Author: Clint Scott

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Insurance Disputes

Judge Sides with Insurance Company in Dispute Over Grace Period

Judge Sides with Insurance Company in Dispute Over Grace PeriodA Pennsylvania federal judge ruled on March 9, 2018 that Cincinnati Insurance Company didn’t have to pay out more than $100,000 to its policyholder Wescott Electric Co. regarding a multi-million-dollar theft. U.S. District Judge Gene Pratter pointed out that Wescott should have been aware of the discontinuation of grace periods for claims reporting in their policies.

This insurance dispute came down to the simple matter of understanding policy language.

Wescott argues “reasonable expectation”

Wescott purchased four insurance policies from Cincinnati in 2004, 2007, 2010, and 2013. The 2004 and 2007 policies contained a grace period of one year for discovering and reporting any issues that occurred during the policy. However, in the last two policies, that language was removed.

In 2013, Wescott discovered an employee had stolen nearly $3 million from the company over the span of a decade via fraudulent checks and theft of copper wire. Their report of the discovery was five months too late to be claimed under the 2010 policy, due to the removal of the one-year grace period. Cincinnati refused to pay out, and Wescott took them to court in an attempt to get their losses covered. Their argument was that they were never notified about the change, and had a reasonable expectation that the 2010 policy would contain the same terms as the 2004 and 2007 policies. They claimed the 2010 policy was not explained to them and was simply included in the document, which contained hundreds of pages.

Cincinnati’s counter-argument

Cincinnati counter-argued that they provided notice in 2008 the policy would be changing, and that the change was listed in the first paragraph of the Commercial Crime Coverage section. They also claimed that Wescott never specifically requested the one-year discovery window when they bought the 2010 policy, and that they were indeed notified that Cincinnati changed their policy. Wescott did make a claim under their 2013 policy, however, and received $100,000 under the policy.

As of now, Wescott has no plans to appeal. The case is Wescott Electric Co. v. Cincinnati Insurance Co., case number 2:17-cv-04718, in the U.S. District Court for the Eastern District of Pennsylvania.

To sum up, Cincinnati will only have to pay out the $100,000 and no more, because of policy language. It’s crucial that you are always aware of the terms of your insurance policy, whether you own a home, a commercial property, or multiple properties. Make sure to review your policies carefully, and seek clarification from your agent every time your policy changes.

The Tennessee insurance disputes attorneys at the Gilbert Firm can review your policies with a fine-tooth comb and ensure they are working in your favor, and not the insurer’s. If you’re being treated unfairly, Clint Scott, Jonathan Bobbitt and Brandon McWherter can help protect you. Call us today at 888.996.9731, or to fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville.

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Labor and Employment

Employee or Independent Contractor? New Bill Makes Its Way Through Tennessee Senate

Employee or Independent Contractor? New Bill Makes Its Way Through Tennessee SenateLegislation that recently passed the Senate and expected to pass the House is drawing some criticism from workers’ rights advocates in Tennessee. HB 1978, sponsored by Senator Bo Watson, R-Hixson, declares people hired through online apps, like TaskRabbit or Handy, are independent contractors and not employees.

This would free companies from a number of legal requirements, like providing workers’ compensation insurance, paid vacation, access to group insurance, or obeying minimum wage laws. As the new “gig economy” industry grows bigger, so does the debate on whether workers should be classified as employees or contractors.

Advocates of the bill

Bill sponsor Senator Watson said the bill is intended to bring clarity to current employment laws. He said those laws “were developed decades ago and they don’t meet the reality of how the workforce now operates and is changing.” He likens these types of apps and workers to handymen or cleaning people taking out ads in newspapers for jobs, using a common practice and applying it to technology.

Other proponents of the bill point out that many gig-based workers only do so part-time, and don’t expect or need the protections of full-time employees.

One of the companies with an interest in the passing of the bill is the company Takl, a home services for hire app. Senate Commerce Committee Chairman Jack Johnson, R-Franklin, is an executive of Takl. Johnson is a bill cosponsor, and voted in favor of the bill but declared personal interest.

Critics of the bill

Critics of the bill point out that the bill could remove protections for employees, including unemployment insurance, health insurance, minimum wage requirements, and workers’ comp. And, in response to arguments that people take out ads in newspapers for gigs, critics of the bill also point out that newspapers don’t take a cut from those people.

Small business owners also have concerns about this type of legislation. They fear the classification of gig-based workers as independent contractors could drive down wages and profits for traditional businesses, forcing them out of business or to sub-contract in order to compete.

Others, like Senate Democratic Caucus Chairman Jeff Yarbro, point out that the bill has no requirement for a background check, unlike previous legislation for Uber and Lyft workers.

CNN reports, “Currently, the distinction between a contractor and an employee hinges on the idea of control. Telling a worker when and how to perform a job, providing training or supplies, monitoring their activity and determining the rate of pay are all factors that would support a finding that the worker is an employee.” Many of the terms outlined in HB 1978 would enable employers to do many of those things while still calling their workers independent contractors.

Do you believe you’re being wrongfully classified as an independent contractor and not receiving the benefits and protections you rightfully deserve? The Gilbert Firm wants to hear from you. Our experienced Tennessee FLSA violations attorneys, like Clint Scott, are ready to advocate for your rights. Call us today at 888.996.9731, or to fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville.

 

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Insurance Disputes

The 2017 California Devastation and the Insurance Claim Fight

The 2017 California Devastation and the Insurance Claim FightCalifornia suffered the most devastating series of wildfires in its history during 2017. The losses are sobering in terms of human life and property loss. Regarding the latter, home and business owners who have incurred losses may be up for some challenges when it comes to obtaining a satisfactory insurance claim result.

As of mid-December, the losses from the wildfires had reached staggering numbers. More than 10,000 structures in the state had been destroyed by large-scale wildfires – a number exceeding the previous nine years combined. The fires were also responsible for the loss of 44 lives, which is greater than the last 10 years together.

Some of the wildfires of note that ravaged the state in 2017 include:

  • The Cascade Fire in Yuba County. This wildfire took the lives of four people in the month of October, making it the 19th deadliest on record.
  • The Atlas Fire in Napa and Solano counties. This wildfire killed six people in October, making it the 13th costliest fire in terms of human life on record.
  • The Redwood Valley Fire in Mendocino County. Nine people were killed in October from this conflagration, establishing it as the 10th deadliest fire on record.
  • The Tubbs Fire. The wildfires that ravaged Sonoma and Napa counties caused significant destruction, taking the lives of 22 people and damaging or destroying over 5,600 homes. It stands as the third deadliest wildfire on record.
  • The Thomas Fire. This momentous conflagration tore through Santa Barbara and Ventura counties, burning up over 281,000 acres – the equivalent of more than 440 square miles. In terms of size, it is the largest fire on record in California.

The fire erupted on December 4th and was exacerbated by many days wind storms that accelerated the flames through some of California’s high class neighborhoods such as Montecito. Mandatory evacuations that were previously in place have now been lifted, as the fire’s presence has diminished significantly in cities such as Santa Barbara and Fillmore that once faced its impending destruction.

Why Tennessee policyholders should pay attention to California

The majority of insurance policies include fire damage. However, simply having fire damage included does not preclude some of the residential insurance claim (or commercial property claim) issues that can arise in the aftermath of tragedies such as the California wildfires.

For instance, if your home affected by the fire is located in a high-risk area, such as alongside a canyon, you may benefit from obtaining additional coverage.

Entire communities were devastated by the wildfires. This naturally forces replacement costs to rise due to market forces that increase the costs of labor and material.

In the aftermath of the California wildfires, insurance companies have accumulated billions of dollars in fire damage related claims. As a result, some insurance carriers have become more selective about the homes they choose to cover going forward.

Why was my insurance claim denied?

Insurance companies have no problem accepting high payments for the coverage they offer. However, some insurers put up a significant fight even against genuine claims. Fire is a type of disaster that causes extensive damage to structures in a number of different ways – these include burning, smoke damage, and charring. Long-lasting and sometimes irreversible damage can occur in the insulation, carpeting, HVAC system, and walls of a structure.

In addition to damage from the fire itself, water damage from firefighting efforts can result in the development of dangerous mold in certain areas of the structure if they are not properly dried.

Insurance companies, depending on the situation, may attempt to deny a claim by alleging the fire was a result of arson. Bad faith insurance disputes can arise even if policy coverage is not challenged. Issues such as cost to repair the structure, value of personal property and living expenses can trigger insurance disputes.

If an insurer has failed to pay out a claim on your behalf, or you are encountering bad faith insurance practices, the Tennessee insurance dispute attorneys at the Gilbert Firm are able to protect your rights in Nashville, Memphis, Chattanooga, and Jackson. Call Clint Scott, Brandon McWherter, or Jonathan Bobbitt at 888-996-9731, or complete our contact form to set up a free consultation about your situation.

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Insurance Disputes

Fire Insurance Claims – What to Do Before and After Your Loss

Fire Insurance Claims – What to Do Before and After Your LossIn order to ensure you are adequately protected in the wake of significant fire damage to your home or property, it is essential first and foremost to buy and maintain property insurance. Make sure that your policy provides protection for your various assets and that the coverage amounts are sufficient.

Secondly, be sure to keep your policy and endorsements, and any amendments, in a fireproof safe deposit box. If your insurance policy was destroyed in the fire, request a certified copy from your insurance agent or company immediately. You need to know what coverage you have and what you can make a claim for in order to receive everything to which you are entitled.

Don’t delay in reporting your claim. The sooner you can let your insurance company know about the fire, the better. Your policy may provide you with benefits that can help you live somewhere else while your home is either rebuilt or repaired, as well as pay for other living expenses. After you report your claim, write down your claim number and keep it in highly accessible location, along with the name and number of your adjuster.

Read your policy

After any fire loss, you should take time to read your policy. It’s important to know what your coverages are, as well as the limits of those coverages. Property insurance policies also often include time limits for many things, including:

  • Submitting a proof of loss
  • Recovering replacement cost
  • The length of time living expenses are covered
  • Suing the insurer

It’s important for you and your contractor to be aware of these items. If there are sections of your policy that you do not understand, do not be afraid to ask for an explanation. If you don’t understand, have a lawyer review it.

Know the type of adjuster who will assess your damage

Find out if the adjuster coming to your home to assess the damage is an independent adjuster hired by your insurer or an employee of the insurance company. If an independent adjuster, find out if the adjuster is authorized to make decisions about your claim and make payments as a third-party working for your insurance company.

Receipts and records

Expect to receive some pushback from your insurance company. If this happens, have documentation ready to assert your claim.  Keep receipts for everything you have to purchase after the fire. This paper trail can help you prove your claim for additional living expenses and your entitlement to other coverages.

It may also be a good idea to shoot a video of your home and its contents each year when your policy renews. This will help you document the items you own and their condition. Be sure to keep your video recordings and any photos you take in a fireproof safe deposit box. While such a video is normally required by an insurance policy, it can help during the claim process.

Create your own records and notes

Keep clear and understandable notes of your conversations with your claims adjuster. As well, record the events of your case as they transpire. It’s important to have your own record of what occurs during the claims process.

After the fire event, take photographs and/or videos of the damage before any repair work is done. Make a list of all damages and damaged items as a result of the fire and its aftermath. Do whatever is possible to minimize any secondary damage from occurring. Your insurance agent or adjuster are good people to ask about what steps can be taken to minimize additional damage.

In advance of talking to the adjuster, you may want to prepare by obtaining a repair estimate from a qualified contractor of your own choosing. Be sure to save receipts for any cleanup efforts, emergency repairs and associated costs you incur, even including the expenses of staying at a hotel temporarily. All this may fall under the additional living expenses portion of your policy.

Fight back as necessary

Don’t simply file your claim and sit back and wait for everything to happen. Follow-up and check in with your insurance company, adjuster, or agent regularly about the progress of your claim. Don’t accept a denial of your claim or even a small claim offer that is far below that to which you are entitled under your policy.

The Tennessee insurance dispute lawyers at the Gilbert Firm understand the complexities that sometimes occur with claims involving fire damage. If you are having trouble dealing with an insurance company and getting your claim approved, allow our team of experienced attorneys to help you obtain the compensation you are owed based on your policy. We are able to serve you in Nashville, Chattanooga, Memphis, Jackson, Knoxville, and throughout Tennessee. To arrange a free consultation with Clint Scott, Brandon McWherter or Jonathan Bobbitt, call us at 888.996.9731 or fill out our contact form.

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Labor and Employment

Supreme Court Declines to Review DirecTV Joint Employer Case

Supreme Court Declines to Review DirecTV Joint Employer CaseThe U.S. Supreme Court on January 8, 2018 refused to hear a petition from DirecTV that would seek to overturn the U.S. Fourth Circuit’s decision regarding the joint employer test in connection with the Fair Labor Standards Act. Consequently, employers will continue to be responsible to various joint employer standards from different federal circuits.

The question seems simple: under the Fair Labor Standards Act (FLSA), is whomever is defined as an “employer” liable for providing minimum wage and overtime pay? When two potential joint employers exist, this is not always a simple question to answer. One reason is due to the fact that the law on this matter is not the same between different jurisdictions.

The parties in the recent Supreme Court case were hoping the Justices would resolve the issue and institute a uniform joint employer test nationwide. However, as stated, the Court declined to hear the case of Hall v DirecTV.

What was this case about?

The case concerned thousands of technicians who provided satellite system work for DirecTV customers across the nation, including installation and repair services. These technicians were designated and paid as independent contractors. The satellite-TV company contracted with various home and secondary service providers (Providers). Over time, DirecTV acquired some of these Providers. Others were not acquired and remained independent.

DirecTV utilized these Providers as middle managers between itself and the technicians. These Providers enforced and implemented DirecTV’s hiring criteria, utilized the company’s centralized work assignment system to relay scheduling decisions, and supervised and maintained work files on the technicians.

The allegations put forth by these technicians in their lawsuit against DirecTV and its Providers assert that they were incorrectly classified and treated as independent contractors rather than employees. In doing so, their lawsuit seeks to place joint liability on DirecTV and the Providers for minimum wage violations and unpaid overtime.

Ruling of the Fourth Circuit

The Fourth Circuit’s ruling explained the joint employment inquiry as involving a single foundational question: “whether two or more persons or entities are not completely disassociated with respect to a worker such that the persons or entities share, agree to allocate responsibility for, or otherwise codetermine – formally or informally, directly or indirectly – the essential terms and conditions of the worker’s employment.”

In determining the question of whether putative joint employers are “completely disassociated,” the panel pinpointed six non-exhaustive factors that courts should consider when analyzing this question. They are:

  1. The putative joint employers, whether as a matter of practice or formally, share, jointly determine, or allocate the power to supervise, control, or direct the worker, whether directly or indirectly.
  2. The putative joint employers, whether as a matter of practice or formally, share, jointly determine, or allocate the power to fire or hire the worker or change the conditions or terms of the worker’s employment – either through direct or indirect means.
  3. The duration and degree of permanence in the relationship between the putative joint employers
  4. One putative joint employer, whether through direct or indirect ownership, or shared management, controls, is controlled by, or operates under common control with the other putative joint employer
  5. Whether the work is carried out on a premises controlled or owned by at least one of the putative joint employers, in connection with one another or independently
  6. The putative joint employers, whether as a matter of practice or formally, share, determine, or allocate responsibility over roles generally carried out by an employer. This may include paying payroll taxes, providing workers’ comp insurance, handling payroll, or providing the tools, equipment, materials, or facilities required to fulfill the work

The Fourth Circuit narrowed its lens on the question of whether the two entities are completely disassociated. This completely disassociated test issued by the Fourth Circuit, as opposed to almost all other joint employment standards, focuses on the two entities and their relationship with each other rather than the relationship between the employee and the putative joint employers. According to the Court, the only way to precisely pinpoint the “joint” element of the joint employer doctrine is to analyze the relationship between the two entities.

As it typically does, the United States Supreme Court issued its decision declining a review of DirecTV’s joint employer case without an explanation as to its reasoning. Thus, employers are currently left to follow varying joint employer standards based on the applicable Circuit Court jurisdiction.

If you have been the victim of unfair employment or insurance practices, our team at Gilbert Firm can review your situation and explain your legal remedies going forward. Let’s discuss your complaint. Call us today at 888.996.9731 or send us an email through our contact form. Our Tennessee FLSA attorneys like Clint Scott serve clients across the state of Tennessee, including in Nashville, Chattanooga, Memphis, Jackson, and Knoxville.

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Insurance Disputes

Why You Have to Give an Examination Under Oath (EUO)

Insureds, or policyholders, get letters generally from an insurance company requesting that an examination under oath be taken. An insured has to appear for the examination under oath. There’s a cooperation clause contained within almost every policy of insurance that requires an insured, as part of his obligations under the policy, to cooperate in the investigation. So the insurance company can ask the insured to sit for an examination under oath multiple times. And it’s one of the, I guess, scariest parts of the claims process, when the insured or the policyholder has suffered a loss and they this letter – from a lawyer – asking for a whole lot of information to be brought, and for a date and time so that they can sit down and give the examination under oath.

The Gilbert Firm represents commercial and residential policyholders throughout Tennessee. To schedule a consultation time with Clint Scott, or to speak with a Tennessee insurance dispute lawyer in Nashville, Chattanooga, Memphis, Jackson or Knoxville, please call 888.996.9731, or fill out our contact form.

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Insurance Disputes

What Is Contents Coverage?

Contents coverage is found in both homeowners’ policies and commercial policies. In a commercial policy it’d be called business personal property. In a homeowner’s, claim we would simply call it contents or personal property. That is the items that the insured owns, that are not attached to the real estate, for which there’s a separate amount of coverage set out under the policy. So in your home, it would be your toaster, your clothes, your shoes, things of that nature. Let’s say in a commercial enterprise, a business, it’d be your computer system, maybe the merchandise that you had on your shelf to sell.

The Gilbert Firm represents policyholders throughout Tennessee. To schedule a consultation time with Clint Scott, or to speak with a Tennessee insurance dispute lawyer in Nashville, Chattanooga, Memphis, Jackson or Knoxville, please call 888.996.9731, or fill out our contact form

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Labor and Employment

The Obama Era Overtime Rule Will Not Be Upheld

The Obama Era Overtime Rule Will Not Be UpheldThe Justice Department put a formal end to the expansion of the federal overtime rule. The Department’s decision erases a significant change made by the previous administration to labor regulations.

The Justice Department, in a recent court filing, stated that District Court Judge Amos Mazzant’s ruling that the Labor Department did not have the authority to make the far-reaching change would not be appealed.

Federal law mandates that employees must receive time and a half pay when they work more than 40 hours in a week. Businesses, however, have the freedom to exempt workers from this requirement if their work duties are deemed “managerial” in nature and they achieve a certain salary threshold.

Salary threshold for eligibility

In 2016, the Labor Department announced this salary threshold, previously at $23,660 per year, would increase to more than $47,000, with regular updates made every three years to account for wage growth. Some four million additional workers under this change would gain eligibility for overtime.

The Obama administration explained that it was simply bringing the Fair Labor Standards Act up-to-date to match existing employment policies. However, a number of business groups and states opposed the rule. They claimed the threshold was set too high. Thus, a court challenge commenced, resulting in the November 2017 ruling by Texas federal judge Mazzant. As of now, the 2004 threshold of $23,660 remains in place.

Current Secretary of Labor Alexander Acosta stated that he is in favor of raising the threshold, but not to the degree that will “shock the system.”

The Secretary also indicated he is intent on following the rule of law. In order to change the threshold salary level, a process must take place that involves a new notice and subsequent rulemaking. Some of the steps involve a comment period, review, and economic analysis. As Patricia Smith, the Solicitor of Labor under former President Barack Obama and current senior counsel with the National Employment Law Project, stated, “We’re talking a long time.”

Business groups pleased

Angelo Amador, executive director of National Restaurant Associations Restaurant Law Center, expressed his approval for the Justice Department’s decision: “The Obama administration’s drastic changes to the federal overtime rule would have hurt small businesses and their employees. We applaud DOJ’s decision to ask for a dismissal of the appeal. This will allow the U.S. Department of Labor (DOL) time to consider input from the business community to enact workable changes to these regulations.”

Of course, others support the original change. Celine McNicholas, labor counsel for the Economic Policy Institute, stated, “For years, as the salary threshold was eroded by inflation and congressional inaction, businesses have used the imprecision of the duties test to avoid paying overtime to low-level employees who they wrongly classify as managers or executives.”

If you are experiencing a wage and hour dispute with your employer, do not let the situation stand as is without knowing your options and obtaining the experienced legal counsel you need to secure your rights. We serve our clients from offices in Nashville, Memphis, Jackson, Chattanooga, and Knoxville with representation that produces results. Let’s discuss your case. Call the Gilbert Firm at 888-996-9731, or complete our contact form to arrange a free consultation with an FLSA attorney like Clint Scott today.

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FLSA Labor and Employment

Draw-on-Commission and FLSA Compliance

Draw-on-Commission and FLSA ComplianceNumerous retail employees across Tennessee are compensated through draw-on-commission payment structures. While this is common practice within the retail industry, a recent Federal Court ruling addressed concerns about the legal appropriateness of these payment structures. As reported by the National Law Review, the sixth Circuit Court of Appeals, which encompasses Tennessee, recently ruled on a case involving consumer appliance store h.h.gregg. This matter stemmed from employee allegations that the company’s draw-on-commission policy violated the Fair Labor Standards Act (FLSA).

What is draw-on-commission?

Draw-on-commission, also referred to as draw-against-commission, involves employee compensation that is based solely on commissions. During weeks when the employee fails to earn an established level of commission, the employer provides the worker with an advance or draw. That draw is later deducted from future earned commissions and paid back to the employer.

In their lawsuit, h.h.gregg employees alleged that the company’s draw-on-commission structure violated their employment rights under the FLSA. Their various allegations included:

  • Failure to pay overtime wages. The FLSA exempts retail or service employees from the overtime pay requirement if “the regular rate of pay of such employee is in excess of one and one-half times the minimum hourly rate applicable” and “more than half his compensation . . . represents commissions on goods or services.” The company argued that, as a retail store, it was exempt from overtime pay requirements. The court disagreed with this argument, stating in part that the h.h.gregg commission policy did not meet exemption requirements.
  • Illegal kickbacks. The employees argued that the practice of deducting draw amounts from future earnings constituted illegal kickbacks. The FLSA requires that future deductions be made “free and clear.” Plaintiffs asserted that this free and clear standard was not met, and that the draws were essentially loans that had to be repaid to the company. The Court disagreed, stating that the draws were given to the employees free and clear, in compliance with FLSA.
  • Off-the-clock work requirements. According to the court filings, h.h.gregg employees were routinely required to attend work-related trainings and store meetings without pay. The company argued that these off-the-clock tasks did not violate FLSA because “the ‘off-the-clock’ work allegedly performed did not deprive them of pay; it simply shifted it to a different week.” The court disagreed with the employer’s assessment of these off-the-clock work requirements, instead finding that an employer may not “shift” pay for hours worked to a future week.

Guidance you can trust for FLSA questions

The FLSA and other employment-related laws can be challenging to comprehend without trusted legal guidance from a reputable Tennessee FLSA law firm. Clint Scott and the attorneys of the Gilbert Firm have extensive experience handling FLSA disputes. We hold employers accountable for violations of employment laws and fight for the rights of workers. Call us today at 888-996-9731 or fill out our contact form for a professional review of your case. We have offices conveniently located in Nashville, Chattanooga, Memphis, Jackson, and Knoxville.

 

Categories
Insurance Disputes

Document Production for an Examination Under Oath (EUO)

The documentation related to an examination under oath is going to be set out in the letter from the insurance company’s attorney, on what they want you to bring. That information can go as far as bank records, credit card statements, cell phone records, utility bills, tax returns. The first thing that an insured says is, “Oh my gosh, how am I going to get this stuff together? How am I going to produce it? What format do they want it produced in? How much is it going to cost me?”

At the Gilbert Firm, over the years, we’ve handled numerous examinations under oath, where clients have hired us to assist with that process. And so we use our experience and our resources to go out and gather those documents, and assist in gathering them, so that we can make sure that we fulfill the duties of the insured under the cooperation clause and produce all documents that we reasonably can.

The Gilbert Firm represents policyholders, workers, and students throughout Tennessee. To schedule a consultation time with Clint Scott, or to speak with a Tennessee insurance dispute lawyer in Nashville, Chattanooga, Memphis, Jackson or Knoxville, please call 888.996.9731, or fill out our contact form.