Transcript:

Intro: Hello, and welcome to Insured Success, a podcast brought to you by Reed Smith's insurance recovery lawyers from around the globe. In this podcast series, we explore trends, issues, and topics of interest affecting commercial policy holders. If you have any questions about the topics discussed in this podcast, please contact our speakers at insuredsuccess@reedsmith.com. We'll be happy to assist. 

Matt: All right, welcome back, everyone, to the Insured Success Podcast. My name's Matt Weaver. I'm a partner here at Reed Smith in the insurance recovery practice in Miami. I'm joined here by two of my favorite people, my partner, Chris Kuleba, who also sits with me in the Miami office, and my colleague, Jessica Gopiao, who splits her time between California and South Florida. It's hurricane season. It's also, unfortunately, wildfire season. We're here to talk today about some practical things and some important pieces of advice for anyone who's facing a loss or a potential loss due to any one of these events. Jess, Chris, you want to say anything more about who you are? 

Chris: Sure, Matt. Thanks, and thank you for everybody for tuning in. My name is Chris Kuleba. As Matt mentioned, I'm a partner at Reed Smith in our insurance recovery group. I'm based in Miami. I've been doing insurance recovery work essentially my entire career. I was barred in 2013, so I'm going on 11 years now. I'll turn it over to Jess. 

Jessica: Hello, everyone. My name is Jessica Gopiao. I am a senior associate and member of the Reed Smith's Insurance Recovery Group. As Matt had mentioned, I split time between South Florida and Southern California. Back in June, I chatted with Rich Lewis and John Ellison about navigating insurance claims after natural disasters. And with hurricane season being amongst us and the record-breaking wildfire season, we are now going to talk more about that. 

Matt: So I think the goal here for everyone is to focus on what we, in our experience, have seen as key issues in these cases and these claims that drive outcomes. A lot of things can happen in the course of an insurance claim. Some of it is important. Some of it, candidly, is not. But we want to talk a little bit about things from our perspective that tend to really matter and tend to push these claims in one direction or the other. So Chris, you want to start us off? 

Chris: Sure. And as Matt mentioned, this is by no means an exhaustive list. What we'd like to do is sort of take you through some of the sort of big picture, significant driver issues, starting from the beginning of a loss through the claims process and then through a process that's called appraisal, which is a alternative dispute resolution process found in most property insurance policies, though the nature and the scope of those provisions can vary based on the text of the policy. But first, if it's okay with everybody, I'd like to start with some causation issues. And by that, I mean when an insured or a property, I should say, suffers a loss, what is the relevant cause of that loss for purposes of determining coverage? In the instance of a hurricane or a wildfire, that is often very obvious, at least with respect to some of the immediate damage. But you'll find, as many of us have, that when submitting a claim, an insurance company will often point to damage, maybe that preexisted a hurricane or preexisted a fire in the case of a partial loss and seek to find ways within the policy to deny coverage for all or part of a loss. And one of the key drivers in terms of coverage when it comes to causation is what state or what causation doctrine, I should say, is applied in the particular state. In Florida, we follow something called the concurrent cause doctrine, which is one of two predominant causation doctrines in states throughout the United States. The other, which is particularly relevant for wildfires, since this is a California doctrine, the efficient proximate cause doctrine. Generally speaking, the concurrent cause doctrine at bottom says when there are two or more causes of loss, one of which is covered and one of which is not. That combine to cause a loss, the loss is covered absent some specific policy language called anti-concurrent cause language that we'll talk about in a minute. And the reason that's important is going back to that example of pre-existing damage. If you have, say, a hurricane that damages part of the house, an insurance adjuster comes out and says, well, some of this looks like it existed prior to the hurricane. We see some of this is new, but we're only going to pay for the part that we see is brand new and not things that were made worse by the hurricane. An example could be leaking windows. You had windows that maybe weren't built correctly or they're older and they had very minor leaks prior to a hurricane. And a hurricane comes, the windows are suddenly leaking large amounts of water. They're no longer sealed. And if in that situation, an insurance company may point to either a faulty workmanship, construction defect type exclusion. It might point to a wear and tear exclusion, it might point to a pre-existing damage exclusion. But under the concurrent cause doctrine, because the hurricane, being a covered cause of loss, exacerbated that existing damage, the loss should be covered. Under the efficient proximate cause doctrine, in contrast, you look to the predominant cause of the loss, the one that puts the sets the others in motion. And that doesn't have to be the first cause and it doesn't have to be the last cause in the causal chain. It just has to be the predominant cause. For example, if you have a say you have an old house that settled naturally over time and was then coated with ash from a wildfire and an insurance company will come out and say, well, the cause of the ash, the predominant cause of the ash is certainly the fire. But what if the ash from that fire clogged the property's drains and a rainstorm, say, came in, and because the rain could not drain through those drains, it backed up into the house and around the house and caused water damage in the house? In that instance, what would the efficient approximate cause be? Would it be the rain or would it be the fire? Now, this may not be the best example because typically both of those causes, both rain and both fire, are going to be covered. But let's say in this particular policy, rain is excluded, but loss caused by fire is covered. The insured would argue, and in my opinion, they would be right, that the efficient proximate cause of that water damage is actually the fire. Because without the fire and the after clogged drains, the water would not have backed up into and around the house, causing that water damage. So the predominant cause in that instance would be the fire. Now, before I continue, I'll take this over to Matt or Jess, if there's anything you want to add so far. 

Matt: So maybe, Jess, you can talk a little bit about why this issue is important and why, from the policyholder's perspective, this can really make a difference, depending on what standard applies and depending on the causes you're dealing with in a particular loss. 

Jessica: So the reason why I think we had started this episode talking about causation is because we are focusing on wildfires and hurricanes. And the first question when presented with a coverage issue under a policy is, what caused the damage? And what Chris is talking about is answering the question of, did the hurricane cause the loss? Or in his hypothetical, did the fire cause the loss? So when presented with certain damage to property, the first question is, what actually caused it? 

Matt: Chris, I mean, in your experience, I think there's an issue here that's important about burden of proof and scope of loss that tends to show itself later down the line. Do you want to talk a little bit about that? 

Chris: Sure. And I'm glad you brought that up because burdened proof is a really important topic. So speaking in very broad terms here, there's two different types of property policies. And it doesn't matter if it's residential or commercial. The two types of policies I'm referring to are one, what's called an all risk policy. The other is a enumerated or specified peril policy. And an all risk policy, all causes of loss are covered, except if they're specifically excluded in the policy. So in that in that type of policy, the scope of covered causes of loss is defined not necessarily by the coverage grant, but by the exclusions themselves, because everything is covered unless it's not. In a enumerated or specified perils policy. It's a bit different because there's only certain perils and those are set forth in the policy that are actually covered. So if a loss was caused by peril, I mean a cause of loss, and using the examples we've been using, a hurricane is a peril, a fire is a peril. So unless the loss was caused by one of those perils set forth in the policy, it's not going to be covered. And this is an important distinction, one, because all risk policy provide very broad coverage. They're more policyholder friendly. And it also has an impact on the, quote, burden of proof in terms of who bears the burden of proving what the cause of loss is. Under an all-risk policy, as long as the insured can show that there is property damage during the policy period, the burden should then immediately shift to the insurance company to prove that the loss is excluded. And the reason for that is, as I mentioned, all causes of loss are covered unless they are specifically excluded. And the insurance company, as a writer of the insurance policy in most instances, is going to have the burden to prove that an exclusion applies to the entirety of a loss. Under a specified or enumerated peril policy, the policyholder, the insured, is going to have to prove that one of the enumerated perils caused the loss. And when it comes to litigation and when it comes to supporting a claim, that burden of proof can be very, very important. 

Matt: Yeah. And to kind of bring this back a little bit big picture, when we talk about burdens of proof and we talk about what's covered and what's excluded and framing it and what's going to drive your success on your claim, the less burden the insured has, the easier it will be to prove. And that sounds a little bit obvious, but that's why these rules are so important. If the insurance carrier has a higher burden, in other words, under a concurrent cause situation. Let's say there's covered hurricane damage or covered wildfire damage for that matter, and you've got a building that also has construction defects, it's not going to be enough for the insurance company to come along and say, oh, well, guess what? The construction defects, which are excluded, contributed to your damage. Therefore, we have no coverage obligations. Under the concurrent cause doctrine, if you've got that covered peril and that covered peril contributes to your damage, the entire loss is covered, regardless of the presence of an excluded peril. So when you're talking about ease of proof and ease of burden, it's very, very important at the outset to try to understand, one, what are the different causes of your loss? And two, which one of these rules is going to apply? 

Jessica: And to kind of loop it back to the all-risk versus named peril distinction, if it is an all-risk policy, one argument that we like to put forward is that if it is all-risk, then as Chris had mentioned, if there was just damage that had happened during the policy period, then the insured, the policyholder, had met their burden of proof. And then it's up to the insurance company to point to something that is excluded under the policy to completely deny coverage outright. 

Chris: One thing I'll add to that, and for those of us listening to this podcast who are not like the speakers here, major insurance nerds and aren't familiar with standard policy language, there is an exception to this concurrent cause doctrine. And I touched on it briefly before. If there is policy language that precedes a particular exclusion, or in most cases, it'll precede an entire section of exclusions. And that language purports to get rid of that concurrent causation doctrine. In other words, remove it from application to a particular loss because it excludes any loss in which a particular exclusion contributes at any point in the causation chain. That language is going to be enforceable and the concurrent cause doctrine is not going to apply. If you're looking at your policy, the language is fairly standard across the board, but there are some variations. One example would read something like this. We do not cover, quote, any loss that is contributed to, made worse by, or in any way results from the below exclusion, regardless of any other cause or event contributing concurrently or in any sequence to the loss. So if you see language like that that precedes an exclusion, call it a, it's not typically in front of this particular exclusion, but say you have that language and then following that is a construction defect or faulty workmanship exclusion. Typically, if under the concurrent cause doctrine in the absence of this language, as Matt mentioned, if a loss is caused by a covered event, call it a fire, call it a hurricane, in part, and in part a construction defect, In that example I gave with the leaky windows, let's say the windows weren't built correctly or they weren't installed correctly. Under the concurrent cause doctrine, if that hurricane made that construction defect worse and the resulting damage worse, that would be covered. ] if because the construction defect contributed in any part of that causal chain, regardless of any other cause contributing concurrently or in any sequence of a loss, that loss is not going to be covered. So if the insurance company drafts the policy in a way to defeat the concurrent cause doctrine, that's going, at least in Florida, that is going to be enforceable and that doctrine will not apply to support coverage in that case. And similarly, for the efficient proximate cause doctrine, that is a doctrine, again, it's in a lot of states, California, I'll use it because we're talking about law of fighters. There is a prohibition in California law against contracting around the application of the efficient proximate cause doctrine. So in the example I gave earlier with the fire and the ash and the water, if there's an exclusion that says, well, if the policy covers fire, but there's an exclusion that says, well, we don't cover fire to the extent it combines with water to cause water damage, there's a good argument that that type of language is an attempt to contract around the efficient proximate cause doctrine. And under California law, any attempt to do that is forbidden and policy will not be enforced in that way. 

Matt: All right. So let's assume that we've got our claim. We've looked at our policy. We have some understanding as to how these causation standards are going to work. Now it's time to start dealing with the insurance company. Chris, you want to talk about that a little bit? 

Chris: Sure, sure. And what Matt's referring to is sort of, okay, what happens after a law? What are the conditions required? What are the obligations of the policyholder, the claimant, the insurer, the person making the claim to the insurance company? What must the policyholder do to, one, perfect, to make a claim, perfect coverage and ensure that during the claims process, they're doing everything that they are contractually required to do to avoid any excuse by the insurance company to deny coverage aside from the actual existence of coverage itself? The first step is obviously going to be notice. And Jess and Matt can vouch for this. I can't tell you how many times we've come across cases where, for one reason or another, notice was not timely provided to the insurance company following a loss. And under property policies, they're called their occurrence-based policies. And not to get into the weeds, but what I mean by that is there's occurrence-based policies where, in a property context, the relevant policy is the one in which the property damage took place during that policy. So when the property damage occurred during one policy, that's the policy that's triggered. And typically, the notice provision under that type of policy is going to be to provide notice as soon as practicable, as soon as reasonably practicable. Occasionally, you'll see the requirement that notice be provided immediately upon discovery of a loss. And that should be distinguished from claims made and reported policies in the sense that, well, notice is still required finally and it seems practicable if a claim is made during a policy period and not reported to the insurance company during that policy period or some extended reporting period that's purchased, then there's not going to be any coverage. You don't have that same claims made and reported in the policy period issue that you do for current type policies like property policies, because many times the loss isn't even ascertainable immediately. So typically, the notice requirement is going to be as soon as practical after a loss. And most it's going to be after you after you discover the loss. Now, the law on that in terms of when a notice obligation accrues can vary by state. So you'll want to check that. But generally speaking, that's the requirement under a property policy. So assuming notice is timely, the insurance company is inevitably going to ask for information. They're going to ask to come out to inspect the property. Of course, they're going to ask you most likely for documents in the event of a case where you're dealing with allegedly pre-existing damage. They're going to look for receipts and invoices for prior repairs. They may look to your email, the correspondence, you know, identifying the prior damage. They're going to send engineers out to investigate. Most policyholders, if they're in a dispute with their insurance company, they're going to want to hire their own engineers. They're going to ask for documents. They're going to inspect the property. They may ask you for what's called an EUO or an examination under oath, which is kind of like a deposition in a case, except there's no rules of evidence applicable. And an insured compliance with these requirements is critical because if there's not at least substantial compliance with these what are called post-loss conditions, the insurance company may have ground high coverage, even if the loss is covered. If you don't cooperate with their investigation, if you don't provide documents, or if you don't timely notify them of the claim, there are bases to deny cover. Now, one point I want to focus on is the document request, because the candidate insurance companies and their counsel often have a tactic, if you will, of requesting documents. You pull together everything, you send it over, followed by another document request upon another document request. And seemingly that process will never end. The insurance company will never be satisfied. And sometimes you just don't have a document, right? In most property policies, the requirement is not that you produce documents to the insurance company. It's that you make your books and records available for examination at the insurer's request. And the reason that's important, and I'll use the example of a condo association. Right. If a condo association, rather than digging through their own files, putting together everything they can and sort of dealing with serial requests for additional information from the insurance company, if instead they simply allow the insurance company to come in and access the files directly. The insurance company, more often than not, cannot complain that they didn't either get the information or if you don't have it, there's nothing you can do about it. But in my experience, having the insurance company come out and do the digging through the files themselves cuts short the document process significantly, even with most of the requesters on the insurance side. The one piece of advice I'll give for condo associations in particular is a lot of times you'll have resident personal files, whether it was the application process, you may have financial information, other personal information, social security numbers and things like that. You'll want to be sure you enter into one silo that information in a different place and make sure that you're communicating with your insurance company or council about that issue. And more often than not, they're not going to have a problem with that. So silo the confidential information, get a confidentiality agreement, and then make the balance of the files concerning the property available for inspection. You'll save yourself a lot of time and headaches. 

Matt: So let me just comment on a couple things Chris said, and I want to get Jess, your reaction, and Chris, your reaction to this. There's a tension in my experience between what the policyholder is required to do under the policy and what basic claims handling standards and duties of good faith require the insurance company to do. Obviously the parties here have divergent goals. I've never met a policyholder who doesn't want their money yesterday and want the claims process done as fast as possible. Not to say it happens all the time, but sometimes insurance companies have incentives to see things and do things a little bit different. So I'll pose this to you guys. How can a policyholder successfully navigate, those competing interests while also complying with what they have to do under the policy? 

Jessica: Well, I do think one thing that some policyholders maybe assume or are quick to assume but don't realize is that while they do have some general duty to cooperate, there's also sometimes an explicit duty of cooperation in policies. But that doesn't exist in every single policy. As long as the policyholder is cooperating in the sense that they are trying to assist the insurance company with their investigation through as reasonably as they possibly can, usually that is sufficient to comply with the general duty of cooperation. When it comes to document requests, and Chris had kind of talked about it already, but it is true that insurance companies tend to just constantly ask for and request documents over and over and dig deeper into it and just you kind of get into this cycle where you need to start producing as many documents as possible. But the key question I think that is worth asking is, is this actually material to the claim itself? And if it is, then absolutely send that over to the insurance company as soon as possible. But if they start asking for things like condo owners, documents, or other kinds of irrelevant materials, it might be worth maybe pushing back on that a little bit. 

Chris: Just to add to that, in general, I think the best way to navigate the balance between getting paid immediately if you're the policyholder and making sure the insurance company is satisfied with the information they have is to be an open book. My philosophy generally with these claims is that there's nothing to hide. If the insurance company wants to come out to inspect the property, come on out. Try to get it done in as few visits as you can, but come on in. Take a look. In terms of the documents, I think what I mentioned before is probably the single biggest time saver in terms of cutting through the brush on these issues, letting the insurance company come out and do their own inspection of books and records. That way they see everything that's there. They pull what they want. If they didn't pull something, then that's not your fault for not producing it. It's theirs for not getting it. So I think that's a huge, huge step towards making sure that the process runs efficiently. And then, you know, in the event they ask for an examination under under oath of the policyholder, you know, you have to sit for it and they don't always ask for it. And another tip as well. Read the policy language. It's not every sometimes insurance companies will ask for EUOs of people other than the insured. Not every policy allows them to do it again in the spirit of cooperation. You may very well want to, but if it becomes the insurance company requests become onerous and unreasonable, you would have grounds to push back if they're asking for an EUO of somebody who is not one of the people that the policy requires an EUO be provided. So keep that in mind as well. The other thing is it's called a proof of loss. I haven't mentioned that, but in a lot of some some policies require proof of loss automatically and X number of days from the date of loss called 60. Others require proof of loss within X number of days, call it 60, from the insurance company's request. So keep an eye out for that. Provisions that... Begin automatically can be trapped for the unwary policyholder. They may not realize it's there. So always read your policy. But more often than not, it's going to be based on the insurance company's request. And there will be a form that you fill out. And what you should do to connect with that is provide all. If you know the amount of the claim, if you have estimates, provide that number, provide the backup. And the more information you provide, the smoother the process goes, generally speaking. 

Matt: And before we move on to what you might expect after the investigation obligation is over. I just want to remind the audience, it is the insurance company's duty to investigate. Not to say that as an insured or policyholder, you should sit back and do nothing because you absolutely should not. But just remember that you need to be doing things in order to allow the insurance company to fulfill its obligations and to force them to fulfill their obligations. You know, being an open book like Chris described is one of the best ways to do that. If you remove any legitimate excuse for the insurance company not doing its job, then you're going to move your claim much faster along than you otherwise would. So with that said, Jess, do you want to talk about some of the things that happen after the investigation is over and after a claim decision is made? 

Jessica: Sure. So, I mean, one thing that happens when, for example, there is no dispute that there is coverage of a claim, but there may be a disagreement as to the value of the loss. Chris mentioned this pretty briefly at the beginning of the episode, but appraisal is an informal process that can help determine the amount of the loss. So it's a great option when there is a disagreement as to the value of the loss, but there is an agreement as to there being a covered loss. We did talk about this pretty briefly in the natural disasters episode back in June. So if you want more information on that, feel free to go back there. Matt, I don't know if you wanted to talk about some additional things to look out for within the context of appraisal. 

Matt: In the appraisal process for things that can slow the appraisal process down. Appraisal is designed to be an informal dispute resolution mechanism. It's designed and intended to be cheaper and faster than litigation. It can, however, be more expensive and slower than litigation. I think we've probably all seen that happen. So just be on the lookout during the appraisal process for things that might be slowing it down. There are ways to combat a slow appraisal process. You can agree to appraisal protocols, memorandums of appraisal that govern the rules. Generally, appraisal, absent some agreement between the parties for a set of rules, is pretty much a no-holds-barred affair. It's generally up to the appraisers and the other member of the three-person panel called the umpire, to set the parameters for how long the appraisal is going to take, what the appraisers are going to do. Whether they need to hear from any experts or witnesses who might be relevant to the issues that they're trying to decide. Think about that as you move into the appraisal process. Do you need some type of formal guardrail on the process to speed things along? Or if you have experienced appraisers, and I think all three of us have seen this before, there is a sizable stable of very experienced appraisers all over the country that do this all the time. A lot of times, They work together. They are frequent players in disputes across from one another. I think generally, in my experience, that is usually helpful to the process. And you want to see if you can set up a situation or at least get an agreement with the other side that maybe can utilize some of those more experienced folks. Chris, anything else you want to add? 

Chris: I do. Let me just take a step back. As Jeff mentioned, generally speaking, appraisal is appropriate where there's a dispute over the, quote, amount of loss. What constitutes a, quote, amount of loss dispute may vary depending on the state. I'll speak from the perspective of Florida. Let's say an insurance company comes in and says, all right, I see you have a $10 million claim here. I think $9 million. First of all, we disagree with the number. We don't think that there's $10 million in damage here, but we think there's maybe a million dollars in damage caused by the hurricane. There may be other damage, but that was pre-existing or that's a construction defect, so we're not going to worry about that. In that case, where the insurance company has acknowledged that there is some cover damage, there's typically an appraisal provision in the policy that allows either side to demand appraisal. And if either side in the insurance company or the policyholder does that, it's mandatory. And the result, in terms of the appraisal panel's finding of the amount of loss, is going to be binding on both parties. The way the process will go is somebody will demand appraisal, and they'll designate their appraiser. Say the policyholder says, hey, insurance company, I want appraisal. I want to nominate so-and-so as my appraiser. And then per the terms of the policy, the insurance company will be required to respond and designate their appraiser within a certain number of days, 20 days, say. But once there's two appraisers selected, those two appraisers will, between themselves, select a third appraiser or the umpire, who, in the event there is not an agreement during the appraisal process on the amount of loss between the two party-selected appraisers, the umpire will decide. That'll be the deciding vote, if you will. And as long as an appraisal award is signed by two out of the three, then it's a done deal and it's binding on both parties. In terms of what constitutes or what's what the scope of appraisal is in Florida, an amount of loss dispute can include the cost. So, for example, you can get an appraisal award that says, I find that there is X million dollars in damage caused by Hurricane Beryl, using a recent example. In that case, the appraisal panel's determination of the amount of loss caused by Hurricane Beryl is is part of the amount of loss dispute. view. It is pure issues of coverage. In other words, whether a loss is excluded or covered under the insurance policy, that is not fair game in the appraisal process. That is an issue that has to be resolved by the court. I should also mention that just because the parties participate in the appraisal process and there's a binding appraisal award does not necessarily mean that the loss is covered. An insurance company may very well turn around and say, OK, great. The appraisal panel said there's $10 million in loss here, but we don't think it's covered. And then in that case, you're going to be either going to resolve it with the insurance company or you're going to be in court. So the appraisal process in many instances where there's at least where there's a clear cause of loss and clear and conceded cover damage in part is a great and efficient process, like Matt mentioned, to get a quick and timely resolution. But it may not be the end all be all in terms of the insurance company's decision to pay. 

Matt: I think a key point and a key takeaway on appraisal is it can be something very helpful to the policyholder, but it's not for every dispute and it's not for every case. You've got to analyze several different issues as to whether the appraisal route or perhaps litigation route is more appropriate if you find yourself in dispute. We talked a little bit, I mentioned a little bit earlier about insurance companies behaving badly, and we don't want to spend, I don't think too much time on this, but it is a consideration for the policyholder as you go through a claim. Regarding what you can do about that unfortunate circumstance. Jessica, you want to talk a little about first party bad faith? 

Jessica: Yeah, just to quickly talk about bad faith. As Matt had mentioned, sometimes insurance companies just don't act with due regard for their policyholders best interests, and they owe a duty to policyholders to act in good faith and for the benefit of the insured. And when they don't, you know, what would they lie if they intentionally misrepresent policy language, if they underpay on claims, if they don't communicate with the policyholder, or if they abuse or intimidate the policyholder, these are all grounds to sue in a bad faith lawsuit. We are running out of time today, but I think that Matt, Chris, and I will reconvene and maybe talk a little bit more about bad faith insurance lawsuits and insurance coverage litigation as well. So thank you so much for joining us on today's episode, and we look forward to talking with you about that in another episode. 

Outro: Insured Success is a Reed Smith production. Our producer is Ali McCardell. This podcast is available on Spotify, Apple Podcasts, Google Podcasts, PodBean, and reedsmith.com. To learn more about Reed Smith's Insurance Recovery Group, please contact insuredsuccess@reedsmith.com. 

Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers. 

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