I have litigated thousands of insurance claims on behalf of Florida home and business owners.  Many of those claims have involved claims for roof damage.

Almost 100% of home and business owners’ insurance policies issued in Florida are known as “replacement cost” policies.  A replacement cost policy means just what it sounds like: the insurance company is required to REPLACE the damaged property with new.  A simple example will help.

Suppose you have a 25 year old shingle roof and Hurricane Hermine causes damage (I’ll discuss what “damage” is in a moment).  The insurance company is required to pay to replace the old roof with a new roof.  I mean what you just read.  The insurance company must pay for a new roof with no deductions because of the age of the roof.

Now, some FAQ’s:

• What if the insurance company says my roof needed to be replaced because it was old?  If your roof was functional (even if it had some leaks) the insurance company has to pay for a new roof regardless of the age.
• What if I patched some leaks in my roof before the storm?  The insurance company agreed to insure your roof in exchange for you paying your premium.  The insurance company has to pay for a new roof.
• What if my insurance company has an engineer inspect my roof and the engineer says there is no wind damage?  You should let me have your roof inspected for free.  Insurers almost always send out their own engineers or “roof consultants” and they are often paid significant amounts of money by the insurance companies.  Every insurance roof denial I’ve ever won started with the insurance company saying “no.”

Now, what constitutes “damage” under your insurance policy.

First, you do not have to lose a single shingle to be entitled to a full roof replacement.  There are many types of roof damage that entitle you to a new roof.  Certainly, shingles blown into your neighbor’s yard is one of the types of damage that is covered.  But, there are others.

Your shingles have a sealant strip on their underside that is a critical component of their functionality.  Wind can lift the shingles and cause the sealant strip to fail.  The shingle then sits back down where it was before.  However, once the sealant strip is broken the shingles are “damaged” and must be replaced.

Another type of damage is known as “degranulation.”  Every shingle has tens of thousands of granules that serve several purposes.  If some of those granules are blown or knocked off by a storm that is considered “damage.”

Another type of claim occurs when your insurance company agrees to pay for the damage, but they low-ball the price.  I can help with that too.  Insurance companies are required to pay the reasonable costs of replacement.  If your roofer gives you a quote for a new roof, but your insurance company low-balls that quote, let me take a look at your claim for free.

Sometimes may say they don’t think it is fair that the insurance company has to pay for a new roof when the former roof was old, or not in the best of shapes.  You paid for replacement cost coverage, and you are entitled to receive what you paid for.  Your insurance company knew what it was selling to you and determined its premium based on what it sold you.

If your insurance company denies or low-balls your claim, even if you think there is nothing that you can do, let me look at the insurance denial for free.

Finally, if there is only one thing you remember from this blog, let it be this:

“No” is not the end of the inquiry.  It is just the beginning.  Every insurance case I’ve ever won all have one thing in common.  They all started with “No.”

Also, in most of my insurance cases, if I win the insurance company has to pay all of my attorney’s fees and costs.  And, if I lose, I’ll work for free.  Mark Nation

If your insurance claim has been denied, delayed, or underpaid, I’d like to help.  You can call me at 1-800-NationLaw, or email me at mark@nationlaw.com

The wind and water damage along the direct path of Hurricane Hermine.  However, many parts of Florida outside the direct path of Hurricane Hermine have also sustained severe wind and water damage.  Hermine caused severe wind and water damage all up and down Florida’s entire Gulf Coast – From Naples to Pensacola.  Hermine’s high winds also stretched inland up and down the Florida Peninsula.

I, and my firm, have assisted 1000’s of home and business owners with hurricane insurance claims, including claims for:

• Roof damage
• Trees crashing into homes and businesses
• Structural damage caused by high winds – this is known as “racking” a house.
• Business Interruption caused by loss of electricity
• Flood damage to vehicles

Many policy holders assume that their insurance company will “do the right thing” when they submit a hurricane claim.  My experience with 1,000’s of insurance claims indicates otherwise.

If your insurance company denies, delays, or underpays your claim, I can help.

In most of my insurance cases the insurance company must pay my attorneys fees and costs if we win.  And, if I lose, I’ll work for free.

In a disability case we have been handling against Life Insurance Company of North America, the policy stated that LINA had “discretionary authority” to make all decisions regarding whether an insured was disabled.  However, yesterday we were able to convince a federal judge that this reservation of “discretionary authority” was invalid under state law.  Thus, instead of an arbitrary and capricious standard, the standard was much lower.

This is the first time in the country that any lawyer has been able to convince a court to strike the entire discretionary review provision from an ERISA LTD policy.

The Judge then went on to overturn LINA’s denial of LTD benefits for a complete victory for our client.

Obviously, this was a huge victory for our client in this individual case.  But, importantly, this was also a huge victory for all insureds who have LINA policies.

I would like to congratulate my law partner Greg Swartwood on this tremendous victory for our well deserving client.  This case will make a huge difference in the live of many people in the future.

Looking at the devastation I’ve seen from photographs and videos from Poinciana and Kissimmee, I am convinced that there will be 100’s (if not 1,000’s) of unpaid insurance hail damage claims.

Almost all homeowners insurance policies provide for full replacement costs of roofs that are damaged by hail and/or wind.  There are no deductions for the age of the roof.  No depreciation.  Replacement cost means replacement.  For example, assume a shingle roof is 25 years old and approaching the end of its useful life.  If that roof sustains hail damage then the homeowners insurance company must pay to replace that roof – regardless of age.

Another important point.  Many times an insurance company will send out an engineer or roofing consultant who writes a long, detailed report stating there is no significant hail damage, and therefore the roof is not covered by the insurance policy.  Even if you think there is nothing that you can do, let me look at the insurance denial for free.

If there is only one thing you remember from this blog, let it be this:  “No” is not the end of the inquiry.  It is just the beginning.  Every insurance case I’ve ever won all have one thing in common.  They all started with “No.”

Also, in most of my insurance cases, If I win the insurance company has to pay all of my attorney’s fees and costs.  And, If I lose, I’ll work for free.  Mark Nation

If your insurance claim has been denied, delayed, or underpaid, I’d like to help.  You can call me at 1-800-NationLaw, or email me at mark@nationlaw.com

Admiral Insurance refused to defend or indemnify Hello Florida, Villa Vizcaya and the County.  Admiral Insurance properly claimed that the Absolute Employer’s Liability exclusion allowed it to deny coverage for all claims by Taylor (the employee) against Hello Florida (the employer).  Admiral Insurance further claimed the Absolute Employer’s Liability exclusion also excluded all coverage for all claims against Villa Vizcaya and the County.

After the denial of coverage, Villa Vizcaya and the County settled its claims with Taylor with a Coblentz Agreement.  As part of the Coblentz, Villa Vizcaya and the County assigned to Taylor all claims that it had against Admiral Insurance.

Taylor sued Admiral Insurance as assignee of the Villa Vizcaya and County claims.  The Trial Court granted Admiral Insurance summary judgment on the Absolute Employer’s Liability exclusion.

However, the policy also contained a Separation of Insureds provision which stated that “this insurance applies a. As if each named insured were the only Named Insured; and b. Separately to each insured against whom claim is made or ‘suit’ is brought.”

Based on this clause, the Third DCA concluded:

Essentially, the exclusion’s use of the term ‘any insured’ when read in conjunction with the severability clause creates a class of insureds who are excluded from coverage, i.e. employers of the injured claimant. Accordingly, as to other insureds who are not in the class of excludable insureds, but against whom a claim could be asserted, i.e. non-employers of the injured claimant, coverage is not precluded.

* * *

Applying those principles here, coverage for Taylor was not precluded with respect to Villa Vizcaya or the County because neither was her employer. While the Absolute Employer’s Liability Provision prevented Taylor from making a claim against Hello Florida, the Separation of Insureds provision permitted her to pursue her claims against additional insureds Villa Vizcaya and the County.

Separation of Insured clauses are vitally important in many different situations.  Obviously, one example is set forth in this case.  Another, is when one insured has intentionally caused damage to an insured property and the other insured did not.

In this case, State Farm, sent a pre-litigation request to Shands pursuant to Florida Statute Section 627.736(6)(b) asking for: 1) copies of third-party contracts with medical insurers which contain negotiated discount rates; and 2) corporate representative depositions of Shands’ employee(s).

The 1st DCA rejected both of State Farm’s requests.  Regarding the insurance contracts, the 1st held:

[A]lthough the documents the trial court ordered may very well be relevant and discoverable in the context of litigation over the issue of reasonableness of charges instituted pursuant to subsection (5)(a), they are clearly not the types of documents specifically delineated by subsection (6)(b). Accordingly, State Farm was not entitled to these documents in a proceeding brought pursuant to subsection (6)(c). The trial court’s order compelling production of these documents was an abuse of discretion because it exceeded the bounds of subsections (6)(b) and (c).

In other words, pre-litigation, PIP carriers are only entitled to force medical providers to provide them with information about the insured.  PIP carriers are not entitled to force medical providers to provide the carrier with information about the medical provider.

With regard to the request for the corporate representative deposition, the Court first recognized that the Fourth DCA allows these types of pre-litigation depositions by PIP carriers.  However, the 1st rejected the 4th’s reasoning, stating:

We respectfully disagree with this reasoning and certify conflict with Kaminester. In our view, the phrase “discovery of facts” in subsection (6)(c) is limited to the production of the documents described in subsection (6). The process encompassed by subsections (6)(b) and (c) is meant to be a limited pre-litigation procedure for a PIP insurer to obtain specified information about the treatment provided to its insured and the charges for that treatment.

The discovery tools found in the rules of civil procedure, on the other hand, are not triggered until litigation over the reasonableness of those charges has ensued (i.e., commenced pursuant to subsection (5)(a)). Thus, nothing in subsections (6)(b) or (c) contemplates requiring a PIP medical provider to submit any of its representatives to deposition, and the trial court erred by ordering Shands to make a designated corporate representative available for deposition.

This decision will be welcome news to medical providers who are frequently requested to give pre-suit depositions, some of which can last for hours.  Trial courts in the 1st DCA must follow this decision, while trial courts in the 2nd, 3rd and 5th DCA’s can chose to follow the holding in this case, or the Kaminester decision from the 4th.

The insurance company and the homeowner agreed that sinkhole activity caused damage to the insured home.  The insurance company’s engineer recommended a subsurface remediation play which only called for compaction and chemical grouting.  Tower Hill instructed its insured that it would only pay to remediate the sinkhole if the insured must enter into a contract for subsurface repairs in accordance with its engineering report.

The insured obtained a second opinion on the adequacy of the insurance company’s proposed subsurface remediation plan.  The second opinion found the insurance company’s plan deficient, and proposed an alternate remediation plan which included compaction, chemical grouting and underpinning.

The insured entered into a contract for subsurface repairs in accordance with the second opinion.  The insured sent the signed repair contract to Tower Hill.  Citing Florida Statute Section 627.707(5) (2010), Tower Hill advised it would not honor the repair contract because it was not in accordance with the remediation plan proposed by its engineers.  Section 627.707(5) states in part:

(a) Subject to paragraph (b), if a sinkhole loss is verified, the insurer shall pay to stabilize the land and building and repair the foundation in accordance with the recommendations of the professional engineer as provided under s. 627.7073, and in consultation with the policyholder, subject to the coverage and terms of the policy. The insurer shall pay for other repairs to the structure and contents in accordance with the terms of the policy.

(b) The insurer may limit its payment to the actual cash value of the sinkhole loss, not including underpinning or grouting or any other repair technique performed below the existing foundation of the building, until the policyholder enters into a contract for the performance of building stabilization or foundation repairs.

At the trial court level, Tower Hill argued that this statute required its insured to enter into a contract for subsurface repairs in accordance with its engineering report.  The trial judge agreed.  The insured appealed, and the 2nd DCA reversed, holding:

Tower Hill’s argument that the policy language of the sinkhole endorsement required Roker to enter into a contract based on Tower Hill’s engineer’s protocol as a condition precedent to payment is similarly without merit.  The policy merely provides that Tower Hill will cover the necessary repairs “[i]n accordance with the recommendations of the professional engineer who verifies the presence of a [s]inkhole [l]oss in compliance with Florida sinkhole testing standards.” The policy does not specify that the insurance company’s engineer unilaterally dictates the method of subsurface repairs. The parties do not dispute the fact that all three engineers who evaluated Roker’s home complied with Florida sinkhole testing standards.

To the extent that Tower Hill is arguing that section 627.7073(1)(c) creates a presumption which justifies mandating that the insured accept the recommendation of an insurer’s expert, the idea that an insurance company is entitled to rely on that presumption in the litigation context was rejected by the Florida Supreme Court in Warfel, 82 So. 3d at 57. In Warfel, the Florida Supreme Court explained that “[t]he application of a presumption as alleged and argued by [the insurer] at trial, that an insured could not overcome this presumption, would render any portion of section 627.7073 unconstitutional and inconsistent with all other provisions of the sinkhole statutes.” Id. at 58. Ultimately, the supreme court held that the presumption disappeared once evidence rebutting it was introduced. Id. at 59. Because Roker submitted evidence rebutting Tower Hill’s report, Tower Hill may not rely on section 627.7073(1)(c) to disprove the existence of a material fact.

In conclusion, the Court stated:

The question of which recommended method of subsurface repair is sufficient to repair Roker’s home is a question for the jury. Roker cooperated with Tower Hill throughout the claims process and exercised her statutory right to reject the neutral evaluator’s recommendation. Tower Hill refused to pay anything for subsurface repair after being provided with a contract for repairs based on the recommendations of a qualified engineer. There remains a bona fide dispute as to the proper method of subsurface repair and, thus, Roker’s loss.

Contrary to the insurance company’s engineering report, this roof needs to be replaced due to hail damage.  As a result, we filed suit this week to prove the insurance company breached the insurance policy by denying this legitimate claim.

For every case like this that we take, I am convinced there are many, many more where the homeowners received the insurance denial and simply walked away not knowing that I was available to look at the denial for free.

I am thankful my clients had the fortitude and the knowledge to let me review their insurance denial.

As with most of our insurance claims, if we are successful, the insurance company must pay our attorneys’ fees and costs if we win.  If we lose, we will work for free.

Always remember, “NO” is not the end of the inquiry.  It is just the beginning.  In fact, I can’t win your case until the insurance company says “NO.”  So, don’t be discouraged or intimidated by an insurance denial.  Every case I’ve ever won all have one thing in common – they all started with “NO.”

Mark Nation

Our clients reported to their homeowners insurance company that they had sustained hail damage to their roof as a result of the March 24, 2013 storm.  Their insurance company hired what is known as an outside adjuster to inspect the roof.  The outside inspector is not a roofer, contractor or engineer.  This outside adjuster confirmed that there was hail damage to the roof but said that less than 25% of the roof had been damaged, and therefore the insurance company denied the claim.

This week we filed a lawsuit against the homeowners insurer for breach of contract.

First, the hail storm did not damage less than 25% of the roof.  The entire damage sustained hail damage.

Second, the insurance company is required to replace the roof even if less than 25% of the roof was damaged.  In Florida, if part of your home is damage and requires replacement of items and the replaced items do not match in quality, color, or size, the insurance company is required to upgrade the old remaining parts to match the new.

Thus, in this case, the insurance company is agreeing that it must replace some of my clients shingles due to the hail damage.  There is no way that the shingles will match the old remaining shingles.  Accordingly, under Florida’s “matching” rule, the insurance company is required to replace the entire roof.

Further, it is nearly impossible to spot repair the shingles which the insurance company agrees are damaged.  I’ve had many roofers and engineers agree with me that such attempts to spot repair often cause more damage than they are attempting to repair.

If we win this case, the insurance company will be required to pay our attorneys’ fees and costs.  And, if we lose, we’ll work for free.  Additionally, I will front all expenses for the case.  In a case like this, that will include, a roofer, an engineer and a forensic meteorologist.

Always remember, “NO” is not the end of the inquiry.  It is just the beginning.  In fact, I can’t win your case until the insurance company says “NO.”  So, don’t be discouraged or intimidated by an insurance denial.  Every case I’ve ever won all have one thing in common – they all started with “NO.”

Mark Nation

Hurricane Wilma struck South Florida in October of 2005.  The insured submitted a homeowner’s claim to State Farm.  State Farm paid the claim.  After this payment, the insured said he noticed additional damage.  In 2007, the insured renovated his entire home.  In 2010, five years after Wilma, the insured submitted a supplemental claim to State Farm for the work completed in 2007.  The insured did not give State Farm notice of the additional damage before, during or after making the repairs.  State Farm requested a proof of loss from the insured.  In the initial proof of loss, the insured swore he was entitled to an additional payment of $201,038.84.  This proof of loss was untrue as it, at a minimum, included items State Farm had previously paid.

After failing to come to an agreement on the supplemental claim, the insured filed suit and requested appraisal.  The insurance company objected to appraisal based on the insured’s failure to comply with his post-loss obligations, including his failure to give State Farm timely notice of his supplemental claim, failure to cooperate, failure to provide documents substantiating his claimed losses, and the insured’s concealment and/or fraud in the presentation of his claim. The trial court granted the motion to compel appraisal.  State Farm appealed.

The 3rd DCA held that it was improper to compel appraisal before there was a determination of whether there was coverage under the policy due to the insured’s alleged failure to comply with his post-loss conditions.

As this Court stated in Citizens Property Insurance Corp. v. Mango Hill Condominium Ass’n 12 Inc., 54 So. 3d 578, 581 (Fla. 3d DCA 2011) (hereinafter “Mango Hill 12”), where the insured has not complied with his post-loss obligations under the policy, a trial court is not empowered to compel appraisal:

The discretion to determine the order in which coverage and loss issues are considered does not, however, override a preliminary determination as to whether an arbitrable issue exists. Before arbitration (or appraisal) under an insurance policy such as the one at issue here may be compelled, a disagreement, or “arbitrable issue,” must be demonstrated to exist. U.S. Fid. & Guar. Co. v. Romay, 744 So. 2d 467, 469 (Fla. 3d DCA 1999). No disagreement or arbitrable issue exists unless “some meaningful exchange of information sufficient for each party to arrive at a conclusion” has taken place. Id. at 470. Thus, an “insured must comply with all of the policy’s post-loss obligations before the appraisal clause is triggered.” Id. at 471; seeFirst Home Ins. Co. v. Fleurimond, 36 So. 3d 172, 174 (Fla. 3d DCA 2010).

The Court went on to state:

The law in this district is clear and has been for nearly twenty years: the party seeking appraisal must comply with all post-loss obligations before the right to appraisal can be invoked under the contract.

Recognizing that failure to comply with post-loss conditions does not void coverage unless there is prejudice to the insurer, the 3rd DCA then discussed the prejudice to State Farm due to the insured’s failure to comply with his post-loss conditions.  The Court stated:

The prejudice to State Farm in the instant case demonstrates the prejudice that necessarily flows to the insurer when the insured fails to comply with his post-loss obligations. State Farm has been denied a meaningful opportunity to investigate Hernandez’s supplemental claim to determine if the claimed losses were, in fact, based on damages as opposed to the owner’s mere desire to renovate his home. Further, if the claimed losses were based on actual damages to the house, State Farm did not have the opportunity to investigate whether the damages were as a result of Hurricane Wilma, negligence by Hernandez, negligence by the roofer who installed the new roof, or due to some other cause.

Because Hernandez has not complied with his post-loss obligations, State Farm cannot conduct a meaningful investigation in order to adjust the claim. Accordingly, we reverse the order under review and remand this case back to the trial court for proceedings consistent with this opinion.

Interestingly, the 3rd DCA did not say that there was prejudice “as a matter of law,” and did not say that the trial court was to “enter judgment in favor of State Farm and against the insured.”  Instead, the 3rd DCA merely reversed the order compelling appraisal and remanded for proceedings “consistent with this opinion.”  That is likely because this case was before the 3rd DCA on an order compelling appraisal.  State Farm had not filed a Motion for Summary Judgment.  It seems most likely, that the 3rd was simply inviting State Farm to file a Motion for Summary Judgment on the prejudice issue in order to put the final nails in the coffin of this case.

However, in response to any State Farm Motion for Summary Judgment the insured will be allowed to argue that there was a lack of prejudice to the insurer – a tough legal and factual argument under the facts of this case.