MAPIA

MID - ATLANTIC ASSOCIATION
OF PUBLIC INSURANCE ADJUSTERS

State Farm Admits Policy Language “Over a Period of Time” is Ambiguous

State Farm admitted, through the testimony of its representative and adjuster, Ed Toussaint, that the State Farm Policy language regarding repeated leakage or seepage “over a period of time” is ambiguous. Needless to say, this is a big deal in our industry. Let me break it down for you and explain what this could mean for you.

At the end of September, the Law Offices of Jonathan Wheeler took State Farm to trial in the case of Kevin Ross v. State Farm. The case revolved around two issues: whether or not Mr. Ross had complied with the policy by repairing a broken valve before State Farm could inspect, and whether or not the leak was one which could be denied for occurring “over a period of time.”

The jury found in our favor, ultimately deciding that Mr. Ross did, in fact, comply with the terms of the policy. In other words, Mr. Ross protected his property from further damage and exhibited the damaged property whenever reasonably requested by State Farm. But this verdict wasn’t the most important thing to come out of the case.

During Plaintiff’s case in chief, Ed Toussaint was called to the stand. Ed Toussaint was the adjuster on the file and State Farm’s designated representative for the trial. During his testimony, Mr. Toussaint admitted that the language “over a period time” was ambiguous and that a homeowner would have no way of knowing what that means.

This is a major fact for State Farm to admit. As you may or may not be aware, any policy language that is ambiguous must be read in a way most favorable to the insured. This means that if a “period of time” could mean a week, a year, or a decade, it must be read in whatever way would provide coverage for the insured.

Please remember, any claim which State Farm denied for being a leak which occurred over a period of time can be fought in the Courts.

Recent Case Law Officially Defines “Bad Faith”

Many people have heard the term “bad faith” thrown around in legal jargon. What many people don’t know is what exactly that means.

For quite some time, those in the legal field didn’t know, either. At least, there were no laws clearly outlining the definition of “bad faith” as it applies to Pennsylvania law.

That is, until recently, when the Supreme Court of Pennsylvania finally confirmed the standard in PA for bad faith.

To receive a ruling on a bad faith claim, the Plaintiff needs to prove two things:

  1. That the insurer did not have a reasonable basis for denying benefits under the policy.
  2. That the insurer knew or recklessly disregarded its lack of reasonable basis.

Most importantly, “self interest or ill will” is not necessary to show bad faith. While that evidence is helpful, it is not a requirement. On top of that, the Court confirmed that you do not need “self interest or ill will” to get punitive damages. These are damages meant purely as a punishment for the insurance company.

While this standard has been a long held belief of attorneys in the industry, it was never clearly defined. We have been successful on countless Bad Faith claims in the past and look to continue fighting for homeowners and business owners rights.

Obviously, all of these changes are extremely good news for homeowners.

If you’re about to file a claim against your insurer and feel a bad faith claim is also justified, give us a call. We’ll review your insurance policy, discuss your case, and make sure you get the money you deserve.

You can adjust and get coverage for 1st Party Property Coverage under the Liability Portion of the Policy.

One of the most surprising wins for us came in NJ, but it could effect PA as well. We successfully argued a claim for damage as the result of a leaking oil tank that was discovered in the back yard.

The reason this case was so critical is that the Court found that although the damage was not covered under Section I property coverage because of the laundry list of exclusions (including pollution and damage to land), the Court did find coverage because the state required clean-up of the oil triggering Liability Coverage.

There are three important takeaways for this claim:

  1. The exclusions which apply to Section I do not necessarily apply to Liability Coverage.
  2. Whenever a 3rd party (City, State, Governmental agency) forces work to be completed on the property as the result of a loss, there may be liability coverage under the policy even if not covered under Section I.
  3. When you feel there is coverage and see no other options, give us a call and we will do all we can to help.

Law Firm of Jonathan Wheeler successful in Stage One of Class Action over Overhead and Profit against Farmers/Truck Insurance.

One of the current cases for the Law Firm of Jonathan Wheeler is Kurach v. Truck Insurance – regards Truck’s unjust withholding of Overhead and Profit in ACV payments.

As you are likely aware, Farmers, through Truck Insurance, has been withholding Overhead & Profit in actual cash value payments for claims. The policy says that unless state law indicates otherwise, they reserve the right to withhold the O & P until incurred.

The problem is, our office already won this issue in the Courts against State Farm, so the law does indicate otherwise. We have successfully argued in State Court that PA Law does require the payment of O & P and that the policy was ambiguous as to O & P because ACV is calculated as RCV – Depreciation, not RCV – Depreciation – O &P.

Not surprisingly, Truck Insurance has appealed the issue, and we just argued the case in the Court of Appeals. We anticipate hearing a ruling in the coming months.

This would be a big win for property owners and adjusters alike. Once we get a favorable ruling, we will be seeking class certification so that we can make this change as far-reaching as possible.

State Farm’s “Additional Coverages”: When More Actually Means Less

When you see the words “Additional Coverages” written in your insurance policy, you must think that you are about to be given more coverage, right?

Wrong.

As contradictory as it may sound, when it comes to State Farm’s Homeowner’s Insurance Policies, “Additional Coverages”, according to State Farm, can sometimes mean that coverage is being taken away. Luckily the Court disagreed.

Under the endorsement “Additional Coverages” – specifically in relation to water losses – State Farm’s Policies provide “coverage” for the cost of tearing out and gaining access to the specific point where water escapes. However, many times, the specific point where the water escapes is different from where the damage is worst.

For example, if a broken drain line in your home causes water to overflow from the toilet, State Farm tries to only provides coverage for the cost to access the toilet, rather than to access the broken pipe. This means that, if the broken pipe is hidden deep within your walls or the floor of your home, State Farm will claim it doesn’t owe to reimburse you for the cost to tear out your walls or floor and repair the broken pipe.

Under State Farm’s previous policy, it would have paid for the access to the broken pipe regardless of whether or not water escaped from that break. It would have also paid for the resulting damage. This is critical because this endorsement for “Additional Coverage” also indicates that it is “not intended to change coverage.” This means that, although State Farm is advertising certain portions of the Policy as “additional coverage,” the way State Farm is attempting to interpret this “Additional Coverage” is in fact taking coverage away.

In October 2017, a panel of Arbitrators found in our favor, and held that State Farm’s misleading practices were a violation of Pennsylvania Law. State Farm has since appealed this ruling to the Philadelphia Court of Common Pleas, where we will continue the fight for all policyholders against State Farm’s deception.

Did An “Approved Contractor” Ruin Your Home? Your Insurer Might Be Liable

If something goes wrong with your home, the last thing you want is to have a complete stranger messing things up even more.

Unfortunately, an insurance company will often push you to use their contractors to make repairs to your home if you file a claim. The good news is that, if those contractors cause further damage, your insurance company may now be held liable for it.

While we have been successful in these claims ourselves, a Court in  Washington, D.C. has recently decided this issue in a written opinion. In the case of Hall v. South River Restoration, Inc., a homeowner was suing a contracting firm after the insurance provider USAA required that said firm perform repairs on their clients’ home.

Over the next four years, the homeowner claims that the contractor “ruined” their home with the work they performed. When the homeowner contacted USAA to complain, they were told that USAA was not liable for work done by a contractor.

Naturally, the homeowner sued, since it was not their wish that this particular firm perform the work on their home in the first place. They didn’t think they should be held liable for damages caused by a company they were forced to bring into their home.

USAA moved to have the case dismissed. Fortunately, the Court ruled that there was enough information in the pleadings that, if if the Plaintiff were to prove that the information was entirely true, they could be successful against USAA. While this particular case has not yet concluded, the fact that the Court ruled in favor of the Plaintiff’s desire to pursue legal action against their insurance company is a big deal.

So what does this mean for you? If a contractor was send out by your insurance company, whether it be to dry out your property, board it up, or put it back together, and they make things worse, we can help. The most common mistakes by contractors are 1) not properly drying out the property, leaving moisture in the walls or floor which cause mold; 2) removing much more property than is necessary to remediate the property; and 3) taking shortcuts in making repairs. If any of these happen to you, or if something else goes wrong, we can help.

 

HELPFUL HINTS

How To Protect Your Home From Groundwater Damage

Most homeowners are aware that the standard insurance policy does not cover certain types of damages. This generally includes damages caused by groundwater.

What you may not know is what exactly this means and how you can protect yourself and your property if there is a flood.

The attorneys at the Law Offices of Jonathan Wheeler are here to help you understand your coverage, guide you through steps to take to protect your home, and advise you on what to do if those steps fail.

What Makes Groundwater Damage Different?

Surprisingly, there are several different types of floods that can cause damage to your home. Groundwater damage is caused by an excess amount of water seeping into your home from at or below ground level. This may occur if a sewer backs up or if heavy rainfall hits the ground and leaks into your home.

Typically, a homeowners insurance policy will cover water damages if they are caused by something in the home. For example, if the water pipe leading to your toilet bursts, chances are your policy will cover that. However, if a storm comes by, floods your yard and saturates the ground, allowing water to get into your basement through the wall, the damages may not be covered by insurance.

How Can I Protect Myself From Groundwater Damage In A Low-Risk Flood Zone?

If you don’t live in a high risk flood zone, the most practical way to protect yourself is by installing a sump pump.

A sump pump is a device that is installed in a pit just below the lowest floor in your home (e.g. your basement or crawl space floor). The pump turns itself on when water hits it. As soon as it is activated, it will begin to pull water from your basement or crawl space and depositing it outside of your home.

As with most small devices that rely on electricity to run, a sump pump is not without flaws. During particularly heavy storms, you may lose all power to your home, which will mean the sump pump cannot function.Even if you purchase a backup battery, there is still a risk that it can lose its charge over time. Heavy storms can also bring an excess amount of water too large for a sump pump to manage.

The best way to ensure that your sump pump will not fail is by installing a multi-component backup system. These systems can cost less than $1,000 (much less money than you’ll be spending if your basement floods and is completely destroyed!)

There are also additional insurance options that will cover sump pump failure or sewer backup.

I Live In A High Risk Flood Zone. What Can I Do?

Typically, if you live in a high risk flood zone, you may qualify for additional flood insurance. While this will bring on an added premium, this is another scenario where you have to weigh out the cost now versus the benefit of having coverage should a groundwater damage your entire home.

To find out if you live in a high risk flood zone, visit FEMA’s National Flood Insurance Program page. You can read more about the program, and enter your address to check your risks.

At the end of the day, it is your responsibility to make sure you’re protected against flood damages. Your best bet is to make sure you’re covered now; even if you purchase flood insurance, it takes 30 days for the coverage to take full effect, so don’t wait until the news announced an impending “100 year storm” to start protecting your home.

 

2018-2019 LEGISLATIVE UPDATE

With the start of the new 2018-2019 Legislative Session in New Jersey, MAPIA would like to bring the following bills to your attention.

Fee Cap Legislation

Assembly bill # 2120 provides that no individual, firm, association or corporation licensed under the “Public Adjusters’ Licensing Act” shall charge, agree to, or accept any compensation in excess of 10 percent of the amount of insurance claim payments made by the insurer for claims based on events that are the result of a catastrophic loss occurrence.  This compensation level shall apply to such claims made for a period of one year from the occasion of the designation of the catastrophic loss occurrence.

As defined in this bill, “catastrophic loss occurrence” means an occurrence designated by the President of the United States or the Federal Emergency Management Agency, or the Governor of New Jersey or the State Office of Emergency Management in the Division of State Police in the Department of Law and Public Safety, or any other authorized federal, State or local agency, as an emergency or a disaster and includes, but is not limited to, a flood, hurricane, storm or earthquake.

MAPIA has been leading the effort to oppose this legislation since it was first introduced back in 2013 and will continue to do so.

Prohibits use of anti-concurrent causation clauses in Homeowners insurance policies

Senate bill # 740 would prohibit the use of “anti-concurrent causation” clauses in homeowners insurance policies issued in the State.  Currently, homeowners insurance companies are allowed to use these clauses in their policies with the result that, in situations in which a covered cause of loss or damage occurs concurrently or in any sequence with a non-covered cause of loss or damage, coverage for the entire loss or damage can be excluded and claims can be denied.  This bill would end that practice by prohibiting the use of anti-concurrent causation clauses in homeowners insurance policies and providing that any such provision to exclude coverage shall be void and unenforceable.  Homeowner insurance coverage controversies tend to arise with respect to anti-concurrent causation clauses in connection with water and wind damage from hurricanes and other extreme weather events.

Requires Insurers that sell Flood Insurance to disclose certain information

Senate Bill # 292  requires insurers who sell flood insurance to provide to certain of their policyholders, who are claimants for damage to the insured property, information relating to claims for damage to their properties.  More specifically, the bill stipulates that every insurer selling and advertising flood insurance in this State through the National Flood Insurance Program overseen by the Federal Emergency Management Agency shall provide to each of its flood insurance policyholders who held such policy on October 28, 2012, and is a claimant for damage to the insured property, copies of all reports and documents, including any drafts, redlines, markups, notes, measurements, photographs and written communications related thereto, that have been prepared, collected or taken by any engineer, adjustor or other agent or contractor affiliated with the insurer or any other defendant in a claim dispute, relating to the properties and damage at issue.  The date of October 28, 2012, enumerated in the bill, corresponds to the date that Superstorm Sandy struck New Jersey and surrounding areas.

Bill permits tax exemption for certain improvements caused by natural disasters

Senate Bill # 301 would permit a municipality to adopt an ordinance declaring an area to be in need of rehabilitation if dwellings within the area were damaged by a natural disaster for which a state of emergency has been declared by the President of the United States or the Governor.  Under current law, municipalities may provide property taxpayers a short-term property tax exemption or abatement on dwellings in areas in need of rehabilitation for a period of five years.

An ordinance adopted under the bill would have to require that, in determining the value of an exemption, the assessor consider the additional value to those dwellings that is directly attributable to the additional space under those dwellings created by the elevation of those dwellings as not increasing the taxable value of those properties for a period of five years, notwithstanding that the market value of the real property to which the improvements are made is increased thereby.  The ordinance may provide for a reduction of the exemption for each year of the exemption period.

The bill also clarifies that during the exemption period, increases in value to dwellings that are not directly attributable to the additional space under dwellings created by the elevation of those dwellings, and which increase the value of those dwellings, must be reflected in the assessed value of those dwellings.

The bill also requires that certain property tax notices include the value of an exemption granted under an ordinance adopted pursuant to the bill.

Concerns Eligibility for Unemployment Compensation for Public Adjusters

Senate Bill # 470 would make an individual who is a public adjuster, licensed pursuant to P.L.1993, c.66 (C.17:22B-1 et seq.) and who is compensated wholly on a commission basis, ineligible for unemployment insurance benefits and thus not subject to unemployment taxes.

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