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
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
By Brandon McWherter on Posted in Claim Tips,Coverage IssuesNot so fast Mr. Adjuster, my assignment of claim is valid even if the insurance policy says its not. Time and time again, contractors and purchasers of property impacted by a loss have come to me complaining that insurance carriers won’t honor an assignment of an insurance claim. Generally, the reason given by the insurance carrier is… Continue Reading
By Brandon McWherter on Posted in Coverage IssuesParks 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… Continue Reading
By Brandon McWherter on Posted in Claim TipsAs 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… Continue Reading
By Brandon McWherter on Posted in Coverage Issues,Miscellaneous,Uncategorized,Valuation IssuesSeveral 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).… Continue Reading
By Brandon McWherter on Posted in Coverage IssuesMost 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… Continue Reading
By Brandon McWherter on Posted in Claim Tips,Examinations Under Oath,MiscellaneousWhen 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… Continue Reading
By Brandon McWherter on Posted in Examinations Under OathIf 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… Continue Reading
By Brandon McWherter on Posted in Coverage Issues,Litigation Tactics,MiscellaneousBack in November 2013, I had the great honor to represent Larry and Sue Banks in their case against Cincinnati Insurance Company. My partner, Clint Scott, and I presented the case to a federal jury and after deliberations, the jury returned a verdict for more than $2.2 million. The insurance company accused the Banks of… Continue Reading
By Brandon McWherter on Posted in Coverage Issues,Litigation Tactics,MiscellaneousIn the past, I’ve posted a few articles regarding the recent trend of insurers to attempt to deny hail damage claims on the basis that the damage is “cosmetic” rather than “functional.” Most commonly, the issue arises when there are hail dents to a metal roof and the insurance company denies the claim on the… Continue Reading
By Brandon McWherter on Posted in Claim Tips,Litigation TacticsYesterday, the Court of Appeals issued yet another decision concerning when a lawsuit must be filed in order to be timely. In a well-reasoned and fair opinion authored by Judge Gibson, the Court of Appeals made clear once again that the question of when a claim accrues is fact intensive and requires a knowledge and… Continue Reading
By Brandon McWherter on Posted in Bad FaithIn June of this year, Judge Tom Anderson joined the ranks of other judges in Tennessee that have held that punitive damages can be awarded against an insurance company for breach of an insurance contract, if the breach was intentional, malicious, reckless, or malicious. The case was Carroll v. Nationwide Property & Casualty Company, 2015 U.S. Dist. LEXIS 73674… Continue Reading
By Brandon McWherter on Posted in Valued Policy LawTennessee is a valued policy state, which means that in most instances an insurance company must pay policy limits in the event of a “total loss.” Back in 2009, Parks and I offered some differing viewpoints about what a total loss is or should be (see here and here). One of the issues we discussed… Continue Reading
By Brandon McWherter on Posted in Bad Faith,Consumer Protection ActIn Brooks v. Tenn. Farmers Mut. Ins. Co., 2014 Tenn. App. LEXIS 776 (Tenn. Ct. App. Nov. 26, 2014), an insured’s home was damaged by a tornado and an independent adjuster hired by the insurance company offered the homeowner $56,788 to resolve the claim. The homeowner disagreed with the estimate and refused to settle the claim… Continue Reading
By Brandon McWherter on Posted in Claim Tips,Coverage IssuesA hail storm hits a shingled roof, but only damages a handful of shingles. Unfortunately, the shingles on the roof are no longer manufactured, which would result in a mismatched checkerboard of colors on the roof if only the few damaged shingles were replaced. In those circumstances, is the insurance company obligated to replace the… Continue Reading
By Brandon McWherter on Posted in Bad Faith,Coverage IssuesInsurance companies are increasingly denying claims based on engineering reports that there is “no functional damage” (damage which impairs the functionality of the roof) and that the damage is “cosmetic only.” For example, if a hail storm comes through and wreaks havoc on a metal roof to a home, it might still be functional even… Continue Reading
By Brandon McWherter on Posted in Bad Faith,Coverage IssuesI 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… Continue Reading
By Brandon McWherter on Posted in Bad FaithThe 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 got… Continue Reading
By Brandon McWherter on Posted in Coverage IssuesThe 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… Continue Reading
By Brandon McWherter on Posted in AppraisalWith 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 lesson,… Continue Reading
By Brandon McWherter on Posted in Coverage IssuesPractitioners 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 on… Continue Reading
By Brandon McWherter on Posted in Valued Policy LawConsider this scenario – – Jane Doe insures her home for $100,000, with a $1,000 deductible. Unfortunately, Jane’s house burns to the ground and is undeniably a "total loss" within the meaning of Tennessee’s valued policy statute (click here for a prior post on when a loss should be considered a "total loss"). After months… Continue Reading
