A Personal Plug for My Firm's New Website
Ok, so this really has nothing to do with insurance. But my firm, Gilbert Russell McWherter PLC, just launched our new website. Check it out here. The update has been long overdue.
The Proper Scope of Appraisal - Thoughts from the Battlefield
In Parks' last post, "What is the Proper Scope of Appraisal in Tennessee?", he pointed out the Merrimack decision in which the Court of Appeals held that appraisal is not appropriate for decisions regarding coverage and liability. In considering my response, I spoke with Chuck Howarth, who is part of The Howarth Group, a claims consulting and public adjusting business based out of Nashville. Chuck's perspective on the appraisal process is unique for two reasons. First, his group handles more insurance appraisals in Tennessee than anyone else of which I'm aware. Second, he worked for eight or ten years with State Farm as an adjuster before moving to the other side of the fence as a public adjuster, which is where he's served for almost 25 years now. In fact, he even trained staff adjusters for State Farm so his experience with the inner workings of insurance companies can come in handy.
So, when Chuck and his business partner, Denis Rowe (both Tennessee Public Adjusters), read Parks' recent post about appraisal, they had a few comments. First, as to whether appraisal can be beneficial, they stated:
While we have used both public adjusting and the appraisal process to resolve claims, we have found that in Tennessee, Alabama, and Kentucky we get far better settlements using appraisal than serving as a property owner's public adjuster. Of course its critical that a public adjuster have signficant experience with the appraisal process before heading this road.
Another issue they pointed out was that some insurance companies are taking the Merrimack case to the extreme and "are trying to prevent appraisals from happening by saying that the only thing an appraisal panel can do is to determine the pricing of their scope that they have decided is part of the loss." Under this interpretation, the insurance company, not the appraisers, determine the scope of the damage. This is definitely not good for insureds because the biggest problem with insurance adjusters' estimates is usually the scope of the necessary repairs, not the price. For example if a tornado damages a home and everyone agrees the damage is covered, an appraiser's job would be to determine what needs to be repaired and the necessary cost of those repairs. In that situation, some insurance companies would counter that an appraisal is inappropriate to determine what items need to be repaired (i.e., the scope), but rather appraisal is only appropriate for determining the necessary cost of repairs for the scope as determined by the insurance company. Although I've not researched that particular issue yet, I feel certain that insurance companies taking this position are dead wrong. More on that next time.
What is the Proper Scope of Appraisal in Tennessee?
In the past ten (10) years, we have seen much litigation arise concerning the proper scope of the appraisal clause. Although different policies have different provisions, the “gist” of an appraisal clause can be seen in the following policy provision:
Appraisal
If we and you disagree on the amount of loss, either may make written demand for an appraisal of the amount of loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding.
These “simple” provisions have created a myriad of issues. Chief among them is – just what exactly is this appraisal condition supposed to decide? It is important for all to understand what binding effect an appraisal award has, and what effect it does not have. The most common dispute centers over questions of coverage and causation. Does the appraisal clause resolve questions of coverage? What about questions of whether a particular element of damage was caused by a particular covered, or non-covered, event.
In Tennessee, the case of Merrimack Mutual Fire Insurance Company v. Batts, 59 S.W. 3d 142 (Tenn. Ct. App. 2001), perm app. denied, established that the appraisal process does not resolve questions of causation or coverage. The appellate court specifically noted:
· “An appraiser’s authority is limited to the authority granted in the insurance policy or granted by some other express agreement of the parties.” Id. at 152.
· “The appraisal clause in Mrs. Batts’s homeowners policy is limited to determining the ‘amount of the loss’-the monetary value of property damage.” Id.
· [The appraisal clause] “does not vest the appraisers with the authority to decide questions of coverage and liability.” Id.
In the case, in which I represented the carrier, an appraisal award was entered. The company went through the award, and declined to pay for certain things because they (1) were not covered and/or (2) the damage was not caused by the particular tornado loss at issue.
The Court indicated that questions of coverage and causation were not within the authority of the appraisal panel. These issues could be resolved by the court, if necessary. The court also established that appraisal is NOT arbitration.
That is the right answer, I submit. The Court did note that it would also have been appropriate to go through the claim before entering appraisal, and simply decline to enter appraisal on issues of coverage and causation.
A Follow Up to the Question of When Post-Loss Misrepresentations are Material
There are a few issues here that need to be clarified for our insureds out there who may be dealing with an insurance company making accusations of misrepresentations. First, the rules are different depending on whether the alleged misrepresentation occurred before the loss or after the loss. The one I see more often is the misrepresentation that occurs during the application process. That topic is certainly worthy of several posts on its own, but suffice it to say here that a material misrepresentation on an insurance application that increases the risk of loss can completely void the policy, meaning that the insurance company will refund the premiums as if the policy never existed at all. As for misrepresentations that occur after the loss during the claim process, the law is much more generous to the insured. In those cases, to avoid its obligations under the policy, the insurance company has the burden to show that the misrepresentation was intentional and designed to deceive. A simple mistake isn't enough. For example, if an insured fills out his proof of loss and makes a mistake in adding his personal property inventory and thus fills in the wrong number on the proof of loss, that would not be an intentional misrepresentation.
Another requirement is that the alleged post-loss misrepresentation be material in nature. So what is material? In Nix v. Sentry Ins., 668 S.W.2d 462 (Tenn. Ct. App. 1983), the Court of Appeals dealt with precisely that question. In that case, the issues at trial centered around whether the plaintiff had committed arson and whether the plaintiff had made material misrepresentations regarding what property was actually destroyed by the fire and its value. The trial court found that there was no arson, but that there had been misrepresentations concerning the value of the property destroyed in the fire. The judge therefore found that the insurance company had no liability for the loss. On appeal, the Tennessee Court of Appeals reversed, holding:
When the false swearing is in the application it forms the basis upon which the contract rests, and if fraud enters into it the policy would be voided even though the policy does not so provide. But after the loss occurs then voiding the policy is in the nature of a penalty or forfeiture; in other words, in such cases the holding is virtually that, although the insured has had a loss, and may be entitled to recover from it, yet, as he has been guilty of fraud in the proofs, he must have his policy vacated and set aside as a punishment for such fraud, or attempted fraud. In the latter case, as in all cases of forfeiture, a strict construction should be adopted, and the forfeiture not enforced except on the plainest grounds, if at all.
Nix, 666 S.W.2d at 463-64. Most importantly to the issue of materiality, the court also noted "that if rights are to be forfeited under the terms of this insurance policy, the concealment or misrepresentation made must be relative to the loss claimed." In that case, the insurance company pointed to alleged misrepresentations concerning the insured's financial condition which might have provided a motive for arson, but did not point to any specific misrepresentations in the proof of loss. Because the court found there was no arson, any misrepresentations concerning the insured's financial condition were not material to the issue of his valuation of certain personal property, and the policy could not be voided.
Nix is a very important case, and can be incredibly useful in insurance disputes. It obviously isn't a license to misrepresent material facts, but it does substantially limit an insurance company's ability to void a policy altogether when the alleged misrepresentations just don't have anything to do with the issues at hand.
Response to a Reader's Question - What Types of Post-Loss Misrepresentations Are Material?
Thanks to a reader who submitted this question – what types of misrepresentations are material in that the insurer would be entitled to deny coverage if these misrepresentations were made? I presume the question was posed because of provisions existing in most insurance policies which indicate the policy is void “if you or any other insured under this policy has intentionally concealed or misrepresented any material fact or circumstance relating to this insurance.” An insurance company may defend a suit for the proceeds of a fire insurance policy by proving that the insured(s) intentionally concealed and/or misrepresented a material fact during the claims process. Hendrix v. Insurance Co. of N. Am., 675 S.W.2d 476, 481 (Tenn. Ct. App.1984);Wilder v.
The question then is – what is material? Also, note that it is not just a matter of telling the truth, as all attorneys tell their clients to do under oath, but its also a matter of concealment, as coverage can be denied where an insured intentionally withheld a full disclosure of the truth as to material issues relating to the insurance. Southern Guaranty Ins. Co. v. Dean, 252
Under Tennessee law, in order to void an insurance policy based upon post-loss misrepresentations by the insured, the insurer must establish that the insured’s misrepresentations were material in nature and were “willfully and knowingly made with the intent to deceive or defraud the insurer.” Wassom v. State Farm Mut. Auto. Ins. Co., 173 S.W.3d 775, 783 (Tenn. Ct. App. 2005). Obviously, if the insured knows that the fire was of incendiary origin and swears that the origin is unknown, he or she commits fraud and violates a stipulation against fraud and false swearing. Union Fire Ins. Co. of Paris, France, v. Ryals, 25 Ala. App. 300, 145 So. 503 (1932). But that’s an easy one, isn’t it? What else can be material?
Obviously, if the insured knows that the fire was of incendiary origin and swears that the origin is unknown, he or she commits fraud and violates a stipulation against fraud and false swearing. Union Fire Ins. Co. of Paris, France, v. Ryals, 25 Ala. App. 300, 145 So. 503 (1932). But that’s an easy one, isn’t it? What else can be material? What else is sufficient?
The Wassom case established at least five principles applicable to post-loss misrepresentation:
1. An insurer is entitled to accurate information to determine how the loss occurred. Wassom, at 784.
2. A misrepresentation is material when it impacts how a company investigates the claim. Id.
3. It does not matter that the insured later “decided to come clean and tell [the insurer] what really happened….” Id. at 785.
4. “In determining whether a misrepresentation was material, the misrepresentation must be viewed at the time it was made and not in hindsight.” Id.
5. “An insurance company need not establish that it relied to its prejudice upon false or fraudulent statements in a proof of loss in order to establish a breach of contract and void the policy.” Id.
Other courts have expressed the same sentiment that post-loss misrepresentations were material if any such statement “might have affected the attitude and action of the insurer.” Fine v. Bellefonte Underwriters Ins. Co., 725 F.2d 179, 183 (2d Cir. 1984). Likewise, the Second Circuit found materiality of post-loss misrepresentations to exist if the misrepresentations “may be said to have been calculated either to discourage, mislead or deflect the company's investigation in any area that might seem to the company, at that time, a relevant or productive area to investigate.” Id.
So, use these general rules to apply to your facts. I submit to the readers that Tennessee law no longer requires a misrepresentation as to value – anything that had the potential to affect the attitude and actions of the insurer, and was intended to mislead parts of the company’s investigation at the time made, can be material. It’s a case by case analysis.
Keep those reader’s questions coming!
The End of the Consumer Protection Act in Insurance Cases
This will probably come as no surprise to most but my feelings concerning the legislature's recent removal of the insurance industry from the protection of the Tennessee Consumer Protection Act are pretty strong. I called every member of the legislature I knew, and some I didn't, in an attempt to stop the bill. But there is a very strong insurance lobby in this state, and the bill flew through both the House and the Senate with flying colors.
The saddest part about the new law is that it sends a clear signal that insurance companies are above the law, i.e., that ethical conduct is required of all businesses in this state except insurance companies who are free to act unfairly and deceptively without the threat of private recourse via the consumer protection statutes. A decision by an insurance company to deny a claim is a very calculated risk. Only a very small percentage of people whose claims have been denied will even pursue litigation. And without the protection of the Consumer Protection Act, things will only get worse. The consumer protection statutes helped even the playing field, and heightened the risk for insurance companies that wrongfully denied claims by exposing them to attorney's fees and treble damages in the event a judge decided that it intentionally acted unfairly or deceptively.
The new law only hurts the consumer and really created no benefit at all for the insurance companies out there that were already acting in a good faith fashion. On the other hand, it benefits greatly those insurance companies who treat their insureds unfairly. This was not an area of the law that needed reform. There was no risk of a runaway jury because the judge, not the jury, decided whether to award attorney's fees and treble damages under the Consumer Protection Act. But without those protections, insurance companies can freely fun roughshod over insureds with little recourse.
There is one positive about the new law, and that is that the language utilized in the new statute may have acknowledged the existence of a common law bad faith claim. More on that in future posts . . .
Tennessee Legislature Restricts Application of Consumer Protection Act, Overruling Myint v. Allstate
On April 29, 2011, the Tennessee legislature adopted House Bill 1189 was enacted into law and signed by Governor Haslam. Public Chapter No. 130 will be codified in Tennessee Code Annotated, Title 56, Chapter 8, Part 1. The signed law is available by clicking here.
The law amends Title 56 related to insurance business acts and practices. It provides that Titles 50 and Title 56 shall provide the sole and exclusive statutory remedies and sanctions available for the “alleged breach of, or for alleged unfair or deceptive acts and practices in connection with a contract of insurance.” . The law essentially overrules the case of Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn.1998), which had allowed recovery under the Tennessee Consumer Protection Act for unfair or deceptive acts or practices in the handling of an insurance claim, obviously after the consumer transaction which created the relationship between the insured and insurer. This brought with it exposure for attorney fees and the potential for trebled damages.
Prior to Myint, it had long been the rule that statutes such as T.C.A. § 56-7-105, provided for the sole and exclusive remedies available to insureds for a carrier’s failure to handle a claim in good faith. It appears this is now the case once again.
In other entries on this blog, reader can see how Tennessee Consumer Protection Act allegations have expanded in scope since the Myint decision. I have handled cases where the consumer protection act allegations against the carrier were based upon alleged actions of independent adjusters, and even independent expert witnesses. Because of the expansive scope of Myint, courts were reluctant to dismiss even those cases on summary judgment.
Morrison v. Allen, Part III
This is the third installment of my recent discussion of the Morrison v. Allen decision. Assume these facts (a skeletal version of the facts in Morrison): John Doe requests life insurance from his insurance agent in the amount of $1,000,000. A policy is issued, but a claim by John's wife, Jane, for benefits under the policy is denied based on alleged misrepresentations in the insurance application. Jane claims that John's insurance agent failed to do his job and is liable to her on a failure to procure theory for the face amount of the insurance policy. Jane then settles with insurance company for $900,000, but moves forward with her suit against the agent for the full amount of the insurance policy, i.e., $1,000,000. And then Jane actually wins her case, resulting in her receiving $1.9 million on a $1 million policy. Double recovery, right? Wrong.
In Morrison, the plaintiff sued the insurance company on multiple theories, including violations of the TN Consumer Protection Act, negligence, breach of contract, etc. She also sued the defendant insurance agents for failure to procure the appropriate insurance policy. To decide whether the defendant agents were entitled to an offset as a result of the $900,000 payment by the insurance carrier in settlement of Ms. Morrison's claims against it, the Supremes were faced with the question of whether the claim against the insurance carrier was based in contract or some other theory. If liability was based in contract, then the agent would be entitled to an offset. But, if the claim was based in tort, then no offset is required.
The Morrison court ultimately found that the defendant agents were not entitled to an offset, which had the rather odd result that Ms. Morrison received $1.9 million on a $1 million policy. The key to this decision appears to be that the actual settlement documents between Ms. Morrison and the defendant insurance company did not specifically state that payment was being made on the breach of contract claim. On the contrary, the settlement settled all the claims, with no specific delineation as to what amount was being attributed to the various causes of action that had been alleged. Accordingly, no offset was required.
This is an extremely important part of this case that will come into play in almost every case in which the policyholder has sued both his insurance agent and his insurance company. It allows a plaintiff to settle with one, and still preserve his or her right to go after the other for the full amount of the alleged damages with no offset. All it requires is a little thought when drafting the settlement agreement.
Morrison v. Allen, Part II
Yesterday I wrote about the February 2011 landmark decision of the Tennessee Supreme Court in Morrison v. Allen. There was one relatively minor point concerning an alleged misrepresentation in an application that grabbed my attention. In Morrison, the insurance company denied Ms. Morrison's claim for life insurance benefits based on alleged misrepresentations of her husband in his application for insurance. Specifically, the application asked, "In the past five years, have any proposed insureds been charged with or convicted of driving under the influence of alcohol or drugs or had any driving violations?" The insured answered, "No."
The alleged misrepresentation arose from the insured's conviction for driving while impaired ("DWI") a couple of years prior to the submission of the application. On first glance, it might appear clear that failure to disclose the DWI would constitute a material misrepresentation based on the language of the question in the application. But not so fast. The Supreme Court affirmed that the insured's response was technically correct because he was convicted of DWI, which is a separate offense from driving under the influence.
Although this particular issue was literally just a footnote in the very lengthy opinion, it might come in handy one of these days for the unfortunate soul who finds his claim denied as a result of an undisclosed DWI.
Tennessee Supreme Court Redefines the Law of Insurance Agent Liability
On February 16, 2011, the Tennessee Supreme Court rendered a landmark decision concerning insured's rights to pursue claims against their insurance agents for failure to procure appropriate insurance. The case is Morrison v. Allen, and can be found here.
In Morrison, the basic facts were that Mr. and Mrs. Morrison obtained life insurance policies on each of their lives from their insurance agents, Roberts and Allen. The agents filled out the applications, and sent them to the Morrisons to sign with instructions on where to sign, which they did. Although the applications contained the typical warnings regarding misrepresentations and contained an affirmation that the statements therein had been read, neither of the Morrisons read the applications before signing them. Two months later, Mr. Morrison died. The insurance company then denied Ms. Morrison's claim for benefits under the policy, alleging misrepresentations in the application (failure to disclose a DWI). After filing suit, Ms. Morrison ultimately settled her claim with the insurance carrier for $900,000 ($100,000 less than policy limits), but proceeded to trial against the insurance agents, Roberts and Allen. After a bench trial, the trial court awarded a judgment to Ms. Morrison against the defendant agents for breach of contract and negligence and further found the defendants violated the Tennessee Consumer Protection Act.
The Supremes then totally revamped and redefined the law of agent liability in the State of Tennessee. A few broad principles emerge:
First, the Court adopted the following elements for a cause of action for failure to procure: (1) an undertaking or agreement by the agent or broker to procure insurance; (2) the agent's or broker's failure to use reasonable diligence in attempting to place the insurance and failure to notify the client promptly of any such failure; and (3) that the agent's or broker's actions warranted the client's assumption that he or she was properly insured.
Second, the Supreme Court held "that if an agent undertakes to obtain an insurance policy for an insured, and the policy obtained is contestable due to the acts or omissions of the agent, then the applicant has the same right to recover for failure to procure as he or she would have had if no policy had issued at all."
Third, a finding of liability does not require evidence that an insured specifically request an "immediate incontestability clause" or a promise by the agent that the policy would be incontestable. On the contrary, all that is required is that the insured show that he contracted with the agent to procure an insurance policy and then reasonably rely on the agent "to successfully complete the groundwork for procuring the policy." Accordingly, a cause of action arises "where coverage is denied by the insurer on a policy that is contestable as a result of the acts or omissions of the agent.
Fourth, and here's where it gets interesting, the Court held that an applicant's failure to read an application does not insulate agents from liability. "When an applicant applies for an insurance policy and the agent undertakes to fill out the application on his or her behalf, the applicant should be able to trust that the agent will ask the important questions and accurately record the answers to them so that the policy cannot later be successfully contested based on inaccuracies." Put simply, an insured's failure to proofread an application is inconsequential in a failure to procure case, and the signature of the applicant does not shield the agent from liability.
And that just covers 15 pages of the 27 page opinion. More to follow in the coming days on this case that is a huge win for policyholders in the State of Tennessee.
