Bias During the Appraisal Process: Are Contingency Fee Agreements Grounds for Appraiser Disqualification?
To expedite settlement during the adjustment process, homeowners' insurance policies include an "appraisal clause." This clause provides an avenue for insureds and insurers alike to resolve disagreements over the amount of damages suffered in any given loss. Pursuant to this clause parties each select an appraiser, these appraisers confer, and if they cannot agree, they select an umpire to determine the ultimate settlement amount. Of course, the presumption is that these appraisers are neutral. Otherwise, appraisers cannot be trusted, parties are not removed from their original deadlock and the fighting in the sandbox continues. ... Continue Reading
With the rise of the number of roofing claims being filed with insurance companies over the past two years, the Courts are now issuing opinions addressing various coverage issues raised in these types of claims. Judge Lisa Wood of the Brunswick Division of Georgia's Southern District Court recently considered the validity of the insurance company's denial of interior water damage based, in part, on the exclusion for damages caused by faulty workmanship of roofers who were in the process of installing a new roof and the viability of the insured's claims that the insurer waived its defenses. Mock v. Central Mutual Insurance Company, ___ F.3d ___ (S.D., Ga., Brunswick, 2:14-cv-00113-LGW-RSB, January 25, 2016). The Court not only addressed the validity of those defenses, it addressed issues concerning possible waiver of those defenses and the extent of an adjuster's affidavit testimony that can be admitted. ... Continue Reading
When an employee driving a company vehicle is injured in a car accident caused by an uninsured/underinsured motorist (collectively "UM"), a conflict can arise regarding the priority of UM coverage between applicable commercial and personal auto insurance policies. Consider this scenario. Plaintiff is rear-ended by an uninsured motorist while driving on company business in a vehicle titled to her employer, a limited liability company. Insurer A issued a commercial auto insurance policy to plaintiff's employer which covers the vehicle plaintiff was driving. Insurer B issued a personal auto policy to plaintiff's husband which does not name the company as an insured or cover the company vehicle. UM coverage is available for plaintiff under both policies. Georgia law permits those policies to be stacked, but which insurer's UM coverage is first in line? The Georgia Court of Appeals recently addressed this question, and the answer may surprise you. ... Continue Reading
A willful misconduct defense has always been notoriously difficult for an employer to assert, but now after a recent Court of Appeals decision, it is virtually impossible. O.C.G.A. § 34-9-17 states that "no compensation shall be allowed for an injury or death due to the employee's willful misconduct, including intentionally self-inflicted injury, or growing out of his or her attempt to injure another, or for the willful failure or refusal to use a safety appliance or perform a duty required by statute." Willful misconduct is an affirmative defense; it must be shown that the willful misconduct of the employee is the proximate cause of the injury by a preponderance of the evidence. Commc'ns, Inc. v. Cannon, 174 Ga. App. 820, 820 (331 S.E.2d 112) (1985). ... Continue Reading
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley