General Insurance Dispute Information

The Burden of Proof in an Insurance Claim

Published on: January 21, 2009 | By Berniard Law Firm

Should an insurance claim go to court, there is a strict process and shifting burden of proof when damage comes to your property. Whether dealing with a questionable cause to damage or if an exclusion prevents you from making a claim, the court takes a different approach that is necessary to understand when building your case.

While an insurance company policy often means to people a specific protection that seems simple enough, this is not the case. It is in fact the responsibility of the insured to prove whether or not a policy affords coverage for an incident. This burden of proof is heavily relied upon by insurance companies because, if it is not met, the insured is left out in the cold, regardless of how expensive premiums were or how confident they were in the the policy’s protection.

With this basis of a burden of proof on the insured to demonstrate the damage incurred is covered by their policy, this is not the case for policy exclusions. In regards to exclusions, it is the insurance company’s burden to prove that the exclusion is applicable to the incident in question.

Here is an example of how these burdens can play out:
A homeowner in Lafayette has windstorm protection. A heavy storm rolls through and a tree branch knocks in the roof. As the storm rages, the kitchen begins to fill with water. In the aftermath, the insurance company refuses to pay for the water stains and various other rain-based damages that come from the storm. The burden of law falls upon the homeowner to prove, through expert testimony and a fact pattern, that the tree branch was knocked down by the wind and that the water damage would have never occurred had the wind not damaged the tree and so on. However, if the insurance company maintained an exclusion that they would not insure tree damage from branches that hang within 5 feet of the home, it would be their responsibility to prove that the tree was, in fact, within the prevented distance.

As you can imagine, it is essential to have the best legal team possible to meet the burden of proof or disprove that of the insurance company’s.

Settlements and Payments of Claims

Published on: January 19, 2009 | By Berniard Law Firm

An insurance agency has a specific duty to settle and pay a claim that meets the required standards for an insured damage. This duty is set into motion when the claimant submits what is considered a “satisfactory proof of loss.” In Louisiana, the courts have held that satisfactory proof of loss is to be considered with reference to the relevant law and the policy itself.

In the case of Louisiana, the relevant general substantive law states that reporting requirements are inherently minimal and do not have a high threshold to satisfy. The Second Court of Louisiana has gone so far as to hold that there is no specific or particular form required for such a claim and, in some cases, may even just be simple verbal notification to the insurance agency itself. The basic purpose of the notification requirement by law is to alert the insurer of the facts of the event upon which the claim is being made.

However, when dealing with the proof of loss itself, insurance agencies often place very strict or rigid requirements for the actual means in which a claim is fully reported or demonstrated. While insurance companies may allege certain requirements such as filling out your claim with only their forms, these requirements are subject to the court’s review. Supporting this idea, courts will more often than not prevent insurers from restricting payouts on the basis of a technicality. The fact judicial discretion can settle this issue and that it is not explicitly clear by the word of law, though, makes this an important issue to always be ahead of.

When dealing with an insurance company, it is important to remain vigilant not only with paying premiums on time and following your end of the agreement to the most minor detail, but also with any claim process that should develop. By filling out a claim exactly as proscribed by the insurance agency as well as notifying them of any impending claim when the damage occurs, you begin setting yourself up for a solid claim defense should it be necessary. If the insurance company denies your claim on the grounds that the proper procedure was not followed, however, contact an attorney immediately to review your case.

Understanding insurance terms: “All Risk” Policy

Published on: January 16, 2009 | By Berniard Law Firm

There are a multitude of different insurance policies available for homeowners to protect their home or property from all the damages that can occur in life. Along with windstorm and flood policies, there are also insurance provisions that home owners hope will protect them no matter what happens. One such example is the “all risk” policy.

An “all risk” policy is oftentimes purchased by homeowners in the hopes that it will work, as it seems to describe, to protect the owner from anything that might happen. On the surface, an all risk policy sells itself as a wide umbrella of protection that secures its validity by appearing to be all that could be assumed from its name. However, such policies also showcase just how intricate and complex the specific coverage can be and just how vague insurance companies can make coverage in order to charge high premiums and prevent payouts.

An all risk policy covers all risks unless a risk is specifically included so as not to be covered. These exclusions serve to insulate the insurance company from various different calamities that they refuse to protect claim-holders from and often relate to elements of the environment that home or property owners assume the risk of damage incurring from.

For example, damage from “surface water” may very well be one of those items an all risk policy excludes. The courts in the state of Louisiana have held that surface water may be defined by policies as bodies of water that collect and build on the surface of the ground. It does not include rainwater, overflowing a rooftop and seeping into a home.

If you feel your all risk policy covers a damage and you are not receiving the adequate policy coverage you deserve, it is essential to go back over your policy and closely examine all inclusive and exclusive language. In the event you feel that your policy covers the damages that should fall under your all risk insurance plan, call the Berniard Law Firm.

Understanding terms: “Direct Loss” and “Proximate Cause”

Published on: January 14, 2009 | By Berniard Law Firm

When dealing with insurance plans and the intricate clauses involved, it is important to fully understand the language used. In utilizing terms like these, insurance companies embed vague, variable levels of damage responsibility so as to skirt responsibility in the event damage comes to your home under what is supposed to be a covered incident. What exactly is a direct loss? What is the proximate cause of a damage? The following will hopefully help you better understand your policy and how to go about receiving the compensation you deserve when damage comes onto you:

Direct loss or proximate cause relates to the dominate and efficient cause of your property loss. In proving the proximate cause of a harm, the courts have held that, through eye witness and/or expert testimony, the insured must prove that the related incident the plan covers was the “dominate and efficient” cause of the loss. As such, it relates to a factual, not subjective, determination by the court or jury.

For example, should your claim relate to wind damage, it would be necessary to prove in court that the proximate cause of your damage to be the wind involved in the related storm. To proceed, you would then bring in an expert on wind damage to tell the court that, were it not for the extreme winds involved in the event that caused damage, your property would not be harmed.

Understanding proximate cause is extremely important because it can cause an extreme hardship to individuals who are unable to prove it when making their claim. For instance, if it can be proven that flood damage would have occurred even without the strong wins, the court or jury may deny the claim in court, alleging the damage would instead only be covered by flood insurance.

Because proximate cause is not a concrete idea and has vagueness that can lead to compelling arguments affecting the outcome of a case, it is essential to have legal representation that is able to effectively litigate in your favor. Proving proximate cause requires careful, well-developed arguments from your attorney and, perhaps most importantly, a compelling testimony from an expert on your side.

Holiday Pause

Published on: November 26, 2008 | By Berniard Law Firm

During the holiday season, the blog will be taking a brief break so as to allow staff to focus hard on insurance cases coming in before the calendar year ends. The blog will resume in early 2009 with new and helpful information on hurricane and other damage-related insurance claims for Louisiana and Texas residents, as well as those living elsewhere on the Gulf Coast.

Have a Great Holiday season and see you in ’09!

What You Need to Know About Homeowner’s Exceptions (Deterioration)

Published on: November 24, 2008 | By Berniard Law Firm

Home deterioration can happen anywhere as a result of the natural climate and conditions that exist in the Gulf Coast. Whether it is the ceiling caving in or holes emerging in the floor, various different calamities can develop in your home that require action and repair. Under Texas law it is very important to understand exactly what the law says about what your Homeowners Insurance will and will not cover in the event things in your home begin to fall apart.

Under Homeowners Insurance Form A and B in Texas, deterioration that comes from within the home’s condition itself is not covered. Specifically, Exclusion 1(f)(1) excludes losses caused by “wear and tear, deterioration or loss caused by any quality in property that causes it to damage or destroy itself.” This type of loss specifically relates to a loss brought about entirely by internal decomposition or some quality of the property that brings about damage independently.

What this means to you is simple: allowing any condition in your home to go unrepaired and untreated may lead to even more significant damage to your home than what existed before. Getting a jump on a water leak or damaged foundation may be the difference between having a claim and having the insurance claim denied under this Exclusion.

What Your Insurance Agent Owes YOU

Published on: November 17, 2008 | By Berniard Law Firm

The law of Louisiana is very clear about its desire to protect the people from insurance companies and agents with bad intentions. All insurance agencies, whether Allstate, State Farm, or others, are governed by the law to be honest and clear about their policies. While the state would like it so that there was nothing to protect home owners from, there are certain laws and safeguards so that wrong can be undone.

Under Louisiana law, there is a specific fiduciary duty owed to homeowners by their insurance agent. What this means is that the agent is expected and required, by law, to work honestly and openly with his or her clients. If an insurance agent breaches this liability, the client may hold them liable and sue in court. Liability will be held if the client can prove an agreement to purchase insurance, failure of the agent to reasonably use diligence and that the agents actions led the client to believe he or she was properly insured. Thus, if your insurance agent led you to believe you had coverage that they then deny you on a claim, a lawsuit is possible.

While every case is different and the law can be complicated, keeping complete records of your conversations and exchanges with your insurance agent can help should the worst happen and your claim is rejected. Being careful and meticulous with your insurance can help keep a mistake from occurring or help you win litigation down the road.

Car Insurance For The Worst-Case Scenario

Published on: November 16, 2008 | By Berniard Law Firm

Texas drivers often have to worry about getting into an accident with uninsured drivers and all of the financial difficulties that come with the repairs and any injuries that result. Those with Uninsured/Underinsured Motorist Coverage purchase these policies in order to be protected from such possible problems. These policies (UM/UIM) work to insure the victim of a motor vehicle accident that if the other driver was not insured or insured adequately, they will receive up to the amount of damages they would have been able to collect from the person had they been insured.

With UM/UIM coverage, the basic requirement is that the injuries and damages arise from a motor vehicle accident. The state has held that incidences like drive-by shootings or contact with city property do not qualify as compared to simple fender-benders or collisions. However, what is included through UM/UIM coverage is hit and run collisions where the vehicle’s operator or owner cannot be identified. This specific inclusion of unknown perpetrators nets for policy owners a halo of protection that involves almost every vehicle on the road.

Whether driving in Houston or Riverside, Texas, auto insurance and coverage is crucial to guarantee that, when an accident occurs, your vehicle can be fixed and any injuries can be paid for. In the event that the person whose car hits you is either underinsured, not insured at all or unknown, UM/UIM insurance works to protect drivers.

How Insurance Companies Could Defraud You

Published on: November 14, 2008 | By Berniard Law Firm

Insurance fraud is something everyone is aware of and leads to significantly higher premiums for anyone looking for protection. What the insurance companies do not talk about, though, is the very insurance fraud that goes on within the industry itself. While companies may drag their feet or act in bad faith in delaying payments or sending inspectors to the homes of policy owners, there are some very serious actions that have gone on that require policy holders to remain vigilant in their claims.

In a case relating to the 1994 Northridge earthquake in California, State Farm agents, according to the testimony of one of the company’s former employees, tried to avoid paying insurance claims to victims through forged signatures and altering documents to make it appear earthquake damage had been declined by policyholders. An investigation by a tv station in San Francisco in 1997 showed the company had also gone so far as to delay inspections and lower the value of claims of those individuals who took action against the company because of these delays. These acts of explicit fraud and malice by State Farm serve as an example of how policy holders must remain ever vigilant when it comes to their policies and insurance protection especially as they can happen anywhere.

Hitting closer to home, on May 2 of 2003, a Metairie insurance agent was shut down for forgery and misappropriation of insurance premiums, the third in four days. On June 27, 2005, another agent from Lafayette pled guilty to theft after pocketing premiums on insurance payments rather than sending them to the companies. These instances prove how important it is to make sure with the company you are buying insurance from that payments are received and coverage is verified.

These aforementioned examples of fraud are neither the exception nor the rule, but, instead, demonstrate why insurance policy holders in the Gulf Shore and elsewhere must remain ever vigilant on their claims of damages with insurance companies. Keep close records and copies of all of your insurance information and all documentation and pictures you have of the damage you are making a claim to your insurance company for.

How Texas’ Personal Injury Protection Protects You

Published on: November 10, 2008 | By Berniard Law Firm

Personal Injury Protection (PIP) automobile coverage in the state of Texas is a common insurance agreement in which the carrier will pay benefits to the policy holder because of “bodily injury resulting from a motor vehicle accident and sustained by a covered person.” Thus, helping someone financially who has been in a car accident that causes someone to be hurt is the general idea behind PIP benefits. Accidents have been strictly defined to be only those incidences directly relating to injuries coming as a result of the use of a motor vehicle. Those covered include the policy holder and any family member who was in or was struck by the vehicle.

The benefits entitled to an injured individual include reasonable expenses incurred for necessary medical and funeral services. PIP also includes the replacement of 80% of income lost during the period of disability up to the policy limits. PIP can also include, for those unemployed, expenses incurred for obtaining services that the covered person would have performed had they not been injured.

As a whole, PIP benefits relating to car accidents are pretty clear and supportive of policy holders. There are very few exclusions to PIP coverage except to remove from protection those accidents that are not related to driving a motor vehicle, i.e. breaking your ankle getting out of the car.