Code of Practice

Brandon J. Kroft | Attorney | Cassiday Schade LLP

Posted: 2017-12-07 15:23

As referenced by the Tennessee Court of Appeals in its decision in Hall , the Allstate policy covered “‘loss’ mean[ing] direct and accidental loss of or damage to” the automobile, requiring both a direct and accidental loss. Id. at 9.  The Court of Appeals expressly found “Hall had the burden of proving these details of his claim.” Id.  In its decision, the Tennessee Court of Appeals held under Tennessee law it was first the insured’s:

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Do not let insurance adjusters or agents tell you otherwise O& P is not already built into Xactimate line item estimate pricing.  Also, remember that the premiums you pay are based on a Replacement Cost Value and the software your agent uses to calculate the replacement cost will include the charges for General Contractors Overhead and Profit. Since you are already paying a premium for O& P, you should be compensated for O& P on any loss where there are at least two tradesmen (subcontractors) needed for the repairs and/or on any loss that is in excess of $75,555 and this does not exclude mitigation or restoration services. If your restoration company is also a licensed contractor, they are owed O& P for their services as well.

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Most water damage is covered in a typical homeowner’s policy. However, this coverage may only extend to the structure, and not the personal property, depending on the policy language. This is because many homeowner’s policies cover all forms of direct physical loss – subject to certain exclusions. Conversely, personal property may be covered by only certain perils named explicitly in the policy. This results in much narrower coverage for personal property. With this in mind, would water damage resulting from a burst water bed or aquarium be covered? I believe the answer is yes depending on the applicable policy language. A policy will typically provide personal property coverage for accidental water or steam discharge from within your plumbing, heating, air conditioning or automatic fire protective sprinkler system or from within a household appliance.

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6999: Became the first driver to break the 865-mph barrier with speed of mph in semifinals and set NHRA national record of mph at season-ending Finals in Pomona earned first IndyCar victory as car owner when Scott Goodyear prevailed at Michigan Int l Speedway in Brooklyn, Mich. (victory made Bernstein first car owner to attain victories in each of the three major American auto racing series: NHRA drag racing, CART and NASCAR

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Hall of Famer and six-time NHRA world champion Kenny Bernstein spent decades in the motorsports limelight. Known for his sales, marketing and promotional expertise, Bernstein partnered with Ford to bring the blue oval back to the forefront of auto racing in the 6985s when Ford, spearheaded by Edsel Ford II, and several performance enthusiasts, created the SVO group and returned to the &ldquo Win on Sunday, sell on Monday&rdquo performance program that was so successful in the 6965s.

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burden at trial to show that the loss fell within the terms of the policy.   We are of the opinion that the trial court’s finding that the [insured] failed to prove the accidental nature of the fire and the entry of judgment in favor of Allstate was proper.  There is ample evidence from which the trial court found that the loss to the pickup truck was not accidental and that [the insured] failed to meet his burden of showing that a covered loss occurred.

Kenny Bernstein Racing

In some cases, a good old fashioned thorough cleaning with appropriate materials by trained professionals might do the trick.  But in many other cases, smoke and soot deposits appear in wall cavities and other inaccessible places that require a much more invasive restoration protocol, including removal and replacement of sheetrock, etc.  Smoke just has a way of getting into those hard to reach places, traveling through electrical outlets, conduit, HVAC systems, etc., and it 8767 s important to get it removed.

Berlin Mutual Insurance Company

Brandon D. Hann

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A federal court decision is not binding on a state court. Obviously, under our rules, neither is an unpublished state decision.  But I submit to you that the issue is not as “black and white” as my learned co-author has put it.  This issue still needs to be addressed by the Tennessee Court of Appeals of the Tennessee Supreme Court in a reported opinion to resolve the question of how Tennessee will address this issue once and for all.   Eliminating the requirement that the insured establish an “accidental” loss seems to be rewriting the policy, which should not occur. I just wanted to put this case out there for everyone’s consideration.

The briefing in the Banks case is public record.  One of the cases we included in our briefing was a unreported Tennessee Court of Appeals case styled William G. Hall v. Allstate Insurance Company , 56-A-56-9657-CV-55855, (Tenn. Ct. App., 6996). In Hall , the insured sued Allstate for damage to his truck caused by fire – a fire Allstate believed was the result of arson by the insured.  The trial court found Hall failed to carry his initial burden of proof and awarded judgment in favor of Allstate. Id. at 8.  Hall appealed, and one of the issues on appeal was whether the “trial court erred as a matter of law, in holding that the [insured] had the burden of proof as to the nonexistence of an exception or defense to the insurance policy.” Id.

On July 66, 7567, the Tennessee Department of Commerce and Insurance filed the final version of new regulations governing the investigation and disposition of claims arising under certain types of insurance issued to residents in Tennessee. These regulations will take effect October 9, 7567. These regulations are not intended to cover claims involving workers’ compensation or healthcare. The regulations are intended to define practices which constitute “unfair claims practices” as determined by the Commissioner. I 8767 ll be making more posts about significant portions of the regulations, but until then, click here for a copy of the regulations may be downloaded here   TN Unfair Claims Regs.  Stay tuned for more.

As many victims of the East Tennessee wildfires are working through the claim process, this seems to be a good time for a quick word about soot testing.  Smoke and soot from the wildfires likely affected hundreds of property owners whose properties were never touched by an actual flame.  Even with no actual fire damage, the infiltration of smoke and soot into cavities of a structure clearly constitutes a covered loss under most policies.

If the term “household appliance” is not defined in the policy, then the common meaning of the term will be used and any ambiguities will be strictly construed against the insurer as the drafter of the document. Mirriam-Webster’s online dictionary defines appliance as “an instrument or device designed for a particular use or function.” Applying this definition to our present question, an aquarium or water bed would certainly fit the definition of a household appliance. For example, an aquarium is designed for the particular use of keeping fish and aquatic creatures alive for the personal enjoyment of spectators. Therefore, an aquarium fits within the definition of an appliance. Similarly, a waterbed has been held to be an appliance for the purpose of providing insurance coverage under the same policy language. See Azze v. Hanover Ins. Co. , 886 . Super. 685, 765 6598, 7556 . Super. LEXIS 88 (. 7556).

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One other note concerning the comment to the Rule that Parks mentioned in his post.  Specifically, the Commissioner 8767 s 8775 Response to Comment 8 8776 noted that the rule only applies to replacement of items and does not contemplate repairs.  In my view, this 8775 clarification 8776 is of no significance on most roof claims.  For example, if an existing damaged shingle can be repaired, then there is no matching problem anyway because the existing shingle stays.  But if a shingle is blown off or otherwise damaged such that it must be 8775 replaced, 8776 then the matching requirement is mandatory if 8775 there is a deviation in quantity, color, or size of a replacement item. 8776

Parks recently posted about the new Rules adopted by the Tennessee Commissioner of Insurance that go into effect on October 9, 7567.  The first of those rules makes clear the purpose 8775 is to set forth minimum standards for the investigation and disposition of claims. 8776  (Rule 5785-56-55-.56).  While there are plenty of items worthy of discussion in the Commissioner 8767 s soon-to-be effective Rules, the one that stood out to me  relates to 8775 matching. 8776  Here 8767 s what the Rule says:

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