For the past three years, my clients have had to battle with their insurance carrier, Tower Hill Select Insurance Company, to obtain coverage for the repair of damage caused to their home by sinkhole activity.  Time and time again, Tower Hill Select refused to provide any assistance to our clients and instead, threatened to pursue legal action against them for the insurance company’s attorney’s fees and costs.  We were finally able to obtain justice for our clients at trial last week.

On the first day of trial, the Court struck all of our experts’ testing and data which reflected the existence of sinkhole activity on the property.  The Court made this ruling because the insurance company was able to confuse the Court as to the law applicable to this matter and to convince the Court that our clients’ testing and data was “not relevant” as to the issue of existence of sinkhole activity on the property.  What?!?!  Although the Court’s ruling on this issue created a right for our clients to appeal this ruling and to seek the reversal of same, at trial we had no option but to push forward and to do the best we could for our clients with the evidence we had.  Unfortunately, the only thing we had left to present to the jury was the data obtained by the insurance company’s experts.  Fortunately, the data and opinions set forth by the insurance company’s experts were clearly biased towards denying the claim and replete with errors and omissions.

In the end, the jury saw through the shell game set forth by Tower Hill Select and their experts and we were able to obtain a jury verdict for  the full amount of our clients’ damages.  This victory was especially sweet as we were able to prove our case merely through the severe impeachment of the insurance company’s experts and the ability to greatly discredit their biased data.  Since we were the prevailing party at trial, the insurance company is now also responsible for the payment of not only all the attorney’s fees and costs associated with our representation of our clients, but also pre-judgment interest on the full amount of the jury award for the past three years.

 

Over the past several years, many homeowners in Florida have had the misfortune of incurring damage to their property as the result of sinkhole activity. For many homeowners, the headaches and inconvenience caused by having to undergo the initial repair of this damage turned out to only be the beginning of the battle.

In almost every claim, when an insurance company agrees to repair an insured’s property, the insurance company will only agree to provide coverage for the repair protocol set forth by its chosen expert. Not surprisingly, the insurance company’s chosen expert will usually choose the least expensive repair method for the home. (It goes without saying that, were the expert to recommend a more complete repair method, he would not be the insurance company’s “chosen expert” for very long!) Faced with the insurance company’s mandate, the homeowner often agrees to allow the insurance company to repair the home pursuant to the insurance company’s chosen method.

The problem which has now arisen for numerous property owners is that the repair method mandated by the insurance company is insufficient to fully repair the property. Even though the insurance company’s version of the repairs have been completed, the property owner continues to incur damage to the home as the result of the sinkhole activity. Unfortunately, when this additional damage is pointed out to the insurance company, the carrier will deny any further repair to the property and state that the issue has been resolved – regardless of the existence of this new damage.

Fortunately, these property owners continue to have rights under their policies of insurance. Under Florida law, if an insurance carrier mandates that an insured repair his property pursuant to the insurance company’s chosen repair method, the insurance company must fully warrant those repairs. In other words, if the insurance company’s chosen repair fails to fully solve the problem, the insurance company is responsible to pay for any additional repairs necessary in order to bring the property to its pre-loss condition.

If you’ve filed an insurance claim for sinkhole related damage in the past few years in Florida, you’ve most likely seen the term “neutral evaluation” in various correspondence or heard the term mentioned by an insurance adjuster.  A few years ago, the Florida Legislature enacted a law whereby if there is a disagreement as to whether sinkhole activity is present on the property or as to the appropriate method to repair the damage, either party to the claim can elect to submit the claim to the neutral evaluation process.  During the neutral evaluation process, a third-party expert chosen from a list maintained by the Department of Financial Services reviews all the investigative reports, inspects the property, and then renders a non-binding “third-party” opinion as to the issue in dispute.  Although the report issued by the neutral evaluator is non-binding, the law states that his report is automatically admissible in any legal proceeding relating to the claim.

Sounds pretty straight forward, right?  Perhaps not.  Exactly what standard does a neutral evaluator have meet in order to be considered “neutral”?  When the neutral evaluation process first began, the Florida Legislature (or perhaps, the insurance company lobbyists?) set forth that an expert would be deemed “neutral” if that expert received 90% or less of their income from insurance companies.  So, in light of this definition, an expert who received 89% of his livelihood from an insurance company would not be seen as being biased in favor of insurance companies.  Hmm – how odd.

Recently, the insurance company lobbyists – er, I mean, the Florida Legislature – further refined the definition as to what would be deemed “neutral”.  Currently, the only “neutral” qualification they must meet is that the expert be, “determined by the department (of financial services) to be impartial”.  Apparently, the Legislature believed that the 90% cut-off requirement was too restrictive and that experts who received in excess of  90% of their income from insurance companies should still be considered “neutral” for this process.  Who are we to question that logic!

Clearly, the use of the word “neutral” in the neutral evaluation process is subject to scrutiny.  Although this process may have been sold to the general public as a way to have sinkhole claim disputes resolved by an “impartial” third party, the reality may be that the “independent” expert may be very beholden to the insurance industry.