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

Okay, So It’s Not Strictly Coverage, But You “Gotta” Know About Medical Expenses…

We don’t usually post liability related matters on this blog, but every once and a while there is a ruling that warrants mention.  That ruling was issued today by the Tennessee Supreme Court in Dedmon v. Steelman W2015-01462-SC-R11-CV (click on case for full copy of opinion).  While I may disagree with the result, it is an extremely well written opinion from Judge Kirby.  The bottom line is that the Tennessee Supreme Court unanimously held Tennessee law does allow plaintiffs to use the full, undiscounted amount of medical bills to prove their medical expenses instead of the discounted amounts paid by insurance companies and accepted by medical providers. The defense is no longer even permitted to introduce the amount of the discounted bills period.  I commend the full opinion to your reading, as it contains an excellent overview and history of the collateral source rule, as well as detailed analyses of the differing rationales used by other courts to allow introduction of those discounted and accepted medical expenses.

 

MS Insurance Commissioner Issues Bulletin Regarding Labor Depreciation

This past Friday (Aug. 4, 2017), Mississippi’s Insurance Commissioner, Mike Chaney, issued a bulletin that alerts insurers that they should not be depreciating labor in Mississippi unless policy language clearly allows it, and even then, estimates must clearly delineate that labor was depreciated.  I’ve quoted the bulletin below:

It is the purpose of this Bulletin to provide the position of the Mississippi Insurance Department regarding the depreciation of labor expenses by an insurer in the adjustment of property loss claims.

There is no statutory law in Mississippi prohibiting the practice of labor depreciation in the adjustment of property loss claims.  If such a practice is used, the insurer should clearly provide for the depreciation of of labor in the insurance policy. Likewise, if material and/or labor depreciation is applied, the insurer should clearly set any such depreciation on the claim estimate furnished by the insurer.

This bulletin shall not apply to automobile physical damage claims

The bulletin can be found here.

Commissioner Confirms Insurers Must Pay for Matching

Parks recently posted about the new Rules adopted by the Tennessee Commissioner of Insurance that go into effect on October 9, 2017.  The first of those rules makes clear the purpose “is to set forth minimum standards for the investigation and disposition of claims.”  (Rule 0780-01-05-.01).  While there are plenty of items worthy of discussion in the Commissioner’s soon-to-be effective Rules, the one that stood out to me  relates to “matching.”  Here’s what the Rule says:

When the policy provides for the adjustment and settlement of first party losses based on replacement cost, the following shall apply:

. . .

(b) When a loss requires replacement of items and the replaced items do not match in quality, color or size, the insurer shall replace items so as to confirm 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.

0780-01-05-.10(1)(b).  This Rule confirms what I believed was previously already the law in Tennessee and that is that insurers must pay to match. The language adopted by the Commissioner is non-permissive in that it states that insurers “shall” match.  As for the statement that matching is required on both interior and exterior losses, that was a good addition due to the fact that many insurers in the past have agreed to pay for matching on the interior but not the exterior. For example, if a 1 x 1 square of sheetrock needs replacing, nearly all carriers will pay to paint the whole wall.  In contrast, if several shingles need replacing but can’t be matched, some insurers have taken the position they don’t owe to match.  Why the difference between inside and out?  I’d venture to say it has a lot to do with the cost – it might be a few hundred bucks to paint that wall but the roof would obviously be much, much more.

One other note concerning the comment to the Rule that Parks mentioned in his post.  Specifically, the Commissioner’s “Response to Comment 8” noted that the rule only applies to replacement of items and does not contemplate repairs.  In my view, this “clarification” is of no significance on most roof claims.  For example, if an existing damaged shingle can be repaired, then there is no matching problem anyway because the existing shingle stays.  But if a shingle is blown off or otherwise damaged such that it must be “replaced,” then the matching requirement is mandatory if “there is a deviation in quantity, color, or size of a replacement item.”

All in all, the Commissioner’s new rule should go a long way in confirming that Tennessee is indeed a “matching” state, just as I noted long ago in a prior post.

2017 TENNESSEE UNFAIR CLAIMS PRACTICES REGULATIONS – Replacement Cost Valuation Rules

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.

2017 TENNESSEE UNFAIR CLAIMS PRACTICES 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.