Tag Archives: sinkhole claims denial

The Death of the Concurrent Cause Doctrine in Florida Homeowners Insurance Claims under Sebo v. American Home Assurance

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In a monumental September 18, 2013 holding, Florida’s Second DCA in Sebo v. American Home Assurance ruled that there should have never been a concurrent cause doctrine in Florida, and that the other DCAs have been mistaken for years.  Here is the full opinion:

Download (PDF, 58KB)

As background, many cases involve damage being caused by a combination of excluded and covered perils.  For years, when this occurred, courts would look at the facts and the policy to determine if the combination was dependent or independent of each other and whether the policy terms disposed of the concurrent cause doctrine.  If courts determined that the causes were independent and the policy did not “write out” the concurrent cause doctrine, then it wouldn’t matter if the excluded peril caused 99% of the damage, the damage was still covered so long as the covered peril caused at least 1%.  If the causes were dependent or if the policy had an anti-concurrent cause clause, then the question would be which peril was the efficient proximate cause of the damage – the excluded peril or the covered peril.  (I think I got that right … ).

This gave lawyers and drafters a lot to think about, but the Second DCA says that those exercises were a waste of time.  In any cases involving an excluded and covered peril causing damage together, the efficient proximate cause doctrine should apply.  This not only marks a major swing in the law; it is also at least a major swing in this case. The jury awarded Sebo roughly $7.7M.

Here is the verdict form from the trial court:

Download (PDF, 109KB)

Here is a photograph of this unbelievably amazing house:

 photo from http://www.naplesnews.com/photos/2007/jul/01/38552/

There’s something to think about this weekend.  I am going to think about what this means for sinkhole claims.  Feel free to email me your thoughts.  I hope you have a good weekend.

Takeaway:

This is such an important issue; however, I don’t think most insurers have implemented processes and procedures to take advantage of their rights under this holding.

The Sebo case calls for a whole new set of checklists and guides for handling cases in the Second DCA, and maybe even in Florida.  If you want to know more, please message me.


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Florida Homeowners Insurance Litigation Update: Tampa Sinkhole Insurance Claims: Verdict Forms in Sinkhole Trials

Overview:

Check out one of the most popular articles on homeowners insurance litigation there is.  Thousands of people make a living on homeowners insurance claims, but only a small percentage of them understand why homeowners were so successful at litigating these claims.  Although these claims are dwindling, many lessons can be learned for the next wave of insurance claims.

Make sure to read to the end of this article so you can apply for our free Litigation Report.  By giving us that moment of your time, you will receive a free comprehensive analysis and sets of solutions to bring you power and control over your homeowners insurance litigation cases.


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Good morning. I recently spoke with mediator, Robert Daisley, about the current state of sinkhole litigation. Rob is one of the most well respected mediators in Tampa. He is a great mediator because he emphasizes the uncertainties for the parties.

Rob has a strong grasp on the issues and uncertainties in sinkhole cases. Even when the insurer has done everything right in terms of payment and timeliness, Rob is not sure that the insurer will prevail. Why? Because there has been no direct appellate mandate on the proper jury instructions and verdict forms in sinkhole cases. Experienced trial lawyers start their evaluation of a case by crafting their jury instructions. As Rob suggested and as anyone who has handled sinkhole cases should know, judges are far from uniform in agreeing to jury instructions.

While there is plenty of appellate guidance on the issue, that guidance has been twisted and turned into a wide range of jury instructions and verdict forms. Thus, according to Rob, unless a party is prepared to pay its attorneys to litigate at the trial and appellate level, then that party is better off settling the case. The bottom line: knowing how many variations of jury instructions and verdict forms have been issued by the courts, you must be committed to both the trial and appeal to make sure that the court used the right verdict form.

The most critical variation at this time is the burden of proof in a denied sinkhole case. Some judges place the burden of proof on the homeowners to prove sinkhole activity caused the damage, while other judges require the insurers to prove the exclusions caused the damage. This issue is on appeal right now, however, we are months away from a ruling. Rob’s point here is unless you are committed to appealing a problematic verdict form, then trying the case might not be for you.

Another variation in the jury instructions is determining if the verdict form should be limited solely to whether the claim was allegedly underpaid. Some believe the verdict form should consider an insurer’s compliance with the policy and statutes. Others believe the verdict form should should only ask whether the claim was underpaid.

Rob believes that if a party is not committed to trying and appealing these issues, then the party runs the risk of trying the case with unfavorable jury instructions. The following set of verdict forms (check the variations) support his position:

Download (PDF, 102KB)

Download (PDF, 96KB)

Download (PDF, 31KB)

Download (PDF, 87KB)

Download (PDF, 94KB)

Download (PDF, 131KB)

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Download (PDF, 73KB)

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Download (PDF, 137KB)

Download (PDF, 131KB)

Download (PDF, 414KB)

Download (PDF, 35KB)

Download (PDF, 12KB)

The inconsistencies in these forms are glaring, and insurers and homeowners alike should hope that the Second DCA narrows the issues in an effort to eliminate these inconsistencies. While many lawyers seem to believe they can prevail despite the verdict form, properly framed questions for the jury to answer are crucial. Kudos to Rob Daisley for stressing how these issues should impact insurers’ and homeowners’ outlooks on trying the cases.

So what went wrong here?  

There’s only one way to find out, by contacting me and subscribing to First Party Property Insurance Blog.

Takeaway:

If you want the legal forms and checklists to make your desired jury forms a reality, please message me.


Did this Article Answer Your Homeowners Insurance Question?

If not, then go to our Getting Started page by clicking here, where we have a guide with easy-to-find links to the laws, cases, and articles that will answer your question, or contact me.

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Florida Homeowners Insurance Sinkhole Claims Analysis: Sinkholes and MSJs on the Stabilization Repairs (Pre-408 Policies)

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*April 30, 2014: as a result in the decline in sinkhole claims, there have not been many developments on the contract for repair requirement since I first won this issue over a year ago.  

Insurance Policy

Insurance Policy

In a sinkhole case, can an insurer win a summary judgment that the insured is not entitled to coverage for subsurface repairs, even though that insured has entered into a contract for stabilization repairs in accordance with recommendations of the engineer the insured retained? Yes, even if the policy did not incorporate the statutory amendments from Senate Bill 408.

I previously obtained a summary judgment (and at least one other Judge in Hillsborough county has adopted the same position) in a Hillsborough county case where the Court ruled that:

if the insured wanted coverage for the cost of stabilization repairs, the policy and applicable statutes required the insured to enter into a contract for stabilization repairs that was in accordance with the recommendations of the engineer selected or approved by the engineer retained by the insurer.

The Court determined that, although the insured had entered into a contract for repair in accordance with her engineer’s recommendations, she still was not entitled to any coverage for stabilization repairs.

The Court cited five reasons:

1. Fla. Stat. 627.707 (5) (a) (2005) requires the coverage to be the cost of repairs recommended by the insurer’s engineer:

“if a sinkhole loss is verified, the insurer shall pay to stabilize the land and building and repair the foundation in accordance with the recommendations of the professional engineer as provided under s. 627.7073, and in consultation with the policyholder, subject to the coverage and terms of the policy.”

The engineer provided under Fla. Stat. 627.7073 is (usually) the engineer retained by the insurer; therefore, Fla. Stat. 627.707 (5) (a) requires the insurer to provide coverage in accordance with its engineer’s specifications.

2. Fla. Stat 627.7073 (1) (c) (2006) provides a presumption of correctness for purposes of relying on the insurer’s retained engineer’s recommendations:

“The respective findings, opinions, and recommendations of the professional engineer or professional geologist as to the cause of distress to the property and the findings, opinions, and recommendations of the professional engineer as to land and building stabilization and foundation repair shall be presumed correct.”

The Court understood that this was not a presumption in evidence terms; however, it was a presumption that made sense in combination with Fla. Stat. 627.707 (5) (2005) and the policy form.

3. The first half of Fla. Stat. 627.707 (5) (b) (2005) limits coverage for stabilization repairs until the insured enters into the contract for stabilization repairs covered by the insurer:

“The insurer may limit its payment to the actual cash value of the sinkhole loss, not including underpinning or grouting or any other repair technique performed below the existing foundation of the building, until the policyholder enters into a contract for the performance of building stabilization or foundation repairs. After the policyholder enters into the contract, the insurer shall pay the amounts necessary to begin and perform such repairs as the work is performed and the expenses are incurred. … “

4. The second half of Fla. Stat. 627.707 (5) (b) (2005) provides insureds with recourse in the event the stabilization repairs recommended by the insurer’s engineer are not sufficient:

“If repair covered by a personal lines residential property insurance policy has begun and the professional engineer selected or approved by the insurer determines that the repair cannot be completed within the policy limits, the insurer must either complete the professional engineer’s recommended repair or tender the policy limits to the policyholder without a reduction for the repair expenses incurred.”

5. The policy properly incorporated these provisions.

Other Notes

The Court had actually ruled against this same argument weeks before this hearing; however, when presented with a complete understanding of the statutory framework, the Court agreed that the statutes and policy require an insured to enter into a contract in accordance with the insurer’s retained engineer’s stabilization repair plan if he or she wants that coverage.

We also argue that the following two cases suggest that an insurer should be entitled to summary judgment on the cosmetic repairs when an insured has not entered into a compliant contract for stabilization repairs:

Ceballo v. Citizens, 967 So. 2d 811 (Fla. 2007) and

Slayton v. Universal Property and Casualty Ins. Co., 103 So. 3d 934 (Fla. 5th DCA 2013).

We read these cases as supporting the proposition that, without the subsurface repairs, any dispute on the estimated cosmetic damages is simply premature. The insured should be giving the insurer the opportunity to coordinate performance of the stabilization repairs, then inspect the property after those repairs are complete, and then issue any supplemental payment for additional damages that might be necessary. Although the provisions at issue in Slayton and Ceballo are not identical to the sinkhole loss provisions, the sinkhole loss settlement provisions also indicate that additional damages may occur after the repairs and there may be more coverage available.

I’d be happy to provide you with copies of the orders or anything else you might need in regards to these issues.

Sinkhole Formation

Sinkhole Formation

 

Takeaway:

Do you want forms and checklists to streamline the process of obtaining these results?  If so, message me today.

Did this Article Answer Your Homeowners Insurance Question?

If not, then go to our Getting Started page by clicking here, where we have a guide with easy-to-find links to the laws, cases, and articles that will answer your question, or contact me.