Insurance Dispute Lawyer Blog

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.

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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.

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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.

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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.

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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!

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.

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