BY ROCHELLE N. WIMBUSH, ESQ. and CHAD A. PASTERNACK, ESQ.
Hurricane Irma battered South Florida, leaving millions without power and causing substantial property damage. Condominium and homeowner associations will begin to take stock of the damage and evaluate potential recovery through property insurance. Because insurance policies are complicated documents, we urge those affected to seek professional guidance. The following are a few steps to help you get started on your claim.
Essential steps for recovery
Promptly make your claim. Give notice both directly to your insurer and through your agent or broker; your agent or broker can help you with the mechanics of providing notice. Document all conversations with your agent or broker and insurance company.
Document all aspects of your claim. Document all expenses you incur as a result of the property damage and keep all repair invoices and receipts. Insurance policies require you to mitigate (prevent further loss), so take pictures prior to fixing anything. Additionally, keep track of conversations or meetings with the insurance adjuster and each inspection or repair attempt.
Hire the right help. In times of disaster, public adjusters (PA) in Florida can only legally charge up to 10 percent to represent you in presenting a claim. This cap is a maximum – you can and should negotiate the rate. You should also negotiate an end-point for a PA’s services (e.g., one year from the date of loss, with an option to renew if progress is being made) and limit the PA’s fee to contractual recovery only, not fees, costs or extra-contractual damages. Do not sign any form or contract until you have had it reviewed by an attorney. Under Florida law, PA fees are not recoverable, but attorney’s fees are recoverable if litigation is required.
Cooperate and never exaggerate. Most policies require the policyholder to provide a proof of loss; accurately gather and present your proof, labelled and organized. Do not exaggerate or inflate your loss or you risk having your entire claim be denied. Be careful when using terms of causation, such as “wind-driven rain” or “flood” – you are not a claim professional and your potential misuse of a term of art may impact your insurer’s coverage decision.
Some policies exclude coverage for mold, but only where mold is the cause of loss. Where mold is instead the result of covered loss, such as a leaking roof or water intrusion due to a storm surge, the insurer is liable for remediation and repair. Most policies have a specific limit on coverage for mold-related damage.
Actual cash value vs. Replacement cost value
“Actual cash value” is the replacement cost of property less depreciation. “Replacement cost value” (RCV) is the cost of full replacement with like kind and quality. Most policies do not require payment of RCV until repairs are made, and many policies contain a time limit on when that benefit must be claimed and proven (typically 180 days from the date of loss). Request that the insurer advance the funds needed to start repairs, and continue on a draw basis as repairs are performed to preserve your RCV claim.
Code upgrade and ordinance or law coverage
After major storms and as building methods improve, local building codes are often updated so that new structures can withstand greater damage. Many municipalities also have ordinances that require the structure be brought up to current code if it has to be repaired. Older buildings (particularly those built prior to Hurricane Andrew) are highly susceptible to incurring code upgrade costs. Ordinance or Law Coverage is an additional coverage in your policy that covers the extra cost for upgrading to current code.
Common areas vs. Private areas
The common areas – recreation rooms, hallways, elevators –are generally covered under a condominium association’s policy. Depending on your policy, however, coverage may extend to private units as well. Under a “bare walls” policy, there is coverage for the perimeter walls, and sometimes load-bearing walls. The policy will exclude property within the unfinished interior surface of the perimeter walls, ceilings and floors of units. Under a “per original construction” or “single entity” policy, there is coverage for the perimeter walls, as well as the interior of individual units, including fixtures, to the extent property is repaired or replaced with “like kind and quality materials” as those in the association’s original plans and specifications; upgrades and betterments are outside the scope of coverage. An “all inclusive” policy would, in addition to the coverage afforded by a “per original construction” policy, insure upgrades and betterments.
Examinations under oath
Nearly every insurance policy contains a condition requiring the policyholder to submit to an examination under oath (EUO) upon request. In Florida, this condition is enforceable, and the failure to comply can lead to denial of coverage. We emphasize, you should cooperate and never exaggerate. Common questions asked during an EUO pertain to the condition of the property prior to the hurricane, steps taken to mitigate loss, communications and conduct during the claims handling process and necessity of expenses.
Appraisal and mediation
Most policies contain a provision where, if the insurer and policyholder disagree as to the amount of a loss, either party may request appraisal as a precondition to legal action. Appraisal can be a valuable mechanism for resolving a dispute expeditiously and without litigation. Florida Statute §627.7015 provides for non-binding mediation as an alternative procedure for resolving property insurance claims.
This list is non-exhaustive and is offered to help you get off to a strong start with your claim. Ask a lot of questions and get help if you need it. Good luck with resolving your claim.
Rochelle N. Wimbush is a senior associate and Chad A. Pasternack is an associate at Ver Ploeg & Lumpkin, a Miami-based law firm that represents individuals and corporate policyholders in disputes with insurance companies. They can be reached at firstname.lastname@example.org and email@example.com or call (305) 577-3996.