Insurance adjusters and their attorneys should demand examinations under oath on a timely basis. Prompt adjustment requires it. However, the current technique and growing practice by many insurers is to request an examination months and even years after the loss. Sometimes, the demands are made after suit has been filed. This is a wrongful delay tactic that needs to stop.
Sandy Burnette won an appeal and had a matter remanded for appraisal. In American Capital Assurance Corp v. Courtney Meadows Apartment, 35 Fla. L. Weekly D802a (Fla. 1st DCA April 7, 2010), the court held:
[T]here is no language in the policy that requires appraisal to be invoked, if at all, within any set time from receiving or waiving the sworn proof of loss. Thus, under the terms of the instant policy, the insurer’s demand for appraisal was not untimely. Furthermore, the insurer has not waived its right to appraisal as it has not acted inconsistently with that right from the time of demand…
Accordingly, because the insurance contract provided for appraisal, the insurer’s demand for such was not untimely, and the insurer did not waive its right to appraisal, the trial court erred in partially denying the motion to compel appraisal.
Imagine a situation where a butcher sliced some meat you ordered, weighed your cut, and then told you that you owed $43.79—but refused to tell you how he calculated the price. Would you simply agree and pay the butcher? Of course not. But this is what happens all the time when insurers refuse to turn over engineering reports or honestly explain how evaluations of damage were arrived.
Yesterday’s post, Appraisals Better Be Won Because They are Difficult to Overturn–Even if Unfair in Result or Procedure, generated a comment which I spent considerable time thinking about and responding to last night. I appreciate everyone that takes time to post comments to this blog. Many regular readers are from insurance companies, independent adjusting firms, insurance defense counsel, and those with interests and opinions often opposed to mine . The free exchange of ideas is important. True learning often results from the difficulty of understanding and respecting different views and philosophies.
Fire was the major peril insured by the insurance industry over a hundred years ago. In the tradition that is still commonplace today, insurers wrote specific exclusions into the insurance contracts which limited when they had to pay for loss caused by fire. I guess my friends along the coasts of Mississippi and Texas could relate when they found their all-risk insurance policies which cover hurricanes excluded damage from the waters that came with the hurricane.
The insurance industry is probably calling and writing the editors of the FC&S Bulletin because the June 2009 edition correctly notes that Ensuing Loss Damage is covered under the ISO form policies for typical Chinese Drywall losses. I recently noted various coverage issues related to Chinese Drywall. A number of these cases are coming to our office because insurers are not affording first party coverage.
Why are major insurance companies selling insurance with "feel good" messages rather than explaining how many different types of accidents and catastrophes they will not cover? If they were honest, wouldn’t they explain to customers what is not covered before the purchase? Sandy Burnette wrote a comment to "Is the State Farm Policy Really Worth Anything?" As I indicated in yesterday’s "Some Public Adjuster and Insurance Attorney Concerns and My Blogging Mistakes," he made a valid criticism which I corrected and appreciate him calling to my attention.
When you write things for the public, mistakes and opposite views will be pointed out. The public nature of blogging is a relatively new experience for me. I speak, write, and advocate in private all the time. Indeed, most of what I do on behalf of clients is very private. Further, some public matters and cases later become private matters much to the chagrin of third parties. So, regarding this Blog, I appreciate comments that point out when I am wrong or when there is a differing opinion or explanation.
My wife and I spent a very pleasurable weekend in Dallas as guests of Charles and Tracey Shreves. They operate the Spink Shreves Auction Galleries and held an informal gathering of serious stamp collectors from across America. I enjoyed viewing some amazing private collections.
Paul Butler was my first legal mentor. John Pappas was a classmate of mine at the University of Florida School of Law, and the best man in my wedding. They have built a hundred attorney law firm representing solely insurance companies. We have cases against them all the time. As they are physically located several floors below us in the same office building, and both David Pettinato and I worked at the firm in different eras, we have a pretty good idea of what our familiar foes are about.