The past few weeks have seen the end of the first phase of important litigation that has been raging on since shortly after Hurricane Katrina made landfall in southern Mississippi. While the full details of the story would take many volumes to adequately address, the litigation arose over two State Farm whistleblowers, Cori and Kerri Rigsby, who brought to light what they believed to be the insurer’s attempt to systematically defraud policyholders. According to the sisters, State Farm and its managers directed claim investigators and engineers to find that damages were caused by flood, thus limiting any potential payments under the State Farm wind policies.
While the Hurricane Ike litigation is all but over, there has been an undeniable increase in hail claims in the past 24 months that have kept carriers, adjusters, and attorneys quite busy. These claims, and subsequent litigation, have not gone unnoticed.
I recently received an email from a reader asking about the difference in insurance policies available for associations and tenants. In sum, the question asked for an explanation of an HO-06 insurance policy and whether that policy is available only for unit owners or for the association as well.
As I discussed my post “The Duty to Defend in Florida”, liability insurance policies have two distinct requirements. The duty to defend a policyholder against whom a claim has been brought and a duty to indemnify that policyholder for any damages awarded in that action. The duty to defend the policyholder against a claim is a broad duty. As I previously noted, an insurer is generally required to assume responsibility for the defense if the alleged facts and legal theories are the type that the policy could cover.
For a number of years there has been litigation over when, pursuant to Florida law, an insurer must pay interest on amounts that are improperly withheld. While there are differing legal opinions on this matter under the common law, the Florida legislature has enacted statutory provisions that may provide some relief to associations and unit owners that suffer from inappropriately delayed and/or denied claims.
While property insurance is likely the most recognizable and most discussed type of insurance, equally important is the liability policies providing coverage for the association, its employees, and the board. Board members and property managers should discuss all types of liability coverages, from general liability to errors and omissions policies, to ensure that everyone has a good understanding of what coverages exist and when each may come into play.
In almost all litigation, the depositions of the individual parties are important. Often cases rise and fall based solely on this testimony. For associations, however, the party is an organization and not a person. It is therefore necessary for the association to select an individual, or group of individuals, to speak on its behalf as the corporate representative.
Insurance policies have contained contractual appraisal clauses for many years. Recently, however, there have been a number of disputes over when appraisal can be invoked and when it can be rightfully rejected. Appraisal is appropriate when there is a “dispute” over the amount of loss. The problem faced by many courts has been when this “dispute” actually comes into existence.
State backed Citizens Insurance Corporation has gained national attention over the past years, although the bad seems to outweigh the good in most instances. Citizens was known as one of the most aggressive carriers after the 04-05 hurricanes, constantly refusing to honor the appraisal provision in its policy and forcing policyholders to file suit to recover amounts they were owed. Even then it often drug policyholders through lengthy appeals when a judge or jury found in their favor.
Earlier this week I met with an association board of directors about their ongoing hail claim. While the association is sorting through a number of issues, one of the larger disputes centers around the siding installed on each of the buildings.