin and Beth Ergas were insured under a homeowner’s insurance policy with Universal. Mr. Ergas dropped a hammer on the tile floor in the home and chipped it. The chip was about the size of the hammer head, which appears from the pictures in the record to be the size of a quarter. The Ergases then filed a claim to recover for this damage under their homeowner’s policy. Universal denied the claim on grounds that the policy excluded coverage. Section I of the policy provides: “We insure against risk of direct loss to property… We do not insure, however, for loss: . . . 2. Caused by: . . . (e) Any of the following: (1) Wear and tear, marring, deterioration . . . .

The bottom line of the ruling is pretty simple:

As did the trial court, we conclude that the damage caused by the hammer dropping constituted marring and thus was excluded from policy coverage.

I will write more about this decision and the legal analysis after I read the briefs and pleadings. My initial impression is the opinion seems to dismiss the sudden and accidental concept of damage. It may cause many insurance companies to not pay previously paid losses and legitimate claims where physical damage is worth more than the deductible.

1 Ergas v. Universal Prop. & Cas. Ins. Co., 4D11-3803, 2013 WL 1748574 (Fla. 4th DCA April 24, 2013).

  • shirley heflin

    Dear Chip:

    I’ve never heard of a “chipped tile” claim, however, it would seem to me that the cheaper the tile, the easier it is to break. If someone buys cheap tile (instead of marble) it’s going to break easier and, thus, be more fragile.

    It would seem that making a claim for a hammer falling on one’s tile, though, is not worth (a) having it on one’s “claims history” and (b) probably not worth more than the deductible.

    (Tampa, FL)

  • Kris Kelly

    Unfortunately, these claims along with the mysterious disappearance of a pair were the popular go to once the statute of limitations ran out on the Wilma claims.

    South Florida has always been ripe with it’s fair share of fraud, with that being said there is also a reason it is easy to exploit this particular type of loss when most of the homes in South Florida consist of floors that are 90% tile and tile that cannot be replaced by piece or easily matched.

    Most companies have caught on and placed some type of provisions in the policies. It is a shame that rates have been affected by ones that have slipped by and that some may have a harder time collecting that genuinely need the coverage.



    Please! “Chipped tile” claim the size of a hammer head? Really? All this time & money wasted on submitting a POL, Adjuster(s) time, litigation, attorneys, appellant attorneys, the lower court, the appellate court – it’s ridiculous!!

    These people – all involved – need to get a life and become a solution to the problem – not a part of the problem.

    (Tampa, FL)

  • The issue was not a fraud related issue. It is a coverage issue which isn’t getting into the discussion. I’m perplexed how a falling object can be deemed as “marring” and excluded. So a hammer falls onto a tile and chips the tile – lets say its not a tile – lets say its a very expensive glass table or crystal bowl.. marring? Really? So – a construction worker at your house drops a hammer from the 2nd level staircase.. it lands on your piano.. and that is marring? I’m not getting it. Why stop at a hammer? I’m sure defense counsel is not going to stop there. Doesn’t that set the stage for any object falling on any other object and damaging it?

  • Bob Cook

    I am interested to know if “Marring” following this new ruling can be applied to the damage caused to Roofing tile or Shingle during a hail storm


    Hey…..I’ve been re-educated on this topic upon reading my e-mail this a.m. I was under the mistaken impression that only one tile was being claimed – didn’t know all tile had to be replaced. I know nothing about that stuff (I do now). It makes sense that more than one would have to be replaced though.

    Further, I agree w/Mr. Burpee’s examples above. Frankly, if the Ergas’ had to replace their entire tile floor, it should be covered – no doubt.

    (Tampa, FL)

  • Chip Merlin

    Kevin and Bob,

    Your coverage points are examples explaining why the decision is wrong. I have not read the policyholder’s briefs and whether they made these points, but the application of the rule of law when pushed to other common examples clearly shows why the decision is an absurd result.

    Thank you for your comments.

  • Bill

    What an idiotic case to appeal. Could you pick a case with worse facts to take up? A case about a dropped hammer? So instead of one lost case, they now have the same lost case and horrific case law that will wipe out thousands of valid claims and cases. Brilliant.