Parks Chastain recently authored a post here in which he opined that Tennessee’s valued policy statute should apply only to losses caused by fire, not wind.  I disagree. 

Tennessee’s valued policy statutes (T.C.A. 56-7-801 through 803) were enacted in 1927, and last edited just a few years later.  Read together, these statutory provisions, known as the "valued policy statute," require an insurer to inspect the insured premises within 90 days of issuing a "fire insurance policy," and if it fails to do so and "a loss occurs," then the face value of the policy is "conclusively presumed to be reasonable."  Therefore, the plain language of the statute doesn’t limit its application only to fire losses, but rather is phrased broadly to apply to all losses (that are total in nature).

Recognizing Parks’ focus on the language of the statutes that seem to limit their application only to "fire insurance policies," it is worth noting that there are "fire insurance policies" that insure against loss caused by risks other than fire.  See Ballard v. Farmers Mut. Fire Ins. Co., 1991 Tenn. App. LEXIS 799 (Tenn. Ct. App. 1991) (noting that a policy was called a "fire insurance policy" even though it insured against loss caused by fire, lightning or tornado).  Further, true "fire" policies no longer exist, or at least are exceedingly rare if they do.  In today’s insurance world, fire is one of many risks that has been incorporated into the modern commercial property and standard homeowner policies.  

Additionally, the valued policy statute is declared to be a remedial statute, and therefore must be liberally construed.  The clear purpose of the valued policy statute is to protect insureds from unscrupulous insurers which might otherwise over-insure property for the purpose of obtaining higher premiums, and then minimize or deny a claim after a total loss by taking the position that the property’s value is much less than the face value of the policy.  This purpose has been recognized over and over by Tennessee appellate courts, and there is obviously no reason to differentiate between the cause of the loss (fire v. wind) when interpreting the statute to effectuate that purpose. 

Finally, there is authority from our sister states which support my conclusion.  For example, see Caruso v. Allstate Ins. Co., 2007 WL 625830 (E.D. La. 2007) (interpreting Louisiana’s valued policy statute (which is similar to Tennessee’s) to apply to wind losses).

 

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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, Mississippi, and numerous federal courts, he has dedicated his practice…

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, Mississippi, and numerous federal courts, 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 Two Hundred Fifty Million Dollars ($250,000,000) 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
  • Eleventh 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
  • United States District Court for the Western District of Arkansas
  • United States District Court for the Northern District of Illinois
  • United States District Court for the Central District of Illinois
  • United States District Court for the Southern District of Illinois
  • United States District Court for the Western District of Texas
  • United States District Court for the Eastern District of Michigan
  • United States District Court for the Western District of Wisconsin