Claims and Bad Faith Law Blog

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    **Florida Insurance Bad Faith Expert - Author's Note:  If you have reached this blog through a list that carries advertising, your computer may or may not be put at risk either through the list or through the advertising.  I do not accept or authorize any commercial advertising of any kind on any list or post.  Placing commercial advertisements with or near any of my web log posts is prohibited.  Further, I do not recommend any products or services advertised with or near any of my posts or any list of my posts.** 

   

 

EXCESSIVE PREMIUMS & NOT INCLUDING MORTGAGORS ON LFPI POLICY: CLAIMS ALLOWED.

 

Mortgagors alleged that their lender placed insurance on their mortgaged property by force after the insurance lapsed that they had agreed in their mortgage agreement to keep in place on the property.  The Court had no problem with this.

The mortgagors alleged that their lender breached their mortgage agreement, apparently not just because the lender force-placed insurance which, as the Court noted, the lender had a right to do under the circumstances.

Instead, the mortgagors alleged that the lender force-placed insurance (LFPI) was objectionable on the basis of two allegations:  (1) they were forced to pay excessive premiums under the  LFPI policy and (2)  the lender failed to include them on the policy.  On these two allegations, they claimed that the lender acted in bad faith and breached fiduciary obligations under Florida law as a result.

In an opinion that is published at less than one page in Westlaw, the Court agreed.  The lender's motion to dismiss was denied.

The case has just been reported on Westlaw.  It is Meyer v. Bank of Am., N.A., No. 3:21-cv-1088-HES-JRK, 2022 WL 18492520 (M.D. Fla. Aug. 18, 2022).

Please read the disclaimer.  ©2023 Dennis J. Wall.  All rights reserved.

INSURANCE FOR FRACKING EARTHQUAKE DAMAGE?

Earthquakes have increased by 9 times in the past 5 years in Texas, while fracking has increased over the same period.  In particular, reinjection of salt water waste produced by fracking seems to be the culprit.  All this leads to questions of insurance availability – and insurance coverage  questions.

"Earthquake insurance is not something people generally purchase in West Texas, though there has been talk of it now, particularly in the larger cities of Odessa and Midland."  J. David Goodman, In Texas Oil Country, an Unfamiliar Threat: Earthquakes, NEW YORK TIMES, online Saturday, January 28, 2023, https://www.nytimes.com/2023/01/28/us/texas-earthquakes-fracking.html.

"Earth Movement" Exclusions and fracking coverage questions are discussed in § 7:9, Earth Movement, by Dennis J. Wall in Volume 1 of John K. DiMugno, Steven Plitt, and Dennis J. Wall, CATASTROPHE CLAIMS (Thomson Reuters Dec. 2022 Edition).

Please read the disclaimer.  ©2023 Dennis J. Wall.  All rights reserved.  

DOES YOUR FILED insurance RATE DOCTRINE INCLUDE REFUNDS?

Utilities;  Pennsylvania Power & Light.  (nypl.digitalcollections.510d47d9-b681-a3d9-e040-e00a18064a99.001.w)

The filed rate doctrine applied by Federal agencies and approved by Federal Courts is where some States get the inspiration for State agencies and State Courts to apply filed insurance rate doctrines.

In Ameren Ill. Co. v.  Fed. Energy Reg. Comm'n, ___ F.4th ___, No. 20-1277 Consolidated with Nos. 20-1450, 21-1154 &  21-1254,  2023 WL 363887 (D.C. Cir. Jan. 24, 2023), the Federal Energy Regulatory Commission ordered refunds to consumers of electricity from regulated electric utilities which charged more than their filed rates allowed.   FERC was affirmed on appeal in this case.

The Court made this point which was crucial to its determination to affirm FERC's refund order in this case:  "The Commission has 'authority to order refunds if it finds violations of the filed tariff.'”  Ameren Illinois, 2023 WL 363887, at *2 (citation omitted).  Practitioners in States in which Federal or State Courts follow a filed insurance rate doctrine, would be well advised to research whether their State Insurance Commissioners, by whatever name (in Florida, the Insurance Commissioner is in the recently more widely recognized Office of Insurance Regulation, currently housed within the Department of Financial Services), have the authority to order refunds if they find violations of the filed tariff.  This will almost certainly determine the outcome of many clients' cases.

Please read the disclaimer.  ©2023 Dennis J. Wall.  All rights reserved.

STATUTORY CURE PERIODS, APPRAISAL PROVISIONS, AND CIVIL REMEDY NOTICES.

Hurricane Ian aftermath (Orlando Sentinel)

Many jurisdictions have "bad faith statutes" which require the claimant to provide a Civil Remedy Notice of Insurer Violation of the statute, and which themselves provide a "cure period" within which the carrier can foreclose litigation over the alleged violation by "curing" it.  The statutory "cure period" is not tolled in Florida when the carrier invokes a policy's appraisal provision after the policyholder has filed a Civil Remedy Notice (CRN).   E.g., Apex Roofing & Restor., LLC v. State Farm Fla. Ins. Co., 343 So. 3d 1223, 1225 (Fla. 5th DCA 2022); Zaleski v. State Farm Fla. Ins. Co., 315 So. 3d 7, 12 (Fla. 4th DCA 2021), review denied & attorney's fees awarded, No. SC 21-707, 2021 WL 5292345 (Fla. Nov. 15, 2021).

          Appraisal provisions and their role in generating as well as resolving claims, are discussed in Dennis J. Wall, § 2:7, Appraisal, in Volume 1 of John K. DiMugno, Steven Plitt, and Dennis J. Wall, CATASTROPHE CLAIMS (Thomson Reuters Dec. 2022 Edition).

Please read the disclaimer.  ©2023 Dennis J. Wall.  All rights reserved.

COVID-19 CLAIMS, STATE LAW, AND CERTIFICATION BY FEDERAL COURTS.

(COVID Christmas Facetime / Francine Orr. Los Angeles Times)

Most Courts decide questions of State law concerning Insurance Coverage for COVID claims.  Another way to deal with these issues, in federal courts at least, is to request certification of these and similar questions to the State Supreme Court where certification is available. In Another Planet Entertainment, LLC v. Vigilant Ins. Co., No. 21-16093, 2022 WL 17972557 (9th Cir. Dec. 28, 2022), for example, a panel of the Ninth Circuit Court of Appeals certified this question to the California Supreme Court:

Can the actual or potential presence of the COVID-19 virus on an insured's premises constitute “direct physical loss or damage to property” for purposes of coverage under a commercial property insurance policy?

(Page numbers unavailable at the time that this article is published.)

Please read the disclaimer.  ©2023 Dennis J. Wall.  All rights reserved.

 

"PERSONAL EXPECTATIONS" NOT "PHYSICAL INJURY," NO COVERAGE, NO BAD FAITH.

Once again, a reported decision highlights the reach of holdings that demonstrable physical injury must be proven in order to trigger property insurance policy coverage under some policies.  In Am. Fam. Mut. Ins. Co. v. Coyne, ___ F. Supp. 3d ___, No. 4:18-CV-139 RLW, 2022 WL 6990186, at *6 (E.D. Mo. Oct. 12, 2022), the relevant Homeowners Policy defined covered "property damage" to mean "'[p]hysical damage to or destruction of tangible property, including the loss of use of this property.'"   The claims against the policyholder did not trigger coverage in this case under this policy.

In Coyne, the policyholder allegedly represented before selling her house that the house had an attached two-car garage, in pertinent part.  The underlying plaintiffs-purchasers moved in after their purchase of the house.  It was then that they "learned that they could not fit their two vehicles in the attached garage."  Coyne, 2022 WL 6990186, at *1.  Perhaps understandably, they sued.

Under the liability portion of the Homeowners Policy, the Court held that there was no duty to defend:

The Court holds that the Bockmans cannot demonstrate any physical injury to their garage or Property, which would be covered under the Homeowners Policy. The garage and Property are in the same condition as they was prior to their purchase. The only damage was to the Bockmans’ personal expectations.

Coyne, 2022 WL 6990186, at *6.

As there was no coverage in this case, so there was no viable bad faith claim in this case, either.  The coverage claims were resolved by the Court when it entered summary judgment for the carrier and dismissed the purchasers' claims with prejudice.  Coyne, 2022 WL 6990186, at *7.

Please read the disclaimer.  ©2023 Dennis J. Wall.  All rights reserved.

FLORIDA CIVIL REMEDY NOTICE VALID DESPITE NO SPECIFIC CURE AMOUNT.

In Lugassy v. Utd. Prop. & Cas. Ins. Co., ___ So. 3d ___, No. 4D21-2929, 2022 WL 17171368, at *2 (Fla. 4th DCA Nov. 23, 2022), a Civil Remedy Notice of Insurer Violation ("CRN") of Florida's Bad Faith Statute was held to comply with the Florida Statute:

    Here, the Homeowners’ CRN listed the specific statutory provisions that United allegedly violated, referenced the specific policy language relevant to the violations, and gave a detailed recitation of the facts surrounding the violation.

In particular, the appellate court held that the trial court was wrong to accept the carrier's argument in this case that the CRN has to show a specific amount for the carrier to pay to cure its alleged bad faith.  The CRN does not need to show a specific cure amount in order to qualify as a proper CRN under the Florida Bad Faith Statute:

    Regarding the trial court's determination that the CRN was invalid because the “cure” amount was unclear, we reject this determination as Florida law does not require a CRN to include a specific cure amount. 

Lugassy, 2022 WL 17171368, at *3.

Please read the disclaimer.  ©Dennis J. Wall 2023.  All rights reserved.

NO "DIRECT PHYSICAL LOSS," NO "DAMAGE TO," NO BAD FAITH.

(Image by NASA)

The reach of holdings that demonstrable physical injury be proven in order to trigger property insurance policy coverage under policies which require "direct physical loss of or damage to" property, is illustrated by the holding in EMOI Serv's, L.L.C. v. Owners Ins. Co., ___ N.E.3d ___, No. 2021-1529, 2022 WL 17905839 (Ohio Dec. 27, 2022) (stated "PRELIMINARY COPY, SUBJECT TO FURTHER EDITING").

In EMOI Services , the issue was whether "a businessowners insurance policy issued by appellant, Owners Insurance Co. ('Owners'), and held by appellee, EMOI Services, LLC ('EMOI'), covers losses that resulted from a ransomware attack on EMOI's computer-software systems."  EMOI Services, 2022 WL 17905839, ¶ 1, at *1.  The issue was so clear in the eyes of the Ohio Supreme Court that no trial would be required.

The businessowners insurance policy at issue conditioned coverage on a “direct physical loss of or damage to” the property in question in the loss, in this case, the software.  As there was no demonstrated direct physical loss of or damage to software as a result of a ransomware attack on EMOI, "Owners is not responsible for covering the resulting loss."  EMOI Services, 2022 WL 17905839, ¶ 1, at *1. 

The contrary intermediate appellate court decision was reversed and the trial court's entry of summary judgment was "reinstated" on EMOI's alleged claims for breach of contract and for insurer bad faith in Owner's denial of coverage.

 Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

SEALING THOSE SETTLEMENT AGREEMENTS, SO NO OUTSIDER KNOWS WHY, WHAT.

(Gridview_imagefull/Florida Department of Agriculture and Consumer Services)

There are a couple of threads being played out in the brief decision in Bertrand v. Jefferson Parish, No. 22-1618, 2022 WL 17814243 (E.D. La. Dec. 1, 2022).

One thread is that that litigating parties want to conceal the fact, amount, terms and conditions of their settlement agreements. They don't want other people to find out why they are settling, and for what, even if other people have the same reasons to sue that the plaintiffs in this case had.  See Bertrand v. Jefferson Parish, 2022 WL 17812423, at *1.

The twenty plaintiffs in this case were all employees of the Parish (county).  They filed their complaint alleging violations of the Fair Labor Standards Act (FLSA) in the aftermath of Hurricane Ida.  Bertrand v. Jefferson Parish, 2022 WL 17812423, at *1.

The plaintiffs-employees and their defendant employer jointly filed a motion to seal their settlement agreements.  Even though this was a Joint Motion, the Court denied this request.  Bertrand v. Jefferson Parish, 2022 WL 17812423, at *1.

There were two bases for the Court's short decision in this case.  One was the common law presumption of public access to Court files.  In this case, the settlement documents were filed in the Court file.  There was a resulting presumption that the documents would be available to the public.

The other basis for the Court's decision was the fact that in FLSA cases in particular, there is a strong presumption of keeping the settlement documents open and available to the public.  The parties can overcome the common law presumption of public access by offering "extraordinary reasons," but in this case the parties did not offer any.

The Court gave the parties an out, however:

For the reasons that follow, the Court DENIES the Motion to Seal and grants the parties fourteen (14) days to advise the Court whether they continue to request approval of the settlement, with the understanding that the settlement, if approved, will be approved by separate order, not under seal, and that the settlement agreements will be unsealed on the record.

Bertrand v. Jefferson Parish, 2022 WL 17812423, at *1.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

EXPERT OPINIONS ON CONTINGENCY DISQUALIFIED, BUT FACTS OBSERVED TESTIMONY ALLOWED.

 

(Galactic Storm Image by NASA)

In Midtown Inv's, LP v. Auto-Owners Ins. Co., ___ F. Supp. 3d ___, No. 20-cv-01594-PAB-STV, 2022 WL 17039225 (D. Colo. Nov. 17, 2022), a public adjuster was disqualified from testifying to opinions as an expert concerning an alleged property loss in a commercial property insurance case.

The proffered expert was retained on a contingency basis, with his payment depending on the outcome of the case.  The District Judge concluded that the danger of unfair prejudice to the defendant insurance carrier substantially outweighed the probative value of this witness's testimony.  Midtown Investments, 2022 WL 17039225, at *8.

However, this same witness was allowed to testify in this bad faith case to facts he observed, namely, "events that transpired during the claim process and his own observations, but may not offer expert opinions."  Midtown Investments, 2022 WL 17039225, at *8.  The same was held true regarding this witness's familiarity with industry practices; his testimony would be limited to what he personally observed of the defendant carrier's conduct handling this claim.  Midtown Investments, 2022 WL 17039225, at *8.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

REASONABLE EXPECTATIONS DOCTRINE DOES NOT OVERRIDE INSURANCE POLICY.

The doctrine of reasonable expectations did not apply to provide insurance coverage for a Condominium Association suing after a City condemned its building, in Horizon W. Condo. Homes Ass'n v. Travelers Indem. Co. of CN, No. 22-C-0597, 2022 WL 17574860, at *5 (E.D. Wis. Nov. 16, 2022):

    As explained below, I conclude that the complaint’s allegations establish that policy exclusions that apply to losses caused by the enforcement of, or compliance with, any ordinance or law generally bar the plaintiffs’ claims for coverage. However, to the extent that these exclusions do not apply, the complaint makes clear that other exclusions—particularly those excluding damage caused by rust and corrosion and structural instability that does not result in an abrupt collapse—would separately bar the plaintiffs’ claims.

The Horizon West Court granted The Travelers' motion to dismiss with prejudice in this case.  This case and other significant cases concerning the reasonable expectations doctrine are explored in Section 7:2, Reasonable Expectations of Insured, by Dennis J. Wall, in JOHN K. DiMUGNO, STEVEN PLITT & DENNIS J. WALL, CATASTROPHE CLAIMS / Insurance Coverage For Natural and Man-Made Disasters (Thomson Reuters November 2022 edition).

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

WHEN DEFENDANTS, NOT JUDGES, SAY WHO CAN SUE.

(Image by Donna Bruno.  ©Dennis J. Wall)

Many courts apply a narrow, restrictive version of third-party beneficiary law.  This branch of the law comes mostly from the States.

Many courts apply this law to hold that a homeowner cannot enforce payment of loss under a force-placed insurance policy even when the homeowner has put the carrier on notice, and even when the carrier has adjusted the claim.

These courts narrowly and restrictively say that an intended third-party beneficiary capable of enforcing the policy is only "intended" if the policy provides that payment is due to the homeowner under the policy.  Parenthetically, this holding means that a plaintiff can enforce payment under a contract when the contract says that she or he can enforce payment under the contract.  If it is that simple, why do the parties need a judge?

Such was the case in Haley v. Am. Sec. Ins. Co., No. 22-1728, 2022 WL 17281800 (E.D. La. Nov. 29, 2022).  Haley is a typical case, extreme but not an outlier.

John Haley and his wife, Cheryl, owned a home with a mortgage.  Cheryl died.  The lender's most recent assignee force-placed insurance premiums on John.  The premiums John Haley was forced to pay were premiums for a policy on which only the lender was a named insured.

The court in this case, like most courts in cases like this, did not even mention that  "Loss Payment" under  the policy was not limited to the lender's interest; however,  the amount of the payment was left strictly to the lender under the lender force-placed policy.  See Doc. 1-2, "American Security Insurance Company Residential Dwelling Certificate," Form MIP 223 AS (01-12 & 0212), ¶ 12 at 7 in the policy, at 12 in the Exhibit, in Haley v. Am. Sec. Ins. Co., E.D. La. No. 22-1728-NJB-MBN, filed June 13, 2022.  Like the rest of this policy, the Loss Payment provision in this case is typical.

John alleged that he put the carrier on notice in December and that the carrier adjusted the claim.  (There is no allegation mentioned in the opinion that the lender did anything.)  John thought that the carrier's amount "was unrealistic" and sued..

In August, ASIC filed its motion for summary judgment that John Haley could not enforce the insurance policy that insured loss on John Haley's house.  With two days left in November, nearly a year after John Haley allegedly reported the loss, a federal judge entered summary judgment in ASIC"s favor saying that the homeowner living in the house covered by ASIC's insurance policy could not enforce ASIC's policy because the homeowner was not an "intended" third-party beneficiary.

I said earlier that this is a narrow and restrictive version of third-party beneficiary law.  This version is extreme but it is common.  In order to change the law, these courts' view of what is and is not an "intended" third-party beneficiary needs to be the product of a realistic view of what is happening on the ground, so to speak, rather than what the force-placed insurance company which wrote the force-placed insurance policy says is an intended third-party beneficiary.

Please read the disclaimer.  □2022 Dennis J. Wall.  All rights reserved.

MORE ABOUT THE CONTRACTUAL LIMITATIONS PERIOD IN INSURANCE CONTRACTS.

(Insurance Clip Art)

In Ransom v. Erie Ins. Co., ___ N.E.3d ___, No. 21 HA 0011, 2022 WL 4675876 (Ohio Ct. App., 7th Dist., Harrison County, Sept. 30, 2022), a property insurance  carrier convinced a trial judge to dismiss the policyholders' complaint with prejudice based on the policy's one-year limitations period for bringing suit against the carrier.  The policyholders-homeowners made a claim for damage to their roof; the carrier agreed that the claim was covered but contested the amount of damage.  The policyholders then sued, but it was over one year later.

In the trial court and in the appellate court, the carrier and the policyholders-homeowners contended:

    Appellee then moved to dismiss, arguing the complaint was filed beyond the one-year time limit to do so, as set forth in the contract of insurance.  As alleged, Appellants filed suit more than one year after the date the damage occurred.  However, Appellants urged the court to find Appellee had waived this provision based on its conduct showing it relinquished the one-year limitation because the parties were still negotiating the value of the claim when it expired.

Ransom, 2022 WL 4675876, at *5, ¶ 30.  The appellate court reversed the trial court, holding that the complaint raised a reasonable inference that, based on the carrier's negotiating conduct, the carrier may have waived its own contractual  limitations period:

    Upon accepting all factual allegations in Appellants’ complaint as true and making all reasonable inferences in favor of Appellants, this court concludes Appellee agreed there was coverage under the policy and the parties’ negotiations about the value of Appellants’ claim were ongoing one year after the date of damage to their roof. Because of the continued and unresolved nature of the claim here, it can reasonably be inferred these negotiations or contacts showed Appellee waived the right to invoke the contractual one-year limitation.

Ransom, 2022 WL 4675876, at *6, ¶ 32.

Moreover, the contractual limitations period did not apply to the plaintiffs' bad faith claims in this case, either, because under Ohio law "an insurer's breach of the duty to act in good faith is a tort and consequently governed by the statute of limitations for torts."  Ransom, 2022 WL 4675876, at *7, ¶ 43.  The carrier argued that in this case, the plaintiffs' bad faith claims should nonetheless be dismissed, based on the underlying nature of the claims themselves:

    We acknowledge Ohio courts, including this one, have recognized two different types of bad faith claims—the first is when a claimant must prove the insurer had no lawful basis to deny coverage, and the second is when the claimant does not have to establish the underlying coverage since the claim arises from the company having a lack of a reasonable justification to act in the manner it did.  [Citation omitted.]   However, this distinction does not affect our decision here. Based on the broad nature of Appellants’ bad faith allegations plus the fact we are reviewing a decision which granted a motion to dismiss, this distinction makes no difference. As stated, Appellants’ bad faith claim alleged Appellee breached its duty to act in good faith by refusing to pay the entire cost to repair the roof; initially denying coverage altogether; purposely delaying the handling of their claim without reasonable justification; and canceling their policy after they made a legitimate claim for coverage….

    Consequently, the trial court erred by dismissing Appellants’ second claim for relief by applying the one-year contractual limitation to Appellants’ bad faith claim.

 Ransom, 2022 WL 4675876, at *7, ¶¶ 44-45.

          The contractual limitations period in an insurance policy depends for its enforcement on the conduct of the carrier which wrote it.  This is a pretty universal rule in the law of jurisdictions in the United States.  Further, insurance bad faith claims are generally governed by statutes of limitations, not contract periods of limitation.  See generally 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH §§ 11:2 & 11:15 (West 3d Edition and 2022 Supplements).

Please read the disclaimer.  □2022 Dennis J. Wall.  All rights reserved.

THIS TIME THE CRN IS SUFFICIENT. THE CARRIER'S REFUSAL IS NOT.

In Lugassy v. Utd. Prop. & Cas. Ins. Co., No. 4D21-2929, 2022 WL 17171368, at*2 (Fla. 4th DCA Nov. 23, 2022) (STATED NOT FINAL), the Civil Remedy Notice at issue was held legally sufficient despite not stating a specific "cure amount" for the carrier to pay:

    Here, the Homeowners’ CRN listed the specific statutory provisions that United allegedly violated, referenced the specific policy language relevant to the violations, and gave a detailed recitation of the facts surrounding the violation. In relevant part, the CRN stated United gave “a lowball estimate that failed to include the floors at all, and otherwise under-scoped such items as drywall repairs and paint” and ignored documentation showing that additional payments were owed. We hold the CRN sufficiently complied with section 624.155(3)(b)'s specificity requirements and “sufficiently put [United] on notice of the facts and circumstances giving rise to the violations and the corrective action required to remedy the violations.” 

(The link in the above quote is to the 2022 version of Fla. Stat. § 624.155(3)(b) which is identical to the version cited in the Lugassy case.)

The trial court held in this case that a specific cure amount is required in the Civil Remedy Notice in Florida.  The appellate court reversed in this case because a specific cure amount is definitely not required in a Civil Remedy Notice under the Florida "Bad-Faith" Statute.  Lugassy, 2022 WL 17171368, at *3.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

CONTRACT LIMITATION ON LAWSUITS HELD "UNCONSCIONABLE."

(Gridview_Imagefull/Florida Department of Agriculture and Consumer Services)

In Tadych v. Noble Ridge Constr., Inc., 519 P.3d 199, ¶ 18, at p. 204 (Wash. 2022), a split en banc decision, the Washington Supreme Court held that a short, one year, limitation period in a construction contract was "unconscionable" and therefore unenforceable.

This decision has implications for similar short, sometimes one year, limitations periods in insurance contracts.

Let the issuer beware.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

ANOTHER FLORIDA CIVIL REMEDY NOTICE IS 'VOID FOR VAGUENESS.'

Editing (Image by LexisNexis)

In Demase v. State Farm Fla. Ins. Co., No. 5D21-2078, 2022 WL 16909408 (Fla. 5th DCA Nov. 14, 2022), Thomas and Joanne Demase served their property insurance carrier with a Civil Remedy Notice of their intent to sue for bad faith under Florida's bad-faith statute, Fla. Stat. § 624.155.¹  The Demases made a claim for coverage as a result of damage from a sinkhole.  The Florida bad-faith statute requires identification of the policy provisions relied on by the claimant writing the notice.

The Demases  wrote in their Civil Remedy Notice "SEE SUBJECT POLICY."  Further, they wrote that they based their pursuit of a civil remedy on "ALL INSURANCE POLICY PROVISIONS THAT PROVIDE COVERAGE TO THE INSURED PROPERTY," and apparently for good measure, on "ALL POLICY PROVISIONS."  Demase, 2022 WL 16909408, at *1.

In this case, Florida's Fifth District Court of Appeal joined its sister court from the Fourth District Court of Appeal in rejecting such a vague CRN as insufficient under the Florida statute.  The Fourth District's decision came in a similar case, Julien v. Utd. Prop. & Cas. Ins. Co., 311 So. 3d 875, 878 (Fla. 4th DCA 2021), and the Fifth District panel expressly agreed with it in Demase, 2022 WL 16909408, at *2-*3.

¹The 2022 version of the statute, linked here, is identical in pertinent part to the 2014 version at issue in Demase, which the appellate court reproduced in its opinion, Demase, 2022 WL 16909408, at *2.

Civil Remedy Notices in first-party cases like Demase are gathered in Section 9:21 of Volume 2, DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH (West Publishing Co. 3d Edition, and 2022 Supplements), and third-party cases involving CRN's are collected in id., Volume 1, Section 3:30.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

FORCE-PLACED INSURANCE: FLORIDA REAL ESTATE INVESTOR LOST WITHOUT DOCUMENTATION.

(Image by Donna Bruno, ©Dennis J. Wall)

In Foster v. PNC Bank, N.A., 52 F.4th 315 (7th Cir. 2022) (page numbers not available from Westlaw at this time), an investor in real estate in Fort Lauderdale tried to counter the summary judgment motion of the bank that force-placed insurance.  The mortgage that the investor gave to the bank was apparently a Uniform Mortgage because under Section 5 the bank had the right to force-place insurance in the event that the investor did not maintain the required insurance on the Fort Lauderdale property or was not current in his payments, in part here pertinent.

The investor filed his own affidavit (so described by the appellate court, not a declaration) that he obtained required flood insurance and that he was current on his loan payments.  (He also testified in his affidavit about his purchase of required wind insurance, which was held sufficient to rebut the bank's motion in the trial court as to the investor's purchase of wind insurance, so that it was not an issue on appeal.)

The trial court ruled that this affidavit testimony did not present a triable issue of fact as to the flood insurance  and the current loan payments issues, however, and so the district judge granted the bank's motion for summary judgment in the investor's lawsuit against the bank for damages.  The appellate court agreed.

Holding that the investor's testimony in the face of the bank's contrary records was conclusory and not worthy of consideration even on summary judgment, the appellate court affirmed the summary judgment.  To dig a little deeper, although the investor did file what was called an affidavit, the investor's testimony was only that he spoke to a bank representative on the telephone.  He did not state anything about the limits and provisions or any other facts of the flood insurance policy he said he purchased, only that he purchased flood insurance, and he did not say anything in his affidavit testimony about how much he paid on his loan, or when, or how, just that he was current.  He did not provide any documentation to prove his conclusory statements either that he obtained flood insurance or that he was current on his loan payments.

For these reasons, the trial court entered summary judgment for the bank and the appellate court affirmed.  The lessons for practitioners are clear:  More will be required of mortgagors contesting the forced placement of insurance by lenders than just the mortgagors' unsupported conclusions that they purchased the required insurance and that they were current on their loan payments.  Parenthetically, this federal case was filed in Illinois because the investor, who is a resident of Florida, also purchased property in Chicago, Illinois that was the subject of his lawsuit in the trial court but not the subject of this appeal.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

ANOTHER CIVIL REMEDY NOTICE DECISION.

(Image by Thomson Reuters West/ LinkedIn)

Hurricane Nicole became Tropical Storm Nicole when it reached here.  The storm did not blow you away, but a new decision will.

In the State of Washington, the Insurance Fair Conduct Act (IFCA) provides remedies to parties allegedly injured by the conduct of insurance carriers, in pertinent part.  IFCA defendants can include insurance carriers and IFCA requires the equivalent of a Civil Remedy Notice just as so-called "bad faith statutes" do.  The CRN is a condition precedent to suit in all such statutory actions.

In Lyons v. USAA Cas. Ins. Co., No. 3:22-cv-05462-JHC, 2022 WL 16854273  (W.D. Wash. Nov. 10, 2022), the plaintiff filed the complaint on June 24, 2022 and perfected his IFCA notice thereafter.  The plaintiff is a claims adjuster formerly employed by the defendant; the plaintiff filed his complaint after the defendant denied his homeowner's claim.

The plaintiff alleged several claims, including for declaratory relief, breach of contract, "Violation of Duty of Good Faith" citing Washington's Unfair Claim Settlement Practices Regulation and alleging the defendant's violation of "industry standards for the handling of insurance claims" (¶ 49), "Negligent Claims Handling," and alleged violations of the Washington Consumer Protection Act. These facts are not mentioned in the Court's opinion, but you can see them for yourself here  in the plaintiff's complaint uploaded here from the Electronic Court File:  Download Lyons v. USAA Cas. Ins. Co. DE 1 Complaint filed June 24 2022 (W.D. Wash. No. 3.22-cv-05462).

In the complaint, the plaintiff also "reserved the right" to allege a future claim in the case under the Insurance Fair Conduct Act.  After filing the complaint, the plaintiff requested leave to amend to add an IFCA claim to his other claims including the bad faith claims.  The carrier defended on two grounds in this case:  First, that the IFCA claim was perfected only after the lawsuit was filed, and second, that the plaintiff actually gave notice under IFCA after the plaintiff filed the lawsuit.

The federal district judge in this case rejected both of those objections and granted the plaintiff's motion for leave to amend to add the IFCA claim.  Lyons, 2022 WL 16854273, at *2-*3.

IFCA plaintiffs in insurance cases now have it on good authority that they can give the IFCA notice to the carrier after the plaintiffs have filed suit and that they can perfect their IFCA claims after they file suit regardless of when they give the required IFCA notice.

After Lyons, plaintiffs across the United States pursuing bad-faith claims under statutes that require Civil Remedy Notices now have the same precedent.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

THE VOTER VIGILANTES OF MARICOPA COUNTY, FEDERAL LAW & JUDGE: UPDATE.

 

The recent developments in an Arizona federal case surrounding the Voter Vigilantes of Maricopa County are confused and confusing by the mainstream media.  So I went out to the case docket on PACER (Public Access to [Federal] Court Electronic Records).  Here is what I found to be the case.

When last we left the story on Friday, October 28th, a federal judge had entered an order refusing to enjoin the Voter Vigilantes from  voter intimidation.  He said that he could not see how the First Amendment (right of intimidation?) could be reconciled with such an injunction, so he denied the injunction.

That was on October 28th.  Since then, the plaintiffs, augmented by the League of Women Voters, wrote an order together with the defendants reconciling the First Amendment with such an injunction.  Download Arizona Alliance for Ret. Am's v. Clear Elect's USA DE 51 Temporary Restraining Order (Stipulated and Contested) filed Nov. 1 2022 (D. Ariz. No. 2.22.cv.01823.MTL)  The federal judge signed the parties' stipulated Temporary Restraining Order on November 2, 2022 and, apparently emboldened by the parties' ability to write an order, he went further and ordered injunctive relief requested by the plaintiffs to which the defendants had not apparently agreed.

In the stipulated part of the Temporary Restraining Order, the defendants agreed not to carry guns to drop boxes in Maricopa County; to stay away from drop boxes the same 75 feet that Arizona law requires them to stay away from polling places; post a statement on their existing website and social media and on any new social media account they make, that directly contradicts everything they have been writing about drop boxes in Arizona; and other things. 

In the unstipulated part of the Temporary Restraining Order, this federal judge restrained the defendants from doxing any individuals (meaning enjoining them from publishing the names and contact information and such) who wanted to drop off their ballots.  Over the defendants' apparent opposition, this federal judge also enjoined the defendants from saying false things about Arizona voting law "through the close of voting on Election Day 2022."  Download Arizona Alliance for Ret. Am's v. Clear Elect's USA DE 51 Temporary Restraining Order (Stipulated and Contested) filed Nov. 1 2022 (D. Ariz. No. 2.22.cv.01823.MTL)

So, those are some of the things that have actually happened since last Friday, October 28, 2022 in the case of the Voter Vigilantes of Maricopa County.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

EVEN COVID COVERAGE DEPENDS ON LANGUAGE OF THE POLICY.

COVID ER (Jae C. Hong / Associated Press)

Coverage depends on the language of the insurance policy at bar.  It does not depend on hypotheticals and abstractions or majority views or trends.  To say again, coverage depends on the language of the policy, even for COVID.

In  Sacramento Downtown Arena LLC v. Factory Mut. Ins. Co., No. 2:21-cv-00441-KJM-DB,  2022 WL 16529547 (E.D. Cal. Oct. 28, 2022), the Court denied the carrier's motion to dismiss claims of insurance coverage for alleged  COVID-19 losses.  The policy at issue in that case is an "all risks" property policy with aggregate limits of "several hundred million dollars."

The plaintiffs "operate and manage the Golden 1 Center, which is the home of the Sacramento Kings, as well as a nearby hotel and outdoor shopping center."  The State of California and Sacramento County urged people to stay home, allegedly resulting in losses from cancelled basketball games, "a Bon Jovi concert, a talk by the former First Lady of the United States, and a graduation ceremony for Sacramento State University, among many others."  The basketball team and arena lost money; the hotel's occupancy rate dwindled to zero before the hotel closed; revenues of restaurants and retailers dropped, and "[t]he  plaintiffs also spent money cleaning, replacing air filtration systems, remodeling, and taking other precautions."  Sacramento Downtown Arena, 2022 WL 16525947, at *1 (record references omitted). 

The plaintiffs put forward a reasonable theory for coverage which, under California law, is enough to trigger coverage even if there is a reasonable competing coverage theory put forward by the carrier.  Once again, the language of the actual policy at issue in the particular case determined the outcome of the coverage issue.  "No matter what might be possible to plead and prove about a different policy and viral pandemics in the abstract, the policy at the center of this case can reasonably be interpreted as defining the presence of a 'communicable disease' as 'physical loss or damage.'"  Sacramento Downtown Arena, 2022 WL 16525947, at *4.

The policy at issue expanded on the policy's coverage for property damage.  In its first section, it set out a description of what the carrier identified in the policy as "other additional coverages."  The carrier wrote in its policy that these "additional coverages" are "coverages 'for insured physical loss or damage.'  One category of additional coverages relates to 'communicable disease response'," leading to the reasonable interpretation in the eyes of the Court that insured property damage includes "additional coverages" as stated in the policy including coverage for "communicable disease response," as also stated in the policy.  Since this interpretation offered by the policyholders is reasonable, it defeated the carrier's motion to dismiss in this case.  Sacramento Downtown Arena, 2022 WL 16525947, at *1.

To put it in the language of the policy's contamination exclusion – which was also raised by the carrier and rejected by the judge in this case – "it is reasonable to read the policy as defining the presence of a 'communicable disease' as non-excluded 'physical damage'[.]"  Sacramento Downtown Arena, 2022 WL 16525947, at *5.

The actual language used in the policy at issue also distinguished this judge's decision in Sacramento Downtown Arena from another ruling the same judge made on the same day in a different case denying all coverage for COVID claims under a differently written policy.  Vision Serv. Plan v. Ill. U. Ins. Co., No. 2:22-cv-00743-KJM-DB, 2022 WL 16530097, at *1, *4-*5 (E.D. Cal. Oct. 28, 2022).

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

TODAY'S ORDER DENYING INJUNCTION AGAINST INTIMIDATION IS ALREADY ON APPEAL.

Today, Friday, October 28, 2002, a federal Court Order denied an injunction against voter intimidation in Maricopa County, Arizona.  Download Arizona Alliance for Retired Americans v. Clean Elections USA et al. Doc. 32 Order filed Oct. 28 2022 (D. Ariz. No. 2.22.cv.01823.MTL).

The Court held that the Ku Klux Klan Act requires intent to intimidate.  The Court did not cite any authority in support of its ruling in this regard.  Id. at 11.  There is nothing in the Ku Klux Klan Act that requires intent, and no Court has ever said so, until today; the intimidation is the point.

The Order is already on appeal the same day.

Please see the previous articles published here and here.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

P.S. MARICOPA COUNTY VOTER VIGILANTE INTIMIDATION; KKK CORRAL OK IN ARIZONA?

 

(Image by the U.S. District Court for the District of Arizona)

With this postscript to yesterday's article published here, here are some further details about the lawsuit filed by Arizona , and the Maricopa County Voter Vigilantes.  Not everyone necessarily knows these things, so I will add them here.

The plaintiffs brought their lawsuit under the Voting Rights Act of 1965 and under the Ku Klux Klan Act.  They are requesting an injunction of voter intimidation by vigilantes with guns at polling stations in Maricopa County, Arizona.  As they alleged, there have been reports that the armed vigilantes are doing more than standing by drop boxes with loaded weapons; they are also accosting voters with accusations that people who are simply going to cast their vote are committing various crimes.   

The Voter Vigilantes of Maricopa County display the guns they carry (their point of having a gun is openly being seen with a gun), they cover their faces with masks to conceal their identity (not to stop the spread of COVID-19 of course), and they wear special uniforms of camouflage (to sit in a parking lot at a polling place in a city).    Arizona Alliance for Retired Americans v. Clean Elections USA, et al., Doc. 1, Complaint for Declaratory and Injunctive Relief, filed Oct. 24, 2022 (D. Ariz.  No.  2.22.cv.01823.MTL).

The Ku Klux Klan Act was enacted in the first place to allow people to ask a Court to stop voter intimidation by people with guns who cover their faces and conceal their identity, and not just by the KKK.  Parenthetically, like the Voter Vigilantes of Maricopa County,  the KKK wears uniforms too.  The KKK wears sheets representing dead Confederate soldiers, but they are uniforms in every sense of the word.

The observation expressed in yesterday's article still remains:   Perhaps we will learn after the 1:00 (Arizona time) Hearing whether this judge will enjoin voter intimidation in Maricopa County, Arizona, or not.  Stay tuned.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

ANOTHER GRIEVANCE BOY JUDGE. THIS TIME, MARICOPA COUNTY VOTING VIGILANTES.

(Image by the U.S. District Court for the District of Arizona)

Judge Aileen Cannon of the Southern District of Florida has found notoriety with her recent rulings.

Another judge appointed by the Grievance Boy has been assigned to another case that is significant to the United States of America.  Judge Michael Liburdi has been assigned to rule on the request for a preliminary injunction filed against any continued voter intimidation by Maricopa County, AZ vigilantes.  The lawsuit was filed on behalf of the Arizona Alliance of Retired Americans, et al., in the U.S. District Court for the District of Arizona.

The assignment is stated on the PACER [Public Access to (Federal) Court Electronic Docket] as "random."  A different judge, Judge John J. Tuchi, was assigned when the case was filed on October 24.  Judge Tuchi was appointed by President Obama.  However, Judge Liburdi has now replaced Judge Tuchi. 

Judge Liburdi set a hearing on the plaintiffs' request for a preliminary injunction against voter intimidation, for 1:00 PM (Arizona time) on Wednesday, October 26, 2022.  The case number is 2:22-cv-01823-MTL.

Perhaps we will learn then whether this judge will enjoin voter intimidation in Maricopa County, Arizona, or not.  Stay tuned.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

PUBLIC ACCESS PRESUMPTION OVERCOMES SEALING COURT ORDER CONSTRUING WRITTEN DOCUMENT.

Courtroom (Public Standard)

The presumption of public access is under attack.  There is no other way to approach the current litigation surrounding the presumption.

Parties are even attempting to seal Court Orders that construe their written instruments.  In Araujo v. E Mishan & Sons, Inc., No. 19 Civ. 5785 (JPC) (SN), 2022 WL 11812348, at *1 (S.D.N.Y. Oct. 20, 2022), "Plaintiff … filed a motion to seal the Court's Opinion and Order construing two terms in one of the claims of his patent."  The Court declined the opportunity to seal in this case because of the First Amendment and common law presumptions of public access to judicial documents.  Araujo, 2022 WL 11812348, at *1-*2.

You might say that sealing a Court Order that construes your own choice of words, with the result that no-one outside of your litigation could ever understand the Court's construction of the meaning of  those words of yours, is a seal too far.  The implications are clear for other cases, including insurance cases.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

LITIGATION CONSOLIDATED, DISMISSES ALL Cincinnati COVID-19 B/I CLAIMS.

Public Health Workers Testing for COVID-19 (Irfan Khan / Los Angeles Times)

In an aggregation of cases (but not certified as Multi-District Litigation) involving Cincinnati Insurance Company's coverages for alleged business interruption losses under its commercial property insurance policies, the same federal judge that decided the Erie MDL featured here on Monday, October 17, 2022, ruled the same way, dismissing the plaintiffs' claims for coverage.

The Court summed up the In re Cincinnati collection of cases this way:

    Plaintiffs in this case consist of dental practices, restaurants, minor league baseball operations organizations, and a salon, all of whom bring claims against their commercial property insurance carrier—The Cincinnati Insurance Company (“Cincinnati”) —alleging that Cincinnati wrongfully denied them coverage for claims stemming from the global coronavirus pandemic (referred to herein as COVID-19). Pending before the Court is Cincinnati's Motion to Dismiss Plaintiffs’ claims pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF No. 95). As this Court explained in its Opinion granting the defendants’ Motion to Dismiss in In re: Erie COVID-19 Business Interruption Protection Insurance Litigation—a multidistrict litigation (MDL) consisting of over 30 cases brought by policyholders of Erie Insurance Group based on nearly identical claims as Plaintiffs’ claims here—the types of claims that Plaintiffs assert are far from unique, as they mirror those asserted by business owners in thousands of similar cases nationwide.

Hirschfield v. Cincinnati Ins. Co., Nos. 2:20-cv-00386, 2:20-cv-00604, 2:20-cv-00816 (Lead Case), 2:20-cv-01238, 2:20-cv-01245, 2:20-cv-01261, 2:20-cv-01266 & 2:20-cv-01727, 2022 WL 7932986, at *1 (W.D. Pa. Oct. 14, 2022).

As noted, the Court ruled in the Cincinnati group of cases the same as it ruled in the Erie MDL and dismissed all of the plaintiffs' coverage  claims.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved. 

MULTI-DISTRICT LITIGATION DISMISSES ALL Erie COVID-19 B/I CLAIMS.

 

Public Health Workers Testing for COVID-19 (Irfan Khan/Los Angeles Times)

In In re:  Erie COVID-19 Business Interruption Protection Ins. Litig., Master Docket No. 1:21-mc-1 & MDL No. 2969, 2022 WL 7933018 (W.D. Pa. Oct. 14, 2022), the Multi-District Litigation Court summarized the nature of the COVID-19 insurance claims that it had before it:

    Plaintiffs in this multidistrict litigation all operate distinct businesses—from a retail clothing store in the Shadyside neighborhood of Pittsburgh, Pennsylvania, to a Ford/Lincoln car dealership in Cook County, Illinois, to a mussel bar in the Nation's Capital, and more. Different as their businesses may be, Plaintiffs’ legal claims are far less so—as compared to each other and to claims asserted by business owners in a multitude of similar cases nationwide.

In re:  Erie COVID-19 Business Interruption Protection Insurance Litigation, 2022 WL 7933018, at *1.

The MDL Court granted Erie's motion to dismiss based on the gathering precedents that business interruption COVID-19 claims under any coverages in commercial property insurance policies like Erie's, which depend on "direct physical loss of or damage to" covered property, are simply not covered.  This was certainly true from reading the Erie insurance policies at bar, the Court observed:

Under the Policies, a “covered cause of loss,” also called a “peril insured against,” is a “direct physical ‘loss,’ except ‘loss’ as excluded or limited in th[e] [P]olic[ies].”...  In other words, a “covered cause of loss” must itself be of a physical nature, and the impact that it has on property—i.e., what it causes—must meet the definition of “direct physical loss of or damage to” covered property.

In re:  Erie COVID-19 Business Interruption Protection Insurance Litigation, 2022 WL 7933018, at *11 (citation to the record of this particular case omitted).

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

ANOTHER "SO-CALLED JUDGE" APPOINTED BY THE GRIEVANCE GUY HEARD FROM.

(Matt Whitaker / New York Times)

Federal District Judge MATTHEW J. KACSMARYK in Texas was nominated twice by the Grievance Guy and finally was sworn in the second time, in 2019.

Previously, Judge Kacsmaryk ruled that President Biden needed to keep the Grievance Guy's previous position that immigrants need to be outside the United States when they apply for asylum.

This represents one ruling in a disturbing trend of federal decisions for Catholic lawyers like me.  My faith regards this kind of willful infliction of cruelty as sinful.   It is surprising to see judges ruling in defense of cruelty.

Even though Judge Kacsmaryk self-identifies as a Catholic, the Catholics on the U.S. Supreme Court overruled him in that case.

Judge Kacsmaryk's latest ruling is cut from the same cloth as his earlier ruling, it appears.  His latest ruling is that lesbians, gays, bisexuals, transgender people and queers/questioners have no protection against discrimination.  The U.S. Equal Opportunity Commission or EEOC issued Guidance following a United States Supreme Court decision that held to the contrary, i.e., that LGBTQ people are entitled to the same protections against discrimination as other Americans everywhere in the United States.

It will be interesting to see how the Supreme Court's current majority of Ratzinger Catholics rule now, whether they rule as this Texas judge did rendering people defenseless to discriminatory cruelty, or whether they follow their own precedent as the EEOC tried to do.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

"RISK," EXPERTS CAN TESTIFY; BUT "WHAT" WARNING, MDs CANNOT SAY.

(Sun Sentinel)

In Freeman v. Ethicon, Inc., No. 20-cv-10661 -CBM (SKx), 2022 WL 4692596 (C.D. Cal. Aug. 26, 2022), the Court ruled without hearing and without even a court reporter or a clerk present.  It appears that the Court's ruling was just even if it was not made in public.

The Court was faced with a motion in limine filed on behalf of the manufacturer and distributor (Ethicon and Johnson & Johnson, respectively) of a mesh contraceptive implant that allegedly caused horrible problems.  (This specific case was "on leave," as it were, from a Multi-District Litigation.)  The defendants wanted to bar the plaintiffs' expert medical doctors from testifying to the sufficiency of its supposed warning.  To be more exact, the defendants wanted to bar the plaintiffs' listed experts from testifying as to what should have been in the warning.

The Court formally "GRANTED" the motion, but following an earlier ruling in the MDL, in doing so the Court ruled in a way that may or will affect the reception of expert testimony in other cases including in insurance cases.

The Court ruled that the expert medical doctors could testify concerning the "risk" of the product, something about which they have relevant expertise as medical doctors.  On the other hand, the same experts could not also testify to something beyond their expertise, namely, what should have been including in the warning except that the medical doctor experts can testify whether or not the risk was in the warning.  Freeman v. Ethicon, 2022 WL 4692596, at *2.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

"QUALIFICATIONS, RELIABILITY, AND FIT."

Hurricane Seen From Space (Photo by NASA)

In Great Lakes Ins. S.E. v. Sunshine Shop. Ctr., Inc. d/b/a Sunshine Mall, Nos.  2019-0039 &  2020-0033, 2022 WL 4598829 (D.V.I. Sept. 30, 2022), the Court applied the prevailing Third Circuit test for the admission of Expert testimony following the Supreme Court's decision in Daubert:  qualifications, reliability, and fit.

Having just gone through Hurricane Ian, I chose this case because it involves a Hurricane too:  Hurricane Maria which struck the U.S. Virgin Islands and allegedly caused damage to a shopping mall.  The mall owner purchased "all risks"  commercial property insurance.

The mall owner proffered the expert opinion and testimony of a licensed professional engineer to prove its covered damages. 

This case stands at the head of a long line of cases in which Courts decline to permit proffered experts to over-reach.  The Court in this case held that the licensed professional engineer did not have the qualifications to render the opinion she reached, and her methodology was not reliable in reaching her opinion.

All in all, the lesson after a Hurricane when the skies are their bluest, it seems, is that the feeling of release and joy of at last getting to go someplace besides the inside of your house does not mean that you are freed from all constraints.  In other words, proffered experts, like the rest of us, should stay in our lane for our best chance to please the Court.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

POOR ROI CONTESTING CRN "FACTS AND CIRCUMSTANCES" ANY MORE.

(Gridview_Imagefull / Florida Department of Agriculture & Consumer Services)

There is just not much return on investment in contesting the sufficiency of "facts and circumstances" allegations in a Civil Remedy Notice of Insurer Violation (statutory bad faith) any more.  That determination yields a "de novo standard of review" on appeal, meaning that an appellate panel's determination easily may be quite different from a trial judge's determination, as in the case of Apex Roofing & Restor., LLC v. State Farm Fla. Ins. Co., 343 So. 3d 1223, 1226 (Fla. 5th DCA 2022).  That meant a lot of money spent for a pretty certain reversal; not much ROI in that.

The judicial determinations of sufficient "facts and circumstances" allegations are fact-specific, as would be expected.  In Apex Roofing, these are the allegations that the appellate panel – unanimously – held were sufficient in a Civil Remedy Notice or CRN, and which the trial judge ruled were insufficient which led to the trial court's reversal on appeal here:

Apex's CRN related that State Farm had, among other things, suggested numerous “half-cures” to resolving the damage claim, including pricing for labor and materials that was inconsistent with marketplace pricing, made “lowball” offers as a precursor to invoking the appraisal process in order to cause additional delay, and received an invoice from Apex that detailed the actual work performed, with a specific amount necessary to resolve the claim. We hold that these allegations sufficiently complied with the requirements of section 624.155(3)(b) 2.

Apex Roofing, 343 So. 3d at 1227.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.