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AAPIA's blog

FILING A SUCCESSFUL INSURANCE CLAIM FOR WATER DAMAGE

Did you know that one of the most common reasons for households to make an insurance claim is water damage? But despite this, many claims for water damage end up rejected. Often, homeowners make the mistake of waiting to get the water removed before they report their claim to the insurance agent. But before you even think about cleaning up, you should be calling your insurance agent straight away.

So, what happens if your claim for water damage is denied? There are some steps you can take:

●     Make sure you ask for a full explanation and the exact wording from your policy that excludes your claim from being covered.

●     Find out who made the decision to deny the claim.

●     Consider requesting a second opinion on your claim.

●     File a complaint or seek outside advice if you feel that your insurance claim was wrongfully denied or handled incorrectly.

This helpful guide explains more about making an insurance claim for water damage and making sure it gets paid.


Making Ensuing Loss Coverage Work for You!

by Vanessa Ross, Esquire with the Stockham Law Group, Sarasota, FL.

Did you know that if a roof was installed improperly, there may be coverage for the water damage that occurred as a result?  Did you know that where an insured has failed to maintain the exterior of the building, there could be coverage for water damaged interior walls? Have you encountered negligently installed sliding glass doors that allow water into a dwelling?  There could be coverage for the resulting damage!

Ensuing loss coverage is often misunderstood. The law in Florida has been consistent in its definition, but it has been misapplied and misinterpreted by in-house insurance adjusters and public adjusters alike. Let's begin with a basic definition provided by Webster's Dictionary.   "Ensuing" means "to take place afterward or as a result".  How does this definition apply when interpreting coverage under a homeowner's or commercial policy? 
Generally speaking, an ensuing loss provision does not cover damage to the excluded cause of loss itself (i.e., the broken pipe), but rather covers loss caused to other property wholly separate from the defective property itself (water damage). 4 Bruner & O'Connor Construction Law § 11:211. For example, there would be coverage for water damage which occurs "afterward or as a result" of a faulty or defective roof flashing. In this regard, coverage for water damage-a covered cause of loss-resulting from faulty workmanship or installation-an excluded cause of loss-is a logical interpretation of the ensuing loss provision in the Policy. Selective Way Ins. Co. v. Nat'l Fire Ins. Co., 988 F. Supp. 2d 530, 538 (D. Md. 2013).

Recent case law in Florida has explained the ensuing loss provision of a homeowner's policy as follows: "if the [Insureds] suffered consequential loss as a result of the corroded pipe and that consequential or "ensuing" loss is not excluded under another provision of the policy; the loss is covered. Homeowners Choice Prop. & Cas. v. Maspons, 42 Fla. L. Weekly D 203 (Fla. 3d DCA 2017); Murray v. State Farm Fire & Cas. Ins. Co., 219 Cal App. 3d 58, 64, 268 Cal. Rptr. 33 (Cal. Ct. App. 1990).

The crux of these cases, and probably the reason there are so many incorrect interpretations of coverage in this context, is that the insured must show damage separate and distinct from the excluded cause of loss. In other words, where there is an improperly installed drain line, roof flashing, sliding door or stucco, the insured should make the carrier aware that those items are not in the claim.  Rather, the water damage, mold damage, sewage back up, or rain water intrusion, which occurred and damaged other building components is the basis of the claim. The claim is not for the defective roof flashing, the defective or improperly installed sliding doors or defective stucco, for example, but instead the claim is for the damage which occurred as a result of those improperly installed items. For instance, damaged drywall, wood framing, plywood, sheathing, flooring, roof decking, beams, and other items that were damaged "afterward or as a result" of the original faulty construction.

The Florida Supreme Court defined ensuing loss in  Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So. 2d 161, 167-168 (Fla. 2003).  In Swire the Court addressed whether the policy's design defect exclusion clause barred coverage for the cost of repairing the structural deficiencies in the condominium building balconies. The Court held that it did. More importantly, the Court held that the ensuing loss clause was not ambiguous.  In Swire, the Court found that the condo association's sole claim was an attempt to recover the expenses incurred in repairing a design defect. No ensuing loss resulted to invoke the exception to the exclusionary provision. Under the precise terms of the policy, the Court found that there was no coverage for the claim because "[no] loss separate from, or as a result of, the design defect occurred" Id at 168 (emphasis added). Therefore, the court concluded that "under the clear contractual provisions along with the authority of the numerous courts noted above, which we find persuasive, Swire is not entitled to recover the expenses associated with repairing the design defect". Id. However, as the Court stated, if there were losses that occurred separate from or as a result of the construction defect, there would be coverage. The Swire court did not apply a requirement that the chain of proximate cause be broken for the ensuing loss exception to apply. It only required that the ensuing loss "occur subsequent to, and as a result of, a design defect." Id.

Also, as explained in Murray v. State Farm, the Court dealt with a similar clause that provides the homeowner with coverage for losses which flow from an excluded loss, as long as the "ensuing" loss is not also specifically excluded. Thus, the exclusion for "deterioration" means that State Farm is not obligated to compensate the Murrays for their corroded water pipe. If  however, the Murrays suffered consequential loss as a result of the corroded pipe and that consequential or "ensuing" loss is not excluded under another provision of the policy, the loss is covered. Id at 488.

It is important to keep in mind that ensuing loss is covered, even when the loss was originally set in motion by an excluded cause of loss. The Bartram, LLC v. Landmark Am. Ins. Co., 864 F. Supp. 2d 1229, 1233, (N.D. Fla. 2012). In other words, ensuing loss is usually an exception to an exclusion. In The Bartram, the Court explained that this means that "ensuing losses, if they resulted from a covered cause, are covered under the policy regardless of whether the loss was naturally set in motion by an excluded cause of loss". The Court concluded that where "the faulty workmanship resulted in water intrusion that subsequently resulted in ensuing losses, the cost to repair the faulty workmanship is excluded but the ensuing losses from the water intrusion are covered. This interpretation is consistent with Swire and the weight of authority interpreting the ensuing loss exception". Id at 1235 citing Harbor Communities, LLC v. Landmark Am. Ins. Co., No. 07-14336-CIV, (S.D. Fla. 2008); Eckstein v. Cincinnati Ins. Co., 469 F.Supp.2d 455 (W.D. Ky 2007); Alton Ochsner Med. Found. v. Allendale Mut. Ins. Co., 219 F.3d 501, 505-06 (5th Cir. 2000).

Therefore, when dealing with claims that initially seem to be excluded, look further, and determine whether there are ensuing losses, or losses that occur "afterward or as a result" of the initial excluded loss. These damages are separate from the work needed to simply fix the faulty workmanship or lack of maintenance. Finally, it is important to determine whether tear out is needed to access the defective or otherwise excluded condition. If tear out is needed to access the damage, then an ensuing loss provision may help you recover the cost of the tear out as well as the cost to repair the resulting loss.
  
Vanessa Ross is an attorney representing only property owners to assist them in achieving favorable results against their insurance companies. She has analyzed and litigated literally thousands of insurance claims on behalf of insurance companies and now brings her knowledge and experience to the consumer.  To contact Vanessa and discuss any coverage issue, she can be reached at 941-217-7580 or by email at vross@stockhamlawgroup.com.

Legislative News Alert ~ Public Adjuster Advocacy

We are happy to report that Utah Governor Gary Richard Herbert signed into law a new omnibus consumer protection insurance bill on Wednesday March 22nd that affects public adjusters and policyholders. Legislators in both chambers worked very hard to see HB 42 pass before the end of the Utah Legislative Session which ended on March 10th.  We had the opportunity to speak with the sponsor of HB 42, The Honorable James A. Dunnigan, and Representative and communicate with The Honorable State Senator Curtis S. Bramble expressing our support of HB 42.

AAPIA also wants to recognize Commissioner Todd E. Kiser and Deputy Commissioner Brett Barratt for their exceptional oversight in working with the General Assembly to see this omnibus Bill become an effective consumer protection law in the State of Utah.

The new law provides for conflict of interest rules between public adjusters and contractors, imposes contract requirements that follow the NAIC Model Act, and, similar to Texas proposals, has a restriction on soliciting business for the primary purpose of referring the claim to an attorney. In addition, the most striking change to the law is the ability under the new law for public adjusters to charge a percentage fee. AAPIA proudly supports legislation such as this, which benefits consumers, and also strengthens the public adjuster license.  

Beware the new contract and disclosure requirements so that you are not caught unaware of the changes! Click Here for a complete copy of the law.  Utah requires a copy of your contract to be filed with the state, and you want to make sure that you are in compliance with the new law.
 
AAPIA Advocates for Public Adjusters so You Can Advocate for your Clients: it is because of our strong membership that we are able to monitor legislation in every state each and every day to ensure that the laws being promulgated are in the best interest of consumers and the public adjuster industry we serve.

Our tireless advocacy for the value of the public adjuster results in positive measures such as this one from state departments of insurance. Please consider becoming member today so that we can continue to work for you.

Join TODAY! By visiting our website www.aapia.org 

Can AAPIA count on your membership? 


Miss the Webinar on Ohio's Groundbreaking Law?

Miss the Webinar on Ohio's Groundbreaking Law?

Watch Preserving Our Neighborhoods: An Educational Webinar on Ohio's Recently Passed HB463

In early January, Ohio Governor John Kasich signed HB463, a groundbreaking law that bans plywood boarding and helps communities mitigate blight.

In order to better understand the implications of this bill and what it means for the property preservation industry, the Greater Ohio Policy Center hosted a free webinar, Preserving Our Neighborhoods: An Educational Webinar on Ohio's Recently Passed HB463. 

I, along with other industry experts, outlined the positive and dramatic impact this bill will have on blight, communities and the property preservation industry.


CLEARSURANCE: Your Trusted Source for Insurance Information

No industry combines so much money with so little transparency more than the insurance industry. Most people simply rely on family, friend or broker recommendations to find their auto, home or renter's policy. But with over 2,500 licensed property and casualty insurance companies in the market, it's hard to know which companies are the best. Until now, there simply has not been an available resource to compare your options and make better insurance decisions.

Welcome Clearsurance! Clearsurance is on a mission: to provide the most objective, trustworthy and comprehensive ratings, reviews and advocacy tools in the insurance industry. As more consumers purchase insurance directly from insurance companies, there is a clear need for a trusted, independent source for consumers to share their insurance experiences, learn from others, and compare their options.

Clearsurance has created the most dynamic, new measure of an insurance company. The algorithm analyzes a range of inputs, including crowdsourced reviews, poll results, net promoter scores and claim satisfaction scores from real customers. In addition, Clearsurance uses independent rating agencies, including AM Best (financial solvency and strength) and the Better Business Bureau accreditation to create the most comprehensive metric in the market.

Clearsurance is the first-to-market, crowdsourced rating and review platform by people for people. Clearsurance is not an insurance agent or broker. Clearsurance is not an insurance company.

Rather, Clearsurance is a content platform with a community of insurance consumers sharing experiences, rating those experiences with insurance companies, and creating transparency for all insurance consumers to understand how insurance works. Clearsurance wants to make sure people know the reputation of their insurance company.

Clearsurance is comprised of a team of software, technology, and insurance advocacy entrepreneurs brought together by a passion for making it simple for insurance consumers to be better informed so they can have confidence in their insurance decisions. Additionally, Clearsurance seeks to partner with industry leaders, such as AAPIA, to bring awareness to the insurance industry. Early on, AAPIA provided Clearsurance with valuable insight into the insurance industry. Their unique perspective has afforded Clearsurance with yet another view of the insurance industry. It is relationships like these that Clearsurance capitalizes on to bring about further transparency into the insurance industry.

Visit Clearsurance.com today to rate and write about your experience with your insurance carrier.

 

 

 

 

 

 

 

 

 

 

 

 

 


For carriers as well as consumers, a Licensed Public Adjuster can be an invaluable resource when evaluating property losses from storms and other unforeseen incidents.  Yes, there are Company Adjusters who, as insurance company employees, dedicate themselves solely to the rapid settlement of property claims.  And no doubt, many Americans can recount the memorable slogans and jingles that have effectively underscored this message while shaping insurance company brands.  Given that context, I would like to review three such slogans for the purposes of this article.

"Like a Good Neighbor State Farm is there" ... "You are in Good Hands with Allstate" ... "Nationwide is On Your Side!" ...  All are catchy jingles designed to reassure the public these companies will do everything possible to process claims in a timely manner should a home, auto or business loss occur.

Even with the best of intentions, however, what we read and hear in marketing campaigns does not necessarily translate into superior service.  For the record, I have no doubt the three companies mentioned have excellent customer service records with their policyholders. This article is not meant in any way to disparage the services of insurance companies.  On the contrary, this is an attempt to inform the industry that a Licensed Public Adjuster can be of immense value when working efficiently and effectively with the Company Adjuster to negotiate claims and settlements to cover property loss.

The conundrum faced by insurance industry executives demands that they provide the best insurance coverage at the best premium with the hope a claim is never brought against the policy.  The premium that's paid for home, auto and business coverage is called "insurance."  As policyholders, we all expect to have our assets covered in the event of a property loss.  Naively, we often expect coverage to be 100%, but that is invariably mitigated by limits on insurance coverage and deductibles, not to mention what is and is not covered.

When an individual purchases a home, one of the first requirements asked of the homeowner by the lending institution is, “Do you have a hazard insurance policy?”  Such insurance policies offer peace of mind to both lender and homeowner.

Public Adjusters only handle first party property claims for policyholders. This article addresses the three types of property and casualty claims adjusters:

1. Company Insurance Adjusters are Insurance Company employees who work on behalf of their respective employers and policyholders to resolve claims in a most efficient manner.
2. Independent Adjusters are outside consultants brought in to represent the interests of the Insurance Company when asked to evaluate specific property losses.
3. Public Adjusters are the only licensed professionals in the "adjuster industry" who work exclusively for policyholders in negotiating first party claims. 
 
The policyholder will have many issues to address with their insurance company, including what is and is not a covered loss.  Policyholders will need to immediately review precise coverage with their insurance company adjuster to determine all aspects of their policy. This is the first step in the claims process once the policyholder is safe from harm and has surveyed their property damage(s).

In virtually all cases, there will be limits and deductibles.  In addition, there are more serious concerns which will need to be analyzed to make certain each property loss is adequately assessed so that prized possessions can be restored to pre-occurrence condition.

Most Insurance Company Adjusters do a very reputable job in helping policyholders during the initial phase of one's property loss.  However, there are many known cases where homeowners were less than satisfied with the outcome of their claim settlement. (Ref. "Delay, Deny, Defend" authored by Distinguished Law Professor, Jay Feinman, Rutgers School of Law), which asserts that policyholders would do well in contacting a Public Adjuster firm to review the damage to their property.

Just recently, The Tennessee Department of Commerce & Insurance (TDCI) announced that more than $5.1 million dollars was returned to policyholders in Tennessee in 2016. This restitution was the result of TDCI Insurance Investigators mediating between insurance companies and policyholders to get denied claims overturned and paid.  Says TDCI Assistant Commissioner, Michael Humphreys, "We encourage Tennesseans to reach out to us with questions or concerns regarding insurance products and services.”  (Full article appeared in Winchester Herald Chronicle 01/17/17.)

Could the costly mediation between insurers and regulators in Tennessee have been avoided if policyholders had retained the professional services of Public Adjusters to help in preparing the necessary documents when initially submitting claim information? 

Public Adjusters are there to assist homeowners through the very difficult process of filing and negotiating a claim settlement.

The "Value of a Public Adjuster" is a phrase developed many years back with one goal in mind ... To help homeowners/property owners and insurance industry insiders realize there is help available right in their own community when they experience a property loss. Public Adjusters are local experts who can help get homes and prized possessions back to full RCV, Replacement Cost Value. 

Insurance Company Adjusters do work successfully with Public Adjusters in negotiating claims.  That said, if more insurance companies worked with public adjusters, could policyholders be better served?  That is a question that needs to be asked before a policyholder attempts to handle his/her own claim. 

Public Adjusters are licensed in 45 states, and are allowed to work in Alabama, Wisconsin, and South Dakota, as well as the District of Columbia and Puerto Rico.  Only Arkansas and Alaska restrict the practice of public adjusting. 

The Department of Insurance in respective states oversees the license of a Public Adjuster, regulating all aspects of the rules and regulations necessary to work as a Public Adjuster.  As stated previously in this article, the Department also oversees Insurance Companies while serving as advocates for policyholders.

Ideally, a policyholder would never experience a property loss and an Insurance Company would never have to cover a claim. Realistically, however, when an occurrence happens, wouldn’t it be great to have a Company Insurance Adjuster and a Public Adjuster working together from the onset to assist policyholders and avoid what so many consumers in Tennessee had to endure?


Public Adjusters, we ask you to take just a few minutes of your busy day to view all that the American Association of Public Adjusters has been doing for Public Adjusters on a national level - not only in 2016, but in previous years.

We are honored to serve as your industry's advocate, appearing at state houses to testify on your behalf and with regulators as we are advocates for policyholders to ensure they have the right to retain a public adjuster professional when such a need occurs.

Please visit our website at www.aapia.org and peruse the many tabs that will clearly demonstrate our successes and accomplishments for the public adjusting industry. You can Join Today by selecting this link: Join AAPIA

Whether we were opposing unlicensed individuals attempting to take clients from you or one of your colleagues in Maryland when an individual contracting company was distributing misinformation; (view)  or a certain insurance company in Florida notifying a policyholder that their policy does not grant them the privilege to retain a public adjuster; or opposing challenges in other states trying to limit what a public adjuster can and cannot do for their clients, these are just a few of the legislative challenges we successfully addressed this year.

As we begin a new legislative season we want you to know that we maintain a daily analysis of legislation in all 50 states plus the District of Columbia, each day reviewing and responding to legislators and regulators advocating for the license of a public adjuster and the rights of consumers.

Our membership is what allows us to continue our work on behalf of all public adjusters those who have joined and those who have yet to experience our benefits and services. Our testimonials http://www.aapia.org/testimonials will share a glimpse of our members satisfaction with our work.

AAPIA also offers Online Continuing Education Classes that are of a high quality and at a reasonable price.

Please consider becoming a member today if you have yet to join,

With your membership, we can do so much more in the coming year. 


by Jill Henniger Bowman, Stockham Law Group P.A.

Diaz v. Florida Peninsula was ground breaking as the first appellate decision that plainly permits a homeowner to dispute the scope of repairs before they are completed through Managed Repair.  Insurers likely anticipating the decision took note; and even before the decision was made started putting appraisal provisions back into homeowner’s policies to avoid pre-repair lawsuits over scope.  In fact, some policies only permit an appraisal demand if the Insurer exercises its repair option. 

So, was Diaz a short-lived victory?  Does it now force homeowners who want to challenge the scope of repairs to dig into their pockets to pay for an appraiser and potentially share the costs of an umpire?  Perhaps, but the decision remains valuable.  Diaz may have opened the door to other kinds of pre-repair challenges that will give homeowners a fighting chance take back control over their own home repairs and keep out the Insurer for bad behavior or other misconduct or negligence (i.e. breach and anticipatory breach) where the conduct predates the exercise of the option.  

In one case featured on WINKTV news in Ft. Myers, the unscrupulous conduct of the Insurer and repairer got the attention of Senator Lizbeth Benacquisto, chair of the Senate banking and insurance committee. http://www.winknews.com/2016/10/04/homeowner-sues-peoples-trust-insuranc.... The best part was the Insurer’s response to why my homeowner client was repeatedly asked to sign a work authorization that said he was agreeing that the repairers’ scope of work would return his home to its pre-loss condition.  The problem: no scope had even been provided.  Take a look.

Remember at least one Florida Court, in the context of auto insurance, has recognized there are absolutely circumstances that justify the Insured’s refusal to honor the insurer’s exercise of its “option”.  Auto-Owners Ins. Co. v. Green, 220 So. 2d 29 (Fla. 1st DCA 1969).  See, Justified Refusal to Honor the Insurer’s Decision to Repair, by Jill Henniger Bowman. http://www.aapia.org/node/562.   

Exactly which “circumstances” justify refusal remains an open question.  Stay tuned on that.

And, then there is always fighting the old fashioned way – after a botched repair job. http://www.abcactionnews.com/money/consumer/taking-action-for-you/it-is-.... In other words, filing suit like the Morales family in Tampa did after their “managed repair” went wrong.  Most importantly, the growing problem with Managed Repair is getting the attention of the right people – like Senator Benacquisto.  This is a critical first step toward putting homeowners back in charge their own home repairs.  Refuse to accept the status quo and let the chips fall where they may.  Managed Repair must go along with abusive assignment of benefits to right the ship for Florida homeowners.


Just in time for Hurricane Sandy, Virginia will require all public insurance adjusters to obtain licenses from the state starting January 1, 2013. Governor Bob McDonnell (R)—who launched an initiative to identify and eliminate unnecessary regulation last week—signed the bill, which passed both houses unanimously, into law in April. (READ MORE)


TO: ALL AGENTS, PUBLIC INSURANCE ADJUSTERS, AND ADJUSTERS, AND TO ALL INSURANCE COMPANIES, CORPORATIONS, EXCHANGES, MUTUALS, COUNTY MUTUALS, RECIPROCALS, ASSOCIATIONS, LLOYDS, AND OTHER INSURERS WRITING PROPERTY AND CASUALTY INSURANCE IN THE STATE OF TEXAS

RE: Adjusting claims by unlicensed individuals and entities