Claims And Issues

FLORIDA UM DAMAGES DECISION FOR LEAP YEAR.

The Florida Supreme Court has held in a groundbreaking decision best reported in the Court's own words:

[A]n insured is entitled to a determination of liability and the full extent of his or her damages in the UM action before filing a first-party bad faith action. That determination of damages is then binding, as an element of damages, in a subsequent first-party bad faith action against the same insurer so long as the parties have the right to appeal any properly preserved errors in the verdict. The history of first-and third-party bad faith actions, this Court's precedent, and the legislative intent to eliminate the distinction between first-and third-party bad faith claims all support our conclusion. We also conclude that the trial court in this case did not err in retaining jurisdiction to allow the filing of a bad faith cause of action.

Fridman v. Safeco Ins. Co., ___ So. 3d ___, 2016 WL 743258 (Fla. 2016) (STATED NOT FINAL).

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, author of Litigation and Prevention of Insurer Bad Faith (3d ed. Thomson Reuters West in 2 Volumes, with  Supplements).  All rights reserved.

CARRYING WATER TO A DISTANT HOME. "WATER" EXCLUSION IN MISSISSIPPI.

A casino in Mississippi owned a barge. The barge cut loose during Hurricane Katrina and crashed into a home, destroying it. The homeowner made an insurance claim under her all-risk homeowner's policy.

When the homeowner's case reached the Mississippi Supreme Court, the Court held that the homeowner's policy exclusion for damage caused by "water" included the damage caused by the casino's barge. Without water the barge could not have floated all the way to the home and so without water there could have been no damage and so without water there was no claim, which is how the Court said as it looked at the situation with dry eyes.

The case is Porter v. Grand Casino of Mississippi, Inc., 181 So. 3d 980 (Miss. 2016).

Please Read The Disclaimer. ©2016 by Dennis J. Wall, author of "Insurance Claims and Issues" (forthcoming Thomson Reuters 2016). All rights reserved.

MODELS IN INSURANCE.

An interesting take on modelling in insurance is provided by corporations and apparent academics collaborating in the U.K.  They have issued several 'white papers' on the topic.  Their umbrella appears to be the "Amlin" organization.

Here is a link to their 'white paper' titled, "Did Your Model Tell You All Models Are Wrong?" (undated but apparently circa November 4, 2015).

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, author of "Insurance Claims and Issues" (forthcoming Thomson Reuters 2016).  All rights reserved.

THE "PLAUSIBILITY" OF JUDGING WITHOUT MOTION FOR JUDGMENT OR TRIAL.

I thought that I would break this cyberattack case down into understandable concepts but I hit a wall.  (No pun intended.)

Instead I ran into the reality of what has been called "Mr. Roberts' Rule of Order," or "Lots of orders, very few rules."

I refer to the so-called "plausibility" standard of jurisprudence under which trial judges in Federal courts can look at exhibits to decide motions to dismiss, unlike the previous standard under which a motion to dismiss would be denied so long as basically the complaint alleged "ultimate facts."

To many if not all District Judges, "plausibility" goes beyond mere plausibility to deciding motions to dismiss based on the exhibits.  It also means dismissing claims with prejudice based on the exhibits.  So really, the test is not whether the complaint states claims that are plausible but whether the exhibits submitted by the plaintiffs and the defendants are plausible.

Sometimes it even means that a complaint will be dismissed if the plaintiffs have not submitted exhibits on any given claim.

Such was the case in the cyber-risk decision under discussion, In re Anthem, Inc. Data Breach Litigation, No. 15-MD-02617-LHK, 2016 WL 589760 (N.D. Cal. February 14, 2016).  The District Judge dismissed California breach-of-contract claims, New Jersey breach-of-contract claims, and New York unjust enrichment claims because of the exhibits submitted by the plaintiffs, because of the evidence submitted as exhibits by the defendants, and because the plaintiffs did not submit "any relevant exhibits" on one claim.  In re Anthem, Inc. Data Breach Litigation, No. 15-MD-02617-LHK, 2016 WL 589760, at *14-*17 (N.D. Cal. February 14, 2016). 

Never mind that the "exhibits" might never have been admitted into evidence.  The question of admissibility was never even asked before the rulings were made.

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, author of "Insurance Claims and Issues" (forthcoming Thomson Reuters 2016).  All rights reserved.

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"PLAUSIBILITY" AND PREEMPTIVE MOTION TO DENY INSURANCE CLASS CERTIFICATION.

WHAT "PERSONAL IDENTIFICATION INFORMATION" OF 80 MILLION PEOPLE REALLY MEANS.

The District Judge described what she meant with the otherwise anodyne acronym "PII" and in the antiseptic-sounding phrase, "Personal Identification Information."  Bear in mind, once again, that these are the things that were accessed by cyberattackers for 80 Million people in a health insurance carrier's database:

‘These records include personal information (such as names, dates of birth, Social Security numbers, health care ID numbers, home addresses, email addresses, and employment information, including income data) and individually-identifiable health information (pertaining to the individual claims process, medical history, diagnosis codes, payment and billing records, test records, dates of service, and all other health information that an insurance company has or needs to have to process claims).‘  Id. The Court shall refer to members' personal and health information as Personal Identification Information, or ‘PII.‘

In re Anthem, Inc. Data Breach Litigation, No. 15-MD-02617-LHK, 2016 WL 589760, at *2 (N.D. Cal. February 14, 2016 [and once again, yes, dated on a Sunday]).

To be continued.

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, author of "Insurance Claims and Issues" (forthcoming Thomson Reuters 2016).  All rights reserved.

CLASS ACTION, CYBERACCESS TO PERSONAL IDENTIFICATION INFORMATION, AND HEALTH INSURANCE.

For two months, from December, 2014 through January, 2015, Anthem, Inc.'s database of policyholder information was breached by cyberattackers.  Anthem itself said so.

The cyberattackers accessed the "Personal Identification Information, or 'PII'," of approximately 80 Million policyholders.  Anthem itself said so.

This was not the first time.  Anthem and Wellpoint, "Anthem's former trade name," experienced "problems with data security" in 2009 and in 2013, as a Federal Court put the matter in In re Anthem, Inc. Data Breach Litigation, No. 15-MD-02617-LHK, 2016 WL 589760, at *1 - *2 (N.D. Cal. February 14, 2016 [yes, dated on a Sunday]).

To be continued.

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, author of "Insurance Claims and Issues" (forthcoming Thomson Reuters 2016).  All rights reserved.

FILED RATE DOCTRINE IN INSURANCE CASES: DOCUMENTS AND FACTS REQUIRED.

 

United States Supreme Court.  Image courtesy of the New York Public Library.

The many documents required for any insurance rate filing make it clear that if the filed rate doctrine properly applies in insurance cases at all, then its application obviously involves many questions of fact.  This is particularly true in Florida, as we have seen in previous articles.

The filed rate doctrine is not a defense that appears on the face of the ordinary plaintiff's complaint.  Rather, the filed rate doctrine is proven by evidence that the insurance company which filed for the requested rate actually filed the documentation required by statute and regulation to support approval of the requested rate.

They call it the "filed" rate doctrine after all.  What must be "filed" is the key to proving the defense.

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, author of "Lender Force-Placed Insurance Practices" (American Bar Association 2015).  All rights reserved.

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FLORIDA and LENDER FORCE-PLACED INSURANCE PRACTICES WIND 2016

FILED RATE DOCTRINE IN FLORIDA INSURANCE CASES: QUESTIONS OF FACT.

 

Foreclosure Order.  Image courtesy of New York Public Library Collection.

Florida Statute Section 627.062 requires the Florida Office of Insurance Regulation (i.e., the Office of the Florida Insurance Commissioner in all respects but name) to approve or disapprove insurance premium rate requests based on rate filings provided by insurance companies.  It is very long (click the link to see how long it is), but the statute itself is not explicit about what needs to be in a rate filing in order to be approved.  It is certain that this very long statute requires the O.I.R. to consider a great many things in making its determination, and that those things must be included in the insurance company's rate filing before the requested rate can be approved.

The Florida Administrative Code contains the Florida Office of Insurance Regulation's requirements 'read between the lines' of the Florida Statute.  In particular, Rule 69O-170.013(3), F.A.C., was published verbatim in FILED RATE DOCTRINE IS A FARCE IN INSURANCE CASES, an article posted on Insurance Claims and Bad Faith Law Blog on December 3, 2015.

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, author of "Lender Force-Placed Insurance Practices" (American Bar Association 2015).  All rights reserved.

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No "Lender Force-Placed Insurance Practices" Cases Have Gone to Trial.

CYBERINSURANCE COVERAGE FOR FINES AND PENALTIES WIND 2016

In a departure from other lines of insurance and from the current experience of most insurance coverage experts, cyberinsurance policies include coverage for regulatory fines and penalties in their Insuring Agreements.

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, author of "Insurance Claims and Issues" (forthcoming Thomson Reuters 2016).  All rights reserved.

CYBERINSURANCE POLICIES IN PROCESS WIND 2016

Cyberinsurance policy forms are constantly changing.  Just like the evaluation of cyber risks and exposure to damages.

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, author of "Insurance Claims and Issues" (forthcoming Thomson Reuters 2016).  All rights reserved.

"OPT OUT LETTER" WIND 2016

This was described to me as a letter to the mortgagee in a lender force-placed insurance situation.  If the mortgagee does not make a claim and for whatever reason the homeowner cannot or does not make a claim, representatives of the homeowner can send the mortgagee an "opt out letter."  It was suggested that the letter can run along the following lines:

Make a claim for insurance coverage within 7 (or 14, whatever) days or you will be paying us to protect the property.  You have 7 days to opt out before this takes effect.

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, author of "Lender Force-Placed Insurance Practices" (American Bar Association 2015).  All rights reserved.

MORE LENDER FORCE-PLACED INSURANCE WIND 2016

"Mortgage servicers drive force-placed insurance."

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, author of "Lender Force-Placed Insurance Practices" (American Bar Association 2015).  All rights reserved.

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Lee FINAL APPROVAL OF CLASS ACTION SETTLEMENT IS ON APPEAL.

LENDER FORCE-PLACED INSURANCE WIND 2016

"The mortgage industry drives the insurance industry.  Understand?"

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, author of "Lender Force-Placed Insurance Practices" (American Bar Association 2015).  All rights reserved.

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An Insurance Policy That Replaces Force-placed Insurance Policies & Practices?

Why is Lender Force-Placed Insurance so Expensive?

FOCUS IS ON LENDER FORCE-PLACED INSURANCE PRACTICES AT WIND 2016!

The focus is on upcoming Lender Force-Placed Insurance Practices at WIND 2016!

The more the sun shines, the better things are!  A rule that is true about most things, Lender Force-Placed Insurance Practices among the rest.

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, author of "Lender Force-Placed Insurance Practices" (American Bar Association 2015).  All rights reserved.

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Why is Lender Force-Placed Insurance so Expensive?

An Insurance Policy That Replaces Force-placed Insurance Policies & Practices?

"Deceptive Practices" and Lender Force-placed Insurance: New York's Example.

DATA BREACHES ADDRESSED AT THE WIND 2016 CONFERENCE! CYBERINSURANCE, ANYONE?

Data Breaches are a storm in their own right.  Data breaches will be addressed together with related issues of Cyberinsurance, have no doubt.

The future is HERE!

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, author of "Insurance Claims and Issues" which will include Cyberinsurance Claims and Issues (forthcoming Thomson Reuters 2016).  All rights reserved.

CATASTROPHE CLAIMS ISSUES AT THE WIND 2016 CONFERENCE!

Topics include lots of issues involved with handling Catastrophe Claims:  Lost income, Property Law, Hail Damage, among the rest.

More to come!

P.S.

Let's hope there are NO Catastrophe Claims to come!

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, Co-Author of "Catastrophe Claims / Insurance Coverage for Natural and Man-Made Disasters" (Thomson Reuters 2016).  All Rights Reserved.

FOG WILL NOT KEEP ME AWAY FROM WIND 2016!

Fog will not keep me away from the WIND 2016 Conference!  Especially considering that one of the sessions on the agenda in particular addresses adjusting claims after Hurricanes!

Please Read The Disclaimer.  ©2016 by Dennis J. Wall.  All rights reserved.

COVERAGE ISSUES OVER LAWSUIT AGAINST DETROIT SCHOOLS AND EMERGENCY MANAGER.

Apparently tired of horrible continuing conditions in the Detroit Public Schools, and weary of the Emergency Manager's attempts to blame the conditions in the schools not on spending less money on students, but blaming the conditions on teachers instead, the Detroit teacher's union has reportedly at long last filed suit.  The purposes of the lawsuit, again reportedly, are to mandate the Detroit Public School District to spend the funds on students, and to force the removal of the Emergency Manager, Mr. Darnell Earley.  National Briefing / Midwest "Michigan:  Detroit Teachers Seek End to Control by Emergency Manager" (Associated Press Copyrighted Story published on The New York Times Online, dated January 28, 2016).

Mr. Earley previously served as the Emergency Manager of Flint, Michigan before he left to become the Emergency Manager of the Detroit Public Schools.  During Mr. Earley's tenure in Flint, the decision was made and implemented to save money by hooking up the City's water supply to polluted water from the Flint River without the necessary treatment to make it drinkable, it is alleged in at least one pending complaint.  Coincidentally, perhaps, it is alleged that that decision was also made by reducing spending on infrastructure that protects children.  

Now a complaint has been filed in Court that alleges that much the same decision was also made in the management of the Detroit Public Schools.  

So, assuming that Detroit P.S.D. has a Public Entities policy or the equivalent, would Mr. Earley the Emergency Manager qualify as an Additional Insured under that policy's own language?  Or do the taxpayers of the State of Michigan have to foot the bill regardless, first for defense and later possibly for indemnity of either the School District or Mr. Earley or both?

And what of coverage for the decisions to save money at the expense of children, or for the decisions to blame someone else, anyone else, for the consequences?

Please Read The Disclaimer.  ©2016 by Dennis J. Wall.  All rights reserved.

WIND 2016 IN ORLANDO BECOMES BASE OF MY BLOGGING OPERATIONS.

Starting tomorrow and running through Wednesday, my base of operations for this Blog and for Insurance Claims and Bad Faith Law Blog will be WIND 2016, the 2016 Conference of the Windstorm Insurance Network which is being held in Orlando, Florida.

Among the topics will be Interactions Between Insureds and Insurers, Florida Property Law, Insurance Bad Faith, Data Breaches and so related Cyberinsurance coverage issues, Civil Remedy Notices, and Lender Force-Placed Insurance Practices.

I am looking forward to it and I hope you are too!

Please Read The Disclaimer.  ©2016 by Dennis J. Wall.  All rights reserved.