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Newsletter
April 2016
In This IssueAssignment of Benefit Litigation in
Florida
Golf & Tennis Outing
Membership Application
2016 Board Members Lawson Thompson PresidentFrontier [email protected]9510044
Robbie Maples Vice PresidentCunningham LindseyRMaples@clna.com7708280098
Marilyn Roberts TreasurerACE North American [email protected]7954293
Griffin Rogers SecretaryCrawford & [email protected]3001262
Gwendy Schulte AsstSecretary/TreasurerOneBeacon [email protected]3328688 Executive Board Chris Nichols Past PresidentPLS Claims7703818855 Bill Cartwright Eagle AdjustmentServices, Inc.7709289686
President's Message "The best (times) are when we have messages, things thatmake us think, but we can also laugh and enjoy ourselves."-Jane Goodall Many thanks to Bill Barbee and Marty Sikes ofServicemaster of Cobb for sponsoring our March luncheonand providing CE on water damage. I had no idea that awashing machine leak could fill a swimming pool in twenty-four hours! Our members had an after hours social on March 30th at theDiner as Northpoint. This was an excellent chance topreview our new luncheon facility and for fellowship andnetworking. Our bi-annual golf and tennis tournament will be heldThursday, April 28th so there will be no luncheon meetingnext month. The board is committed to adding value to SLA membershipby offering more varied activities and enhancingopportunities for networking; hence the quote above. Regardless of how many CE credits we offer, ourmembership will only grow if they have fun at our events.We hope you enjoy these new activities and ask that youprovide feedback, whatever your opinion. There will be moreannouncements in the near future! Have a Happy Spring vacation and we'll see you on April28th! Regards, Lawson
Quick Links
SLA website2016 on line Dues Renewal
Schedule of Events
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Bob Murner McLarens6782969634
Joel Steber Engle Martin6785534438
Brian Richey Custard6786029061 John Southall HistorianFM Global retired7703318572 Howard Zandman Financial AdvisorHabif, Arogeti & Wynne4048144915
NewsletterSubtitle Month Year
04/28/16 Spring Golf Outing 05/12/16 May Luncheon 06/09/16 June Luncheon
Assignment of Benefit Litigation in FloridaTimothy R. Engelbrecht, Esq.
Butler Weihmuller Katz Craig LLP8135945805 [email protected]
Over the past five years, firstparty property insurers in Florida have been experiencing a waveof claims and lawsuits by contractors who obtain insurance rights from insureds throughdocument called an assignment of benefits ("AOB"). This article is intended to introduce thereader to this topic and explain some of the challenges facing insurers in dealing with AOBs inFlorida. The reader is welcome to contact the author to learn more.
Here is how most AOB situations arise. The insurer issues an insurance policy that coversresidential or commercial property. The property then suffers damage. Part of the damagerequires emergency services to protect the property from further damage, often timesemergency water extraction caused by a broken pipe or a leaking roof.
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The insured hires a contractor, who in turn, requires the insured to execute an AOB at the timethe insured hires the contractor. The AOB is typically a onepage document that looks like awork order or service agreement. In theory, the AOB is intended to ensure the contractor getspaid for her work by transferring insurance rights from the insured to the contractor to pay forthe contractor's work. The AOB often says something to the effect of "for and in considerationof the insured assigning insurance rights to the contractor, the contractor agrees to performwork at the insured property to remediate the damage and protect the property from furtherdamage."
The contractor then performs the work and makes a claim directly to the insurer for paymentof her work. Typically the insured also makes a claim to the insurer for the damage to herproperty separate and apart from the contractor's claim.
Upon notice of the claim, the insurer inspects the property and makes a coveragedetermination as to whether the loss is covered. If the loss is not covered the insurer informsthe insured and the contractor of that determination and no payment is issued. If the loss iscovered, the insurer informs the insured and the contractor of that decision, and the insurerthen determines what is the reasonable value of the loss and the contractor's work.
If the contractor disagrees with either the insurer's claim determination or the insurer's amountof payment, the law in Florida is reasonably clear (with some exceptions) that the contractorhas the right to sue the insurer directly. The contractor's lawsuit is separate and apart from anydisagreement or lawsuit by the insured. In fact, it is not uncommon to see two lawsuits onefrom the insured and one from the contractor in claims where the insurer has determined theloss is not covered.
The contractor has standing to sue the insurer directly by way of the AOB. Also, Florida has anattorney fee shifting statute that applies to firstparty insurance disputes. In a nutshell, if aclaimant prevails in litigation against her insurer, the claimant has the right to collect herreasonable attorney fees from the insurer. Florida courts have held that that statute alsoapplies to assignees. So, if a contractor sues an insurer by way of an AOB and prevails, thecontractor has the right to collect her reasonable attorney fees from the insurer.
Insurers face many challenges in handling AOB claims and defending against AOB lawsuits.The biggest challenge is often with the AOB itself. Many AOBs are drafted by nonlawyers. As aresult, the AOB can be confusing or difficult to interpret. One of the most common issues iswhether the AOB transfers all the insured's rights to the contractor or just rights sufficient forthe contractor to get paid for her work. The issue is often unclear because many AOBs refer to"any and all insurance rights, benefits, proceeds and causes of action" when identifying whatrights have been transferred to the contractor.
Another challenge occurs when the insured makes multiple assignments to multiplecontractors. This sometimes occurs in water losses where the insured hires a plumber, a waterextraction company, a mold assessor, and a mold remediator each with its own AOB.Sometimes, the insurance limits are exhausted but not all assignees have been paid. Also, ifmultiple assignees file multiple lawsuits, there can be issues pertaining to missingindispensable parties and the permissibility of consolidating the lawsuits.
Another challenge occurs when fewer than all the insureds named in an insurance policy signthe AOB. This is often the case when a husband and wife are named insureds, but only one ofthe two signs the AOB. This raises issues as to whether the AOB is valid, and what an insurermust do to account for the insured(s) who did not sign the AOB.
Another challenge occurs when the insurer is investigating a claim made by an assignee andthe insurer wants to use the insurance policy's conditions of a proof of loss or an examinationunder oath to obtain information. In Florida, for the most part, an assignee does not obligateitself to satisfy the conditions of the insurance policy unless the AOB expressly says theassignee agrees to do so. Most AOBs do not say that. However, an AOB does not relieve theinsured of her duty to satisfy the conditions of the insurance policy, including the conditions tosubmit a proof of loss and attend an examination under oath. Also, in Florida, the failure of an
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insured to satisfy the conditions of the insurance policy can bar her claim. The failure of aninsured to satisfy the conditions of the insurance policy can also bar the assignee's claim.
Although an insurer typically cannot compel an assignee contractor to satisfy the conditions ofthe insurance policy, the law in Florida is reasonably clear that an insurer can invoke theinsurance policy's appraisal provision to determine the amount of the loss of the assigneecontractor's claim. Some insurers have found appraisal particularly effective at resolvingassignee contractor claims because the amounts in dispute are often low (typically at or under$15,000). However, unless the insurance policy's appraisal provision states that appraisal ismandatory when requested, many assignee contractors prefer not to go to appraisal. Theytend to prefer litigation because, for the assignee contractor, litigation is actually less expensivebecause there is an attorney fee shifting statute as noted above.
Insurers face many other challenges when handling AOB claims and lawsuits. In Florida, AOBclaims and lawsuits are on
This newsletter is a publication of Southern Loss Association, Inc., P.O. Box 421564, Atlanta, GA 30342. The articleswritten in the newsletter are in a general format and are not intended to be legal advice applicable to any specificcircumstances. Legal opinions may vary when based on subtle factual differences. All rights reserved.
The 2016 Spring Golf and Tennis Outing
The 2016 Southern Loss Association Spring Golf and Tennis Outing will be
held at Chateau Elan Golf Club on Thursday, April 28, 2016.
Registration begins at 10:00 a.m. Golf begins at 11:30 AM - Tennis beginsat 1:00 PM - Dinner at 6:00 PM
Fees are as follows:
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Golf & Dinner $110.25 Tennis & Dinner $68.25Dinner (per person) $36.75
Register NowPlease complete your registration and submit payment
no later than April 15, 2016
Would you like to become a sponsor? Sponsor event
Welcome to New MembersWe'd like to congratulate all of the new members to our organization:
Full Membership: Jason Dale - Crawford & CoCody Kinchen - Crawford & Co
Associate Membership:Rodney Sanders - Applied Technical Services, IncBrian Roberts - Blue-Line Consulting ServicesT. Nicholas Goanos - Butler, LLPKelly Cressy - Provencher & CoRhett Hesprich - Aon Fire Protection EngineeringMichael Lamb - Rimkus Consulting Group
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Become a Member of Southern Loss Association Would you like to join Southern Loss Association or know someone who is interested? We cannow take your membership application right on line! Membership is limited and subject to approval by the board of directors and its membershipbody. Please read all the terms on the application!
Apply today!
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| P.O. Box 421564 | Atlanta | GA | 30342