QBE Insurance Company is becoming quite prevalent in the news and legal case decisions in Florida. While reviewing other blogs, I came across Dennis Wall’s two blogs, Insurance Claims Issues and Insurance Claims Bad Faith, to which I suggest that many readers of my blog subscribe. While my feeling is that much of what he writes is a viewpoint of insurance that slightly favors excuses for denials and delay of claims, it is an excellent source worthy of reflection. His recent post, Collateral Source Rule Held No Bar to "Other Insurance" Policy Evidence, helps demonstrate both points.
Wall’s very brief blog post noted that:
In King Cole Condominium Ass’n v. QBE Insurance Corp., (S.D. Fla. Opinion Filed January 5, 2010), a Federal Judge held that the collateral source rule does not preclude evidence regarding an Other Insurance Policy, issued by one USPlate Glass Insurance. Defendant QBE Insurance Corporation argued in that case "that the USPlate policy goes directly to the issue of whether Defendant breached its obligations to Plaintiff under the insurance contract." The Federal Court denied the Plaintiff’s Motion in Limine to Preclude Evidence of the USPlate Policy:
“The Court agrees with Defendant. Defendant shall be permitted to introduce evidence relating to the USPlate Glass Insurance Policy as it relates to its obligations to Plaintiff and whether it breached the contract.”
The practice pointer for all insurance coverage attorneys is to follow up on the "plate glass coverage." Yet, the more interesting part of the decision, and the reason for my interest in this post, has to do with the recurrent theme that QBE hires the same experts and attorneys that claim the policyholder, usually a Condominium Association, is guilty of fraud. In almost every case that I know of where QBE has disputed the amount of the damage, QBE has hired the same set of experts and its attorneys argue that the condominium association is guilty of fraud because, in part, the association asks for amounts of damage higher than the amounts QBE’s experts estimated. Wall’s blog failed to raise or note this issue which many policyholders would question.
QBE retains the same set of alleged expert witnesses in virtually every case, including engineer, Dan Laverich. In the same case Wall referenced, he made no mention of this or of the Court’s opinion that such practice may be explained to a jury in order to question whether Laverich has an outcome oriented bias towards QBE. In his brief summary, Walls neglected to note that the Court ruled that the dollar amount paid to Laverich by QBE was clearly relevant to establish his "prejudice and bias" to provide opinions on behalf of QBE. I wonder why Wall did not comment on that part of the case?
QBE has been a subject of recent blog posts. Michelle Claverol noted a QBE decision worth reading in her post, Replacement Cost Value Coverage After a Claim Denial: Florida Valuation Issues, Part 6:
Likewise, in Vantage View v. QBE Ins. Corp., 2009 WL 536546 (S.D. Fla. March 3, 2009), the insurer denied the claim. The court, relying on Bailey, held that it is not “reasonably possible” for the insured to make repairs without receipt of the funds from the insurer and that the insured was therefore relieved from its obligation of repairing or replacing the damaged property before demanding replacement cost value.
The point of that blog is that QBE denied coverage and then has its attorneys argue that it would never be responsible for replacement cost coverage even if the insured prevails. Since the policy contemplates prompt payment of actual cash value benefits, how does an insured fully replace at replacement cost values without the insurer first paying the full amount of the actual cash value of the loss promptly? QBE was trying to get out of paying the replacement cost, even if it lost on the actual cash value coverage issue.
QBE may even significantly change longstanding Florida law to allow insurance lawsuits to be brought for the breach of good faith obligations at common law. As I noted in Common Law Good Faith Duty Before Florida Supreme Court, QBE has now placed the most important insurance consumer protection question before the Florida Supreme Court–I can imagine QBE’s insurance competitors and attorneys are wondering why. In that post, I noted:
QBE Insurance Corp. v. Chalfonte Condominium Apartment Ass’n., will be a landmark case in Florida. Mary Fortson and I have been working on an amicus brief on behalf of United Policyholders. My opinion is that it would not make sense for Florida law to not recognize the duty of good faith when every adjuster is trained from day one that insurers have such a duty. The duty of good faith and fair dealing is accepted as the most basic principal of an insurance company’s primary obligation in the insurance industry.
Why in the world would a judge say that a good faith duty does not exist? To do so would not only be legally wrong, it would be factually wrong as well.
In A Common Law Remedy For Lack Of Good Faith And Fair Dealing Is Before The Florida Supreme Court, we uploaded our amicus brief on behalf of United Policyholders. There I argued:
Making an insurer accountable for causing additional damages that naturally flow from the breach of its mandated obligation of utmost good faith is good public policy and logically required if accountability is important to the law. Without accountability for breaches of these insurance good faith duties that most recognize as involving the public trust, the law would minimize these concepts and the importance of personal responsibility for insurers to do what they are obligated to do.
Does anybody, even Dennis Wall, disagree?