Over the past couple of days, that’s a phrase I’ve heard several times, and its an issue that raises an interesting question —  Are insurance agents potentially liable for the flood damage suffered by Tennessee residents across the state?  I think the answer is yes.  

This is really a more complicated question than one might think, but one thing is for sure in Tennessee and that is an insurance agent has a duty to his client, the insured, to make sure that he or she is appropriately insured.  In fact, the very reason people use insurance agents is to gain the benefit of having someone on their side who is inside the industry, knows the language, and to advise them as to what additional coverages that might be necessary.  

One common recurring theme is the scenario in which the agent never mentions flood insurance at all.  There was no reference at all to the fact that flood damage is excluded from general residential and commercial policies, no mention of the fact that flood damage is available at an additional cost, and no advice at all concerning the uninsured flood risk.   I believe this scenario can create liability for the agent for the otherwise uninsured flood loss.  

My read on Tennessee agent liability law is that it is much more favorable than many of our sister states.  There are several cases that provide some sound principles for trial courts to follow in the circumstances that face us.  For example, the Tennessee Court of Appeals has expressly held that an insurance agent cannot unilaterally make a decision as to whether or not a consumer needs certain coverage, but rather the agent has a duty, as a matter of law, to educate the client and give him or her the option of obtaining the additional coverage.  This is a sound principle that resonates with common sense.  People rely on their agents to help them understand complicated insurance policies that 95% of the population doesn’t even read, much less understand.  If there is a gap in their coverage, they rely on their agent to advise them of that fact.  If an agent fulfills that obligation, then the consumer can make an informed decision about whether to take on the additional premiums.  

I would encourage anyone who was shocked to learn that they don’t have insurance coverage for flood damage to contact a qualified attorney.  My firm, Gilbert Russell McWherter PLC, is offering free consultations to those who believe they may have a claim.  Even if you don’t, we’re happy to field calls from all affected citizens and to offer practical advice on getting past these incredibly difficult times.

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Photo of Brandon McWherter Brandon McWherter

J. Brandon McWherter is a Nashville-based lawyer and member of McWherter Scott & Bobbitt PLC, which has offices across the State of Tennessee and elsewhere across the Southeast.  Licensed in Tennessee, Arkansas, and Mississippi, he has dedicated his practice to assisting insurance…

J. Brandon McWherter is a Nashville-based lawyer and member of McWherter Scott & Bobbitt PLC, which has offices across the State of Tennessee and elsewhere across the Southeast.  Licensed in Tennessee, Arkansas, and Mississippi, he has dedicated his practice to assisting insurance policyholders with their claims against insurance companies, including claims for bad faith.

For well over a decade, McWherter’s practice has been focused almost exclusively on the prosecution of first party property insurance claims for policyholders.  His interest in this area of the law first started around 2003 when a tornado struck Jackson, Tennessee, where he lived and worked at the time.  Since then, McWherter has represented hundreds or thousands of policyholders whose claims have been underpaid or denied.  He advises and advocates for owners of commercial properties, industrial facilities, residential properties, churches, business owners, and other insurance policyholders.

Since he started counting in 2013, McWherter has assisted his clients in obtaining well in excess of One Hundred Million Dollars ($100,000,000) in settlements, awards, and jury verdicts against insurance companies.

In 2018, McWherter was inducted as a fellow in the American College of Coverage Counsel, which is an invitation-only organization designed to facilitate and encourage the association of lawyers who are distinguished for their skill, experience, and high standards of professional and ethical conduct in the practice or teaching of insurance coverage and extra-contractual law and who are dedicated to excellence in this area of practice.

McWherter has been featured as a “Super Lawyer” or “Rising Star” by SuperLawyers every year since 2010.  Since 2013, he has been selected each year  for inclusion in U.S News and World Reports’ The Best Lawyers in America in the field of Insurance Law.  He also enjoys an AV Preeminent ranking by Martindale-Hubbell for legal ability and ethical standards.

Mr. McWherter is a lifelong Tennesseean and received his law degree from the University of Memphis. While in law school, he was a member of the University of Memphis Law Review, and served on the Editorial Board as Notes Editor.

In advocating for clients, McWherter has trudged through fire scenes and crawled storm-damaged roofs, quizzed consulting construction experts and experts for hours on end, and deposed and cross-examined hundreds of adjusters, experts, consultants, and other professionals within the insurance industry.  He reads insurance policies nearly every day and has a working knowledge of the customs and practices of insurance companies in investigation, estimating, and payment of claims.  McWherter counsels clients on presentation of claims, assists in compiling the evidence necessary to validate the amounts owed, and then enforces his clients’ rights, if necessary, via the judicial system and other alternative dispute resolution options, such as appraisal.

Several of McWherter’s cases have developed the law governing insurance disputes in the State of Tennessee, most recently including the Tennessee Supreme Court’s 2019 decision in Lammert et al. v. Auto-Owners Ins. Co., which held that insurers may not depreciate the costs of labor in determining their actual cash value payment obligations when the policy does not clearly allow it.

When not working, you will usually find Mr. McWherter with his wife, Angela, and his two daughters. He is an avid golfer and a lifelong bass fisherman, neither of which he does as often as he would like.

Practice Areas

  • Representation of policyholders in claims and litigation against insurance companies
  • Bad faith insurance litigation
  • Insurance-based consumer class actions

Professional Associations

  • Tennessee Bar Association
  • Arkansas Bar Association
  • Mississippi Bar Association
  • Tennessee Trial Lawyers Association
  • American Trial Lawyers Association (past member)
  • American Bar Association (past member)

Education

  • B.S.B.A. – Union University (1998)
  • J.D. – University of Memphis (2001)

Bar Admissions

  • Tennessee
  • Mississippi
  • Arkansas
  • Fifth Circuit Court of Appeals
  • Sixth Circuit Court of Appeals
  • United States District Court for the Western District of Tennessee
  • United States District Court for the Middle District of Tennessee
  • United States District Court for the Eastern District of Tennessee
  • United States District Court for the Northern District of Mississippi
  • United States District Court for the Southern District of Mississippi
  • United States District Court for the Eastern District of Arkansas