Recently Florida’s Fifth District Court of Appeal (“5th DCA”) issued a ruling related to whether a policyholder had waived the right to participate in the appraisal process.1 The right to participate in appraisal under the policy can be waived if actions are taken that are inconsistent with that right.

Continue Reading Recent Florida Appellate Court Case Involving Waiver Of Appraisal

Insurance applications are important in the insurance marketplace. Applications are part of the risk analysis insurers make in determining whether they will issue a policy. There is exhaustive case law on issues of misrepresentations, ambiguities, and incomplete applications. The issue I want to discuss is whether an insurer can waive its right to deny a claim based on an application misrepresentation.

Continue Reading In North Carolina, the Insurer Can Waive Its Right to Claim Forfeiture

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.

Continue Reading The Origin of “White Waiver” in California

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

Continue Reading Waiver of Flood Proof of Loss Requirement by FEMA Must Be Express and In Writing

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

Continue Reading Can An Insurance Company Waive A Defense Based On Lack Of Insurable Interest?

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.

Continue Reading Insurer Waives Privileges

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.

Continue Reading Is Failure To Provide A Proof Of Loss Fatal To A Policyholder’s Claim Against An Insurer?

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.

Continue Reading Will Your Business Be Covered When It Needs it The Most? – Understanding Business Interruption Claims

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.

Continue Reading Waiver and Estoppel May Prevent Denial of Coverage When the Insurer Knows a Policyholder Is Not In Compliance With Policy Conditions

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