Florida Insurance Law Blog : Florida Insurance Lawyer & Attorney : Mark Nation Law Firm : Orlando, Longwood, Gainesville

One of the most common types of homeowners claims is for water damage.  And, one of the most common types of claim denials or underpayments I see is for water losses. 

In many cases, the insurance company will deny the claim and assert that it is not covered, or will low ball the damage.  Typical illegal denials include where the insurance company says that the water loss is due to wear and tear, or improper maintenance, or that the leak was caused by a plumber.  These are covered losses under your policy, although the insurance company may tell you otherwise. 

Yesterday, I was retained by a homeowner who had a water leak.  The estimate for repairs was around $32,000.  The insurer agreed that the loss was covered, but then low balled the damage at $13,000.  The adjuster told my client that was all he was going to pay "no matter what."  Upon hearing this, most people go away.  I'm sure that is what the adjuster was hoping. 

Instead, I filed a a breach of contract lawsuit against the insurance company.  If I win, the insurance company will be required to pay my fees and costs, and if I lose, I'll work for free. 

Please know that I promise to look at any insurance denial for free.  Even if you think there is no way to overturn the denial; even if the insurance company has an engineering report against you; even if you think the insurance company is right...let me look at that denial for free. 

Fighting the good fight. 

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My client's slate roof was damaged by wind in a severe March 30, 2011 unnamed storm.  I have many, many roof cases arising from this severe wind event.  Several tiles were blown off during the storm.  Thankfully, there is no leaking yet.  Nor, does there have to be in order to force your insurance company to replace your roof.   

My client submitted the claim to his homeowners insurer.  His insurance company sent out an engineer who wrote an extensive report which concluded that the roof was not damaged in the storm, but instead needed to be replaced because it was old.  I am convinced that in many of these cases the insurance company gets the report it wants and hopes the homeowner just goes away.  Sadly, many do.  This one did not.

Yesterday, I filed a breach of contract suit against my client's homeowners insurer.  I've probably handled over 1,000 of these roof cases over the past 21 years.  This is actually one of the easier ones. 

What is most disconcerting is that I know that most homeowners just go away after receiving an engineering report from the insurance company.  That is why I promise to look at any insurance denial for free!

Further, in most of my insurance cases, if I win the insurance company has to pay my fees and costs, and if I lose, I'll work for free!

Do not go it alone.  Every insurance case I've won has one thing in common.  The insurance company refused to pay.  Most of the time, there is an extensive engineering or other expert report explaining why the insurance company doesn't owe anything.  That denial letter is not the end of the inquiry, it is just the beginning. 

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My client was having her roof replaced in July of this year.  Unfortunately, during the tear off process, the roofers left the roof open when they finished working for the day.  As you can imagine, there was a large storm that evening.  My client's home was inundated with water. Her ceilings caved in, and her walls, carpets and other items throughout the house were destroyed.  Additionally, she hasn't been able to live in the house since July, and her pets have had to be boarded at a kennel since July. 

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My client purchased a standard Florida homeowners insurance policy when she bought her home in 2006.  At the time of the purchase her mortgage company required a home inspection.  The home inspection revealed that the roof was in good shape with no noticeable damage.  In 2010, she noticed that several of her neighbors were having their roofs replaced at the same time.  She asked one of the roofers performing the work to inspect her roof.  The roofer found that her roof had substantial hail damage. 

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My client's homeowner's insurer retained the services of a geotechnical engineering firm and geologist to perform a sinkhole investigation at my client's home.  The insurance company's engineers and geologist wrote a report concluding that there was no sinkhole activity at the insured's home.  However, while the engineering/geologist's report concludes that there is no sinkhole activity, the data in the report proves that there is a sinkhole.  Plus, the report seems to omit some very important information that one would expect to be in a statutorily compliant sinkhole investigative report. 

Unfortunately, insureds are not capable of reading and understanding the finer points of a sinkhole investigation report.  Once I received the report, we filed a lawsuit against the homeowners insurer for improperly denying the existence of a sinkhole.  Immediately upon receiving the lawsuit, the insurance company demanded "neutral evaluation." 

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I learned many years ago the problem with getting your attorneys fees from FIGA.  I won a case against an insurer and was awarded a sizeable attorneys fee after a fee hearing.  The day after the fee order was entered the insurance company went under.  They were ultimately taken over by the Florida Insurance Guaranty Association - FIGA.  While FIGA was required to pay my client's claim for the damage to her home, it was not required to pay my fees.  My fees were simply an unsecured claim against the assets of the insolvent insurer to be paid once they sold their desks, phones, filing cabinets and unused paper clips.  I was never paid. 

Pursuant to Florida Statute Section 631.70, FIGA is not responsible for an insured's attorneys fees or costs "except when the association denies by affirmative action, other than delay, a covered claim or a portion thereof." 

In Florida Insurance Guaranty Association v. Messina, ____ So.3d ____ (Fla. 4th DCA August 24, 2011), the insured sued FIGA, and FIGA filed an answer and affirmative defenses denying coverage.  Soon thereafter, FIGA settled the claim, but denied that the insured's attorney was entitled to fees and costs.  According to FIGA it had not denied the claim by "affirmative action" because it "did not really contest coverage."  The Court disagreed, and held that FIGA's answer and affirmative defenses denying coverage constituted denying the claim by "affirmative action."  Go figure. 

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In Alderman v. BCI Engineers & Scientists, Inc., ____ So.3d ____ (Fla. 2^nd DCA Sept. 2, 2011), the insured homeowner hired BCI Engineers & Scientists, Inc. (BCI) to 1) perform a subsurface sinkhole investigation; and 2) supervise the remediation of the sinkhole activity. The insured also filed a claim with State Farm, his homeowner’s insurance company, for losses due to sinkhole. State Farm agreed to pay the sinkhole claim, and the remediation commenced. Some time during the process, the insured entered into a settlement agreement with State Farm releasing State Farm and any of its “contractors” and “privies” from any claims “in relation to the filing of insurance claims.”   

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