The Merlin Law Group has been solely practicing insurance law since 1985. The attorneys at the Merlin Law Group will choose top industry experts tailored to your specific type of claim. Merlin Law Group fronts all costs for experienced experts in order to build the strongest case for you, the policyholder.
From engineers to contractors to independent professionals, the Merlin Law Group retains qualified experts to adequately asses your insurance claim. The utilization of these professional expert witnesses sets the Merlin Law Group apart from other insurance law firms. The attorneys at the Merlin Law Group perform with due diligence and are determined to assist policyholders in obtaining what they are owed.
The initial review of your insurance claim is complimentary. Merlin Law Group is the policyholder’s advocate, representing policyholders nationwide.
Merlin Law Group attorneys typically work on a contingency fee basis, so there is no cost to you unless we win your case. In many cases, the Merlin Law Group will hire industry experts, among other resources, to build the ultimate case for you, the policyholder. In these cases, costs can accumulate greatly and quickly. Merlin Law Group attorneys know that these in-depth, unbiased expert analyses can make or break your insurance claim. Merlin Law Group is dedicated to obtaining the maximum settlement for their clients and will thus advance most costs pre-settlement.
Merlin Law Group asks you to please provide the following documents if applicable/available.
For Homeowner’s Claims:
- Insurance policy or copy of declaration page of insurance policy
- Denial letter
- Any and all correspondence to and from the insurance company
- Any estimates of items to be replaced/repaired
For Healthcare Claims:
- Name of insurance carrier
- Copy of insurance policy
- Any rejection letters and/or EOB (Explanation of Benefits)
- Any bills received from collection companies and hospital
- Scenario of health issue/ reason for hospitalization and/or procedures
- Company must treat its policyholder’s interests with equal regard as it does its own interests. This is not an adversarial process;
- Company should assist the policyholder with the claim;
- Company must disclose to its insured all benefits, coverages and time limits that may apply to the claim;
- Company must conduct a full, fair and prompt investigation of the claim at its own expense;
- Company must fully, fairly and promptly evaluate and adjust the claim;
- Company may not deny a claim or any part of a claim based upon insufficient information, speculation or biased information;
- If full or partial denial, Company must give written explanation, pointing to the facts and policy provisions;
- Company must not misrepresent facts or policy provisions;
- Company may not make unreasonably low settlement offers;
- An insurer must adopt and implement reasonable standards for the prompt evaluation of claims;
- In evaluating a claim under a replacement cost policy it is not proper for an insurer to deduct deprecation from the value of the claim;
- Failure to fairly and reasonably investigate a claim does not permit the company to deny the claim due to lack of information or one-sided information;
- An insurance company may not ignore evidence which supports coverage.
- If denial, must promptly give policyholder a reasonable explanation of the basis in the insurance policy in relation to the facts, policy provisions or applicable law upon which it relies for denial of claim;
- If offer is a compromise amount, must provide a reasonable explanation of the basis of that amount in the insurance policy in relation to the facts and law;
- Cannot discriminate in the claim settlement practices based on the claimant’s race, gender, income, religion, sexual orientation, national origin, or physical disability or the territory of the property or person insured;
- Cannot attempt to settle a claim for an unreasonably low amount;
- An insurer must communicate with its insured to keep it appraised of the status of its claim;
- It is improper for an insurer to tie in any manner claim personnel compensation to claim decisions or payments to its insureds;
- An insurer has a duty to disclose all significant facts to its insured;
- An insurance company must not misrepresent facts or policy provisions relating to coverage of an insurance policy;
- An insurance company must not fail to acknowledge and act promptly upon communications regarding a claim arising under an insurance policy;
- An insurance company must adopt and implement reasonable standards for prompt investigation of claims;
- An insurance company must not refuse to pay a claim without a reasonable investigation of all of the available information and an explanation of the basis for denial;
- When insureds don’t recognize they are entitled to benefits in a policy, an insurance company’s obligation is to point out those policy benefits to them;
- An insurance company cannot deny a claim or refuse partial payment on a claim without first conducting a full, a fair, a thorough investigation of the facts and circumstances;
- An insurance company may not use the claims department as a profit center; and
- The insurance company must keep a total claims file that reflects all activity on a file.
- An insurer can defend a bad faith lawsuit by stating that it relied upon advice of its counsel in refusing to pay a policyholder’s claim. The insurer seeks to justify its alleged misconduct and to avoid consequences by shifting the responsibility to its attorney. The insurance company claims that it relied entirely upon the attorney’s advice so that the insured cannot show that the insurance company acted with an evil motive or a reckless disregard for the insurer’s rights.
- A state’s Court of Appeals can say that while an insurer can seek the advice of a counsel, it remains ultimately responsible for its own non-delegable statutory duty to properly investigate claims and adjust them according to the terms and conditions of its policy.
- Any client can rely on advice of a counsel but that cannot be used as a shield from acts that are against the public interest and intentionally harmful.
- An insurer can also argue that the trial erred in considering their conduct after the policyholder filed suit to enforce coverage of their claim.
- This can be refuted by stating an insurance company’s duty of good faith and fair dealing is still necessary even though a lawsuit was filed.
- Evidence of an insurer’s settlement behavior throughout the litigation may be examined and presented in order to establish an insurer’s bad faith.
The statute of limitations is the time you have to file a lawsuit against your carrier after a loss. This varies from policy to policy. Act promptly and make sure you don’t delay if you want to be properly paid for your claim.
In a homeowner policy, the limitation clause usually states that the suit must be commenced within one year after the loss. In business policies, we often see limitation clauses that require suit to be initiated within two years after the loss. It is imperative that the one or two-year anniversary of the date of loss be calendared (with intermittent reminders) by those who have a claim or are adjusting a claim, to preserve sufficient time to get a lawsuit filed, if necessary.
In sum, it is always the best course to file suit within the policy limitation period. Sometimes, circumstances prevent that from happening or make it difficult to do so.
Each state has their own Statute of Limitations pertaining to individual insurance policies. Contact the Merlin Law Group today, toll-free anywhere in the nation at 877-449-4700 to find out if you are still eligible, and we can help you.
Bad faith can be described as intended deception. In terms of insurance, this can be ill fulfillment of contractual obligations, to the policyholder. Administering misleading information and breaching basic industry standards are just some examples of an insurance company displaying bad faith.
The ability of the insured to file a bad faith against their insurance company encourages fair and timely adjustment and payment of claims and provides a proven remedy if the insurance company fails to perform. Bad faith isn’t the type of claim an insured can consider as a guaranteed route to getting a recovery. Bad faith litigation is navigated best when using the court’s prior rulings as a road map. Overall, bad faith actions are filed for withholding of benefits due under a policy or for unreasonable conduct by the insurer. There are many ways to analyze withholding of benefits or unreasonable conduct.
Focusing on first party property insurance the policyholder or the named insured (and where applicable, “additional insured”) can sue their insurance company for bad faith. Since bad faith actions are based on breach of the implied covenant of good faith and fair dealing, they necessarily require privity of contract with the insurer. Persons entitled to benefits under an insurance policy may sue for bad faith if those benefits have been wrongfully withheld. Conversely, persons not entitled to benefits under a policy cannot sue for bad faith.1
In the case of “joint insureds,” which refers to several persons who are named insureds, any of the named insured persons may sue. Their status as joint insureds establishes privity of contract with the insurance company. The implied covenant of good faith and fair dealing extends to all jointly insured. Usually, this applies to spouses who are jointly insured under a policy. But what if one spouse is not a party to the contract? In that case, the non-party spouse cannot sue for breach of the implied covenant.2 It follows that someone who is not a party to a contract has no standing to sue for damages resulting from wrongful withholding of policy benefits.3
Only persons in privity of contract with an insurer may sue for bad faith. This includes the named insured, additional insured or jointly insured.
Whether the withholding of benefits rises to the level of bad faith purely depends on whether or not the insurer’s actions are unreasonable. If an insurer has a reason to withhold payment, then there may not be bad faith or breach of contract. Bad faith doesn’t arise in every matter, and the particular facts of each case should be carefully considered before such a claim is made.
Though appraisal is not usually the manner in which a bad faith suit arises or is pursued, it is important that policyholders and their attorneys understand that it is a possibility. There are differences among the various states as to the time limitations by which one can bring an action against an insurance company for bad faith.
If you believe that your insurance company has acted in bad faith, please contact the attorneys at the Merlin Law Group, toll-free anywhere in the nation at 877-449-4700 for a complimentary case review.
As the insured, do you need to wait for a resolution in your breach of contract case against your insurance company before pursuing a bad faith action? The answer is, it depends. Mostly, it is contingent on what other (if any) claims are being made against your insurance company. On your behalf at the same time.
The insurance company can argue that other factors must be settled before the overall question of bad faith can come into play. Each case is unique, so if you have questions regarding your insurance claim and how long you should potentially wait to file a claim of bad faith, please contact the Merlin Law Group toll-free anywhere in the nation at 877-449-4700 for a complimentary case review.
The following are some general rules that must be followed in order for an Examination Under Oath request to be sufficient:
- The request must be made with such clearness and distinctness that the insured would be fully informed that the insurer meant to insist upon having it. State Ins. Co. v. Maackens, 38 NJL 564 (1876).
- The request should state with clarity the time and place of the EUO. Citizens Ins. Co. v. Herpolsheimer,77 Neb. 232, 109 NW 160 (1906).
- The request should designate before whom the EUO will take place. Krauss v. Brooklyn Fire Ins. Co., 130 NJL 300, 33 A.2d 100 (E. & A. 1943).
The request should state more than the insurance company’s mere desire to take the insured’s EUO. Davidson v. Providence Washington Ins. Co., 9 NJ Misc. 1085, 157 A. 148 (1931)
- If a policyholder refuses to answer a question at EUO, defense counsel immediately suspect fraud.
- Defense counsel wishes to see denial and believe they have the right to ask anything and the insured has to answer or the policyholder is violating their duty to cooperate.
- Typically, the insured doesn’t want to answer questions that are too personal.
- The insurer has the right to delve into areas during the examination that may expose fraud, such as the policyholder’s income.
- The court typically rules that the examinations under oath are contractual obligations which must be complied with in order for the insured to garner recovery.
- It is common that the policyholder is required to answer questions pertaining to the actual loss itself or circumstances surrounding that loss.
- It is best to answer every question asked of you and as a public adjuster it is best to advise the insured to answer every question.
- Refusing an examination under oath is considered a material breach of the policy conditions for which denial will be upheld.
- The policyholder’s refusal to sit for the examination begets the denial.
- An examination under oath can be distinguished from a deposition, essentially saying the EUOs are contractual agreements where policyholders have a duty to volunteer information to the insurer, where no such duty exists during a deposition.
- Depositions are not an adequate substitute for EUOs, and a denial will be upheld.
- According to the courts, EUO requests must be complied with or the claim may be denied.
- This is a debate without a clear answer
- An insurer will sometimes demand that a public adjuster appear for an examination under oath and the policy does not clearly mandate it.
- This question can be answered on a case by case basis
- It can be the case that the public adjuster is a far better witness than a client from a lawyer’s perspective. A public adjuster can appear more truthful, professional, provide quicker and better answers, explain the loss, the values, why the money is owed, and simply provide a better appearance of truthful, honest knowledgeable information than the policyholder.
- In this instance, this is all the insurance company needs so an attorney wouldn’t pose an objection to the public adjuster appearing for the policyholder in an examination under oath.
- Time is valuable to everyone involved and the goal is getting a policyholder paid as soon as possible so while the policyholder or public adjuster may object to an examination under oath, the best option is not to object to the possibly illegal request by the insurer.
- It is always important to note that the claim is the policyholder’s and not that of a person hired to assist in determining the amount owed under the policy.
- The public adjuster is usually an independent contractor who does not make binding contracts, agreements, or is authorized to give legally binding testimony.
- It is arguable that, given the detailed and inextricable role that public adjusters play in adjusting losses for insureds, public adjusters should be subject to an EUO if policy language includes “others,” even without a factual showing that a public adjuster is subject to the insured’s control.
- Based on the conflicting views of cases, if either the policy does not extend to “others” or the facts do not indicate that the insured has the power to compel submission of its public adjuster to examination, there can be no clear prediction of whether such an EUO provision would necessarily apply to a public adjuster.
- Many insurers will say they can compel public adjusters to examinations under oath and use them, as they do policyholder examinations, argue defenses such as material misrepresentation possibly voiding the policy. Policyholders should fight this position.
- Most property insurance policies include an appraisal provision that may be invoked by either the insurer or the insured to determine the value of a loss.
- Courts generally agree that “valuation” is the task of an appraisal panel, and “coverage determinations” are the province of courts.
- Courts are inconsistent as to whether the scope of damage falls under “valuation” (which may be decided by appraisal) or falls under “coverage determination” (which must be decided by a court).
- Policyholders who believe their claims have been undervalued or underpaid often invoke the appraisal provision, hoping to avoid the time and expense of litigation. Unfortunately, insureds often receive one of the following responses from the insurer:
- “The scope of covered damage is not subject to appraisal.”
- “Method of repair is not subject to appraisal.”
- “The cause of damage is not subject to appraisal.”
- Recent cases indicate a trend is emerging, favoring appraisal of scope of damage/scope of repair, and possibly decreasing litigation.
- Unfortunately, insurers determined to force policyholders to litigate before covered benefits are paid may still allege appraiser bias
- Past cases have shown that policy interpretation is extremely important.
- The facts determine coverage in first party property insurance claims.
- Small factual changes potentially result in drastically different outcomes in a coverage evaluation.
Some property insurance policies may contain an exclusion where an insurer will not cover a loss “to the interior of any building or structure, or the property inside any building or structure, caused by rain…” In this situation it is important to look at the policy to see if it defines the term “rain” as this may affect whether the loss will be covered. It could be covered if there were windstorm damages to the exterior roof or walls of the structure the water had entered. This policy limitation/exclusion is often referred to as the wind-driven rain exclusion. It is important for insureds to be aware of this common provision when reporting claims to their insurers or giving statements about the details of a loss.
Especially when it comes to storms such as hurricanes or tornadoes, there is often the question after the fact: is this water damage or flood damage? In the instance that the damage was indeed caused as a result of flood water, policyholders will typically need to file claim under their flood insurance policy. This is a policy most often purchased separately than that of the homeowner’s insurance policy and through the National Flood Insurance Program.
The National Flood Insurance Program (NFIP) defines flooding as “a general and temporary condition of partial or complete inundation of two or more acres of normally dry land area or two or more properties (at least one of which is your property) from: Overflow of inland waters, unusual and rapid accumulation or runoff of surface waters from any source, and mudflows”.
Typical homeowner’s insurance policies define water damage as damage as a result of water that has not yet come into contact with the ground. So when it comes to water damage vs. flood damage, the hinging factor is the contact or lack of contact with the ground before making contact with the property.
A Loss Payment Clause is a fairly standard provision that can be found within commercial and residential insurance policies. A Loss Payment Clause typically includes:
“We will adjust all losses with you…Loss will be payable…
- 20 days after we receive your proof of loss and reach agreement with you; or
- 60 days after we receive your proof of loss and
- There is an entry of a final judgement; or
- There is a filing of an appraisal award with us”
The “loss payment” provision is one of the few such terms favoring the policyholder.
- It requires the insurer to perform and expressly sets out the time period within which it must tender undisputed insurance benefits to the policyholder.
- The loss payment provision must be interpreted to mean that once an insured has submitted a properly executed sworn proof of loss (POL) statement, the insurer has a certain number of days to tender the undisputed amount of benefits.
- Insurers argue that the provision implies an obligation to pay benefits only after there is an “agreement” between it and the policyholder.
- Taking this argument to its extreme, the insurer would never be obligated to pay benefits as long as it disagreed with the POL’s claimed amount, in part or whole.
- Under such a contract, the insurer could collect premiums from the policyholder but never have a contractual obligation to perform any duties, unless it expressly agreed to them.
- A more reasonable interpretation of the loss payment provision is that on submission of the POL, if the claimed amount exceeds the insurer’s damage estimate, the insurer is obligated to tender undisputed benefits in agreement with the policyholder, leaving the balance as disputed.
- Some states now have penalties for insurers that do not promptly pay agreed amounts of loss.
When evaluating damages and losses to your property, there are several things to be evaluated. One key note to investigate: was there damage before the loss? Does your insurance policy only cover loss and not damage? Can there be loss without damage? Was the damage pre-existing (resulting from wear and tear)? There are many loopholes in insurance policies, don’t let your claims slip through.
If you have questions regarding whether or not your loss or incurred damage is covered under your insurance policy, do not hesitate to call the attorneys at Merlin Law Group. All initial case reviews are complimentary.
- The property insurance proof of loss usually is for the purpose of providing the insurer with the formal claim including:
- The amount;
- The parties claiming under the policy;
- Those with an interest,
- The date and cause of loss; and
- Some supporting documents of the amount of the loss.
The policy usually requires that the proof of loss be sworn to as truthful and a
notarized signature by the insured.
- The time to provide a proof of loss varies from policy to policy. Some states have regulations regarding the time to provide a proof of loss. It is important to comply with the time requirements of submitting the proof of loss.
- In some instances, and in some states, a late filed proof of loss may provide the insurer with a basis to deny an otherwise valid proof of loss.
- National Flood Insurance has specific regulations which absolutely must be complied with. Under Federal law, the letter of the law is more important than the spirit. The proof has to be filled out timely and correctly per Federal Regulations. Oral waivers to fill out a Flood Proof of Loss are not valid.
- Improperly and untimely filled out flood proofs of loss will be a matter of malpractice and litigation.
- Provide your insurer with a written notice of your insurance claim. Keep a copy on file for yourself.
- Cooperate with reasonable requests from your insurance provider in a timely manner.
- Support your insurance claim with any and all evidence, and provide all requested information to your insurer.
- Take safe steps to prevent any further damage to your property if possible.
The insurance company should send out a licensed insurance adjuster following the claim, not someone to repair the damages. When doing this, insurance companies aren’t even following their own policies as far as the described process after placing a damage claim. This can result in improper repair charges. Typically, this is occurring with the elderly insureds where they are signing documents having themselves, the policyholders, directly hiring the contractors to repair damages. The insurance company than steps away and the contractor runs into the problem of not being able to fix everything and they then charge the policyholder large sums of money on top of their deductibles to repair the property.
Insurance should put the insured’s property back to its pre-damage condition. As a policyholder it is important to review their policy and look for provisions of elections of the right to repair, managed repair programs, and to read through the policies to know what their requirements and obligations are when a loss occurs.
Insurance Provider Responsibilities:
- Investigate the policyholder’s claim thoroughly, sufficiently and in a timely manner.
- Treat the policyholder fairly and without bias.
- Compensate policyholder for any covered damages promptly.
- Clearly and thoroughly explain in writing to the policyholder why their insurance claim or part of their insurance claim was denied.