Gordon & Rees’ Hurricane Ian Team Offers Unique Services for Insurers

By , , and on October 20, 2022
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Gordon & Rees’ team of experienced lawyers are here to help insurers address and meet the claims handling challenges resulting from Hurricane Ian. With offices in Tampa and Miami and attorneys throughout the state, our lawyers have assisted clients with the unique issues presented by other catastrophes, including Hurricane Andrew, Hurricane Charley, Hurricane Irma, and Hurricane Michael.

Our team has the experience and resources necessary to provide your claims department and individual claims professionals with the support necessary to manage a catastrophic claims volume promptly, efficiently, and effectively, while navigating the legal issues and changing regulatory environment resulting from Hurricane Ian. The experience and services offered by Gordon & Rees’ Hurricane Ian Team include:

  • Catastrophe Claims Handling Assistance: We support insurers and facilitate the prompt and efficient handling of the high volume of claims that result from disasters like Hurricane Ian. We can work with your team to develop catastrophe protocols, claims prioritization, investigation checklists and guidelines, and templates for reservation of rights letters and protocols to ensure the orderly and prompt payment of claims. We can coordinate loss inspections and investigations, take examinations under oath, assist with fraud detection, and quickly provide legal opinions on coverage issues as they arise.
  • Claims Handling Statutes and Regulations: Compliance with unfair claims handling statutes, regulations, and executive orders present challenges for insurers due to abbreviated response requirements for a high volume of multijurisdictional claims. Insurers that do not implement procedures to ensure compliance with claims handling statutes and insurance regulations may face extra-contractual exposure. Gordon & Rees lawyers can assist with the interpretation of and compliance with applicable statutes and regulations.
  • Litigation Coordination: We work with insurers to develop and create action plans for post-hurricane litigation to improve outcomes, create uniformity, and ensure cost efficiency for hurricane litigation operations.  To that end, we assist insurers in monitoring performance and offering oversight and guidance of the hurricane litigation process to ensure that efficiencies and optimizations of action plans are being realized.  In addition, we develop coverage strategies and dispositive motions for the application of policy exclusions and endorsements as they relate to preexisting damage and other non-covered perils and develop consistent defense litigation strategies by working closely with insurers and their defense counsel to determine overall strategy and effectiveness in pre-trial, trial, and appellate matters. We are currently working with several clients and forensic meteorologists to carefully analyze the most up-to-date meteorological data to ensure the most accurate assessment of wind versus water and to evaluate the chronology of various perils based on specific loss locations.
  • Alternative Dispute Resolution: Gordon & Rees’ Hurricane Ian Team is experienced in various alternative dispute resolution methods.  In addition, members of our team are also Florida Circuit Civil Mediators certified by the Supreme Court of Florida and experienced in mediating and arbitrating a broad range of civil disputes, including Insurance Coverage Disputes, Forced Placed Insurance, Priority of Coverage, and Bad Faith disputes. Our experience both litigating and mediating provides us with a heightened appreciation of the expense and risk of litigation and we work closely with our insurance clients and can assist with Hurricane Ian claim disputes to find prompt and efficient resolution of claims through appropriate alternative dispute resolution processes to achieve an early resolution and minimize expense, where possible.
  • Appellate Experience and Trial Consulting: Gordon & Rees’ Hurricane Ian Team has several experienced appellate attorneys who are skilled in identifying potential appellate issues arising out of Hurricane Ian. Our attorneys work with insurers pre-suit to address potential disputes that might raise appellate issues as well as issues of first impression. We frequently represent insurers in cases involving cutting-edge areas where the case law is still developing, and where the result is likely to have portfolio-level implications for our clients. Our in-depth knowledge of the insurance industry, gained from decades of experience, provides us with the unique ability to understand and meet our clients’ needs and goals. In addition to direct representation of parties to an appeal, we have filed amicus briefs on behalf of insurance industry organizations regarding issues of special importance to the industry. Our appellate counsel has substantial experience attending trial to preserve issues for appeal and will provide candid and objective advice to clients on the important initial question of whether to pursue an appeal or writ petition.
  • Business Interruption Claims: Business interruption claims present significant exposure to insurers. Business interruption insurance typically applies when the interruption results from direct physical loss of or damage to covered property as a result of a covered peril. First-party property policies may include civil authority and ingress/egress provisions that implicate coverage otherwise excluded. We can help you interpret policy language and exclusions pertinent to business interruption claims and provide practical advice and solutions to resolve these claims. Our attorneys have litigated business interruption issues throughout the United States, including claims that resulted from the 9/11 terrorist attacks and Hurricane Charley, Hurricane Katrina, Hurricane Sandy, Hurricane Irma, and Hurricane Michael.
  • Contingent Business Interruption Claims: Many first-party property policies provide coverage for contingent business interruption losses caused by physical loss of or damage to the property of the insured’s suppliers or customers as a result of a covered peril. Under these provisions, insureds throughout the country, or around the world, may seek coverage for contingent interruption losses due to suppliers or customers affected by Hurricane Ian. Our team can help you navigate the unique legal issues that result from these claims.
  • Flood Versus Wind/Rain Causation: Disputes over the cause of property damage or loss resulting from a hurricane are inevitable. First-party property policies often cover damage resulting from wind and wind-driven rain, but exclude or limit coverage for damage resulting from flood water. Hurricane Ian produced high winds and extensive flooding. The resulting property damage will lead to coverage disputes over the cause of the damage. Our attorneys can provide advice on the investigation and determination of coverage and, when necessary, litigate wind versus flood causation disputes.
  • Extra Expense Coverage: First-party property policies typically provide coverage for costs incurred by an insured to prevent, limit or mitigate future damages by minimizing the disruption of operations. Gordon & Rees’ Hurricane Ian Team has experience analyzing the policy language and factual circumstances to determine whether costs incurred by insureds qualify for extra expense coverage.
  • Additional Living Expenses: Additional Living Expense (“ALE”) claims by homeowners are expected to be significant given the widespread geographic storm surge resulting from Hurricane Ian. Gordon & Rees lawyers have managed and, when necessary, litigated ALE claims following hurricanes over the past 20 years.
  • Errors and Omissions Claims: As with other catastrophes, uninsured or underinsured storm victims may assert errors and omissions claims against their insurance agents or brokers. Our experienced insurance attorneys can assess coverage under professional liability policies in response to these claims, and Gordon & Rees’ professional liability defense team also can defend these claims throughout the region.

Retaining insurance counsel to address Hurricane Ian insurance coverage issues can help insurers manage their risk and mitigate their losses, while providing prompt and fair claims management to insureds. With more than 200 years of experience in Florida, collectively, and more than 1,000 attorneys throughout the country, Gordon & Rees is uniquely positioned to help you meet the challenges presented by Hurricane Ian.

Filed under Appellate, Catastrophic Property Loss

Florida’s Approach to the Assignability of Post-Loss Benefits

By and on February 23, 2016
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Background

In Bioscience West, Inc. v. Gulfstream Prop. & Cas. Ins. Co., No. 2D14-3946, 2016 WL 455723 (Fla. 2d DCA Feb. 5, 2016), the Second District Court of Appeal affirmed the rule in Florida that insureds may, without the insurer’s consent, assign post-loss benefits of an insurance policy to a third party, whether or not the insurance policy contractually prohibits assignment of the policy.

The facts are simple enough: The insured, Elaine Gattus, purchased homeowner’s insurance from Gulfstream Property and Casualty Insurance Company. After executing the policy, Gattus’ property suffered water damage. She then engaged plaintiff Bioscience West to perform “emergency water and removal construction services.” Rather than directly compensating Bioscience West for its services, Gattus assigned the contractor her benefits due under the policy without Gulfstream’s knowledge or consent.

Gulfstream denied coverage, leading Bioscience West to file suit for breach of contract. Gulfstream successfully moved for summary judgment. The circuit court noted the policy’s express language prohibiting the insured from transferring “this policy” to a third party without Gulfstream’s written consent. Bioscience West appealed to the Second District Court of Appeal.

On appeal, Bioscience West’s principle contention was that although the entire policy cannot be assigned absent Gulfstream’s consent, there is no such prohibition for the assignment of a “benefit derived from the policy” once it has accrued. The appellate court agreed with Bioscience West’s position that notwithstanding the policy’s valid prohibition on assignment of the entire policy, the policy as written did not have the effect of prohibiting the post-loss assignment of the right to receive benefits under the policy. In so doing, the court drew the distinction between assignment of the entire policy versus a right thereunder.

It was on these grounds that the Court was able to dispose of the primary issue on appeal, but it nonetheless went on to explain that even if there was language in the policy restricting such an assignment, such language would be of no moment because “Florida case law yields deep rooted support for the conclusion that post-loss assignments do not require an insurer’s consent.”

Other Districts

Relying on the 1918 Florida Supreme Court case W. Fla. Grocery Co. v. Teutona Fire Ins. Co., 77 So. 209 (1918),the First, Second, Third, Fourth, and Fifth districts all follow the rule forwarded by Bioscience West that, although an insurance provider may contractually prohibit or limit outright assignment of an entire insurance policy, post-loss insurance claims are freely assignable, whether or not the insurer consents. Federal courts in Florida have also adopted without exception and alteration the Florida Supreme Court and the five districts’ approach to post-loss assignments of benefits derived from an insurance policy.

Analysis & Implications

At first blush, the assignment of post-loss rights may seem as though it is all pain and no gain for insurers, when there may, in fact, be some benefit. For example, in a case where a plumbing leak, if not swiftly repaired, would lead to substantial damage, the ability to assign a claim could encourage insureds to take prompt action to repair, thereby mitigating damages. In this regard, the Second District concluded that “it is imprudent to place insured parties of the untenable position of waiting for the insurance company to assess damages any time a loss occurs” and that the exigencies of the situation typically render the “unexpected loss event [ ] a time-sensitive procedure” aided by the flexibility afforded under post-loss assignments.

There is, however, a caveat to such post-loss assignments in cases where coverage for a particular incident is disputed. When coverage is disputed, such assignments are inherently prone to the risk that insurers may be sued by assignees of post-loss benefits for breaching the insurance policy when, in reality, there may be no coverage for the loss in the first place. As was the case in Bioscience, the assignor-insured and assignee-contractor executed a general release, thereby precluding an action by the assignee against the assignor for the fees of its work, and will likely contain a waiver of the assignee-contractor’s right to pursue payment via a mechanic’s lien on the repaired property. Thus, even if a claim is clearly beyond the scope of a policy’s coverage, such assignees have an incentive to institute litigation to collect under the policy, even in doubtful circumstances. Meanwhile, the insured is provided with the potential windfall of cost-free repairs for property damage that otherwise would have not been covered under the policy. Rather than venture into a thicket of weighing competing interests, the court in conclusion explained that it is “mindful that there are competing policy considerations here” but declined to address them as such “considerations are for the legislature to decide, not our court.”

Filed under Consent to Assignment

Florida District Court Finds That Settlement Can Trigger Bad-Faith Claim

By and on November 11, 2014
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Florida’s Fourth District Court of Appeal recently ruled that an insured need only establish an insurer’s coverage obligation and the extent of damages, and not the insurer’s liability for breach of contract, to be permitted to proceed with a bad-faith claim under Section 624.155(1)(b)1 of the Florida Statutes.

INS BLOG_hurricaneIn Cammarata v. State Farm Florida Insurance Co., 2014 Fla. App. Lexis 13672 (September 3, 2014), the insureds (homeowners) were two of many South Florida residents who sustained damages as a result of Hurricane Wilma, which hit the coast on October 24, 2005.  Nearly two years later, the insureds filed a claim with their homeowners’ insurer.  The insurer inspected the home and, having estimated the amount of damages to be lower than the policy deductible, advised that the policy had not been triggered.  The parties then participated in an appraisal process, with the insureds’ appraiser submitting an estimate higher than the policy deductible and the insurer’s appraiser submitting an estimate lower than the policy deductible. Pursuant to the policy, the insureds filed a petition requesting that the circuit court appoint a neutral umpire.  The umpire issued an estimate higher than the policy deductible (although lower than the insureds’ appraiser’s estimate), and the insurer paid the amount, minus the deductible.  The insureds then filed a bad-faith action against the insurer under Section 624.155(1)(b)1 of the Florida Statutes.

The parties filed cross-motions for summary judgment.  In its motion, the insurer argued that because its liability for breach of contract had not been determined the insureds’ bad-faith action was not ripe.  In response, the insureds argued that only an insurer’s liability for coverage and the extent of the damages covered must be determined for a bad-faith claim to mature.  The trial court granted the insurer’s motion.

The Fourth District Court of Appeal reversed, holding that the determination of the existence of liability and the extent of an insured’s damages are the conditions precedent to a bad-faith action, and that those conditions may be established by a settlement paid by the insurer.  In so holding, the Fourth District receded from its prior decision in Lime Bay Condominium, Inc. v. State Farm Florida Insurance Co., 94 So.3d 698 (Fla. 4th DCA 2012), relied upon by the insurer, in which the Fourth District held that an insurer’s liability for breach of contract must be determined before a bad-faith action becomes ripe, harmonizing that decision with its decision in Trafalgar at Greenacres, Ltd. v. Zurich American Insurance Co., 100 So.3d 1155 (Fla. 4th DCA 2012), in which the Fourth District ruled that an appraisal award issued after an insured filed a breach of contact claim satisfied the necessary prerequisite of obtaining a “favorable resolution” prior to filing a bad-faith claim.

In Cammarata, the Fourth District relied upon the Florida Supreme Court’s decisions in: 1) Blanchard v. State Farm Mutual Automobile Insurance Co., 575 So.2d 1289 (Fla. 1991), addressing an insurer’s claim that an insured must bring a bad-faith claim together with an underlying breach of contract claim, in which the court held that “[a]bsent a determination of the existence of liability . . . and the extent of the [insured’s] damages, a cause of action cannot exist for bad faith”; and 2) Vest v. Travelers Insurance Co., 753 So.2d 1270 (Fla. 2000), addressing a claim for bad faith based upon an insurer’s payment of policy limits after the filing of a bad-faith action, in which the court held that the existence of liability and the extent of an insured’s damages can be established based “upon a settlement,” thereby ripening a bad-faith claim.

The Fourth District Court of Appeal reversed and remanded for reinstatement of the insureds’ bad-faith action, noting that it was not taking any position on whether that action has any merit.

Image courtesy of Flickr by NASA Goddard Space Flight Center.

Filed under Appraisal, Bad Faith

Property Damage in a Digital Age: Florida District Court Confirms That Coverage for “Property Damage” Excludes Electronic Data

By and on October 31, 2014
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In Carolina Casualty Insurance Co. v. Red Coats, Inc. d/b/a Admiral Security Services, Inc., the U.S. District Court for the Northern District of Florida ruled that the cost to provide free credit protection services to individuals whose confidential medical information was contained on stolen laptop computers did not constitute “property damage” under two commercial general liability insurance policies.

The insured (Red Coats, Inc.), a full-service contract management company that provides security, janitorial and alarm services, entered into a contract with AvMed, Inc., a provider of health coverage plans to members and subscribers throughout Florida, to provide security services at AvMed’s Gainesville, Florida, facility.  Shortly thereafter, two of AvMed’s laptop computers were stolen from its Gainesville facility.  As HIPAA-protected information was contained on at least one of the stolen laptops, AvMed notified the affected subscribers/members and provided each of them with two years of free credit protection services.

AvMed thereafter filed suit against Red Coats, alleging that one of Red Coats’ security guards committed the subject theft (alleging claims against Red Coats for breach of contract, fraud, negligent hiring, retention and supervision, and vicarious liability).  Red Coats then made claims against each of its five insurers (including two commercial general liability carriers, an employment practices liability carrier, and two crime carriers), all of which denied coverage.  After Red Coats and AvMed settled their dispute, Red Coats’ employment practices liability carrier filed a declaratory judgment action, seeking a decree of no coverage.  In response, Red Coats counterclaimed against each of its insurers.  The parties filed cross-motions for summary judgment, which were decided by the court on April 22, 2014 (the crime carriers resolved prior to the disposition of summary judgment).

The commercial general liability policies defined “property damage,” in pertinent part, as “loss of use of tangible property that is not physically injured.” Notably, those policies specifically excluded from the definition of tangible property “electronic data,” defined as “information, facts or programs stored as or on, created or used on, or transmitted to or from computer software, including systems and applications software, hard or floppy disks, CD-ROMS, tapes, drives, cells, data processing devices or any other media which are used with electronically controlled equipment.”

The U.S. District Court for the Northern District of Florida ruled that, with regard to Red Coats’ commercial general liability policies, “the loss of use of the laptops was not the problem – AvMed has a lot of other laptops – the problem was that others could access the HIPAA data.  At best, the only coverage would be [the] cost of getting new laptops; there would be no coverage for the HIPAA information and any other data or programs on them, since they would represent electronic data, which is expressly excluded from coverage.  Simply put, this is not property damage in any ‘man on the street’ definition of the term. . . . [I]t is an economic loss claim which is not covered by the [commercial general liability policies].”  The court also rejected Red Coats’ argument that coverage existed under its employment practices liability policy.

Red Coats has appealed the Northern District’s decision to the Eleventh U.S. Circuit Court of Appeals (with briefing to be completed by November 14, 2014).

Filed under Electronic Data, HIPAA-Protected Information, Loss of Use, Property Damage