In a recent opinion by the U.S. District Court for the Middle District of Tennessee, Judge Sharp denied an insurance company’s motion for summary judgment seeking dismissal of an insured’s claim for statutory bad faith. The case is New Hampshire Ins. Co. v. Blackjack Cove, LLC, 2014 U.S. Dist. LEXIS 40122 (M.D. Tenn. March 26,
Brandon McWherter
Is Cosmetic Roof Damage a “Direct, Physical Loss?”
By Brandon McWherter on
Posted in Bad Faith, Coverage Issues
I recently represented the owner of a commercial property in a hail damage claim in which the metal roof was clearly dented by hail. Remarkably, the insurance company denied the claim on the basis that the roof was still functional. In the process of working with the opposing lawyer to obtain payment, I ran across…
Punitive Damages for Failure to Pay on an Insurance Policy?
By Brandon McWherter on
Posted in Bad Faith
The issue of whether punitive damages are available to an insured when an insurance company wrongfully denies a claim was recently addressed by the Tennessee Court of Appeals in Riad v. Erie Insurance Exchange. Over the years, this issue has been confused by many state and federal courts in Tennessee, but the Riad court…
Commas and Sentence Structure are Important After All
By Brandon McWherter on
Posted in Coverage Issues
The Tennessee Court of Appeals’ recent decision in Artist Building Partners v. Auto Owners Mut. Ins. Co. serves as an important reminder in coverage disputes that any ambiguities will be strictly construed against the insurance company and in favor of coverage. Tennessee courts have made clear over and over again that any language in an…
What Constitutes a True “Coverage” Issue in Appraisal?
By Brandon McWherter on
Posted in Appraisal
With the proliferation of appraisal demands, the ins and outs of appraisal in Tennessee will begin to take shape through the judiciary. In Artist Building Partners v. Auto-Owners Mut. Ins. Co., the Court of Appeals recently made clear that it will not disturb the binding nature of an appraisal award.
For a little history…
Is Prejudice Required to Avoid Recovery for Failure to Submit to an Examination Under Oath?
By Brandon McWherter on
Posted in Examinations Under Oath
Back in 2009, Parks wrote about the Spears v. TFMIC case and correctly cited it for the proposition that an insured must submit to an examination under oath upon request, and that a failure to do so can bar recovery on an insurance claim. Notably absent from the Spears opinion was any requirement of prejudice…
TN Court of Appeals Impliedly Recognizes Claim for Common Law Bad Faith
By Brandon McWherter on
Posted in Bad Faith
You might recall the 2011 legislation that took away consumers’ right to bring claims against insurance companies under the Tennessee Consumer Protection Act, but that same legislation seemed to recognize the existence of a common law cause of action for bad faith in Tennessee. (click here for a prior post on that topic). Since that…
TN Farm Bureau Changes its Coverage on Roof Claims
By Brandon McWherter on
Posted in Miscellaneous
I recently learned that Tennessee Farmers Mutual Insurance Company (Farm Bureau) has changed the way it will pay roof claims. Specifically, a recent endorsement changes roof coverage to actual cash value for roofing materials instead of replacement cost. This means that roof materials will be depreciated in the event of a roof claim. For example…
The Law of California Applies to an Insurance Policy Insuring Tennessee Property?
By Brandon McWherter on
Posted in Coverage Issues
Practitioners should be aware that Tennessee courts generally apply the law of the state where an insurance policy was issued and delivered if there is no enforceable choice of law clause in the policy. Gov’t. Employees Ins. Co. v. Bloodworth, 2007 Tenn. App. LEXIS 404 (Tenn. Ct. App. 2007). So, for example, if a policy…
Does Arson Constitute Vandalism?
By Brandon McWherter on
Posted in Coverage Issues
I represented a Memphis homeowner a couple of years ago whose residential rental property was destroyed by fire. The policy provided coverage for fire loss, but contained an exclusion for "vandalism and malicious mischief . . . if the dwelling has been vacant for more than 30 days immediately before the loss." In our case, it was undisputed that the…