Insurance Company Delays

Court Hears Appeal Regarding Alleged Insurance Company Delays

Published on: March 17, 2011 | By Berniard Law Firm

In a variety of states, including Louisiana, penalties are imposed on insurers who arbitrarily or capriciously fail to pay a claim. If an insurer behaves in a manner that could be construed as being in “bad faith,” they will face a host of possible penalties. Specifically, the insurer has duties to fulfill, such as paying the amount of any claim due any insured within thirty days respectively. However, determining whether or not the insurer is in bad faith is a two way street, the insured/claimant also has to satisfy certain burden(s) of proof. The court will take into consideration the totality of the circumstances, explore each parties behavior and provided proof, and will thus make their decision.

In a recent Louisiana appellate decision, the court denied finding an insurer in bad faith for denying the plaintiff additional damages. The damages sustained stemmed from an incident that occurred in Winn Parish, Louisiana. Specifically, a five year old boy was crossing Highway 167 to board a school bus when he was struck and injured by a vehicle driven by a minor. Apparently, the minor driving failed to heed the stop sign on the bus which was activated, nor slow down. The force of the impact caused the young boy to be thrown an estaimted distance of 65 feet. His injuries were quite serious, including a broken left femur, damage to the spleen, and severe lacerations to the face and neck. The injured boy had to remain in a full body cast for a number of weeks and incurred substantial bullying from classmates as a result of his visibly scarred facial appearance. The jury awarded damages to the plaintiff for the following: past special damages, future special damages, past general damages, future general damages, and loss of earning capacity.

The plaintiffs in this matter filed a motion for judgment notwithstanding the verdict (JNOV), and in the alternative, sought a new trial. After a hearing, the trial court granted the plaintiff’s JNOV and nullified the jury’s verdict. The court awarded $100,000 initially to the plaintiff; however, after the hearing, the damages were increased to a total of $600,000. This was a $500,000 increase in the amount of total damages to the plaintiff. However, the trial court, without explanation also ruled that the insurer was not in bad faith under Louisiana law in its handling of the plaintiff’s claim. Additionally, the judgment gave the insurer credit for all sums paid to date and further taxed all costs to the insurer. The defendant insurer appealed on the basis that the trial court erred in granting the plaintiff’s motion for JNOV, which increased the jury’s award by $500,000. On the other hand, the plaintiff asserted that the trial court correctly granted the motion for JNOV, but abused its discretion in awarding insufficient damages, specifically in the categories of general damages and loss of earning capacity.

The first issue the court explored was whether or not the JNOV ruling was correct. There is one main question that must be asked to determine whether granting the motion for JNOV was appropriate: do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict? if the answer to that question in the affirmative, then the trial judge was correct in granting the motion. However, if a reasonable person in exercising impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury should be reinstated. Here, the jury’s verdict awarded only special damages and no general damages. The court had to determine whether or not a jury could award one and not the other. The decision held that the jury’s verdict which failed to award general damages was “illogical and inconsistent, representing an abuse of discretion.” Addressing only the future medical expenses and ignoring the past special medical damages illustrated a large problem with the damages awarded the plaintiff. In fact, the court reasoned that the jury was confused in filling out the verdict form without consideration of the previously tendered insurance payments as instructed by the form. Thus, the trial court was correct in granting the JNOV and overruling the jury’s verdict.

Lastly, the plaintiff claimed that the insurer acted arbitrarily, capriciously, and without probable cause in failing to unconditionally tender more than $190,000 in payment of the damages. The plaintiffs alleged that they made numerous demands supported with medical proof, however, the insurer failed to comply. Under Louisiana law, La. R.S. 22:1892, an insurer owes a duty of good faith and fair dealing to its insured. As such, an insurer has an affirmative duty to adjust claims fairly and promptly to make reasonable efforts to settle claims with the insured. The statute provides that if an insurer is found to have acted in bad faith, several penalties are available to the claimant. First, the plaintiff must clearly show that the insurer was in fact arbitrary, capricious, and without probable cause in refusing to pay. Bad faith hinges on whether or not the insurer is aware of specific facts in making their decision not to satisfy a claimant’s damages. The basis of the plaintiff’s argument for additional damages from the insurer, was the fact that the little boy would suffer extensive mental difficulties in the future. The dilemma in such an argument, was the fact that the alleged future mental injury was Attention Deficit Disorder (ADD), which the defendant insurer argued was not a result of the injuries sustained when he was hit by the motor vehicle. The court reasoned that ADD could not be directly attributable to the incident in question and as a result, the insurer was not found to have acted arbitrarily, capriciously, or have acted without probable cause in denying such additional future damages.

Thus, insurers do have an affirmative statutory duty to act in good faith towards claimants. Insurers are prohibited from refusing to pay claims without a reasnable basis. The bad faith statute is designed to protect individuals who have been injured from having their claims declined without any reasonable basis.

Natchitoches Parish House Fire Ignites Dispute Over Insurance Coverage

Published on: March 3, 2011 | By Berniard Law Firm

In a recent post, we reviewed the Nolan v. Mabray case which discussed the requirement under Louisiana law that an insurance company must mail a written notice of its intent not to renew an existing policy at least thirty days prior to the policy’s expiration. La.R.S. 22:636.6. The purpose of the notice is to provide the insured sufficient opportunity to obtain insurance with another company before the existing policy expires. In the event of a dispute, the insurer faces the initial burden to prove that it mailed the required notice. Then, the property owner may rebut this presumption by offering evidence that the notice was never delivered. The ultimate factual determination must be made by the jury. The recent case of Johnson v. Louisiana Farm Bureau Casualty Insurance Co. offers another look at the rule’s application.

In 2001, Janice Johnson bought a homeowner’s insurance policy from the Louisiana Farm Bureau Casualty Insurance Company (“Farm Bureau”) for her home in Campti. She set up a bill-pay debit arrangement with her bank under which her monthly premiums were automatically paid to Farm Bureau. In 2006, after completing a routine inspection of Johnson’s property, Farm Bureau decided not to renew the policy when it expired the following July. Accordingly, on May 2, 2007, Farm Bureau mailed a written notice of non-renewal to Johnson and the policy expired on July 10, 2007. Tragically, Johnson’s house was destroyed by fire on November 7, 2007. Farm Bureau rejected Johnson’s subsequent claim for total loss on the grounds that she did not have a policy in place at the time of the incident. Johnson filed suit on July 24, 2008 seeking monetary relief for the losses she sustained in the fire. In her petition, Johnson asserted that she was covered by the
policy and that she was not notified that the policy had expired until after the fire. Farm Bureau responded with a general denial, arguing that Johnson was provided with written notice of non-renewal and that the policy was not in effect at the time of the fire. At the conclusion of a jury trial, the jury found Farm Bureau had properly mailed the non-renewal notice on May 2, 2007 as required under Louisiana law. However, it also found that the notice had not been delivered to Johnson. The trial court entered judgment in favor of Johnson and awarded her damages in the amount of the policy limits: $297,000 less a $500 deductible. Farm Bureau appealed, contending that the jury “committed manifest error” and was “clearly wrong” in determining that the non-renewal notice had not been delivered.

The Third Circuit Court of Appeal reviewed the trial record which contained the evidence Johnson offered to rebut the presumption of delivery. Johnson testified that she always opens every piece of mail she receives except for her bank statements, and that she never received the notice Farm Bureau. Johnson’s testimony was corroborated by her sister, who often picked up Johnson’s mail from the post office box which was Johnson’s registered address on her insurance policy. In response to Farm Bureau’s argument that Johnson should have known that her policy was expired because the company stopped withdrawing payments in May 2007, Johnson stated that she did not routinely open mail from her bank or reconcile her checking account. The court noted that “the jury was able to take [all of this] testimony into consideration” in making “a determination of the credibility of the witnesses.” Mindful of its duty to “afford great deference to the factfinders’ determinations,” the court concluded that, “although some of the testimony presented is questionable,” it could not find “manifest error in the jury’s credibility determination nor in their determination that the notice of non-renewal was not delivered to Johnson.”

The Johnson case, much like the Nolan case, turned on the critical role that the jury plays in settling issues of fact. Even if an appellate court believes after reviewing the record that its credibility determination is more accurate than the jury’s, it cannot substitute its own view unless it finds that the jury’s conclusion was based on testimony “so absurd that a reasonable person would not credit it.” Clearly, in this case, Johnson’s even somewhat suspect testimony did not rise to this level.

After Car Accident Death, Insurance company Refuses Liability Coverage Claim

Published on: February 27, 2011 | By Berniard Law Firm

The sad fact is that everyday accidents happen on our nation’s roads. Especially tragic are ones where a family member is killed. Combined with the pain of losing a
loved one comes the burden of dealing with insurance policies, who is insured and who is uninsured at the time
of the accident and trying to get coverage. In prior posts. we have discussed how liability is hard to assign at times, especially when it takes a fact-finder to establish who is at fault. In this Louisiana court case, an insurance company refused to pay uninsured/underinsured motorist (UM) liability coverage to the daughter of the deceased driver of a vehicle which was struck by an oncoming motorist.

In March of 2006, Donald Anderson was killed in a car accident when his car was hit by an oncoming motorist, Gordon Pugh, Jr. During the time of his death, Donald Anderson was within the scope of his employment with Labor Finders. Labor Finders had a liability insurance policy issued by National Union which was in effect at the time of Anderson’s accident. After the accident, Anderson’s daughter filed a survival and wrongful death action naming Pugh and his insurer as the defendants. Several months later in December, Anderson amended her petition to include National Union as the defendant. Anderson claimed that since her father was insured under the liability policy issued by National Union to Labor Finders at the time of the accident, then he was entitled to the mandated uninsured/underinsured motorist (UM) insurance. National Union denied this fact while Anderson was able to settle the claims with Pugh’s insurer. National Union filed for summary judgment and the trial court stated that their policy was clear, unambiguous and that under the terms the policy provided, Donald Anderson was not an insured at the time of the accident to whom it could afford coverage. Therefore, the trial court granted summary judgment in favor of National Union leaving Anderson with nothing after her father’s death.

Summary judgments are reviewed based on material facts in order to avoid a full scale trial. The courts grant this motion when there is no issue as to material facts, and the moving party is entitled to judgment as matter of law. In this case, it was up to the Anderson to show that the insurance company was not entitled to judgment as a matter of law.

Insurance policies in the state of Louisiana function much like contracts, and are, therefore, interpreted as such. When the court interprets an insurance policy, it generally interprets the intent of the parties in forming the contract. In order to get to the common intent of the parties, the court looks primarily at the language of the insurance policy; Louisiana courts have struggled with this because at times, the technical meaning of the words is hard to differentiate from the generally prevailing meaning. If words in an insurance contract have a “technical meaning” then this meaning must be applied when the contract is interpreted. In addition to interpreting the meaning of words, each provision and section of this contract must be interpreted in light of the other provisions. Matters become more complex here because one provision cannot and should not be interpreted at the expense of another. Should the court find that words in an insurance contract are clear and explicit, it must strictly apply those words as written. Things become more difficult when ambiguities in the contract still remain even after the general rules of the contract have been applied; this may cause problems for both the policy holder and the insurance company.

All liability insurance policies issued in the state of Louisiana are required to issue UM coverage equal to the amounts in liability coverage when there is no express waiver of reduction of the UM coverage. This type of policy only requires that the person be injured by a UM. To simplify this complexity, there exists a test to determine whether a person qualifies for UM coverage under liability insurance. The test is to determine whether this person would be covered if they were liable for the accident.

In this case, National Union maintained that Donald Anderson was not an insured under the original terms of the National Union Policy. A section of the policy clearly stated that all Labor Finders’ employees (which Anderson was at the time of the accident) were insured as long as they were within the score of their employment at the time of the accident (Anderson met this criteria as well). A reader can see that the plain language of the contract points to the fact that Anderson was insured at the time of his accident, unless there was some exclusion.

The caveat here is that insurers have the right to limit coverage in any way they desire as long as these limitations are clearly set forth in the contract. It is at times like these that you need a professional in the field who will know how to maximize coverage. Coverage exclusions are construed strictly against the insurer. In the current case, the policy contained an Endorsement which stated that National Union shall not pay for any damage which arises out of aircraft, auto or watercraft injury owned or operated by the insured. Anderson fell into this exclusion because his injury and subsequent death arose out of the operation of his own vehicle. While Anderson fell into a clearly stated exception in the policy, many other endorsements are more ambiguous and require thorough interpretation and scrutiny.

Understanding Terms: Claims Based Insurance v. Occurrence Based Insurance

Published on: February 21, 2011 | By Berniard Law Firm

Insurance policy coverage can be very confusing regardless of how simple televisions commercials may claim it can be. Sometimes insurance companies limit their liability by setting a time period within which the policy applies. In other circumstances, insurance policies limit their liability by creating categories of actions that can be instituted against it. For example, if an insurance policy states that it protects a health care provider for one year after the policy begins, this may mean that 366 days later a patient is out of luck if the doctor performs malpractice. Some insurance companies create distinctions on the types of actions that fall under the policy. For example, coverage can extend either based on occurrence or claims.

The distinction here is important, especially as it relates to the time period to bring a claim. If an insurance policy begins on January 1 and ends on December 31, the malpractice occurs on November 10, and the plaintiff files suit in March of the next year, the definitional difference is important. If the policy is occurrence based, the plaintiff will likely have no problem. In an occurrence based policy, coverage extends to any malpractice which occurred within the policy period. In our set of facts, since the malpractice occurred on November 10, it is covered because it is within the policy period. In a claims based policy, coverage extends to any claim that is filed within the insurance coverage period. In this case, although the malpractice took place within the time period of the insurance policy, the claim was not filed until after the coverage period had extinguished. Thus, in out facts, if the policy was claims based, the insurance company would not be liable for the malpractice.

In a recent case, Dewayne Wright v. Willis-Knighton Medical, the plaintiff, Ms. Wright suffered cramps, a coma, insulin shock, and stroke as a result of medical malpractice. The mother of the plaintiff filed suit on behalf of Ms. Wright. She filed initial suit against the facility, Willis-Knighton Medical. At a later date she amended her brief and added the ER doctors to the suit as well. Later, the plaintiff discovered that the insurance policy did not include the health care facility and only included the medical practitioners who decided to join under the coverage. The doctors that she added under the amended brief were originally protected by the coverage.

The problem for the plaintiff begins, though, when the insurance company that she sued later based its policy with the doctors on a claims based basis. Only the claims that were filed within the insurance coverage period were covered. Unfortunately for Mr. Wright, the period ended the day before the brief was amended. Mr. Wright argued that because the doctors were employed by Willis-Knighton, they were solidary defendants. However, because the policy did not cover the medical facility there is no legal basis to extend the coverage of the policy more than the contract states. Thus, because the coverage period had expired by the time the claim was brought against the insurance company and doctor, the claim failed to meet the requirement within the policy’s scope and thus must fail in court to make the insurance provider liable for the alleged malpractice.

This case shows that if you feel that your rights have been violated or that you have been injured because of medical malpractice that you should seek legal counsel as soon as possible. By waiting before speaking to an attorney you increase the chance that time may run out on your ability to protect your rights.

Accident Involving Criminal Leads to Questions Relating to Insurance Company Policies

Published on: February 19, 2011 | By Berniard Law Firm

The purpose behind having insurance is to help injured parties get relief. In a world without insurance, every accident has the potential to be the financial ruin of the party judged to be at fault. Insurance policies have the effect of creating a large pool of money that can be used to provided financial backing in the post accident period. However, insurance policies will not have the effect of covering every accident that occurs in every circumstances. For example, can we expect to allow an individual who uses his vehicle as a weapon to gain the benefits of his car insurance policy? Answering questions like this are at the cornerstone of lawsuits seeking compensation when tragedy strikes in unfortunately complex ways.

Strong public policy in Louisiana indicates that any accident that occurs in the course of committing a crime should not be protected by insurance. In fact, for obvious business reasons, most insurance policies limit the insurance company’s liability with a crime exception. The Ruston City Court, Parish of Lincoln, State of Louisiana, had this concept in mind when it made a recent decision.

The defendant, Shedrick Green, was driving down a road while he was feuding with another individual in another car. At one point, the party in the other vehicle pulled into a parking lot, at which time Mr. Green pulled out a gun and began shooting. After shooting at the other vehicle, he got back into his car and continued driving. At the next stop sign, he drove into the intersection without stopping at the stop sign and his vehicle collided with the vehicle that the plaintiff, Latasha Potts, was driving. At the trial court level, Ms. Potts sued both Mr. Green and his insurance company. The trial court ruled that driving through the intersection was part of a continuation of a criminal activity. The insurance policy on the vehicle driven by Mr. Green stated that the policy did not extend to criminal actions. Thus, the trial court ruled that the insurance company was not liable because of the criminal nature of the vehicle’s use.

However, upon appeal, the appellate court looked at the circumstances differently. Mr. Green was arrested for assault and battery. According to the facts set out by the trial court, the assault and battery were completed when Mr. Green shot at the other vehicle and drove away. Any action taken after that was not in the course of a criminal activity. If Mr. Green had been charged with fleeing the scene of a crime, there could be a chance that the accident with Ms. Potts was a criminal activity. Parties who are involved in an accident expect to be protected against normal acts of negligence on the part of a driver. In this case, Mr. Green drove down the road and negligently failed to realize that he needed to stop at the stop sign. Thus, the accident with Ms. Pott was as a result of Mr. Green’s negligence, not his prior criminal actions. Criminal law should not be used as a tool to limit civil liablity. Thus, the appellate court overturned the trial court decision.

Insurance policies have the potential to deal with many different areas of law. The facts of this case show an interlocking of civil, contract, and criminal law all in one case. Thus, it is essential or any person who has been involved in a car accident to seek legal advice. Simply settling with an insurance company may not be the most effective way to retain your rights. By consulting with an attorney, finding where the law is flexible or is not as simple as first glance can mean a significant amount, like in this case.

Homeowner Liability Insurance Coverage Upheld for Harmful Accident

Published on: February 10, 2011 | By Berniard Law Firm

The Fourth Circuit Court of Appeals in New Orleans recently affirmed that a policyholder was covered by his Homeowner’s policy for injuries inflicted during a brutal accident where another was seriously injured. While leaving a party, Hurst – the policyholder – fashioned a lock pick out of wire to open the door of his truck in which he had locked his keys. After gaining access, he flung away the wire and it bounced off the back of his truck and into the open window of another departing guest, Ms. Baker, injuring her severely.

Hurst held two liability insurance policies with Liberty Mutual: a $300,000 Homeowner’s policy and a $30,000 Automotive policy. The injured Baker sued Hurst, Liberty Mutual Insurance, and her own Uninsured Motorist carrier: Allstate. Through procedural motions, both Baker and Liberty Mutual asked the lower court to make a determination as to whether Hurst was covered by the higher limit homeowners’ policy at the time of the accident.

The Homeowners’ policy included a provision excluding coverage for personal liability and medical payments for bodily injury “arising out of the ownership, maintenance, use, loading or unloading of motor vehicles.” The heart of the issue became whether Hurst’s use of the wire to gain access to his vehicle and throwing it into his truck bed was “use or loading of the vehicle” such that it would bar the coverage of the Homeowners’ policy.

The lower court ruled that Hurst’s throwing of the metal object onto the hard surface of the truck bed had no connection to the use of the truck; it was the disposal of the object itself that was negligent. This is because courts consider the role the vehicle played in the entire scheme. Here, the Fourth Circuit reasoned that the vehicle must be central to the theory of liability and that here it was not – the flinging of the wire was at the heart of Hurst’s liability for injuring Baker. Applying the relevant legal standard from a case called Carter, the Court considered whether (1) the conduct of the insured was a proximate cause of the injury (it was); and (2) whether it was a use of the automobile (it was not). The Court therefore ruled that the exclusion for automobile use did not apply and Hurst’s conduct at the time of the accident.

Homeowners’ policies often include higher limits for liability than do automotive or other policies that people who injure you might have. Given the tragic nature of Ms. Baker’s injury, it is somewhat clear why she sought the Homeowners’ $300,000 policy coverage and why Liberty Mutual sought to deny coverage on that claim.

Legal expertise is very often required to achieve the best outcome for your injuries because insurance companies like Liberty Mutual will skillfully and zealously attempt to limit the amount payable to injured persons – as they did here.

Insurance Policy Exceptions in Automobile Accidents

Published on: February 8, 2011 | By Berniard Law Firm

Automobile insurance policies are a means of protecting car drivers and accident victims. It creates a pool of money so that any party at fault can make the victim of his or her negligence whole. When a business holds itself out as a car dealer, policy terms are a little different based on each party and insurer. An insurance policy agreement between the insurer and the insured is a contract between the parties. Under Louisiana law, words in a contract are presumed to have the plain and ordinary meaning they are generally given. The basic intent of the parties is construed through the words of the contract, and no court can disturb the intent of the parties. If an insurer is attempting to show that a certain provision in an insurance policy exempts coverage, the insurer has the burden to prove any exception.

In a recent case, a court discussed how insurance policy language will be interpreted. The facts giving rise to the cause of action in McKay v. W & J Farms, are as follows:

The plaintiff, Connie McKay, was driving South on Highway 153 in Richland Parish. As she travelled through an intersection, her vehicle was struck on the side by a tractor driven by Kyle Mills. Ms. McKay claims that an insurance policy held by the seller of the tractor extended to Mr. Mills when he was driving the tractor. The way in which Mr. Mills came to be driving that vehicle at the very moment are interesting and are crucial in relation to the cause of action. Mr. Mills works on a farm with his brother and another individual, Mr. Livingston. The three individuals decided that it was important that they purchase another tractor to increase productivity on the farm. Mr. Livingston and Mr. Mill’s father went to a Peterbuilt tractor dealership in order to check prices of tractors. Mr. Livingston brought a tractor to the farm to test it out. Mr. Mills was advised to drive the tractor from the farm to the elevator. During this fateful drive, he struck Ms. McKay at the intersection with Highway 153.

Ms. McKay argued that the Peterbuilt dealer’s insurance coverage extends to Mr. Mills as he was driving the tractor. The insurance company’s policy with the Peterbuilt dealer states in relevant part:

The following are insured for covered autos…anyone else while using with your permission a covered auto you own, hire, or borrow, except…Your customers, if your business is shown in the Declarations as an auto dealership.

In the Peterbuilt dealers business declaration, the business was declared a car dealership. Ms. McKay argued that there is a distinction between auto dealership, as is stated in the insurance policy, and car dealership, as is stated in the declaration. There is obviously no real distinction between these terms. From a logical perspective, a person reading these two terms would find that they are identical. The next question is whether Mr. Mills was a customer of the Peterbuilt dealer. The facts in the case showed that Mr. Mills’ brother was going to be the actual purchaser of the tractor. However, under Louisiana law, a person test driving a vehicle in order to help a purchaser make a decision of whether to purchase that vehicle is considered an extension of the purchaser. This means that the test driver is a customer in the eyes of the law. Therefore, when Mr. Mills was driving the tractor he was a customer and under the terms of the dealer’s contract with the insurance provider, Mr. Mills was not covered under the policy.

Insurance policies are difficult and complex contractual agreements. In order to understand policies, a general understanding of the law is essential. If you have been involved in an accident, you are likely going to have to deal with an insurance company.

Insurance Coverage for Lender Vehicles Affects Louisiana, Other Residents

Published on: January 29, 2011 | By Berniard Law Firm

Buying a car usually entails walking around a car dealership, spotting a car you potentially want to buy, and then test driving the car to see if satisfies what you are looking for in a vehicle. However, one aspect that you may not take into consideration, is what happens if you get into a car accident while driving the car dealership’s vehicle? Who is is liable? Who ultimately has to pay? This all depends on the insurance contract the car dealership has, and whether or not you, as the test driver of the vehicle that has been damaged, is insured. Oftentimes, there is a limiting provision commonly found in insurance contracts called a “garage policy”, it excludes customers of an automobile dealership unless the customer does not have liability insurance of his/her owner is statutorily uninsured. But what exactly does this mean?

A garage policy is a provision designed to limit coverage under certain circumstances. For instance, the recent case of Chretien v. Thomas, the Louisiana Second Circuit Court of Appeal explored garage policies in depth due to the existence of one in a service station’s insurance policy. The course of events in the Chretien case involved the defendant, Thomas, bringing in a vehicle for repair. He was provided with a vehicle to drive while his vehicle was being serviced. Significantly, the car being serviced was his girlfriends and was listed as a covered vehicle under a policy issued by Allstate Insurance Company. The service station lent the vehicle to Thomas in hopes his employer would purchase the vehicle. The service station was insured by Stonington Insurance Company, which had the infamous garage coverage provision included in the insurance agreement. The garage policy excluded coverage for customers of the service station IF the customer had other insurance available. Shortly after being provided the “loaner” vehicle, Thomas was involved in an accident with the Plaintiff, who sued Thomas, the service station, as well as both insurance companies, Stonington and Allstate. The dilemma the court faced was determining who is ultimately responsible for coverage, and for how much. Under the garage policy, one would assume that Thomas would be responsible, since the vehicle he brought in for service was covered by insurance, thus, preventing him from relying on the service station’s coverage. However, the issue is not so easily resolved.

Both insured parties have a burden to meet, and a burden to prove in order to avoid liability. When determining whether or not a policy affords coverage for an incident, it is the burden of the insured to prove the incident falls within the policy’s terms. On the other hand, the insurer bears the burden of proving the applicability of an exclusionary clause within a policy, such as the “garage policy” provision found in Stonington’s agreement with the service station. To begin with, an insurance policy is a contract, as such, the party’s intent is reflected by the words of the policy, this determines the extent of the policy’s coverage. When looking at the policy’s language, one cannot read too much into the words, phrases and words are to be construed using their plain, ordinary, and generally prevailing meaning. Thus, interpretation or paraphrasing is not encouraged when exploring insurance policies, to put it simply, just look to the four corners of the document, and to nothing else, in order to understand what the policy means.

Lake Charles Payment Delays Cost Insurer in Court

Published on: January 27, 2011 | By Berniard Law Firm

Lake Charles resident Ginger Hinch Durio sued her Insurer, Horace Mann, over the extent of payments she received for the damages she sustained during Hurricane Rita. Durio’s house was severely damaged, including her garage where her family’s belongings were being stored while they were in talks to sell the house. The ceiling inside the garage collapsed onto their stored belongings. Additionally, an engineering report obtained by Durio four months after the hurricane indicated the structural and mechanical integrity of the house was compromised, and the HVAC, electrical, and plumbing systems had failed.

Durio’s policy with Horace Mann provided for several categories of damages for which the Insurer would pay her up to their respective policy limits: Structure ($173,300), Adjacent Structures ($17,330), Contents ($103,980), and Additional Living Expenses ($103,980). After Durio submitted a claim in September of 2005, Horace Mann made several payments to her that fell far below the category policy limits. Despite Durio’s submission of re-evaluation materials, Horace Mann ultimately honored in full only her Contents claim (for all the belongings contained in the garage) of $47,061.44. This, however, was after the Insurer issued her a “sarcastic” check for $6.90 for a broken flowerpot.

The Third Circuit Court of Appeal affirmed the damages awarded by the Trial Court for a total in excess of $1.5 million. Durio received Contractual damages for the difference between what she was paid by Horace Mann and the policy limits for Structure and Adjacent Structure damages. In addition, the Court affirmed an award of $39,000 for thirty-eight months of living expenses based on Durio’s own estimation for the period in which the Insurer worked on the claim.

Court of Appeals Awards Bad Faith Damages Against Insurance Company Who Refused to Pay

Published on: January 17, 2011 | By Berniard Law Firm

For the family of someone killed in a tragic car accident faced with mounting medical bills there is nothing worse than learning that the driver at fault for the accident did not have insurance. Luckily, when that happens, you should be protected by the uninsured or underinsured motorist (UM) coverage on your vehicle. For the Jones Family, however, their UM provider refused to tender the policy limits even after undisputed evidence was provided that damages exceeded that amount. This nightmare happens to far too many families and is a sad reality during a time in which insurance companies try to limit payouts in any way possible.

Thomas Jones was severely injured when his motorcycle was hit by a vehicle driven by Bertha Johnson, and his wife Mary was killed. Johnson was entirely at fault for the accident but neither she, nor the owner of the car she was driving, had insurance coverage at the time. The Jones’ sought their policy limits of $100,000 per person/$300,000 per accident from their UM insurance and at one point the parties agreed that $200,000 would be paid. However the amount was not tendered due to disputes regarding liens from the Jones’ healthcare providers and the company’s concern regarding future claims.

Luckily the Jones had redress when their UM provider refused to pay. The Jones’ brought an additional claim against their insurer, the Markel American Insurance Company, and were awarded $100,000 in (additional) penalties as well as $10,000 in attorneys’ fees. In a recent decision (available here: 45,847-CA) the Louisiana Court of Appeals upheld that ruling.