Monday, June 13, 2022

No, GEICO Was Not Ordered to Pay $5.2 Million to Woman Who Claimed She Contracted an STD From Sex In Her Ex-Boyfriend’s Car

 












Dontcha just love how the press/media reports insurance coverage stories?  Almost immediately I heard via text messages and emails about this decision from (1) the SIU director of a NY auto insurer, (2) the claims manager of a NY property and casualty insurer, (3) my eldest son, who is an SIU field investigator, and (4) one of my office's legal assistants.  

For their benefit and yours I offer the following context.  

No, GEICO was not ordered to pay $5.2 million to a woman who claimed she contracted HPV after having sex in her ex-boyfriend’s GEICO-insured car.  And no, the Missouri appellate court most certainly did not rule GEICO "must cover" that the woman's allegedly related "injuries and losses".  

Last week's (June 7, 2022's) decision of the Missouri Court of Appeals did only this:
Government Employees Insurance Company and GEICO General Insurance Company (collectively “GEICO”) appeal the judgment of the Circuit Court of Jackson County confirming an arbitration award finding against GEICO’s insured—M.B. (“Insured”)—and in favor of M.O.  Insured and M.O. were in a romantic relationship. After M.O. contracted anogenital human papillomavirus (“HPV”), she submitted a settlement offer to GEICO, asserting Insured negligently infected her with the disease during sexual encounters in his automobile, and that Insured’s GEICO-issued automobile  insurance policy provided coverage for her injuries and losses. GEICO denied coverage and rejected her settlement offer.

Insured and M.O. entered into an agreement pursuant to section 537.065, RSMo,1 and agreed to arbitrate M.O.’s claims. The arbitrator found Insured negligently infected M.O. with HPV and awarded her $5.2 million in damages. Thereafter, M.O. filed this action in the trial court. GEICO moved to intervene and M.O. moved to confirm the arbitration award. The trial court granted both motions on the same date and entered judgment in favor of M.O. consistent with the arbitration award. GEICO appeals, asserting the trial court erred in confirming the arbitration award without giving GEICO a meaningful opportunity to defend its interests. For the reasons stated below, we affirm.
So chillax, you auto claims and underwriting professionals and insurance producers.  The decision merely affirmed a confirmed arbitration award against GEICO's insured, "M.B." (identified identified in GEICO's related DJ action as Martin Brauner).  It did not make any finding of coverage under GEICO's personal auto policy.   That policy, of course, afforded liability coverage for "damages which an insured becomes legally obligated to pay because of (1) bodily injury, sustained by a person, and; (2) damage to or destruction of property, arising out of the ownership, maintenance or use of the owned auto or a non-owned auto."

The MO Court of Appeal's decision provides the factual and procedural background to the arbitration award and GEICO's appeal to that court:
        In November of 2017, M.O. and Insured began a romantic relationship. Effective at that time was an automobile insurance policy issued by GEICO to Insured.
        On February 25, 2021, M.O. submitted to GEICO a copy of a petition she intended to file against Insured, and made a final settlement offer to resolve her “claims against [Insured] for the applicable limits of $1m.”2  The petition attached to the settlement offer alleged that during “November and early December of 2017,” Insured and M.O. engaged in unprotected sexual activities in Insured’s vehicle, and during those sexual encounters, Insured “negligently caused or contributed to cause [M.O.] to be infected with HPV by not taking proper precautions and neglecting to inform and/or disclose his diagnosis,” despite “having knowledge of his condition.” M.O. alleged that as a result of Insured’s negligence, she incurred, and will incur, “past and future medical expenses,” as well as “past and future mental and physical pain and suffering.” On  April 7, 2021, GEICO denied coverage and refused M.O.’s settlement offer. GEICO also initiated a declaratory judgment action in federal court to establish the parties’ rights and obligations under the insurance policy.

2  It is unclear from the record when M.O. first submitted her claim to GEICO. However, in January 2021, GEICO informed M.O. via letter that it had “completed [its] coverage investigation” and  determined “there was no coverage” because the  damages claimed did not arise out of the normal use of the vehicle.” GEICO “disclaim[ed] any and all liability or obligation to [M.O.] and to others under” Insured’s automobile policy and advised that it would “take no further action with respect to any claim . . . and hereby withdraws from the matter entirely.” 

        Meanwhile, on March 11, 2021, M.O. and Insured entered into a Contract to Limit Recovery to Specified Assets and Arbitration Agreement Pursuant to Section 537.065 RSMo (“065 Agreement”).3 On May 17, 2021, M.O. and Insured arbitrated M.O.’s claims, and the arbitrator thereafter issued his “Findings, Conclusions, and Award.”

3  The 065  agreement was not made part of the record on appeal, nor was it presented to the trial court. Any reference to the title or the contents of the 065 Agreement we take from filings that were included in the  record. Section 537.065, which will be discussed extensively in our analysis, allows an injured party and tortfeasor to enter into an agreement to limit the injured party’s recovery to the tortfeasor’s applicable insurance limits if the insurer has refused to defend the tortfeasor.

        The award first described procedural aspects of the arbitration proceeding, including that: (1) Prior to the arbitration, Insured submitted an Arbitration Statement detailing his defense; (2) Both parties presented opening statements at the arbitration; (3) Insured was given the opportunity to cross-examine M.O.’s witnesses and elicit testimony for Insured’s defense; (4) Insured submitted as exhibits three internet articles discussing HPV; (5) M.O. requested an award of $9.9 million in damages in her closing argument; and (6) In his closing argument, Insured disputed that he was aware he could transmit HPV to M.O., M.O. received HPV from him, he had a duty to disclose such diagnosis to M.O., and the amount of damages.

        As to his substantive findings, the arbitrator determined that: (1) “there was sexual activity in [Insured’s] automobile in November/December of 2017 which occurred in Jackson County, Missouri”; (2) the sexual activity in Insured’s vehicle “directly caused, or directly contributed to cause, M.O. to be infected with HPV”; (3) Insured knew he had “been told that his throat cancer tumor was diagnosed as HPV positive”; (4) Insured should have disclosed his diagnosis to M.O. prior to the sexual activity that occurred, but he did not; and (5) Insured “was negligent and is liable for causing M.O. to contract HPV.” The arbitrator found that “an amount that would fairly and justly compensate Plaintiff, M.O., for all of her damages and injuries is $5,200,000,” and entered an award in that amount “in favor of Plaintiff M.O. and against the Defendant [Insured].”

        On May 24, 2021, M.O. provided written notice to GEICO that she and Insured had entered into an agreement pursuant to section 537.065. The following day, M.O. initiated this action by filing her Petition for Damages in the trial court.4 On June 10, 2021, GEICO discovered the existence of this lawsuit by monitoring Case.net (Missouri state courts’ automated case management system). On June 18th, GEICO filed a motion to intervene.

        On June 22nd, M.O. filed a response to GEICO’s motion to intervene and a motion to confirm the arbitration award. In her motion to confirm the award, M.O. asserted she and Insured had agreed “that after an arbitration award is issued, [M.O.] will immediately seek to have the award confirmed . . . and reduced to judgment . . . and that neither party will seek judicial review of the award or attempt to have the award set aside, modified, amended or changed in any way unless by express written agreement of each party.” On June 29th, GEICO filed a reply in support of its motion to intervene. On July 2nd, the trial court granted M.O.’s motion to confirm the arbitration award and entered judgment in favor of M.O. and against Insured in the amount of $5,200,000. The trial court adopted and incorporated the findings and conclusions of the arbitration award, and stated the award was attached to the judgment as Exhibit A. No exhibit was attached to the judgment. Also on July 2nd, after entering judgment, the trial court entered an order granting GEICO’s motion to intervene.

        On July 30th, GEICO filed a motion for leave to conduct discovery, a motion for new trial, and a motion to vacate the arbitration award. In the latter two motions, GEICO asserted that the arbitration award and judgment confirming it should be vacated because the award “was procured by collusion, fraud, [and] undue means,” it was “contrary to public policy and §§ 537.065 and 435.350,” it was the result of an invalid and unenforceable arbitration agreement, and it violated GEICO’s due process rights and right to access the courts. The parties submitted additional briefing on GEICO’s motions. On September 8, 2021, the trial court summarily denied all of the motions and entered a “Judgment Nunc Pro Tunc,” attaching the arbitration award that was inadvertently omitted from the original judgment.

        GEICO appeals, asserting three claims of error relating to the trial court’s confirmation of the arbitration award—specifically, to the timing of the trial court’s confirmation.5 GEICO asserts that by confirming the arbitration award without giving GEICO a meaningful opportunity to defend its interests and develop facts and arguments pre-judgment, the trial court acted in contravention of section 537.065 and Rule 52.12 (Point I), section 435.405 (Point II), and state and federal constitutional provisions guaranteeing due process and access to the courts (Point III).
What most articles and headlines obscure or gloss over is the fact that GEICO commenced an action for a declaration of non-coverage against both the claimant "M.O." and its insured in US District Court for the Western District of Missouri in April 2021.  Not surprisingly, GEICO's primary argument is that contracting an STD from having sex in a car does not constitute bodily injury arising out of the ownership, maintenance of use of the insured motor vehicle.  It arises out of, so to speak, something  else.  

GECIO's Second Amended Complaint for Declaratory Judgment states as the Nature of Action and Relief Sought of its DJ action:
        1.    This is an action for declaratory relief under 28 U.S.C. § 2201 for the purpose of  determining the Parties’ rights and obligations, if any, under a[] [$1 million] automobile insurance  policy (the “Auto Policy”) issued by GEICO General Insurance Company and [a $1 million] umbrella insurance polic[y] (the “Umbrella Policy”) issued by Government Employees Insurance Company (collectively, the “Policies”) to Brauner.
        2.    GEICO seeks a declaration that it has no duty under the Policies to defend or indemnify Brauner for the third party bodily injury liability claim asserted by M.O. (“the subject claim”).
        3.    On February 25, 2021, M.O. demanded that GEICO pay $1,000,000 to resolve  her “claims against [GEICO’s] insured” (i.e., Brauner). She included in her demand letter a proposed state court petition and indicated intent to file it should GEICO not satisfy her demand.
        4.    GEICO denies the existence of coverage under the Policies for the subject claim.
        5.    There is an actual, immediate controversy among the Parties as to whether coverage for the subject claim exists under the Policies.
        6.    All necessary and proper parties are before the Court with respect to the matters in controversy as set forth herein. 
        7.    GEICO has no adequate remedy at law. 
Footnote #1 to GEICO's Second Amended Complaint that for reasons not disclosed, the "Court’s October 20, 2021 order dismissed (previous defendant) M.O. from the case. Dkt. 52."

GEICO's Second Amended Complaint adds some factual context for the claimant's allegations:  
M.O.’s Threatened Tort Lawsuit Against M.B.
    14.    On February 25, 2021, M.O. sent GEICO a demand letter. The body of the letter stated, in its entirety:
Here’s the Petition that will be filed against your insured, [M.B.]. Before doing so, we have been authorized to make one final attempt to resolve [M.O.’s] claims against your insured for the applicable limits of $1m. Let me know.
    15.    M.O.’s proposed state court petition sought from M.B. damages for negligence and negligent infliction of emotional distress.

    16.    In it, M.O. alleges M.B. and M.O. entered into a sexual relationship in November  2017 and early December 2017, including that the two “engaged in unprotected sexual  activities, including intercourse, in Defendant [M.B.’s] home and in his 2014 Hyundai Genesis car.”

    17.    M.O. further alleges that M.B. negligently failed to tell M.O. that he was infected  with anogenital human papillomavirus (HPV), and that he failed to use adequate protection and take proper precautions to prevent its transmission to her.
It appears from the docket of GEICO's DJ action and the Scheduling Order that was filed on May 12, 2022 that discovery in the DJ action is underway and will be bifurcated:
The first phase of discovery in this action shall conclude August 15, 2022. Phase I discovery will include discovery of all issues relating to the parties’ anticipated dispositive motions directed to the threshold coverage issue. Phase II discovery will involve discovery relating to bad faith or extra-contractual claims, as well as any other merits issues. To the extent that issues overlap, the Court directs the parties to undertake discovery within Phase I.
You can mark your calendars as follows: 
July 15, 2022 -- Status report
July 29, 2022 -- Motion to join additional parties 
July 29, 2022 -- Motion to amend pleadings 
August 15, 2022 -- Close of Phase I discovery
August 31, 2022 -- Motions for Summary Judgment On Coverage Issue 
September 21, 2022 -- Motions Responses  
October 5, 2022 -- Motions Replies
I've got a Court Listener alert set up for GEICO's DJ action, and I'll post again when the MSJs are filed.  That should be some interesting reading, there.  Meanwhile, I'm predicting that the Missouri District Court will ultimately find in favor of GEICO and rule that M.O.'s contraction of HPV did not arise out of the ownership, maintenance or use of Brauner's 2014 Hyundai Genesis.  

What I can guarantee is that this case will be in next semester's insurance law course syllabuses in law schools across the country.     

Fun facts to know and tell for coverage nerds (like me):
  • the term "anogenital human papillomavirus" has appeared in only one reported case state or federal court decision in the United States ever -- this case; 
  • although homeowners insurance policies typically contain a communicable disease exclusion, personal auto policies don't (Extra Credit Q: Because...?); 
  • the claimant originally filed a hit-and-run UM claim under her ex-BF's policy with GEICO (okay, that's not true); 
  • the insured sought physical damage coverage under his policy's explosion, colliding with bird or animal and/or civil commotion perils (okay, also not true); and 
  • GEICO originally commenced its DJ action in Kansas, but for "the convenience of the parties and in the interest of justice", the action was fittingly transferred to the show-me (yours and I'll show you mine) state of Missouri, the Kansas district court judge musing in the 2022 frontrunner for masterful understatement, "This isn't the typical insurance coverage dispute." NSS, judge.  NS. 

Wednesday, June 8, 2022

Florida Public Adjuster Mike Keeler’s 4th (and 6th ) (Not-So) Outstanding Tips on How to File a Water Leak & Water Damage Claim

As a follow-up to my LinkedIn post earlier today (June 8th) about my (not-so) favorite Florida public adjuster Mike Keeler's YouTube video on "How To Get Insurance To Pay For Water Damage" (https://lnkd.in/gxdrjsr4), I offer for your (and hopefully the Florida Office of Insurance Regulation's) continued astonishment, bemusement and educational disvalue, Mr. Keeler's No. 4 (and 6th) (Not-So) Outstanding Tip on How To File a Water Leak & Water Damage Claim (title page and background music added). 

Mike's full YouTube video of all six (not-so) outstanding tips is here: https://lnkd.in/gMeXVM4B.

Speechless.  Just speechless. 🤦

#publicadjusters #insurancefraudisbad #FLpropertyinsurancereform



Monday, June 6, 2022

Paper Discovery in a Typical First-Party, Water-Damage-From-A-Roof-Leak Property Insurance Action

 Dear First-Party Property Claim Handlers, 

I've written and spoken many times on issues like report writing, claim log notation, privileges that apply (and don't apply) to claim file materials and communications with coverage and insured defense counsel, the scope of discovery in first-party property coverage litigation, and the like.   

Sometimes the best way to understand what could happen, is to see what has happened.  And so, for your review and rumination, I offer the following as what paper discovery typically looks like in a first-party, water-damage-from-a-roof-leak New York state court property insurance action (taken from an actual, pending case):

Plaintiff's Demand for Discovery & Inspection and Combined Demands Directed to [ABC] Insurance Company:

     6. The entire claim file maintained by [ABC] for Plaintiff or in any way relating to Plaintiff, including but not limited to electronic notes, computer entries, emails, memorandum, telephone messages, correspondence, account information, billing information, contact information, file jacket notes, contracts, agreements and applications.

NOTE: “[T]he payment or rejection of claims is a part of the regular business of an insurance company. Consequently, reports which aid it in the process of deciding which of the two indicated actions to pursue are made in the regular course of its business” (Landmark Ins. Co. v. Beau Rivage Rest., 121 A.D.2d 98, 101, 509 N.Y.S.2d 819). Reports prepared by insurance investigators, adjusters, or attorneys before the decision is made to pay or reject a claim are thus not privileged and are discoverable (see Landmark Ins. Co. v. Beau Rivage Rest., supra at 101, 509 N.Y.S.2d 819; see also Bertalo's Rest. v. Exchange Ins. Co., 240 A.D.2d 452, 454, 658 N.Y.S.2d 656; Roman Catholic Church of Good Shepherd v. Tempco Sys., 202 A.D.2d 257, 258, 608 N.Y.S.2d 647; Paramount Ins. Co. v. Eli Constr. Gen. Contr., 159 A.D.2d 447, 553 N.Y.S.2d 127), even when those reports are “mixed/multi-purpose” reports, motivated in part by the potential for litigation with the insured (see Landmark Ins. Co. v. Beau Rivage Rest., supra at 102, 509 N.Y.S.2d 819; see also McKie v. Taylor, 146 A.D.2d 921, 536 N.Y.S.2d 893).
    7. The entire non-privileged underwriting file for this matter stated in the Complaint (or most current pleading, if amended).

     8. True and complete copies of all documentation, correspondence, reports, notes, or memorandum regarding any inspections, or investigations of the instant claim by [ABC] or a third-party on [ABC]’s behalf.
     9. All correspondence regarding the matter alleged in the Complaint sent to any governmental entity, including, but not limited to, the Department of Financial Services or Secretary of State.
     10. A complete electronic copy of each and every audio recording of any representative of Plaintiff or any Defendant herein. If it will be claimed that said recordings are no longer in existence, provide an affidavit with regard to the date and time of their destruction, including the name of the individual who destroyed same, reference to the rule or directive pertaining to the destruction of the recording, and a transcript of said recording.
     11. True and complete copies of all documentation, correspondence, reports, notes, emails, or memorandum between [ABC]and Plaintiff or anyone on Plaintiff’s behalf.
     12. True and complete copies of all documentation, correspondence, reports, notes, emails, or memorandum between [ABC] and any other party (with the exception of post disclaimer communications with legal counsel) with reference to Plaintiff and/or the Subject Claim.
     13. True and complete copy of the entire file maintained with regard to Plaintiff and/or the subject property, previous properties, or vehicles.
     14. True and complete certified copies of each insurance policy issued to the Plaintiff by [ABC] or its agents.
     PLEASE BE ADVISED, to the extent that any documents are claimed privileged, a privilege log is demanded to be furnished.

If you think many or most of these things are not discoverable, think again.  

If you're not familiar with the scope of discovery in coverage litigation, take a few minutes and read my blog posts for the Attorney-Client Privilege label and Discovery labelSee, also, Devaul v. Erie Ins. Co., 2019 N.Y. Slip Op. 34261(U) (Sup.Ct., Onondaga Co., 2019) and my Communications Between Outside Coverage Counsel and His Insurer Client Regarding "the Investigation and Potential Rescission of a Claim" Ordered Disclosed post from this past February.

Be advised and guided accordingly.

Cordially, 

Your Favorite (and Perhaps Only) Logophile Friend, 

Roy

Saturday, June 4, 2022

"Personal Injury" (Defamation) Coverage under a PULP -- Depp v. Heard Defense Costs







From my LinkedIn post today (Sat., June 4, 2022):

I rarely learn anything useful from the New York Post, but this article reports that Amber Heard "had to switch legal representation and is relying on her homeowner’s #insurance policy to cover the cost of her attorneys in the case. The bill for Heard’s attorney has mostly been footed by The Travelers Companies, Inc under terms of the actress’s insurance policy, sources said." "Mostly" likely because Travelers would not be responsible for paying attorneys' fees and costs associated with the prosecution of Heard's $100 million counterclaim against Depp.

Most homeowners policies don't provide coverage for "personal injury", defined to include "injury arising out of one or more of the following offenses, but only if the offense was committed during the policy period: *** 4. Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services[.]" Personal umbrella policies typically provide "personal injury" coverage. I'm guessing that the Travelers policy that provided defense costs is a PULP (personal umbrella liability policy) sitting above Heard's homeowners policy.

The article is probably correct, however, in pointing out that Heard's policy with Travelers will likely NOT provide indemnification coverage for Johnny Depp's $10 million compensatory damages verdict against Heard. PULPs typically exclude personal injury coverage for:
"Personal injury":
a.  Caused by or at the direction of an "insured" with the knowledge that the act would violate the rights of another and would inflict "personal injury";
b.  Arising out of oral or written publication of material, if done by or at the direction of the "insured" with knowledge of its falsity;
c.  Arising out of oral or written publication of material whose first publication took place before the beginning of the policy period;
d.   Arising out of a criminal act committed by or at the direction of an "insureds"; or
e.  Sustained by any person as a result of an offense directly or indirectly related to the employment of this person by the "insured"[.]
The jury's positive finding on each of the prima facie elements of defamation on the three statements in Heard's op ed piece likely triggers at least one of these exclusionary provisions--"b."--and possibly two of them--"a." and "b."

I'm no bankruptcy lawyer but I do know that judgments based on intentional torts, like libel with malice aforethought, are NOT dischargeable in bankruptcy.

#personalinjury #defamation #insurancecoverageinthenews


Monday, May 16, 2022

4 + 2 ≠ "Residence Premises"

Last week I received a favorable decision and order for one of my insurer clients from the United States District Court for the Southern District of New York in a number-of-families homeowners policy application misrepresentation case. My client had denied coverage for the Brooklyn, NY fire loss based, in part, on the application misrepresentation but did not rescind the homeowners policy (that's a thing). I conducted the policyholder's EUO and defended the policyholder's subsequent breach of contract action.

The Decision & Order begins:
The material facts, which cannot be disputed, are simple: In his insurance application, plaintiff stated that his property had three units, with three families living in them. The policy that Nationwide issued to him covered "one, two, three or four-family" dwellings. In fact, plaintiff's building had at least six units, rented to unrelated tenants. After the fire, Nationwide discovered the additional units and denied coverage. As explained below, Nationwide was entitled to do so and consequently will be granted summary judgment.
And adds:
Plaintiff contends that the language of the Policy is ambiguous, preventing the Court from granting summary judgment. * * * He argues that because the Policy uses the term “one, two, three, or four family dwelling” rather than “one, two, three, or four unit building,” it is irrelevant that there were at least six separate residential units in the Subject Premises. ***

Neither logic nor precedent supports plaintiff's hair-splitting argument. To the contrary: the New York courts have repeatedly explained that terms like “four family dwelling” are unambiguous. 
The Court granted summary judgment to Nationwide based solely on the uncontroverted fact that at the time of the fire, the dwelling did not meet the policy's definition of a "residence premises" (because it was MORE than a four-family dwelling).

The Court also rejected plaintiff's negligence argument (viz, that Nationwide could've and should've discovered the extra, illegal apartments before the fire) and, given its ruling on the residence premises issue, did not reach Nationwide's alternative argument that the Policy was void because plaintiff intentionally misrepresented the material fact or circumstance of how many families lived within and how many units comprised the Subject Premises at the time he filled out his application.

You can read the decision by clicking the image below:



Monday, May 9, 2022

Scope of Appraisal vs. Appraisal of Scope -- New York

There has been a good deal of conflicting case law over the years over what kinds of property loss disputes are and are not amenable to the appraisal process. This post discusses four of those court decisions and concludes with what I think is the current state of the law in New York on the proper scope of property loss appraisals.

425 West Main Associates LP v. Selective Insurance Company of South Carolina 
(Supreme Court, Genesee Co., 2018)

The policyholder, 425 West Main Associates LP commenced this special proceeding to compel an appraisal of its reported roof damage/loss claim.  The policyholder claimed that on March 8, 2017, the roof of its commercial premises was damaged as a result of wind and weight of ice and snow, which resulted in further damage to the interior of the premises. 

425 West Main hired National Fire Adjustment Company, Inc. (NFA) to assist in determining the damage and submitting claims to its insurer, Selective Insurance Company, for replacement of the roof and repair for the interior of the building. After NFA's analysis, 425 West Main claimed damages of more than $530,000.00.

425 West Main's wind damage claim was tendered to Selective on March 22, 2017. Before Selective's inspection of the property, a roofer had already removed the allegedly wind-damaged roofing and made temporary repairs. Selective inspected the roof on March 28, 2017.  Selective's general adjuster indicated that tenants of the property had advised him that they were experiencing leaking and staining of ceiling tiles before the date of loss. Furthermore, a forensic engineer concluded the defects in the roofing system were caused by long-term deterioration as opposed to a wind event.

On April 12, 2017, Selective sent 425 West Main a detailed letter and the engineering report advising 425 West Main of the basis for covering only a portion of the roof. Selective denied coverage for the full replacement of the roof on the ground that the damage was not caused by wind, but rather wear and tear or deterioration. Selective would only cover the cost to tarp and patch one section of the roof, and replace only the membrane of that section.

On October 24, 2017, 425 West Main demanded an appraisal pursuant to the policy. The policy provided:
If we and you disagree on the value of the property, the extent of the loss or damage or the amount of the loss or damage, either may make a written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser and notify the other of the appraiser selected within twenty days of such demand.
After 425 West Main demanded the appraisal on October 24, 2017, Selective advised 425 West Main in a November 6, 2017 letter that it would not proceed with appraisal. Selective claimed that the dispute was not subject to the appraisal condition in the policy because it did not involve the value of the property or the extent or amount of the loss or damage. Instead, Selective claimed, the dispute centered on the cause of the loss or damage and whether it is covered under the policy.

In DENYING the policyholder's petition to compel appraisal and dismissing the special proceeding, Supreme Court Justice Henry Nowak ruled:
    425 West Main claims that Selective's refusal is a mere pretext to refuse to engage in the appraisal pursuant to the policy and unnecessarily delay providing 425 West Main the insurance proceeds to which it is entitled. Selective contends that the property is not an appropriate candidate for appraisal because the very legitimacy of 425 West Main's claim remains in dispute. Insurance Law § 3408(c) provides that the appraisal provision in a policy triggers only where there is a "covered loss," and specifically prohibits appraisal to "determine whether the policy actually provides coverage for any portion of the claimed loss or damage" (see also Pilkenton v New York Cent. Mut. Fire Ins. Co., 112 AD3d 1327 [4th Dept 2013]). 425 West Main claims that because Selective agreed to cover a portion of the roof, it constitutes a "covered loss" thereby subjecting Selective to the appraisal provision.

    In Louati v State Farm Fire & Cas. Co., 161 AD3d 701, 702 (1st Dept 2018), the parties disputed whether water damage on the floor of a bathroom at the petitioner's premises "was caused by a burst pipe (a covered cause of loss) or by another, excluded cause." The parties also disputed whether it was necessary to retile the entire first floor when the covered loss directly affected only the bathroom (id.). The petitioner sought to conduct an appraisal for the property, all while respondent opposed the appraisal until the cause of the damage could be resolved (id.). The trial court denied the motion to compel the appraisal in order to await resolution of the coverage issues in a plenary action, and the Appellate Division unanimously affirmed (id.).

    Similarly, in this action, significant coverage issues exist as to the cause of the loss in this case — whether it was damage created as a result of the windstorm or long-term water infiltration. As in Louati, this court denies the petition to compel the appraisal and dismisses the proceeding without prejudice after resolution of the coverage issues in a plenary action.
On January 31, 20202, the Fourth Department unanimously affirmed Justice Nowak’s order “for reasons stated in the decision at Supreme Court.” On March 11, 2020, the policyholder plaintiff moved the Fourth Department for leave to appeal to the New York Court of Appeals. On July 17, 2020, the Fourth Department denied that motion and, as far as I can tell, the policyholder did not move the Court of Appeals for leave to appeal, ending that action.

Phillips v. New York Central Mut. Fire Ins. Co. 
(Index. No. 811860/2021 [Sup. Ct., Erie Co., 2021])

In this case, which involved a reported hail damage/roof claim, Erie County Supreme Court Justice Donna Siwek DENIED the policyholder's motion for an order under Insurance Law § 3408 compelling appraisal, reasoning:
    We have considered all the papers submitted in this matter, including the affidavits and a Memoranda of Law and find that the issue between Petitioner and Respondent involves a question of coverage, and as a result, the Petition to compel appraisal is denied without prejudice until the coverage issues are resolved. It is not disputed that an appraisal may only be invoked to examine and or consider "the extent of the loss or damage and the amount of the loss" when there are no coverage issues involved. If any portion of the claimed loss or damage involves a coverage issue, that issue may not be determined through the appraisal process. Insurance Law §3408 is clear that the appraisal process cannot be utilized to determine a coverage issue. We agree with Respondent that the question of whether there is coverage for replacing the three sides of the house that were not damaged as a result of the hailstorm is a coverage issue. The New York Central policy language requires the carrier to pay Petitioner for the replacement cost "of that part of the building damaged with material of like kind and quality and for like use". (See Respondent's Exhibit '"A", Section I - CONDITIONS, C. Loss Settlement 2. a. (2)., NYSCEF Document # 15)

    In the absence of any damage to the other three sides of the homes' siding, we agree with the carrier that there is a question as to whether or not the coverage requires New York Central to pay to replace the undamaged portions of the siding because it will no longer match the north side of the home that was actually damaged and for which New York Central will pay to replace with siding of "like kind and quality and for like use". Respondent takes the position that providing matching siding for purposes of aesthetics is not covered under the policy. We agree that this issue requires a coverage determination. The language the policy provision's need to be interpreted by a court in order to resolve the parties' dispute. The coverage questions to be answered include:
  • What constitutes a "direct physical loss" under the policy?
  • Does the policy require New York Central to replace the undamaged siding because it will no longer match the new siding?
  • Does the coverage preclude payment for the non-damaged siding due to policy exclusions for "wear and tear", .., deterioration and the "'inherent vice" existent in the building materials?
  • Does the policy language which requires New York Central to replace the siding with "material of like kind and quality and for like use" require New York Central to pay for the three undamaged sides because they can not match up the old siding with "material of like kind and quality"?
    Where a parties' dispute is essentially a difference regarding coverage, the request for appraisal should be denied. See, Kawa v. Nationwide, l 74 Misc.2d 407 (S. Ct. Erie Co. 1997); Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 411 F.3d 384 (2d Cir. 2005); Indian Chef Inc. v. Fire & Cas. Ins. Co. of Connecticut, 2003 WL 329054 (SDNY Feb. 13, 2003).
The policyholder in Phillips did not appeal Justice Siwek’s corresponding order.

(Supreme Court, Tompkins Co., 2017)

Policyholder counsel and public adjusters are fond of citing this decision, thinking it provides more than, in my opinion, it actually does.  In GRANTING the policyholder’s petition to compel and ordering Dryden Mutual to proceed with an appraisal of the homeowner insureds’ vandalism claim, Justice Rumsey held:
    Notably, respondent has not denied liability for damages sustained in the vandalism incident and it does not identify any policy provisions that need to be interpreted by the court to resolve the parties' dispute. Rather, it is clear from the parties' respective submissions that the basis for respondent's objections to an appraisal is limited to the extent of work required to repair the damage caused by the vandalism incident. Such disputes "are factual questions that fall squarely within the scope of the policy's appraisal clause" (Quick Response Commercial Div., LLC v Cincinnati Ins. Co., 2015 WL 5306093, *3, 2015 US Dist LEXIS 120415, *8 [ND NY, Sept. 10, 2015, No. 1:14-cv-779 (GLS/DEP)] [citations omitted] [applying New York law]; see also Hyman, 2016 NY Slip Op 32700[U], *2, quoting Quick Response). Respondent cites Kawa v Nationwide Mut. Fire Ins. Co. (174 Misc 2d 407 [1997]) for the proposition that a dispute over whether it was necessary to repair or replace the house siding is one involving the scope of coverage. However, in Kawa, the fundamental dispute was not the extent of necessary repairs; rather, it was one of causation, namely, whether the condition of the aluminum siding on the home was a result of improper maintenance that had been performed prior to the windstorm incident, or whether it resulted from the insured's efforts to secure the siding during the windstorm, and the court held that the issue of causation was incidental to an underlying legal controversy regarding the meaning of the policy and its application to the facts (see Kawa, 174 Misc 2d at 408-409).

    In sum, issues of causation relate to the scope of coverage, which is not a proper subject for an appraisal, and issues regarding the extent of necessary repairs involve valuation of damages, which are properly submitted for an appraisal. This conclusion is supported by the persuasive and extensive analysis set forth in Lee v California Capital Ins. Co. (237 Cal App 4th 1154, 1170-1173, 188 Cal Rptr 3d 753, 764-767 [2015]), in which the court held, like the court in Kawa, that issues of causation are not properly submitted to appraisal because they involve the scope of coverage, while the issue of whether property was damaged at all is properly determined by the appraisers, because the scope of repairs made necessary by a covered loss, and the cost of any such repairs, directly bear upon the valuation of the loss.[2]
Kawa v. Nationwide was my case, by the way. I’ve been litigating issues relating to property insurance policies appraisal clause since 1995.

Dryden Mutual appealed Pottenburgh to the Third Department, and in October 2017, the Third Department affirmed the trial court’s decision. I can’t give you a Google Scholar address for that decision, because the very next month, Dryden moved to vacate that appellate decision, which the Third Department granted, leaving Supreme Court’s decision in place.

Whatever you think of the trial-level Pottenburgh decision, note that it does explicitly state that “issues of causation relate to the scope of coverage, which is not a proper subject for an appraisal[.]”

(161 AD3d 701, 702 (1st Dept 2018)

In this case, the parties disputed whether water damage on the floor of a bathroom at the policyholder's premises "was caused by a burst pipe (a covered cause of loss) or by another, excluded cause." The parties also disputed whether it was necessary to retile the entire first floor when the covered loss directly affected only the bathroom.  The policyholder sought to conduct an appraisal for the property, and State Farm opposed the appraisal until the cause of the damage could be resolved. The trial court DENIED the motion to compel the appraisal in order to await resolution of the coverage issues in a plenary action, and the Appellate Division unanimously AFFIRMED, holding: 
    The court correctly found that policy coverage issues exist that must be resolved before an appraisal can proceed (see Insurance Law § 3408 [c]).

    An issue exists as to whether the water damage on the floor of the first-floor bathroom was caused by a burst pipe (a covered cause of loss) or by another, excluded cause (see Matter of Pottenburgh v Dryden Mut. Ins. Co., 55 Misc 3d 775, 778 [Sup Ct, Tompkins County 2017], citing Kawa v Nationwide Mut. Fire Ins. Co., 174 Misc 2d 407, 408-409 [Sup Ct, Erie County 1997]). An issue also exists as to whether petitioner's failure to retain the floor tiles for inspection is a basis to deny coverage (see Fuchs v Sun Ins. Off., Ltd., 149 Misc 600, 600-601 [Mun Ct, NY County 1933], citing Johnson v Hartford Fire Ins. Co., 94 Misc 163, 167 [App Term, 1st Dept 1916]).

    However, to the extent the parties dispute whether it was necessary to re-tile the entire first floor when the covered loss directly affected the bathroom only, or whether it was necessary to replace any floor tiles given respondent's failure, upon inspection, to observe any damage to the floor, these disputes present factual questions that are properly decided in an appraisal (see Pottenburgh, 55 Misc 3d at 777-778; Quick Response Commercial Div., LLC v Cincinnati Ins. Co., 2015 WL 5306093, *3-4, 2015 US Dist LEXIS 120415, *6-9 [ND NY, Sept. 10, 2015, No. 1:14-cv-779 (GLS/DEP)]).

* * * CONCLUSION* * *

In my opinion (which you should not necessarily rely on because this blog DOES NOT GIVE OR REPRESENT LEGAL ADVICE [see the footer of this page]), the current state of the case law in New York on the proper scope of appraisal is:
  • coverage questions or issues—including questions of covered versus non-covered or excluded causes of loss (i.e., causation issues)—are not amenable to the appraisal process; but
  • disputes over the extent of a covered loss, or whether damaged property can be repaired or must be replaced (which the Pottenburgh court called the “scope of repairs”), appear to be amenable to the appraisal process.
So, if your loss involves causation and/or exclusion-based disputed coverage issues and defenses, it falls squarely in the not-amenable-to-appraisal category. So say all four of the above-discussed decisions.  

Monday, May 2, 2022

Discord and Discourse With a Florida Public Adjuster About His "5 Ways to Trick an Insurance Claims Adjuster"

 


Florida public adjuster Mike Keeler believes his own messaging.  At least he seems to do so.

I was looking for content for my "So, You're About to Be Deposed (Or Violently Overthrown): How Should You Prepare and What Should You Expect" presentation tomorrow at NEIASIU's 15th Annual Joint Training Seminar in Massachusetts, when I came YouTube returned this video (click the image above to view) in my "depositions of insurance adjuster" search results.  

Those of you who know me know I couldn't resist--both watching the video and dropping a comment onto it.

"Trick No. 4", according to Mike is:

If they ask you for a recorded statement, all right, when you're going through a recorded statement they usually try to pin you down as to what happened. You play dumb. When did this happen? Um, and let's say the claim was two months ago. Well, I don't remember. I just know I have a leak. And why did you wait two weeks to report it? Well I was trying to attend to the leak. You keep everything simple. Keep everything very simple. Brief. Use I don't remember exactly. When they ask for a time, I don't remember exactly, maybe sometime in the afternoon. I, I really don't know. All right so you use that quite a bit because you want to preserve your rights to pursue the claim. You don't want to get boxed in. You don't want to say something that you might regret. Something that may hurt your claim. So use I don't know exactly as one of your main phrases to answer when a recorded statement, okay?  When did you roof get damaged? I don't know exactly. When did you notice the first ceiling? You know, I don't know exactly. I can't give you a date cause I give you a date it may be off. Those are examples.

Mike also seems to be a "last word" kinda guy, but it's his YouTube channel so I have no complaint with that.  For your entertainment, my initial comment to Mike's video and the discourse that followed are as follows: 

Roy A. Mura
Saying "I don't know exactly when the [loss] occurred" when an insured, in fact, knows exactly when the loss occurred IS a misrepresentation and possible fraudulent statement, voiding insurance coverage, if the loss date/time is relevant (material) to the insurance company's investigation and determination of coverage. Same goes for how a loss occurred. I understand you're trying to sell your public adjusting services by scaring people into thinking their insurance companies are out to screw them, but telling (and trying to teach) them to "trick" their insurance adjusters does a disservice to yourself, your profession, the industry in general, and your prospective customers. Be careful, people.
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The Claim Squad Public Adjusters
Can you please point to any statute in any state that clearly reads someone can't say the exact date of loss in an insurance claim? Please point to any insurance policy that states the same. I love how you insurance company people get all upset when someone is actually helping and protecting people from insurance companies because of how they treat people. You insurance company people always say if you say that or don't say that it's Fraud , a misrepresentation, LOL No it's not. You should be paying people's claims and stop screwing people rather than watching my videos.
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Roy A. Mura
 @The Claim Squad Public Adjusters  Why don't you ask your regulator, the FL DFS, what it thinks of telling insureds never to tell the truth even if they know the truth about an exact date or cause of loss. But since you asked, FL Statutes § 817.234 states: (1)(a) A person commits insurance fraud punishable as provided in subsection (11) if that person, with the intent to injure, defraud, or deceive any insurer: 1. Presents or causes to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to an insurance policy or a health maintenance organization subscriber or provider contract, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim; 2. Prepares or makes any written or oral statement that is intended to be presented to any insurer in connection with, or in support of, any claim for payment or other benefit pursuant to an insurance policy or a health maintenance organization subscriber or provider contract, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim[.] Saying one doesn't know exactly when or how a loss occurred is a "false, incomplete, or misleading" statement if the insured knows exactly the date or loss, right? There's the statute for you. Surprised you don't know the insurance fraud law that exists in the state in which you are licensed, Mike. You should be telling your clients to tell the truth and cooperate with their insurers' loss/claim investigations rather than telling them how to "trick" their insurers' adjusters.
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The Claim Squad Public Adjusters
 @Roy A. Mura  Boy you insurance company adjusters love to fabricate stories Saying "I don't know" on a date of loss is NOT fraud Just like when my partnering attorneys take depositions of insurance company adjusters like you and during the deposition it is asked " What is your reserve on the claim" answer from guys like you "I don't know I don't remember" Or how about this classic last week my attorneys took deposition of State Farm adjuster for cast iron pipe "did you tell the insured that cast iron pipes are not covered because they sent you an email explaining their confusion" Ron C the adjuster from State Farm stated under oath in deposition "I don't recall" Now again Mr Insurance Adjuster guy you barking up the wrong tree because all you guys should be in jail for what you do to people. But I do thank you because if it wasn't for guys like you and the insurance companies you work for I wouldn't have a job. Seriously, I thank you from bottom of my heart. Keep treating people like crap so I can have continued job security.
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Roy A. Mura
 @The Claim Squad Public Adjusters  Typical public adjuster (policyholder and personal injury attorney) messaging. Gotta maintain the bogeyman myth.
Roy A. Mura
Mike, I presume you know that a lie, as opposed to a mistake, is a knowing misrepresentation with an intent to deceive, right? Big difference. Everyone makes mistakes. Lying to one's insurer can void coverage (and result in criminal charges in some states, like FL apparently). That's all I'm saying. Honest people don't need to be shown a statute to know this. By the way, I did watch your video. You said at 5:02: "The public adjuster's fees are irrelevant because if you have a good public adjuster, they're going to be able to get a larger settlement to cover his fees, your damages and then some." Wait. You mean that PAs exaggerate or inflate insureds' damages so that insurers pay more than the insureds' damages "to cover [your] fees, [the insureds'] damages and then some"? That's legal in Florida? Yowza.
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The Claim Squad Public Adjusters
 @Roy A. Mura  Mr Insurance Company Adjuster Claims 101 Settlements by way of lawsuit and/or pre-lawsuit by a good PA and/or attorney will get people plenty to fix things , cover attorney and/or PA fees, and many times they do have money left over. Here's the great part, this has been going on for over 100 years in FL since 1893 when the law changed in FL forcing insurance companies to pay legal fees Lol Boy you insurance company adjusters don't really know the law do you? Lol See PAs need to know case law and how to get around policy language. Anything else I can teach you today? I know it's confusing for insurance adjusters like you but try to stay with me. Btw, did you also know FL has a great bad faith statute that protects people? We settled one end of March $38,000 Guess what? The client gets 100% of that less my fees. So yes they do get more than their damages...it's a great thing when we can nail guys like you and the insurance company you work for. We got another dandy Bad Faith Lawsuit coming up against the carrier but we also naming the adjuster and umpire personally from the appraisal in the lawsuit. It's a beautiful thing :)
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The Claim Squad Public Adjusters
Here's another great video "3 people you should never trust in the claim process"...Hint:. You Mr Insurance Adjuster are one of them ;) https://youtu.be/UrfZ3jiQRVU
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Roy A. Mura
Mike, just stop. You're embarrassing yourself now. And btw, you may be getting some more views (and comments) on this video. I posted it to my LinkedIn page. You're welcome.
The Claim Squad Public Adjusters
 @Roy A. Mura  great looking forward to interacting with more "fraud" attorneys like you lol NY with those arbitration clauses Lol What a joke Great to see how you try screwing people
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Roy A. Mura
Be careful what you wish for, Mike. Given your views and how-to tips on "tricking" claim adjusters, any interaction with insurance fraud attorneys like me might not turn out well for you or your clients. Thank you for your revealing content, though. I'll make good use of it.
The Claim Squad Public Adjusters
 @Roy A. Mura  ooookkk lol Interesting "threat" documented. Make sure you don't advise your clients to say "i don't know" "i don't remember" when they actually do. Not sure it's best for an insurance company attorney to be conversing with a public adjuster but keep on screwing people up in NY and I'll keep on fighting people in FL. Cheers
Roy A. Mura
Funny you should mention the "I don't know" and "I don't recall" deposition responses. I'm speaking to a bunch of insurance fraud investigators and claims professionals tomorrow in Massachusetts on the subject of deposition preparation. The IDK and IDR responses are the middle and ring finger responses and are appropriate responses when true. Have you ever been deposed? If so, have you never said "I don't know" or "I don't recall" while under oath? I converse with PAs all the time, but none quite as interesting, sophomoric and polar as you, Mike.
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The Claim Squad Public Adjusters
 @Roy A. Mura  Thanks for the compliment. Ahh the ole tailor the excuse based on environment lol. Yes, IDK & IDR very appropriate for insurance adjusters but not homeowners lol I get it. Nah, unlike most PAs I have a little bit of a legal backgrround...I get on record do my 5 min spiel on I get paid an expert fee, I am an expert, etc...then I leave the depo. Attorneys list me as expert. In times, prior to trial IF def attorneys like you try to argue differently that I'm fact witness based on my statement at depo we win every time. Although only been a few times we had to carry out and def attny file motion. Anyhow, you have yourself a wonderful day protecting insurance companies and hurting homeowners. I'll continue to fight for people.
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Roy A. Mura
I wasn't complimenting you, Mike, and you continue to miss the point. But I understand why. Your distorted view of insurance companies won't allow you to see and understand why saying something that's not true, such as "I don't know exactly", could void coverage and constitute insurance fraud under FL law. Do you (or the attorneys you say hire you as an "expert") not realize that videos like this one provide rich material for cross examination? But keep on creating content. The industry appreciates it.
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The Claim Squad Public Adjusters
 @Roy A. Mura  Roy you continue to view things from the very perspective that pays all your hefty bills ie insurance companies I don't hire attorneys as experts Never said I do I'm the expert. Attorneys in Florida are referred cases from public adjusters. How can you CE someone when they not deposed? Lol Trial? Been tried before ...didn't work Trust me I would never want an insurance paid biased attorney to compliment me...that's when I know it's time to quit the industry. And don't worry I don't compliment guys like you who intentionally try to hurt people. "Don't hate the player, hate the game"
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The Claim Squad Public Adjusters
 @Roy A. Mura  btw I've received 3 emails from people today who have some choice words for you...people watching you lol

Mike doth protest too much, methinks. I've never liked the "you need to hire me because the insurance company is going to screw you" sales pitch, and thought most public adjusters had abandoned it years ago.  Most but not all, I see.  

And I hope the three people who emailed Mike with "choice words" for me chose their words more carefully than Mike does.  Encouraging insureds to "trick" their insurance companies' adjusters sounds to me an awful lot like promoting insurance fraud at worst, or coverage-voiding conduct at best.