Representing governmental entities regarding their insurance claims is very different than representing private individuals. At least this has been my experience after representing numerous governmental school districts, municipalities, ports, power authorities, and even judicial entities. The photo above is of me and Merlin Law Group attorney Javier Delgado. Javier and I have jointly been involved in governmental claims in Texas, Florida, New Jersey, New York, Oklahoma, Puerto Rico, and the U.S. Virgin Islands. Experience means a lot in our business and Javier, who worked his way through law school as an insurance claims adjuster, has practical experience regarding how property insurance claims should be settled as well as legal experience about how governmental claims are often undervalued by insurance companies.
Most of these governmental entities have fantastic plans to help their constituents if a disaster strikes, but they usually have zero plans about what to do for their own insurance claim.
As a result of not having plans about what to do to determine their own loss, guess who is typically tasked with finding and reporting on the damages in most public buildings?
You get a “bingo!” if your answer was “janitors and building maintenance supervisors.”
Do these individuals find all the damage? “No” is the simple answer. They usually report on what is found with a hole, has fallen down, or is leaking following a rainstorm after a property loss damages the exterior of a building. They find gross damage and fail to locate or discover all kinds of subtle physical damage and even significant damage of a structural nature that most trained adjusters and engineers would never miss.
As a result, It is not uncommon that governmental general counsel, their public adjusters, remediation contractors, and sometimes elected politicians themselves come to us after a contractual statute of limitations provision has passed, claiming that they did not know of the extent of the loss, that the loss was greater than what the insurance company stated, or that they didn’t know of a limitations period.
When representing governmental entities, there is sometimes an old English common law doctrine that exempts public entities from having to comply with those statutes of limitation and contractually shortened ones found in insurance policies:
The doctrine of nullum tempus occurrit regi—literally, no times runs against the King—is an old English common law doctrine that governments have used to bring suits for damages that would otherwise be barred by the statute of limitations.
Nullum tempus was inherited in the United States during this nation’s birth as part of the English common law related to state sovereignty. After our nations independence, reipublicae—state— has often replaced regi—king— in referencing this doctrine.
At its heart, nullum tempus stands for the doctrine that says the State is not bound by a statute of limitation unless the statute expressly mentions the State by name. Today, the doctrine is justified on the public policy grounds that public remedies ought not be lost by the failures of public officers to seek timely relief, as they are burdened with serving the public.1
Every state has a little different angle on this issue. However, it is not uncommon when it comes to representing public entities. So, if you find yourself in this type of predicament and the insurance company is trying to avoid payment based on late compliance with filing suit or doing something, please see qualified and experienced insurance counsel familiar with these types of arguments allowing for recovery but reserved for public entities.
Thought For The Day
One’s only rival is one’s own potentialities. One’s only failure is failing to live up to one’s own possibilities. In this sense, every man can be a king, and must therefore be treated like a king.
—Abraham Maslow
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1 Nullum Tempus Compendium of Law, USLaw Network, Inc.
