Choosing a New Insurance Commissioner

The State of Florida is in the process of replacing the current Insurance Commissioner Kevin McCarty. As this blog has outlined in prior posts, McCarty has been a fair and effective commissioner under very difficult circumstances. His departure will be a loss for Florida’s insurance consumers.

A few weeks ago, applications for the post were due.1 Shortly thereafter, the Governor and Cabinet began interviewing certain applicants. After those interviews, it became apparent that two individuals were the leading contenders-Rep. Bill Hager and Jeffrey Bragg. There were concerns with each of these applicants.

As outlined by the Palm Beach Post in, Insurance commissioner candidate misled investors, suit said, Bragg was accused in a lawsuit of signing misleading documents in a flood insurance venture that harmed investors to the tune of tens of millions of dollars. As outlined by Politico Florida in Leading insurance commissioner candidate solicited industry for business, Hager…


Pair, Set and Match

A public adjuster recently asked me about a hotel that was under a specific brand and the contract to maintain the brand required the rooms and furniture to match. Following a loss, the insurance company has refused to pay for the portions of the physically undamaged property and the policyholder paid millions to match the old undamaged property with the new replacement property. Should an insurance company pay to match hotel property following a loss-especially if the policyholder has legal obligations to match all property which sometimes cannot be done because of age and obsolescence?

My first response after hearing that the insurer was an international commercial insurance company with thousands of hotel clients was to suggest a post and a website, warning hotel managers and risk managers that have insurance with this carrier that they have “cheap” insurance and will deal with a stingy claims department. Most brand hotels must match property following a casualty…


My Spouse Burned Down the House, Am I Covered? Part III, Connecticut

Part three of my series covering the Intentional Acts Exclusion brings us to Connecticut. To understand how Connecticut approaches this subject you will have to understand the legal term dictum. Dictum (or dicta for plural) is Latin for “remark” and is defined as a comment by a judge in a decision or ruling not required to reach the decision, but may state a related legal principle as the judge understands it. While it may be cited in legal argument, it does not have the full force of a precedent since the comment was not part of the legal basis for judgment.

In Home Insurance Company v. Aetna Life and Casualty Company,1 Barry Schuss set fire to a synagogue. The casualty insurer of the synagogue, Home Insurance Company (HIC), brought a subrogation action against the homeowners’ insurer of Schuss’ parents, Aetna. HIC filed a motion to obtain Schuss’ psychiatric records which was denied by the trial court. Aetna moved for summary judgment based on the…


Award Winning Attorneys at Merlin Law Group – Brandee Bower

Merlin Law Group’s own Brandee Bower was recently awarded the Pro Bono/Public Service Award from UMKC law school. This award is given to an alumnus who has made an outstanding contribution to the public welfare through the legal profession.

I have always found it to be important to assist the community as a whole and specifically to assist those who need legal representation, but can’t afford it. There must be equal access to justice. I am very honored by this award.

Brandee recently served as the President of the Association for Women Lawyers and has volunteered her time over the past decade to organizations such as First Downs for Down Syndrome, The Leukemia & Lymphoma Society, the Robert Downs Golf tournament, Step Up, Harvesters, Operation Breakthrough, Food from the Bar, the NFL Alumni Golf Tournament, Read Across America, the Kansas City Chiefs’ Charities and the CCVI Trolley Run, among others. She also handles cases on a pro bono basis when her clients can’t afford…


Dodged the Storm but Loss of Business Income is Still Covered

Actual property damage outside the US was used to support a claim for business interruption for a popular restaurant chain. In an interesting case for loss of business income,1 policyholders were able to prevail by showing how a local evacuation order and hurricane damage in the Bahamas would trigger coverage for 2 ½ days of lost revenue for shut-down stateside restaurants.

In this case, BBB Service Company, Inc., an owner of several of the popular Wendy’s Old Fashioned Hamburgers restaurants in Florida and Georgia, sued for breach of contract and bad faith arising out of the loss of business income due to shutting down their Broward County restaurants.

This is not a new case—it is one that was published in 2003—but dealt with Hurricane Floyd. What became very important in this case was that while the path of the hurricane’s storm surge and high winds were not known, the Chairman of the County Commission had declared a local state of emergency and…


Doc Says There’s A Reason His Semen Could Be On A Patient’s Face

A former Mount Sinai Hospital ER doctor in New York City had quite an explanation for why his sperm may have landed on the face of a patient who accused him of sexual abuse during an examination of her shoulder.

Dr. David Newman was arrested in January after a woman said he gave her a debilitating extra shot of morphine and proceeded to masturbate and ejaculate on her face.

But Newman offered another possibility when investigators came calling on Jan. 12, the New York Post reported Thursday.

Citing newly released court documents, the Post said Newman, 44, told cops: “I am embarrassed because I whacked off in the lounge, and it was possible that the ejaculate may have gone from my hands to the woman’s blanket .. Semen may have also transferred from my hand to her face during the time I treated her.”

According to the New York Daily News, Newman appeared in court Thursday where prosecutors said the sperm collected by his patient was a DNA match of the doc’s. The victim has since filed suit against Newman and the hospital, the News reported. 

Three other women have since stepped forward accusing the doctor of groping their breasts during exams. At Thursday’s arraignment in Manhattan Supreme Court, Newman was charged with sexually abusing all four women, the New York Times wrote.

“Four young women who came to the hospital for medical treatment were sexually abused by the very doctor entrusted with their care,” the Manhattan district attorney, Cyrus R. Vance Jr., said in a statement, per the Times. “One was sedated to the point of being physically helpless — a nightmare scenario for any patient to endure.”

Newman’s attorney, Susan R. Necheles, said he would prove his innocence in a trial, the Times noted.

Newman has since been fired by the hospital.

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Policyholders Should Carefully Pick Their Lawyers — Voss Law Firm Loses Hundreds of Hurricane Lawsuits

In this day of lawyer Internet advertising, policyholders should carefully consider the lawyers they select. Most of my policyholder lawyer colleagues I have met and worked with over the years doing this type of property insurance litigation are hard-working and ethical. But some other law firms that rely heavily on advertising utterly fail, and cause harm to policyholders rather than help them.

The aforementioned was on my mind while reading an article, N.J. District Court Refuses to Reopen Superstorm Sandy Case Dismissed After “Months of Inaction”,1 where the Voss Law Firm lost hundreds of Superstorm Sandy property insurance cases. The article was about Margiotti v. Selective Insurance Co. of America.2 Here are some excerpts from the court’s discussion:

Voss represented several hundred plaintiffs in Hurricane Sandy litigation, to whom it “aggressively marketed itself,” and hundreds of these suits were eventually dismissed for procedural reasons after…


Setting Aside Appraisal Awards: One Sauce for the Goose and One Sauce for the Gander

In Texas the general rule seems to be that either the insurance company or the policyholder may invoke the appraisal clause (before or after suit is filed). After the award both parties are generally bound by the award, unless they can prove the award was arrived at as a result of fraud or some other recognized basis for challenging the award. It is very difficult to set aside an award.1 I was recently asked by a policyholder about setting aside an unfavorable award in Oklahoma. The rules are different in Oklahoma because the appraisal award is only binding on the party who invoked appraisal. This rule was discussed in an interesting case out of the Oklahoma Supreme Court, Massey v. Farmers Insurance Group,2 where the Court answered a certified question from the U.S. Court of Appeals for the Tenth Circuit.

Massey was insured by Farmers. Massey suffered a fire at their home. Massey and Farmers could not agree on the amount of damages. Massey filed suit and then Farmers invoked…


Fill in the Blank

You cannot make this stuff up. Anyone who reads this blog knows how frustrated I get with the insurance industry’s constant complaints that “[Fill in the Blank] is responsible for rising premiums.” The [Fill in the Blank] is always something different depending on what year it is—sinkholes, water claims, fraud, trial lawyers, hurricanes, reinsurance, political instability, public adjusters.

Interestingly, the industry never looks in the mirror and even contemplates that the[Fill in the Blank] could be as a result of their own actions. In that view, look at the recent SunSentinel article, Insurance rates set to rise as legislature fails again to enact reform:

South Florida property owners can expect property insurance rates to increase because the Florida Legislature failed to enact laws to curb abuses by contractors and trial attorneys, two insurance industry trade associations are saying.

In a statement released as the session drew to a close last week,…


Proof of Loss Extension for NFIP Winter Storm Jonas Flood Claims

If your property suffered flood damage from Winter Storm Jonas on January 22, 2016 through January 31, 2016, and you will be submitting a claim to submit to your flood insurance carrier, this blog is for you.

A few days after Winter Storm Jonas, Robert Trautmann, in our firm’s Red Bank, NJ office, wrote an informative blog reminding policyholders of the requirements for submitting a flood proof of loss and the stringent 60 day deadline to submit the proof of loss and supporting documentation.

On Thursday, March 17, 2016, David I. Maurstad, Assistant Administrator for Federal Insurance, Federal Emergency Management Administration (FEMA) issued Bulletin W-16015 that notified policyholders that they now have an additional 30 days to submit a proof of loss:

Properties insured by the NFIP in the state of New Jersey experienced flood losses as a result of a severe winter storm beginning January 22, 2016. In many instances, access to NFIP-insured buildings is not possible due to…