As a property insurance attorney in California, I often come upon the situation where insureds consult with me when asked to sign what is known here as a "White Waiver." At the point that a "White Waiver" is brought up, a property owner at issue with an insurer either during the claims stage or during litigation has much to think about before agreeing to sign a "White Wavier." The California Supreme Court found that an insurer may be liable for bad faith conduct which occurs during the litigation between an insured and his or her insurer. It is from this premise the "White Waiver" situation arose.
Those familiar with Super-storm Sandy claims are aware that FEMA can extend/waive the formal proof of loss requirement within the Standard Flood Insurance Policy (“SFIP”) under the National Flood Insurance Program (“NFIP”). FEMA has extended the proof of loss deadline for Sandy claims until October 29, 2014. But what about flood losses that affect an area smaller than the widespread effects of Sandy? The SFIP requires a proof of loss to be submitted within sixty days from the date of loss, and FEMA may be less likely to issue a formal written extension of time when there is less political pressure surrounding a loss event. FEMA can waive the proof of loss requirement for a particular policyholder, but any waiver must be an express written waiver. There is a recent Florida case involving FEMA’s waiver of the proof of loss requirement.1
Can an insurance company waive a defense based on lack of insurable interest by accepting premiums for the policy and issuing it? It may depend on the jurisdiction you are in. If the insurance company issued the policy and accepted the premiums even though it should have known its customer did not have an insurable interest, the policyholder may be able to recover in some jurisdictions.1 New York Courts have recognized the theories of waiver and estoppel under these circumstances.2
Generally, any communication between an attorney and client is privileged. I often tell clients that when they want to talk about their claim by someone, they should talk to their attorney only so as not to break any privilege issues. Although I know sometimes discussing the claim outside the attorney-client relationship is a must, those communications (emails, letters, etc.) are usually considered discoverable in the event of a lawsuit, and their insurance company is entitled to those non-privileged communications.
Nearly every property insurance policy contains a proof of loss provision which requires the insured to submit a sworn proof of loss. Policies often state,
We will pay within 60 days after we receive your proof of loss and the amount is finally determined by an agreement between you and us, a court judgment or an appraisal award.
Last month, in Service One Cable T.V., Inc. v. Scottsdale Ins. Co., 2011-1469 (La. App. 1st Cir. February 10, 2012), the Louisiana First Circuit Court of Appeals decided that a cable service company did not have coverage under its commercial property damage or business income provision after a hurricane damaged the company’s cable distribution system.
Many policyholders are surprised to find out they are without coverage after a loss because of a condition that existed at the time the insurance contract was formed. Insurance companies have many claims personnel that may overlook a pertinent issue during the application process and others take the premiums knowing a claim can be denied based on that condition. The doctrines of waiver and estoppel may be able to afford coverage in those circumstances and rectify a truly inequitable result.
I have previously written about how an insurance company can waive its right to appraisal by taking too long to invoke it, but are there other ways an insurance company can waive its right to an appraisal? For example, does an insurance company waive its right to appraisal when it recognizes some but not all of the damages claimed by the insured? What if the insurer anticipatorily breaches the insurance contract? The United States District Court for the Southern District of Texas recently weighed in on this issue in Boone v. Safeco Ins. Co. of Indiana, No. H-09-1613, 2010 WL 2303311 (S.D. Tex. June 7, 2010).
Continue Reading Waiver of Right to an Appraisal in Texas: Additional Arguments
"Maybe if we think and wish and hope and pray it might come true"
–The Beach Boys
A recent Florida case that involves examinations under oath demonstrates that insurers should cooperate with policyholders and not try to use technicalities to prevent payment. In First Home Ins. Co. v. Fleurimond, 3D09-2034, 2010 WL 2178839 (Fla. 3rd DCA June 2, 2010), policyholders were allegedly yelled at and badgered during an examination under oath. They left, obtained counsel, and the insurer then refused to reconvene the examination under oath. The policyholders filed suit, demanded an appraisal, and the insurer refused. The trial court ruled that the matter should proceed to appraisal, and the insurer appealed.
The appraisal process has been around for a long time, and it is not going anywhere anytime soon. In fact, records indicate that the Texas Supreme Court has enforced appraisal clauses in insurance policies as far back as 1888. Typically, appraisal clauses do not specify a time frame for when a party can invoke the appraisal process. Many of you out there might think that this means that a carrier can invoke the appraisal process whenever it wants. However, that is not necessarily the case.