Category: Insurance Disputes

An arbitration agreement or clause is a part of a contract in which parties agree that certain types of disputes may be handled through arbitration instead of litigation. If you sign a binding arbitration agreement, you relinquish your rights to pursue a remedy in court. But what if you are unhappy with the arbitration clause as it stands? Can you negotiate a change?

The answer is, it depends. You may be able to negotiate some parts of the mandatory arbitration clause in your insurance contract, but you could also be denied coverage for refusing to agree to the clause.

The basics of an arbitration proceeding

An arbitration proceeding is a dispute resolution process conducted privately in which either a single arbitrator or a panel of arbitrators serves in the capacity of a judge. Commonly, the arbitrator is a judge or lawyer with experience in a specific area of law and provides the arbitration services for a fee. The rules of arbitration are not as stringent as those in a standard court proceeding. There is also no jury involved. After each side has presented its case along with evidence, the arbitrator issues a decision, which is usually final, with little to no opportunity for appeal.

Although it may seem more reasonable to go through arbitration rather than through a court proceeding, the consensus is that arbitration gives companies a distinct advantage over the people who sign their contracts. The following reasons support this view:

• No jury
• Limited discovery process
• Confidentiality (no public record)
• No appeals possible (except for blatant arbiter misconduct)

Negotiating an arbitration clause in an insurance policy

Unfortunately, you may have limited options if your insurer requires you to sign an arbitration agreement. Courts have consistently given insurers the green light to make the signing of an arbitration clause a prerequisite of obtaining policy, much as they have with nursing homes, employees, and other companies. Stated another way, you may be denied coverage if you do not agree to sign an arbitration clause.

However, there may be times when you can “get around” an arbitration agreement. You can negotiate the contract from the start, before you agree to sign anything, to include provisions for:

1. Who chooses the arbiters
2. How discovery is presented
3. Who will pay which fees
4. Whether certain types of claims can still be brought in court

If you are unable to negotiate, you should seek the advice of an experienced Tennessee insurance dispute attorney. In some cases, your arbitration clause may actually be invalid. If you must abide by it, then you deserve to have a lawyer who is experienced in representing policyholders in these types of disputes.

Read More:

• What You Don’t Know about Arbitration Clauses Could Hurt You in an Insurance Dispute
• Mandatory Arbitration? Time to Check Your Policy
• Arbitration Agreements and the “Effective Vindication of Rights” Argument
• WATCH: Is a Lawsuit My Only Option?

If you need help with the negotiation of an arbitration clause, our Tennessee insurance dispute attorneys are here to provide you with the legal counsel and advice you need. The Gilbert Firm serves clients from offices in Nashville, Chattanooga, Jackson, Memphis, and Knoxville. To set up a free case review with one of our attorneys – Clint Scott, or Jonathan Bobbitt, or Brandon McWherter – give us a call at 888.996.9731, or use our contact form.

 

 

 

You have obtained liability insurance as a responsible property owner. In addition, you have paid your insurance premiums on time. Holding up your end of the bargain, you certainly have a right to expect your insurance company to be there for you if you become the object of a liability claim or suit. However, what does it mean if your insurer sends you a reservation of rights letter detailing various reasons why they may not cover you for certain events related to your policy?

Based on the terms of your liability insurance policy, the insurer has a legal obligation to defend you in a liability lawsuit. If an individual is injured on your property and files a lawsuit against you to recover his or her medical costs, the insurer will mount a legal defense on your behalf in accordance with your homeowner’s policy. However, the duty of the insurer to indemnify is narrower than their duty to defend.

As a result, although your insurer may investigate the claim against you and provide liability defense, they may also deny your insurance coverage at a later point in time based on their investigative findings or the lawsuit. If the insurer fails to send you a reservation of rights letter sufficiently in advance of a lawsuit against you, they may relinquish their right to deny you coverage at a later time, having failed to warn you of the possible absence of coverage.

As an example, since your policy likely only covers losses due to acts of negligence, a reservation letter sent by the insurer may warn you of an absence of coverage if:

• You fail to abide by the terms of the policy, or
• If the lawsuit reveals that you injured someone intentionally.

How a reservation of rights letter can affect you, the policyholder

As a policyholder, a reservation of rights letter can affect you if the insurer later refuses to cover you on certain claims made against you in a lawsuit. If this happens, and you are found liable, you may then be responsible for those damages. If there is a conflict of interest between you and your insurer, a reservation of rights letter may indicate this conflict prior to the damage phase of the lawsuit. In such a case, it may be necessary to hire a different attorney rather than staying with the insurance company that has interests divergent from yours.

In addition, while the insurer must supply and pay the costs of your defense – provided the claim involved is potentially covered under your policy – the insurer may attempt to have you sign an agreement enabling them to recover their costs if they decide later the claim is not covered. Or, the insurer may attempt to recover those costs without an agreement.

What to do after receiving a reservation of rights letter

If the reservation of rights letter sent by your insurer is a general form letter with no specifics provided about you or your case, it is a good idea to contact the insurer and inquire why they believe your claim may not be covered under the policy. This can provide you with information about how likely they are to deny coverage, and the type of defenses they may assert.

If your insurance company indicates they will deny part or all of your claim, or if they are not forthcoming, you are well advised to contact an experienced outside insurance dispute attorney for an initial evaluation of your case at a minimum. Retaining independent counsel at the early stages is beneficial in ensuring the strongest defense possible and the sharing of too much valuable information with your insurer or other parties in the lawsuit.

Regardless of whether your insurance company has acted in bad faith or you need legal representation for any type of insurance dispute, our team at The Gilbert Firm can help you pursue your rightful benefits. To set up a consultation about your case with Jonathan Bobbitt, Brandon McWherter, or Clint Scott, call us today at 888.996.9731 or complete our contact form. We serve policyholders throughout Tennessee from our offices in Nashville, Knoxville, Chattanooga, Memphis, and Jackson.

The average person doesn’t always read his or her insurance policy, except in one or two instances – when it becomes necessary to file a claim or when an insurance claim is denied by the insurer. We understand why: these contracts are often filled with dense legal jargon, and reading them can seem like an exercise in futility for most people. Knowing the actual definitions of your insurance policy is essential when the time comes to access the benefits you have or you assume you have under your policy.

Sometimes, however, those policy definitions are broad, and may be used by the insurer to avoid paying out on your claim even when your claim should be covered. We wanted to examine how that language can harm policyholders, and allow agents to act in bad faith.

Conditions, limitations, and exclusions

Most insurance coverage has limitations, conditions, and exclusions that reduce or eliminate your coverage under particular circumstances. The exclusions and limitations may be likened to the holes in Swiss cheese. Too often, the coverage (the cheese) is severely diminished or removed completely by the conditions, exclusions, and limitations (the holes).

On top of that, insurance policies often contain difficult-to-understand phraseology and technical verbiage the average consumer is not accustomed to digesting. You may not even realize that you agreed to a policy with more holes than cheese.

Courts side in favor of the insured when policies are ambiguous

There is some good news for the insured, however. Laws have been formulated to prevent insurers from relying on vague or unclear policy provisions to deny a claim.

So, if your insurer has denied your claim unfairly based on ambiguous language in your insurance policy, the denial may be unlawful. Ambiguous policy terms are interpreted against the drafter, i.e., the company that wrote the insurance policy.

Examples of case law on unclear policy language

• In Washington National Insurance Corporation v. Ruderman, 2013 WL 3333059 (Fla. July 3, 2013), the Florida Supreme Court maintained that an insurance contract with ambiguous language is to be interpreted liberally in favor of coverage. This interpretation was to stand despite any extrinsic evidence that may be found to clear up the ambiguity.
• According to Insurance Co. of Illinois v. Markogiannakis, 188 Ill.App.3d 544 N.E.2d 1082 (1 Dist. 1989): “The test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean, and the ambiguity will be resolved against the insurer.”
• In Wolf v. American Cas. Co. of Reading, Pa., 2 Ill.App.2d 124, 118 N.E.2d 777 (1st Dist. 1954), the court stated: “Ambiguous provisions or equivocal expressions whereby an insurer seeks to limit its liability will be construed most strongly against the insurer and liberally in favor of the insured.”

In these cases, the insured claimant was pursuing coverage from the insurer to cover a loss. The insurance companies denied claims of the insured based on alleged conditions, exclusions, or limitations. In these cases, the courts determined that the language in the insurance policy was sufficiently ambiguous such that they awarded coverage in favor of the consumer.

The test of the language within an insurance policy is to be what the insured understood the language to be, not what the insurance company intended. As described above, the courts are protecting the unsophisticated insured against the sophisticated, savvy insurer.

However, when faced with ambiguous insurance policy language, it is often best to access an experienced Tennessee insurance dispute attorney instead of seeking policy changes or explanations on your own from the insurer.

Are you up against bad faith insurance practices or in the midst of an insurance dispute due to ambiguous language in your insurance policy? Regardless of the difficulty you are facing with your insurance company and accessing the insurance proceeds you deserve on your claim, our experienced Tennessee insurance dispute attorneys at The Gilbert Firm can help. To set up a free consultation, get in touch with Brandon McWherter, Clint Scott, or Jonathan Bobbitt by calling 888.996.9731 or completing contact form. With offices in Nashville, Chattanooga, Knoxville, Jackson, or Memphis, we are able to fight effectively for the benefits you deserve.

 

 

Insurance companies have traditionally sought to minimize the amount they pay for any mold or black mold claims. Some insurers will try to pay a sparse amount or nothing at all for anything associated with mold cleanup, even when a water event that causes water damage is covered, but also leads to indoor mold contamination. A denial of a legitimate claim involving mold damage can certainly constitute an unfair or bad faith claim practice by your insurer.

How a mold claim can become an issue

A mold claim typically becomes an issue when it was not observed by the adjuster sent from the insurance company. Often, the insurer will later attempt to deny a claim for mold damages by asserting the mold existed prior to the covered loss, was the result of an improper loss mitigation technique, or resulted from a defect in construction. Sometimes insurance companies will deny the mold exists and is a problem even when it is a blatantly obvious issue.

A mold damage claim will typically be covered when some type of water peril that is covered by the insurance policy also causes the formation of mold. This is typically referred to as a covered peril. Mold that develops from a single event such as an ice storm or hurricane may be covered.

On the other hand, mold that develops from a chronic leaking pipe or other type of repeated or continuous water seepage may not be covered. Determining what moisture or water source caused the mold to develop is one of the major factors that influences whether a mold damage claim is covered. This determination can be made by experts in the mold inspection and remediation field.

Mold remediation cleanup costs are rising and as a result, insurance companies are entertaining different ways to avoid paying on mold damage claims. Some of the methods they employ include completely rewriting form policies to eliminate coverage for all types of mold – for instance they may reduce the amount covered for mold damage to between $1,000 and $10,000. Or, the insurer may litigate a mold damage claim under the existing insurance policy.

Filing your water damage claim

Once you have determined that water damage to some portion of your home is included under your insurance policy, there are certain steps you can take to help ensure your claim is approved. These include:

Documenting the damage quickly

Once you discover water damage, it is vital to contact your insurer as quickly as possible. Documenting the damage is also of crucial importance. Take pictures of the damaged areas, including every damaged item and the source of the water (i.e. hole in the roof or burst pipe). If you have any pictures of the area prior to the incident, show them to the assessor to provide a good before and after comparison.

Being prepared for questions from the adjuster

A representative from your homeowners’ insurance company will likely ask you an extensive list of questions about your claim to assist in the determination of what damage is covered under your policy. He or she can also accurately determine if the damage done is greater than the deductible stated in your policy.

If it is necessary to make certain repairs before the adjuster looks at the damage, be sure to take pictures before and after and retain any receipts for materials you purchase. All of these expenses may be reimbursed.

Considering getting a separate estimate of the damage and repair costs

In situations where water damage and mold are the issue, it can be quite helpful to have a contractor evaluate the damage separately and provide you with an independent estimate from the one you will receive from your insurance company. This estimate may be useful in the event that the insurance adjuster’s coverage is inadequate or does not cover the mold damage. The estimate can provide you with information useful in negotiating your offer upward or taking further legal action in pursuing your residential property claim.

At The Gilbert Firm, we have access to experts in mold detection and remediation to ensure your mold claim is not wrongfully denied. If you believe your insurance company is underpaying or denying your mold claim, call our experienced insurance dispute attorneys today at  888-996-9731 or complete a contact form to schedule a consultation with Clint Scott, Brandon McWherter, and Jonathan Bobbitt. We serve clients throughout Tennessee from our office locations in Nashville, Chattanooga, Memphis, Knoxville, and Jackson.

 

 

Residential and commercial real estate sales occur on a daily basis. Usually, the title transfer of the sale occurs without much fanfare regardless of whether the transaction involves a residential home or business real estate. The same is true when it comes to transferring insurance from the seller to the buyer. Up to the closing point, the seller generally insures the property. When closing occurs, the buyer generally insures the property.

An important question to ask is, can the sale of a property negatively affect an existing insurance claim on the property when it comes to the financial interests of the seller?

Hope for the policyholder seller

The Seventh Circuit Court has addressed this issue with a legal opinion that gives hope to the policyholder seller. The Court found that the sale of a property prior to the completion of repairs does not prevent the seller from eventually recovering the “replacement cost.”

In Edgewood Manor Apartment Homes vs. RSUI Indemnity Company, the insured policyholder was the owner of an apartment complex who recaptured the “actual cash value” from the insurance company from damage caused by Hurricane Katrina. The insured then successfully sold the property before repairs were made. The terms of the sale included an assignment of the insurance claim to the buyer.

However, the Court ultimately determined that the assignment was not valid and that the insured seller held rights to the insurance claim and possessed a legitimate claim for the “replacement cost” after the buyer performed the repairs.

Establishing an insurable interest

One hurdle for the policyholder seller is to demonstrate that he or she has an insurable interest in the property. The Court’s decision explained that no state requires the insured to maintain an insurable interest during the course of residential or commercial property claim litigation. The existence of an insurable interest is determined either at the time of loss or at the time of the policy’s inception.

Recovering the replacement cost proceeds

The second challenge is to recover the proceeds of the “replacement cost.” In the Edgewood Manner case, the insurance company asserted that it was not responsible for paying any replacement cost because the insured seller sold the property prior to the completion of repairs. Regardless of that fact, the Court pointed out that nothing in the policy requires the insured party to perform the repairs on the property. Therefore, the insured party may sell the property and as long as the buyer completes repairs in a reasonable timeframe according to policy requirements, the seller can recuperate the replacement cost proceeds.

In summary, you have options when a commercial or residential property claim is pending during the sale of any property. The seller or buyer may recover replacement costs depending on the sales agreement and the policy. In addition, the sales price may or may not be modified to ensure the seller and buyer are in the financial position they would have expected to be in absent the insured event.

If you filed a claim against your commercial or residential insurance policy and received a denial, you may have grounds to file a lawsuit. Our Tennessee insurance dispute attorneys at The Gilbert Firm are here to help you receive the compensation you are owed based on your claim. To arrange a free consultation, call our office today at 888.996.9731 or complete our contact form. Our attorneys Clint Scott, Brandon McWherter and Jonathan Bobbitt are ready to fight for you. We serve clients in Tennessee from our offices in Nashville, Chattanooga, Knoxville, Memphis, and Jackson.

 

 

 

Insurance policy exclusions can dramatically affect insureds who think that they are protected completely when dealing with fire, storm, wind, hail, theft or other issues with their property. An insurance battle stemming from Hurricane Harvey in Texas was recently settled out of court for an undisclosed amount. The plaintiff, a woman who owns multiple commercial properties in Texas, sued Lloyd’s of London for failing to pay her claims. She claimed that winds of 125 MPH or more damaged roofing on her properties, causing damage inside her buildings.

The claims were denied due to damage being caused by anything but the wind, despite any evidence to the contrary. Exclusions like these can wreak havoc on policyholders, so it is important that you know what coverage you have and any exclusions that may apply.

What is an insurance exclusion?

Exclusions are typically found in policies which cover “risks of direct physical loss.” Basically, the policy will state that “all risks of direct physical loss” are covered “unless excluded”. This language enables insurance companies to narrow down what will and will not be covered by the policy. The most common exclusions we see include the following:

• Wear and tear/ deterioration
• Improper workmanship/materials/design
• Ordinance or law (but there may be a provision allowing for coverage relating to building code upgrades)
• Governmental action
• Intentional acts
• Earth movement
• Flood (sometimes, water)
• Fungus, wet or dry rot or mildew
• Slow leaks

(While not normally applicable, acts of war are usually excluded, too.)

Exclusions must be clearly written

Since an exclusion in an insurance policy does not cover certain items, the law requires that they be written clearly. This is where a lot of insurance companies get into trouble. If a policyholder misinterprets their policy language, or it is too difficult to understand, the insurer can wind up being held responsible for the damages the policyholder is seeking to recover.

How do exclusions hurt insureds?

On the other hand, exclusions can hurt insureds when it comes to covered losses. An insured who has not read their policy, or has not asked for clarification of an exclusion, may very well find that they are not protected in certain loss events. For example, did you know that the neglect of your property could possibly void your homeowner’s policy? Look, let’s not forget that insurance companies do not make large profits by paying claims that they contend are not covered under their policies. It’s important to know what your policy says AND what it means.

When it comes to insurance disputes, the Gilbert Firm is highly experienced and respected all throughout Tennessee. Jonathan Bobbitt, Clint Scott, and Brandon McWherter work hard to make sure your insurance company pays your claim in a timely manner. Call us today at 888-996-9731 or complete the contact form to schedule a consultation in Nashville, Memphis, Chattanooga, Jackson or Knoxville.

 

 

Having bricks installed on the exterior of your Tennessee home helps improve the overall appearance and value of the home. The problem with bricks, though, is that insurance companies often try to avoid paying for matching materials when repairs are required. Today, we’d like to look at why that is.

Why are bricks problematic?

Bricks are made in batches, and no two batches are the same, even if you order different batches from the same company. So, if you need to replace 100 damaged bricks on the exterior of your home, the new ones you install will not match the bricks still on the home. Bricks also decay at different speeds and change colors over time, which means you likely will need to replace the entire wall or all of the brick, as opposed to just one section, in order to restore an aesthetically pleasing and uniform appearance to your home or business. This can be a costly project, and insurance companies don’t like to pay out if they can avoid it.

Policy Language

In order to limit their exposure, some insurance companies have added provisions to their policies stating that they do not have to pay for “matching” when making repairs. For this reason, it is important to know what your policy does and does not cover before you find yourself in this position.

Matching Issues are Real

If your home’s exterior is entirely made up of bricks, damage to even a few could lead to a major claim with the insurance company. No one wants to have a mismatched exterior of a home, as it is not aesthetically pleasing and lowers the value of your property. Getting the insurance company to pay for a total brick replacement is not easy. Make sure to talk about matching with your insurance agent when purchasing or renewing your property insurance coverage, so that you do not find yourself without the coverage that you need.

Are you fighting with your insurance company over matching issues? If so, it’s time to speak with an experienced Tennessee insurance dispute attorney from the Gilbert Firm. Call Clint Scott, Brandon McWherter, and Jonathan Bobbitt at 888-996-9731 or complete a contact form to schedule a consultation in Nashville, Chattanooga, Memphis, Jackson, and Knoxville.

 

 

The claims adjuster is an important cog in the insurance machine. This person is responsible for coverage determination, investigation /evaluation of the claim and damage, and ultimately determining how much of a financial obligation the insurance carrier has and will pay on your claim. Understanding what it is a claims adjuster does can make it easier to figure out if you are possibly being “lowballed” on the claim settlement offer.

The responsibilities of a claims adjuster

A claims adjuster has just about the same responsibilities no matter where they work, but some could be tasked with doing additional duties depending on their employer. At a minimum, a claims adjuster is often responsible for handling the following:

• Research the insurance policy
• Determining is coverage exists for the loss
• Investigate the claim
• Collect evidence to support or deny the claim
• Obtain property repair estimates
• Negotiate settlements with you, the customer
• Accept or Deny claims
• Understand costs of additional living expenses and construction costs
• Review estimates
• Order and review engineering reports

Am I being lowballed?

Would you know if you are being lowballed by the claims adjuster assigned to your case? More than likely you would have no idea. Candidly, it can be a really complicated process that, on its face, appears to be fair. So, why would an insured even consider questioning the offer in the first place? That’s why it’s vital to work with an experienced Tennessee insurance disputes attorney when filing a claim. If you believe you received an unfair offer from your insurance company, it’s best not to respond without speaking to an attorney experienced in the area.

If you suspect your claim is not being handled properly, contact the experienced Tennessee insurance dispute attorneys from the Gilbert Firm. We provide legal assistance for clients in Nashville, Chattanooga, Memphis, Jackson, and Knoxville. Call us at 888-996-9731 or complete a contact form to schedule a consultation with Clint Scott, Brandon McWherter, and Jonathan Bobbitt.

 

 

Tennessee has a lot of condominiums. When condo owners suffer losses, they sometimes face challenges that single-family homeowners don’t. The insurance company may deny the claim based on exclusions, or lowball the claim based on the type of damage done.

Your personal condominium insurance policy, known as an HO-6 policy, will most often cover losses you suffer inside your condo or damages that occur inside your condo. The policy held by the condo association where you live will most often cover damage done to the common areas of the property and damage to the building itself. It’s also possible that both policies could activate and handle damage at the same time. For example, if the roof leaks and does damage to the interior of your condo, your policy could cover interior damage and the association policy will handle damage to the exterior roof.

How to ensure your claim is approved

There’s no guarantee that a condo claim will be approved, but you can take steps to improve the odds that the claim will be handled in your favor. Here are some suggestions if damage to your condo occurs or you suffer injuries inside your condo:

• Write down the date and time of the event
• Take photos or videos of all the damage
• Create a list that details all of the items stolen or damaged that includes estimated values
• Obtain multiple estimates for any damage that requires repairs
• Always have a contractor present when the adjuster is assessing damages
• Don’t sign anything form your insurance company until an attorney looks it over

It is in your best interest to read the policy you acquire for your condominium from cover to cover. You need to know what type of exclusions or limitations are included in the policy, the damage that is not covered, and any other pertinent information before you go to file a claim. If your insurance company is trying to “pull a fast one,” you may need legal representation.

If you filed a claim against your condominium insurance policy and it was denied, you might have the basis for a lawsuit. The Tennessee insurance dispute attorneys at the Gilbert Firm are here to help. Call the office to schedule an appointment at 888-996-9731 or complete the contact form on our website. Clint Scott, Brandon McWherter and Jonathan Bobbitt have offices in Nashville, Chattanooga, Memphis, Jackson, and Knoxville to better serve our clients.

 

 

The highest court in Tennessee ruled unanimously in favor of the policyholders on Monday April 15, 2019 when it ruled that insurance companies may not depreciate labor when calculating actual cash value.  On a certified question from the U.S. District Court for the Middle District of Tennessee in the case of Gregory J. Lammert, et al v. Auto-Owners Mutual Insurance Company, the Tennessee Supreme Court was faced with the following question:

Under Tennessee law, may an insurer in making an actual cash value payment withhold a portion of repair labor as depreciation when the policy (1) defines actual cash value as ‘the cost to replace damaged property with new property of similar quality and features reduced by the amount of depreciation applicable to the damaged property immediately prior to the loss,’ or (2) states that ‘actual cash value includes a deduction for depreciation?

In response to this certified question, Tennessee’s highest court answered: “Based on Tennessee law regarding the interpretation of insurance contracts, we conclude that the language in the policies is ambiguous and must be construed in favor of the insured parties. Therefore, we answer the district court’s question in the negative: The insurer may not withhold a portion of repair labor as depreciation.”

Brandon McWherter and his co-counsel, Joe Snodgass and David McMullan represented the policyholders in the case, which was filed as a class action and will now return to federal court for determination of whether the case should be certified as a class action.

This case came down to whether an insurance company can withhold labor costs when determining its actual cash value payment obligations.  While depreciation of material is logical, the policyholders felt depreciation of labor was contrary to common sense and resulted in gross underpayment of claims.  Based on the policy language at issue, the Supreme Court agreed, stating It is also reasonable that a homeowner, knowing that replacement costs include both labor and materials to rebuild a roof, would believe that the insurance company would only apply depreciation to the physical materials, those things that actually deteriorated.”

If you are facing an insurance dispute, Brandon McWherter, Clint Scott and Jonathan Bobbitt provide residents of Tennessee with honest and trustworthy representation. You are welcome to call the office at 888-996-9731 or fill out the contact us form found on the website to schedule an appointment.