Tennessee Insurance Litigation Blog

Tennessee Insurance Litigation Blog

Legal insights on insurance litigation in the State of Tennessee

The Policyholder’s Perspective from
Brandon McWherter
of Gilbert Russell McWherter Scott Bobbitt PLC
J. Brandon McWherter is a partner at Gilbert Russell McWherter Scott Bobbitt PLC, which has four Tennessee offices in Memphis, Jackson, Nashville, and Chattanooga. Read More
The Insurance Company’s Perspective from
Parks T. Chastain
of Brewer, Krause, Brooks & Chastain, PLLC
Parks T. Chastain, a member in the Nashville, Tennessee law firm of Brewer, Krause, Brooks, Chastain & Burrow, PLLC, focuses on the representation of insurers. Read More


I’ve just posted the new regulations promulgated by the Tennessee Department of Commerce and Insurance governing the investigation and disposition of claims arising under certain types of insurance issued to residents in Tennessee.  We’ve attended the hearings that were held on these regulations, and followed the rulemaking process.  Regulation 0780-01-05-.010, entitled Standards for Prompt, Fair and Equitable Settlements Applicable to Fire and Extended Coverage Type Policies with Replacement Cost Coverage, contains two provisions which may expand fire insurer’s obligations when calculating replacement cost:

a.The replacement cost must include the value of any consequential physical damage incurred in making such repair or replacement unless otherwise excluded by the policy. The insured does not have to pay for any cost except for betterment an any applicable deductions; and

b.When a loss requires replacement of items and they do not match in quality, color or size, the insurer shall replace items so as to conform to a reasonably uniform appearance according to the applicable policy provisions. This applies to interior and exterior losses. The insured shall not bear any cost over the applicable deductible, if any.

There were comments during the process regarding this rule, particularly the “matching” component. One comment was discussed in the regulations:

Comment 8

0780-01 -05-.10(1 )(b)

It was commented that the phrase “uniform appearance,” when referring to replacement of an item when the replacement item does not match the item being replaced under a property insurance policy, may be ambiguous. The commenter indicated that a reasonableness factor is already applied to replacement claims. It was further commented that there is concern this may also apply to repairs of damaged items.

Response to Comment 8

The Division disagrees with this comment. The term “reasonably uniform appearance” is sufficiently specific when read in the full context of Rule 0780-01-05-.10(1 )(b), as that rule clarifies that this reasonableness assessment must be made when there is a deviation in quantity, color, or size of a replacement item. Read in context, it is clear when such a determination must be made, and a reasonableness assessment is already an industry standard. The Rule specifically states it applies in instances “[w]hen a loss requires replacement of items[,]” and does not contemplate repair claims.

So, we know the matching requirement only exists with replacement claims, but what is the impact of policy language? The regulations seem to open the door for application of clear policy language. This will have to be more fully addressed as matters arise under the regulations.


On July 11, 2017, the Tennessee Department of Commerce and Insurance filed the final version of new regulations governing the investigation and disposition of claims arising under certain types of insurance issued to residents in Tennessee. These regulations will take effect October 9, 2017. These regulations are not intended to cover claims involving workers’ compensation or healthcare. The regulations are intended to define practices which constitute “unfair claims practices” as determined by the Commissioner. I’ll be making more posts about significant portions of the regulations, but until then, click here for a copy of the regulations may be downloaded here –  TN Unfair Claims Regs.  Stay tuned for more.

What Misrepresentations Increase the Risk of Loss?

The Court of Appeals recently provided further insight on what type of misrepresentations increase the risk of loss. In the case of Freeze v. Tennessee Farmers Mutual Insurance Company, filed March 28, 2017 (Freeze v. TFMIC), the Eastern Section Court of Appeals upheld the grant of summary judgment to Tennessee Farmers in a case which alleged misrepresentation under T.C.A. § 56-7-103, which provided as follows:

56-7-103. Misrepresentation or warranty will not avoid policy – Exceptions. – No written or oral misrepresentation or warranty therein made in the negotiations of a contract or policy of insurance, or in the application therefor, by the insured or in the insured’s behalf, shall be deemed material or defeat or void the policy or prevent its attaching, unless such misrepresentation or warranty is made with actual intent to deceive, or unless the matter represented increases the risk of loss.

The Court first acknowledged that determining whether a particular misrepresentation increased the risk of loss is a question of law for the Court. The Court ruled misrepresentations contained on an application signed (but perhaps not read) were sufficient to void the policy of insurance when made with respect to:

  1. Pending legal actions;
  2. Charges or convictions of felony crimes; and/or
  3. Charges or convictions of arson, fraud, theft, or drug related crimes.

The Court found it particularly important Tennessee Farmers had made it clear that two of these questions provided that the agent would be unable to bind coverage if the questions were answered in the affirmative. The Court also reaffirmed the longstanding principle that the failure to read an application does not insulate an applicant from errors or omissions on a signed application.  The Court held these misrepresentations increased the risk of loss to Tennessee Farmers under T.C.A. § 56-7-103, and summary judgment was appropriate.

Wildfires and Soot Testing

As many victims of the East Tennessee wildfires are working through the claim process, this seems to be a good time for a quick word about soot testing.  Smoke and soot from the wildfires likely affected hundreds of property owners whose properties were never touched by an actual flame.  Even with no actual fire damage, the infiltration of smoke and soot into cavities of a structure clearly constitutes a covered loss under most policies.

In some cases, a good old fashioned thorough cleaning with appropriate materials by trained professionals might do the trick.  But in many other cases, smoke and soot deposits appear in wall cavities and other inaccessible places that require a much more invasive restoration protocol, including removal and replacement of sheetrock, etc.  Smoke just has a way of getting into those hard to reach places, traveling through electrical outlets, conduit, HVAC systems, etc., and it’s important to get it removed.

Thankfully, there are many trained hygienists who can perform the necessary testing to determine the proper scope of fire, smoke, and soot restoration.  The test samples are then shipped off to a qualified laboratory, which produces results that can assist the property owner or contractor discover how far the smoke traveled and how much work needs to be done to remediate it.   The hygienist can determine what type of testing is needed, but I typically see both air and surface samples. On the surface samples, it is often necessary to make small test openings in the drywall or other wall covering to access the cavity that lays behind.

Policyholders are entitled under most properties to be put back in pre-loss condition so if there wasn’t smoke and soot in your walls before the fire, and there is now, there should be coverage for the cost of removing it.

Happy New Year everyone!

When is Overhead and Profit Due in Tennessee?

Several years ago I discussed a Sixth Circuit Court of Appeals case where the court determined that general contractor’s Overhead and Profit were recoverable if the insured would “reasonably be expected to hire a contractor to repair its property”  See Parkway Assoc., LLC v. Harleysville Mut. Ins. Co., 129 Fed. Appx. 955 (6th Cir. 2005).  You would think that this Sixth Circuit Court of Appeals opinion would have encouraged insurance companies to do the right thing and include Overhead and Profit in their estimates and settlements, at least in the state of Tennessee.  Surprisingly, I still regularly receive calls about insurance carriers that are not paying Overhead and Profit  (O&P) correctly. I hear that some companies do not pay O&P on ACV payments, but will pay for it after the work is complete. Some companies will withhold O&P from specific areas of the estimate like roofing, cleaning, mitigation, or debris removal. Some companies refuse to pay O&P all together, by stating that the claim isn’t “complex” enough to warrant  O&P. Some companies even try to avoid paying O&P to restoration or mitigation companies after a fire or water loss. To be clear, all of the above examples are not only wrong, but they could be acts of bad faith by the carrier.

In Tennessee, there is only one question that must be answered to determine if O&P is owed and that is this – – is it reasonably likely that the insured would be expected to hire a contractor to repair the property? So who determines when it is reasonably likely that the insured would be expected to hire a contractor?  Thankfully for policyholders in Tennessee, The Tennessee Department of Commerce and Insurance has answered this question for us. Effective January 1, 2014, the Board of Licensing Contractors issued a bulletin that clearly spells out when a policyholder is reasonably likely to hire a contractor. The bulletin can be found here.
To sum it up, a contractor is required on any project of $25,000 or more (excluding masonry) or when there will be more than one subcontractor or tradesman on the project. The Board of Licensing went so far as to say that a contractor’s license is required before anyone could even make a bid or given an estimate on a project of $25,000 or more or any project that will involve more than one subcontractor.  The contractors who have taken the extra time and steps to become licensed should be compensated for their operating expenses (Overhead) and should be allowed to make a Profit from the work they have performed.

Do not let insurance adjusters or agents tell you otherwise – – O&P is not already built into Xactimate line item estimate pricing.  Also, remember that the premiums you pay are based on a Replacement Cost Value and the software your agent uses to calculate the replacement cost will include the charges for General Contractors Overhead and Profit. Since you are already paying a premium for O&P, you should be compensated for O&P on any loss where there are at least two tradesmen (subcontractors) needed for the repairs and/or on any loss that is in excess of $25,000 and this does not exclude mitigation or restoration services. If your restoration company is also a licensed contractor, they are owed O&P for their services as well.

The last time I posted about this I received multiple calls from contractors around the State.  If  you are a contractor or roofer and you’ve had difficulty recovering payment of O&P, feel free to call – – I’d love to hear from you.


Water Damage from an Aquarium – Covered or Not?

Most water damage is covered in a typical homeowner’s policy. However, this coverage may only extend to the structure, and not the personal property, depending on the policy language. This is because many homeowner’s policies cover all forms of direct physical loss – subject to certain exclusions. Conversely, personal property may be covered by only certain perils named explicitly in the policy. This results in much narrower coverage for personal property. With this in mind, would water damage resulting from a burst water bed or aquarium be covered? I believe the answer is yes depending on the applicable policy language. A policy will typically provide personal property coverage for accidental water or steam discharge from within your plumbing, heating, air conditioning or automatic fire protective sprinkler system or from within a household appliance.

If the term “household appliance” is not defined in the policy, then the common meaning of the term will be used and any ambiguities will be strictly construed against the insurer as the drafter of the document. Mirriam-Webster’s online dictionary defines appliance as “an instrument or device designed for a particular use or function.” Applying this definition to our present question, an aquarium or water bed would certainly fit the definition of a household appliance. For example, an aquarium is designed for the particular use of keeping fish and aquatic creatures alive for the personal enjoyment of spectators. Therefore, an aquarium fits within the definition of an appliance. Similarly, a waterbed has been held to be an appliance for the purpose of providing insurance coverage under the same policy language. See Azze v. Hanover Ins. Co., 336 N.J. Super. 630, 765 A.2d 1093, 2001 N.J. Super. LEXIS 33 (App.Div. 2001).

Winston Churchill and the Burden of Proof in an Arson Case

We all have heard Churchill’s commencement speech in 1941 where he included those famous words “never give in, never give in, never, never, never…” Brandon put an entry on the blog below about the burden of proof in an arson case, relying upon a case in which he was involved styled Cincinnati v. Banks.  I was in that case also, and his description of what the court ruled is accurate.  But, having now given full disclosure, I continue to maintain that it is incorrect.

Here’s the basic issue. A property policy requires that any loss be “accidental.” If that requirement exists in the insuring agreement, who should have the burden of proving that the loss is covered?  I contend it should be the insured.

The briefing in the Banks case is public record.  One of the cases we included in our briefing was a unreported Tennessee Court of Appeals case styled William G. Hall v. Allstate Insurance Company, 01-A-01-9607-CV-00305, (Tenn. Ct. App., 1996). In Hall, the insured sued Allstate for damage to his truck caused by fire – a fire Allstate believed was the result of arson by the insured.  The trial court found Hall failed to carry his initial burden of proof and awarded judgment in favor of Allstate. Id. at 3.  Hall appealed, and one of the issues on appeal was whether the “trial court erred as a matter of law, in holding that the [insured] had the burden of proof as to the nonexistence of an exception or defense to the insurance policy.” Id.

As referenced by the Tennessee Court of Appeals in its decision in Hall, the Allstate policy covered “‘loss’ mean[ing] direct and accidental loss of or damage to” the automobile, requiring both a direct and accidental loss. Id. at 4.  The Court of Appeals expressly found “Hall had the burden of proving these details of his claim.” Id.  In its decision, the Tennessee Court of Appeals held under Tennessee law it was first the insured’s:

burden at trial to show that the loss fell within the terms of the policy.   We are of the opinion that the trial court’s finding that the [insured] failed to prove the accidental nature of the fire and the entry of judgment in favor of Allstate was proper.  There is ample evidence from which the trial court found that the loss to the pickup truck was not accidental and that [the insured] failed to meet his burden of showing that a covered loss occurred.

Hall. at *5-6 (emphasis added).

A federal court decision is not binding on a state court. Obviously, under our rules, neither is an unpublished state decision.  But I submit to you that the issue is not as “black and white” as my learned co-author has put it.  This issue still needs to be addressed by the Tennessee Court of Appeals of the Tennessee Supreme Court in a reported opinion to resolve the question of how Tennessee will address this issue once and for all.   Eliminating the requirement that the insured establish an “accidental” loss seems to be rewriting the policy, which should not occur. I just wanted to put this case out there for everyone’s consideration.

The opinion was not available on West initially, but we advised West of the omission and it is now included at 1996 WL 34905699. Here is a link to the unreported case of Hall v Allstate Opinion Burden.

Tennessee Court of Appeals Reaffirms Limited Scope of Appraisal

Almost yearly (if not more frequently), insurance companies face the argument that the appraisal process provided by the typical insurance policy should be expanded. As a refresher, back in 2001, the Tennessee Court of Appeals issued its opinion in Merrimack Mutual Fire Insurance Company v. Batts, 59 S.W.3d 142 (Tenn. Ct. App. 2001), where it held that questions of coverage and causation were not appropriate for resolution through the appraisal process, and that the question of ultimate liability is something not for resolution through appraisal, but rather judicial challenge. The purpose of appraisal, as that case explained, was a determination of the monetary value of the damage.  Since that time, Tennessee has produced other opinions dealing with the scope of the appraisal process, such as Artist Building Partners v. Auto-Owners Mutual Insurance Company, 435 S.W.2d 202 (Tenn. Ct. App. 2013).  Basically, these opinions deal with the proper scope of appraisal, and conclude that the appraisal panel is authorized to decide only those issues which are within the scope of its authority as granted by the insurance policy.

On February 17, 2016, our Court of Appeals issued an Opinion in Thomas v. The Standard Fire Insurance Company, No. E2015-01224 –COA-R3-CV, which reaffirmed both Batts and Auto-Owners.  The policy in that case indicated the appraisal panel would “set the amount of loss,” similar to the charge given to the appraisal panel in Batts.  When the umpire and one other appraiser agreed on the amount of loss, the insureds sought more money.  There was no allegation that the appraisal was improperly conducted, nor were there any coverage issues involved with the award.  As the Court noted, the insureds simply desired more money.  The Court found that, in simply ruling on the amount of loss, and not addressing any coverage issues, the appraisal panel did not exceed the scope of its authority.  In so ruling, the Court once again concluded that appraisal is not arbitration.

For a copy of the opinion, download Standard Fire Opinion.

What Do You Mean I Have to Cooperate?

When you file an insurance claim, your insurance company will almost always request a significant amount of information from you. Depending on the type of loss you have suffered, this type of information can typically include an estimate of your damages, an inventory if you had business or personal property coverage, and a litany of other documentation such as tax returns, leases, contracts, etc.  I’ve handled cases where there were literally dozens and dozens of separately numbered requests for documents.  You may also be requested to submit to a recorded statement or an examination under oath. How can they require this information from you and how far do you have to go to satisfy their requests?

The answer can be complicated but we should start with the language in your policy that mandates your cooperation: it is (creatively) referred to as…. Drumroll please… The Cooperation Clause. Here is a sample cooperation clause found in many policies:

Duties In The Event Of Loss Or Damage

You must see that the following are done in the event of loss or damage to Covered Property:

(5) At our request, give us complete inventories of the damaged and undamaged property, Include quantities, costs, values and amount of loss claimed.

(6) As often as may be reasonably required, permit us to inspect the property proving the loss or damage and examine your books and records.  Also permit us to take samples of damaged and undamaged property for inspection, testing and analysis, and permit us to make copies from your books and records.

(8) Cooperate with us in the investigation or settlement of the claim.

We may examine any insured under oath, while not in the presence of any other insured and at such times as may be reasonably required, about any matter relating to this insurance or the claim, including an insured’s books and records.

As you can see, the cooperation clause is quite broad and can encompass many different types of documents and information. But, does this allow your insurance company unfettered access to any information it requests? The short answer is no; requests must be material to the loss. In defining what is material, it is a fact intensive question that merits close scrutiny and knowledge of the insurance claims process.

For example, nearly 150 years ago, the U.S. Supreme Court upheld an insured’s refusal to provide information regarding settlements to an insurer.  See Ins. Cos. v. Weides, 81 U.S. 375, 20 L. Ed. 894, 1871 U.S. LEXIS 1003, 14 Wall. 375 (U.S. 1872).  In Weides, the insured had insurance with four insurance companies and they settled with all but one.  The remaining insurer demanded an examination under oath (for questions about an EUO, see my prior blog here), and the insured complied with the EUO but refused to provide information pertaining to settlements it had agreed to with the other insurers. The insured had settled with the other insurers at an average of $.54 on the dollar for the amount claimed and the current insurer desired to utilize this information in order to force the insured to settle for an amount less than what they were claiming with the current insurer.

The Court ruled that the insured was only required to answer questions that were material to the loss, and decided the questions regarding what the insured had agreed to with the other insurers was immaterial to the subject claim.  The Court had this to say:

Of course it is to be understood that the examination contemplated relates to matters pertinent to the loss. In these cases the plaintiffs did submit to an examination, but declined to answer questions respecting the amounts for which they had made settlements with other insuring companies. We are unable to perceive that the questions proposed had any legitimate bearing upon the inquiry, what was the actual loss sustained in consequence of the fire. If the plaintiffs had claims upon other insurers, and compromised with some of them for less than the sums insured, it is not a just inference that their claim against these insurers was exaggerated. A compromise proposed or accepted is not evidence of an admission of the amount of the debt. There was then no sufficient foundation laid for the instruction requested by the defendants, that if the jury should believe that the plaintiffs, or either of them, in the course of an examination on oath, under the policies, refused to answer any questions by which  the defendants could fairly estimate, or reasonably infer plaintiffs’ real loss in the insured property, and had not before the commencement of the actions answered the questions under oath, the verdict must be for the defendants.There was no evidence of refusal to answer such questions.

Ins. Cos. v. Weides, 81 U.S. 375, 20 L. Ed. 894, 1871 U.S. LEXIS 1003, 14 Wall. 375 (U.S. 1872) (emphasis added).

Most other cases around the country, including Tennessee, confirm that the insurer may only request documents and ask questions that are material to the loss.  However, many courts also recognize that the cooperation clause is broad so it is best to err on the side of caution when dealing with whether a request is material to the claim. Of course, every claim is unique and some questions may be material and the same question in the context of another claim may not be material.  It’s important to seek counsel from a qualified attorney if you feel you have a complicated issue regarding the materiality of an insurer’s inquiry.

What is an Examination Under Oath?

If you’re reading this blog, chances are you (or someone you represent) has been requested to submit to an examination under oath by your insurance company’s attorney.  This process can be intimidating and confusing.  I field a lot of questions from insureds, public insurance adjusters, and attorneys about examinations under oath (“EUOs”).  As a general rule, you need to understand that, although an EUO is not part of a court proceeding, it is taken under oath, so anything you say can (and likely will) become a part of the court’s record if your claim is taken to litigation.  Therefore, it is crucial for you to understand the importance of the EUO in relation to your claims process as well as how the insurance company may utilize it to deny your claim.  Here are some of the most common questions I get asked about EUOs:

  1.  What is an Examination Under Oath? – In the past, insurance companies utilized their own adjusters to conduct EUOs, but due to the legal nature of the questioning and the consequences, EUOs are now almost exclusively conducted attorneys for the insurance company.  You will be asked to bring several documents in support of your claim and you will be asked questions about those documents and specific questions about the loss by the attorney. EUOs are often demanded when there are red flags for fraud, strange circumstances, large claims, potential problems with the application for insurance, etc.  There will be a court reporter present, you will swear to tell the truth, and the lawyer will ask you questions, often for hours.
  1.  Do I have to attend or cooperate with the Examination Under Oath process? Yes.  Your insurance policy has a section that provides you, as the insured, have a duty to cooperate with your insurance company’s investigation, including submitting to an examination under oath.  However, you may not have to answer every question or provide every document – I plan to address the cooperation clause of the insurance policy in more detail in a later blog.  For now, it is important to know that you need to cooperate with your insurance company as your failure to do so may result in the denial of your claim.
  1.  Do I need an attorney on my side?  The short answer is yes. I would advise anyone who has been requested to submit to an EUO to be represented by an attorney experienced with the examination under oath process within the context of first party insurance claims.  An attorney experienced with EUOs can prepare you for the types of questions you will face, assist in the gathering (and presenting) of documentation, streamline and coordinate communication with the insurance company, and assist you in making strategic decisions, all of which can impact whether your claim is paid or denied. If you handle it on your own, you may do irreparable harm to your claim.
  1.  But I’ve already answered an adjuster’s question that he recorded; do I still have to submit to an EUO?  Yes.  This is quite common.  If your claim is being investigated to the degree that you have been requested to submit to an examination under oath, you have likely already been questioned extensively by the special investigator for your insurance company, maybe even more than once.  Often, these questions can give valuable insight to your attorney as to the nature of the red flags that triggered the request for an EUO.
  1.  I didn’t do anything wrong, why am I being investigated?  Insurance companies get thousands of claims a year.  Consequently, they send insurance claims into the examination under oath process for a variety of reasons.  Some reasons are more serious than others and some reasons are legitimate while other reasons seem to be trivial. That is why it is so important to consult with an experienced attorney to be sure you are receiving the best advice possible.  Your claim’s outcome may very well depend on it.