Your Post-Irma 48 Hours

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Your Post-Irma 48 Hours

Hurricane Irma Claims Checklist

As soon as it is possible to do so, both individual and business insureds should take the following steps to maximize coverage for their Hurricane Irma claims.

• Evaluate and document the damage. Take photographs of the exterior and interior of property, including personal property. This is important to support your claim and to avoid any dispute with your insurer over what was damaged by the storm and the condition of the property post-storm and before mitigation efforts.

• Locate policies. Gather all potentially applicable insurance policies (wind-only, flood, property). Call your insurance agent or insurer if you are having trouble finding your policy. As we discussed in our article last week, while Florida law requires residential property insurers to offer coverage for windstorms resulting from hurricanes, commercial nonresidential property insurers are not required to provide coverage for windstorm damage. Thus, Hurricane Irma damage may implicate multiple separate policy forms. Locate and review your property policy, wind-only policy (if applicable) and flood policy.

• Provide prompt written notice to each insurer. It is extremely important to provide written notice to your insurance agent and insurance company as soon as possible post-storm. Policies typically require "prompt notice" or "notice as soon as practicable" and Florida courts have routinely upheld these provisions, oftentimes affirming coverage denials where insureds fail to provide prompt notice after discovering damage. At a minimum, provide written notice of damage to all potentially applicable insurers (windstorm, flood, property) even if you are unsure whether or not your losses will exceed your deductible. It is better to ensure a timely submission now rather than risk a coverage denial based on late notice when you later determine the damage you thought was within your deductible was actually far more significant and costly. Your written notice should include: name and contact information for the insured, the location of the loss/damage, the date and time that the damage occurred and a brief description of the loss.

• Take steps to mitigate the damage. Your policy likely covers expenses incurred in taking preventative measures to avoid further loss post-Irma, such as boarding up broken windows. Indeed, the applicable policies will require that you take action to mitigate existing damage and prevent any further damage to the property. Nonetheless, it is important to run any mitigation plans by your insurer after filing your claim to make sure that your efforts will not interfere with their investigation of the damage. Requesting insurer consent to estimated costs of mitigation efforts now will also expedite your reimbursement of these costs during the claims process.

• Debris removal costs are likely covered. Your policy likely covers costs incurred in removing debris from your policy. This coverage is usually stated as a percentage of your total limits. Importantly, this coverage may have a different reporting deadline than other policy coverages, such as 90 or 180 days after the loss.

• Be cognizant of proof of loss deadlines. Check the proof of loss deadlines in each potentially applicable policy. If the deadline is short (120 days or less), considering asking your insurer now, in writing, for an extension of that deadline, and preserve evidence of that request. Note, however, that your deadline will not be extended unless you receive written confirmation of the extension from your insurer.

• Prepare a proof of loss. The proof of loss is a document that identifies the property damaged and documents all amounts incurred. Oftentimes the proof of claim or proof of loss will include items like before and after photographs, receipts, invoices, quotes and other records. Be sure to check with your insurance company about the specific information needed as well as the applicable deadline for submitting the proof of loss. As discussed above, consider requesting an extension of this deadline in writing.

• Be cognizant of your duties under the policy. Property insurers are entitled to conduct a reasonable investigation of the loss with the cooperation of the insured. Most policies will include a section titled "Duties in the Event of Loss," outlining the insured's cooperation requirements such as permitting the insurer to conduct an "examination under oath" (EUO), requiring that the insured provide certain documents or maintenance records, or allowing the insurer to inspect the property. Insureds should consider consulting knowledgeable coverage counsel to help guide them through what the policy does and does not require of them, as well as guiding them through the claims process.

Coverage for Lost Business Income for Commercial Insureds

Beyond the damage to insured property caused by Hurricane Irma, business insureds face lost earnings in the time it takes to repair and remediate this property damage or even to simply regain access to the affected area. Fortunately, your policy may include business interruption insurance coverage that is designed to specifically address these loss scenarios. This coverage is designed to cover lost income or profits caused by the interruption of business activities due to physical damage to property. Business interruption and related coverage endorsements may cover loss resulting from an inability to open for business; reduction in business income when the business remains open but cannot operate at full capacity; loss resulting from civil authority orders barring access to an insured business; and loss resulting from physical impediments to accessing the insured business, such as flooded roads. In addition, these policies may include coverage for lost income due to service and utility outages effecting business interruptions—an important coverage in light of the current power outage estimates.

Importantly, the damage necessary to trigger these coverages need not be to your insured property—it may be enough that the damage occurred at the property of a key vendor or supplier, or simply in the vicinity of the business, so long as it results in lost earnings to you. This type of coverage, known as "contingent business interruption" does, however, require that the physical damage be of the type covered under the applicable policy. This coverage may include the loss of key components in the company's or retail outlet's supply or distribution chain and the inability to ship goods into or out of a retail facility, warehouse or other location necessary to the operation of the business or retail outlet.

It is crucial for commercial insureds to act now to ensure that their claims for loss of business income and other business-interruption losses are honored and paid in full by their insurers. Like the coverages discussed above, business-interruption coverage typically requires that notice of a claim be made "as soon as practicable," and also typically have strict deadlines within which proofs of loss must be submitted. A failure to comply with these deadlines may bar coverage. To maximize the value of their business-interruption claims, commercial insureds should thus immediately provide written notice of business-interruption losses, whether they are losses for a full shutdown, a partial shutdown or a break in the supply chain or vendor's damage.

Florida insureds should take the steps outlined above and consult experienced insurance coverage counsel to help guide them through the claims process. Businesses may also need to consider retaining experienced accounting firms to help quantify and best present these losses to the insurer. For all Florida insureds, quick action now will help ensure that you receive the full benefit of coverage from your policies—the benefit that you bargained for.

If You. or someone You know needs help with an insurance claim, Click Here.

 

 

 

 

 

 

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Hurricane Irma Takeaways for Community Associations

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Hurricane Irma Takeaways for Community Associations

  

Here are the first steps community associations should take now that Hurricane Irma has cleared out.

• Review and update insurance policies.

All insurance policies should be reviewed and updated as necessary, at least annually. Review dates should be calendared well in advance and incorporated into other annual must-do tasks.

• Maintain landscaping and ensure potential projectiles are secured.

Trees and shrubbery grow extensively in Florida's wet, summer months, causing potential problems in strong winds. Trees can block roads and down powerlines when they fall. Items like ladders, paint cans, supplies, outdoor furniture, etc., which may normally be stored outside have the potential to become airborne projectiles posing threats to people and property and must be secured responsibly once a hurricane watch is issued. Landscaping and exteriors should be inspected regularly to minimize these potential threats.

• Establish lines of communication with local governmental authorities.

Determine well in advance who at your city hall is responsible for hurricane response and obtain contact information, including phone numbers and emails. Make sure that the association is included on notification lists (emails, texts, or voicemail) and that residents have access to transportation in the event an evacuation is ordered.

• Adopt an action plan for association hurricane response.

Divide responsibilities among officers/directors and management for operations under emergency hurricane conditions. If evacuation is a possibility, have a reliable means of communication to relay messages to residents, such as evacuation orders and transportation options. If association staff will be asked to work during the storm make adequate accommodation arrangements. This will ensure that they are on-site when needed, as well as avoiding travel that will be impossible during a storm.

• Ensure equipment in good working order.

Many communities have a back-up generator, water pump, and elevator systems. These systems, like all others, require regular maintenance to ensure that they are in good working order when needed and especially in emergencies. If your equipment has not been inspected recently, now is an opportune time.

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Texas legislature voted to protect insurance companies

According to the Texas Tribune, In a not-so-surprising move, the Texas State Legislature decided by a margin of 91-55 to help out the other good ole boys in the good ole boy network, those poor ailing insurance companies, struggling under the burden of storm related claims they are obliged to cover.   The bill would tend to "reduce the penalties insurance companies face when they don’t pay enough, decrease the chances they will have to pay the plaintiff’s attorneys fees and protect individual agents from the negative effects of being personally sued — most notably diminished credit scores."

 

https://www.texastribune.org/2017/05/04/texas-house-weather-insurance-lawsuits/ 

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Search Warrant Required for Car "Black Box"

In a decision that seems to codify common sense more than anything else, The Florida Fourth District Court of Appeals ruled that law enforcement must possess a warrant from a court in order to retrieve information from a vehicle black box.

In State v. Worsham, The Palm Beach Circuit Court excluded black box evidence downloaded by law enforcement without a search warrant after a fatal crash from the the Defendant's vehicle.  A warrant was not obtained by law enforcement. The Office of the State Attorney appealed the decision of the Trial Court to the Fourth District Court of Appeals. 

The Fourth Amendment to the U.S. Constitution grants the "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. "

Generally, that requires that an officer wishing to conduct a search must have Probable Cause that a crime has been committed, and must apply to a court for a search warrant based on that information.  If there are exigent circumstances, the officer may conduct the search without a warrant.  

Some examples of exigent circumstances are, the imminent destruction of evidence, or the harming of a person within a residence, or other time sensitive reasons. The determination of whether there were truly exigent circumstances at the time, is conducted by a trial court in a motion to exclude or suppress evidence made by the Defense, such as in this case.

The Worsham Court found that the Defendant had an expectation of privacy in the vehicle's computer, and that no exigent circumstances existed that made the application of a warrant impossible. Going forward, that is the law of the land.

 

Stay Legal,

Spencer J. Charif, Esq.

 

 

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Why The Florida Murder Witness Bill Will Not Work

Florida House Representative Cynthia Stafford (D-Miami) introduced a bill known as the witness protection bill.  As a general proposition, in Florida most court records and documents are publicly available.  HB 111 proposes an exception to public records with respect to names and identities of witnesses in homicide cases.  The Defense (The attorney and the Defendant) will still have direct access to this information.

The theory behind this bill, if one were to guess, is that people are not stepping forward as witness to murders because their information will be listed in the discovery disclosure made by the prosecution, which is, in turn, public record through the clerk of courts.  

The public's right to information and transparency under Florida's Sunshine Law is not absolute to begin with.  Active criminal investigations, open litigation, and several other categories of information are excluded already. Extending the exception from public records that exists during an open criminal investigation to the open criminal court case is certainly something the legislature can and may actually do.  The real question is, will it work?

If threats and intimidation from persons reviewing public records are the only reason for witness' failure to come forward to law enforcement, then perhaps.  More logically, a prospective witness to a murder is afraid of the Defendant. That is the person this witness believes, or knows, or saw,  kill someone.  This bill leaves intact, the right of the Defendant to have that information.  Taking that information from the Defendant and his Attorney, would tie the hands of the Defense behind its back, besides being clearly an unconstitutional invasion on the right to Due Process and a fair trial. 

A Court can, of course,  place conditions upon the Defense.  In matters of sensitivity, such as photographic evidence of child pornography, or witness statements made by minors, a standing order not to further disclose or discuss such  information is standard.  Should HB 111 pass and become law, such a condition, to be followed by the Courts, could increase the effectiveness of this proposed legislation.  

Logically speaking, one who is not concerned with the strictures against murder, is probably not too concerned with the penalties for disclosure of witness information in violation of the court order. If a Defendant's purpose is to intimidate witnesses to murder, (which is illegal) this rule just doesn't have the muscle to stop that from happening. While it is a good effort, HB 111 will not likely encourage homicide witnesses to overcome fear and testify in statistically more instances than at the present.

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