Proving a sinkhole case on behalf of a policy holder depends a lot on teaching the jurors about geology, construction, and engineering. One of the ways I do that is through 3-D drawings which I prepare in each sinkhole case.
Some examples from a recent case are set forth below. While these images won't move in the blog, I am able to rotate and spin these images for the jury. (These may be slightly grainy in the blog, but are crystal clear in my 3-D software).
.jpg)
Spent the day yesterday in beautiful Bartow taking the deposition of the Geotechnical Engineer who performed sinkhole testing on my client's home on behalf of her homeowners insurance company.
Often homeowners will find cracking in the walls of their home, and/or the foundation. Or, they will find the foundation separating from the walls. Contrary to what your homeowners insurance company may tell you, your homeowners insurer is responsible for all this damage unless your insurance company can exclude sinkhole as a potential cause. The burden of proof is on your insurance company (not you) to prove that sinkhole is not a potential cause of the damage. If your insurance company can't exclude sinkhole as a cause then your insurer is responsible for the damage.
In order to exclude sinkhole, the insurance company will frequently hire a geotechnical engineering firm to perform testing at your home. The insurance company's engineers may then write a report that there is no evidence of sinkhole activity although the test findings actually show that there is sinkhole activity. If you know what to look for, there are simple things to look at to determine if the testing actually revealed sinkhole activity.
If your insurance company has denied your sinkhole claim, do not give up. I will look at any sinkhole denial for free. In order to determine if you have sustained sinkhole damage I will often retain a geotechnical engineer to inspect your home to determine if there is indeed sinkhole damage.
I handle sinkhole cases throughout the State of Florida. In these types of cases my client owes me nothing out-of-pocket. In most of my insurance cases, if I win, the insurance company must typically pay my fees and costs, and if I lose, I'll work for free.
My client's home was built about 20 years ago in Central Florida. Less than a year ago, cracks began to show up in various places throughout the home. My client reported the damage to her homeowners insurer. The homeowners insurer hired an engineering firm to inspect the home and to determine the cause of the cracking. The engineering firm (a firm I have have seen helping insurers on many other claims) says that the damage was due to settlement, and thermal expansion, and was not due to sinkhole activity . Settlement and thermal expansion are not covered under the homeowners policy, but sinkhole damage is a covered cause of loss.
Based on the engineering report, the insurer denied the claim. My client requested a "neutral evaluator" to review the engineering firm's findings. Unfortunately, the neutral evaluator agreed with the original engineers findings. This is not uncommon. I frequently see the neutral evaluators simply rubber stamp the original engineering report.
Upon reviewing the engineering firm's testing and boring records, it appears that the damage is indeed due to sinkhole activity. As a result, I've filed a breach of contract lawsuit against the homeowners insurer.
Additionally, I've filed a Civil Remedy Notice of Insurer Bad Faith. If the insurance company doesn't "cure" its violation within 60 days of the CRN, then the insurer may ultimately be held responsible for full damages - even if those damages are in excess of its policy limits.
As with most of my insurance cases, if I win, the insurance company must pay all of my hourly fees and costs, and if I lose, I'll work for free.
My client's home was built in 1979. He recently began seeing cracks in the walls, around windows, and in the ceiling. He reported the cracking to his homeowners insurer - Universal Property and Casualty Insurance Company. Universal had an engineer inspect the home. The insurance company's engineer wrote a report stating that the cracks in the home were caused by settling, and not by sinkhole.
I have had the home inspected by engineers who determined that the damage is being caused by ongoing sinkhole activity.
Today, I filed suit against Universal for breach of the insurance policy. I also filed a Civil Remedy Notice concerning what I believe to be the insurer's bad faith in denying the claim.
This lawsuit was filed in Nassau County, Florida I handle insurance cases such as this for policy holders throughout the State of Florida. As with most of my insurance cases, if I am successful, the insurance company will have to pay all my hourly fees and costs. If I lose, I'll work for free.
In Warfel v. Universal Insurance Company of North America, ____ So.3d ____ (Fla. 2nd DCA May 12, 2010), the insured homeowner submitted a sinkhole claim to his homeowners insurer, Universal Insurance. Universal had its own engineers examine the home and the soil under the home. Based on a report from its engineers, Universal Insurance denied the claim.
Florida Statue Section 627.7073(1)(c), states that
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.
At trial, Universal convinced the trial court to give a jury instruction that Universal's experts reports were presumed correct, and shifted the burden of proof to the insured to prove that their damage was due to sinkhole. In a typical sinkhole case (as with any case where an insurer is attemption to limit or exclude coverage on an all-risk policy) the burden of proof is on the insurance company to prove a limitation or exclusion from coverage.
The insured argued that the 627.7073 presumption was a "vanishing" or "bursting bubble" presumption merely requiring that he produce evidence contrary to the presumption, not shifting the burden of proof.
The 2nd DCA held:
Absent a clear legislative directive, we must conclude that section 627.7073(1)(c) is a 'vanishing' or 'bursting bubble' presumption that affected only Mr. Warfel's burden of producing evidence....
[W]hen credible evidence comes into the case contradicting the basic fact or facts giving rise to the presumption, the presumption vanishes and the issue is determined on the evidence just as though no presumption has ever existed. Conversely, if the basic facts are sufficiently proven so as to give rise to the presumption and not thereafter contradicted by credible evidence, the party in whose favor the presumption exists becomes entitled to a directed verdict. Thus, in either event, the presumption is productive of these procedural consequences but is not a matter of the jury to consider.
The jury is not told of this presumption.
The court then noted that because the insured presented credible evidence refuting the presumption that the trial court should have allowed the case to go to the jury with the burden on the insurer to prove no sinkhole damage. The court reversed in favor of the insured.
A copy of the 2nd DCA's Warfel decision can be downloaded by clicking here.
The Court did cerfity the question to the Florida Supreme Court as one of great public importance.
In State Farm Florida Insurance Company v. Nichols, ____ So.3d ____ (Fla. 5th DCA November 6, 2009), the insured homeowners submitted a claim to State Farm for sinkhole damage. The amount of the loss was settled by appraisal. Although the appraisal awarded an amount for subsurface sinkhole repairs, State Farm refused to pay for the subsurface repairs until after its insureds' entered into contracts for the performance of the repairs.
State Farm based its position on Florida Statute Section 627.707(5)(b) which states:
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. The insurer may not require the policyholder to advance payment for such repairs.
The homeowners argued that, notwithstanding the 627.707(5)(b), State Farm's policy itself required State Farm to pay the full amount of the appraisal award within 60 days after the amount of the loss was settled by the appraisal.
State Farm's policy stated:
SECTION I - CONDITIONS. . . .
10. Loss Payment. We will adjust all losses with you. We will pay you unless some other person is named in the policy or is legally entitled to receive payment. Loss will be payable:
a. 20 days after we receive your proof of loss and reach agreement with you; or
b. 60 days after we receive your proof of loss and:
(1) there is an entry of a final judgment; or
(2) there is a filing of an appraisal award with us.
The 5th DCA agreed with the homeowners. According to the Court, the language of the statute is
permissive, not mandatory. Because it is permissive, the policy language that requires payment of subsurface repairs within sixty days after the appraisal award is not in conflict with the statute and is binding on the parties to the insurance contract.
Enter keywords:
Add this blog to your feeds or put your e-mail in the box below and hit GO to subscribe by e-mail.
