Insurers Slashed Hurricane Ian Payouts Far Below Damage Estimates, Documents and Insiders Reveal

Posted on March 30, 2023 by admin

A Washington Post investigation has found that some policyholders had their claims cut by more than 80 percent

When insurance adjuster Jordan Lee entered the cream-colored house battered by Hurricane Ian, the smell from the rain-soaked carpet made it hard to breathe. Piles of pink insulation covered the worn, white couches, he recalled, and poured from the collapsed ceiling, left gaping from the storm’s 150 mph winds. He photographed debris flecked on the carpet and walls, chunks of roof in the yard, and broken screens and gutters around a pool filled with palm fronds.

The home, which belongs to retired couple Terry and Mary Sebastian, sits on a canal in Rotonda West, Fla., a coastal community that bore the brunt of Ian when the storm made landfall on Sept. 28. The entire place would need to be dehumidified, the roof completely replaced, the insulation torn out and the tattered pool enclosure rebuilt. It would be about $200,000 to repair the damage, the licensed adjuster calculated in his estimate for Heritage Property & Casualty Insurance Co.

But when Lee checked in on his report about 10 days later, his stomach dropped, he said. It had been drastically whittled down, with entire portions,such as the one detailing issues in the primary bedroom, removed. The amount of insulation that needed to be redone was cut by half, and his estimate now said one-third of the roof should be fixed, instead of it being fully replaced. The homeowners were slated to receive a total of $27,000. The changes were made without Lee’s knowledge or consent, he said, but his name was still on the final report, according to documents seen by The Washington Post.

After major disasters like Ian, insurance companies often bring on third-party firms like Tristar Claim Solutions, an independent adjusting company that Lee worked for as a contractor, to help with the hundreds of thousands ofclaims.

During the insurance claims process, it’s standard for field adjusters, who are trained to assess damaged homes, to collaborate with those back in the office to make minor edits, discuss aspects of the claim and alter line items if, for example, the carrier has evidence that damage was from a prior event, according to adjusters and insurance industry experts. That is how the system is supposed to work.

But that’s not what has been happening in the aftermath of Hurricane Ian, Lee and others said.

Instead, Lee and other adjusters contracted by regional insurance carriers say that managers have been changing their work by lowering totals, rewriting descriptions of damage and deleting accompanying photos without their approval. These actions to devalue damage are the latest example of the insurance crisis in Florida.

After years of more frequent and intense storms, national carriers have pulled back from the market and smaller, regional carriers with smaller financial reserves jumped in. In the wake of Hurricane Ian, those companies have been aggressively seeking to limit payouts to policyholders by altering the work of licensed adjusters, according to a Post investigation. As a result, homeowners are left footing much of the bill for repairs, exposing an untenable gap between the cost of storm damage and what insurers are willing to pay to fix it.

The Post’s examination included interviews with dozens of policyholder advocates, attorneys and Hurricane Ian survivors as well as five insurance adjusters, who oversaw more than 100 claims for Heritage and Florida Peninsula Insurance Co., another regional carrier. The Post also reviewed 13 original and modified claims, which included hundreds of pages of estimates, photos and general loss reports, as well as internal records, final payment letters, emails and carrier guidelines.

The documents show that a dozen policyholders and their families had their Hurricane Ian claims reduced by 45 to 97 percent.

In one claim reviewed by The Post, a nearly $500,000 damage estimate on a house with a mostly tarped roof was reduced to about $13,000. In another, the desk adjusters blamed roof storm damage on past wear and tear, meaning it would not be covered.

In three cases, The Post obtained final determination letters, and the amounts sent to homeowners matched the altered claims. For two of those families, their original claims were cut below their deductibles,resulting in no payment.

The adjusters, attorneys and policyholder advocates allege that the independent adjusting firms were internally lowering estimates under the direction of the insurance carriers who contracted them. Emails obtained by The Post detail how independent adjusting firms followed orders from carriers to write claims in specific ways that significantly reduced payouts.

The people interviewed for this investigation decided to speak out because,they allege, the ease and scale with which Ian claims have been altered and gutted represents a tipping point for Florida’s insurance industry. The revised claims inaccurately represent their work, for which they said they still have not been fully paid, and they want more oversight, reform and accountability.

The Post made multiple attempts to interview and seek comment from Heritage, Florida Peninsula and Tristar, sending each company detailed lists of questions pertaining to the allegations and evidence in this investigation. Heritage did not reply to calls and emails. Representatives for Florida Peninsula said that “everyone is tied up at the moment” and that they would not be able “to help with this one.”

Tristar said that because of a “confidentiality agreement with Heritage Insurance we are unable to comment on Heritage Policy, procedures and/or estimating guidelines.” However, the company said that it has reasons for altering claims and that “estimates are revised/collaborated throughout the entire industry at the direction of the insurance carriers. They have the final say.”

Some in Florida’s insurance industry blame the flailing market on lawyers and contractors who they allege have taken advantage of the system to sue carriers, jack up estimates and use roofing scams as ways to profit off disasters. It’s actually the carriers, they argue, that have been the victims of fraud and bad behavior.

“Florida is the worst of all states when it comes to frivolous lawsuits and roof-replacement fraud schemes. Many claims are not legitimate,” said Mark Friedlander, the director of communications for the Insurance Information Institute, an industry association. To combat those issues, lawmakers have recently passed several pro-insurance industry laws that target attorneys and contractors, he said.

Friedlander also attributed the unusually long delays and lower payouts to “the complexity of the claims” and hurricane deductibles. For the most part, companies “have been taking care of their customers,” he said.

However, the American Policyholder Association, a nonprofit insurance industry watchdog group, disagrees. It said in a statement that it has found “compelling evidence of what appears to be multiple instances of systematic criminal fraud perpetrated to cheat policyholders out of fair insurance claims” and will be submitting criminal referrals to authorities “in Florida & several other states” in the coming months.

Four homeowners confirmed to The Post that they had received only a small portion of what they had been promised in their determination letters from Heritage and Florida Peninsula, or were struggling to get straight answers and considering taking legal action. Meanwhile, their homes are still heavily damaged or uninhabitable. And more than 33,000 Florida homeowner claims linked to Ian are still open without payment, while more than 125,000 were closed without payment, according to the Florida Office of Insurance Regulation. Nearly 56,000 claims were open with payment and 183,235 were closed with payment.

Florida’s insurance market has been teetering toward collapse for years.After destructive storms in 2005, several big carriers including State Farm pulled back coverage in the state, and newer, more thinly financed, smaller companies swooped in and began to operate. Then came 2017, one of the costliest hurricane seasons ever. Hurricane Michael battered Florida the following year.

Adjusters said they started to see carriers greatly reduce damage estimates, fully deny roof replacements more often and force claims of a certain value into litigation. Payouts started to get delayed or not come at all, adjusters and attorneys said.

At the same time, rates kept rising, and fast. Florida homeowners paid an average of $4,231 for home insurance in 2022, nearly three times the price in any other state— and rates are expected to increase again this year. Ten property insurers that operated in Florida have gone insolvent since January 2021. About 125 property insurers remain in the state, but experts said many are either not taking on new business or are greatly limiting policies because of the volatile market.

But the adjusters interviewed for this investigation said the major cuts and revisions to Hurricane Ian survivors’ claims are unlike anything they’ve ever seen before.

“I wrote 44 reports for Heritage Property & Casualty, and 100 percent of them were altered to where I did not recognize them. Every single one,” Lee said in an interview. “They manipulated our estimates without actually collaborating. I didn’t get a phone call from someone saying, ‘Hey, Jordan, can we go over this estimate?’ I didn’t get a text. I didn’t get an email. Nothing. I can get in trouble for that. It’s my name going on these reports, no one else’s.”

‘They are ruining my life’

Mary Sebastian, 70, spent hours on her knees last week trying to scrub storm gunk and other crusted filth out of their tiled kitchen floor. Five months after Ian, half the walls in their home are still gutted to the studs with wires hanging down, and the couple has been trying to do as many of the repairs as they can on their own. The Sebastians said Heritage has been trying to “wear them out” by not paying their claim or answering their calls and emails and sending them to four different desk adjusters.

So far they’ve received one $2,500 check for living expenses, despite having submitted hundreds of receipts for their hotels, food and other expenses, emails show, and another for $10,000, which went directly toward repairing their roof. Much of their furniture is ruined, the couple said, and they are in the process of applying for a loan to continue the repair work. After The Post contacted their insurer and the Florida Department of Financial Services regarding their case, the Sebastians said they received an additional $4,092 to repay what they’d spent on food and housing through Jan. 28.

Terry Sebastian said he filed two complaints with the state’s insurance commissioner about Heritage before he started speaking with The Post. He’d had a feeling, he said, that his insurance company was “lying.”

“They are ruining people’s lives. They are ruining my life,” the 69-year-old said. “I tell them I’m going to go bankrupt if they don’t pay me, but they don’t care.”

State data, last updated Thursday, shows708,255 Hurricane Ian claims — including those of homeowners and other policyholders — but about 34 percent of them have either been rejected or are still unpaid. The 90-day period that insurance companies have to pay or deny a claim ended in late December.

Hurricane Ian, a Category 4 hurricane and one of the strongest storms to ever hit the United States, was Florida’s costliest on record and the most expensive natural disaster globally of 2022. The densely populated southwestern part of the state had not experienced a storm of that magnitude since 2004, the National Oceanic and Atmospheric Administration said, and its “intense winds, heavy rainfall, and catastrophic storm surges” peeled off roofs and inundated homes with “1-in-1000 year” amounts of water. Ian caused $112.9 billion in damage, the second-largest insured loss on record after Hurricane Katrina, according to a report from reinsurer Swiss Re.

As the weeks after the storm turned into months and claims continued to pile up, Lee and other adjusters said they kept getting calls from increasingly frustrated and anxious policyholders about their final claim estimates or lack thereof. For many, that 90-day deadline was coming up, and they were still without answers, habitable homes and now savings.

“It’s messed up. You know, the whole point of having insurance is to be able to properly put your property back as if the disaster never happened,” Lee said. “That’s the whole point for that protection.”

Major damage but only partial payout

Five days after Ian ripped across Florida, Lee received an email from a Tristar claims manager he’d worked with in the past.The company was looking for “experienced adjusters for our client Heritage Property and Casualty,” and promised good pay and “all the volume one could ever hope for.” Lee decided to join the team.

But two weeks into his assignment, Lee said, Heritage gave adjusters updated guidelines essentially barring them from writing claims to replace any roofs. Hearing nothing about the 44 reports he had turned in, Lee started to become suspicious. It was taking unusually long to get paid. Lee and other adjusters make a commission on claims based on a fee schedule set by the carrier.

Lee said he logged into the systems that adjusters and insurance companies use to track claims. Like his 113-page report for the Sebastians’ home, his other estimates were rearranged and cut down, he said, with photos and line items deleted, and summaries changed.

Many of his photo captions were changed, too, he said, and entire sections missing, according to a review of the documents by The Post. An image showing a crack in the garage ceiling, which suggests structural problems from the storm’s impact, now read, “Apparent non-loss related.”Documents reviewed by The Post show that his claims manager had heavily revised his photo sheet and made other major changes.

Cutting a valid claim estimate without factual basis “is potential fraud,” said Friedlander, who also worked for two major insurance companies and who did not review the Sebastians’ case. In most cases, if a field adjuster has done his job correctly and broken down every line in great detail, the desk adjuster will not need to make significant changes, he said. It’s usually a “smooth process with communication between the two,” Friedlander said.

“If a company intentionally changes the estimate to not pay out a loss, that could be considered fraud,” he said.

As Lee walked through an essentially totaled home in Venice, Fla., in early October, water from the still-mushy carpet splashed onto his calves, he recalled. Like in the Sebastians’ house, insulation hung from the exposed ceiling. The drywall would need to be removed, rooms deeply sanitized and the entire roof replaced, as it “was blow[n] off,” he wrote in a loss report for Heritage obtained by The Post, “causing significant damage to the interior of the home.”

Repairing it would cost nearly $200,000, he estimated. But in the final report for the homeowners, Daniel and Amy Van Sickle, entire sections of his work such as “tear out and bag wet insulation” and “water damage dry out” were removed, and the final amount lowered to $24,619.

Weeks later, on Jan. 9, Heritage emailed the Van Sickles telling them it would issue a payment. The explanation letter said the carrier “received the detailed field adjuster estimate in the amount of $24,619.46 for covered damage.” Along with it was the revised estimate, with Lee’s name on it.

However, after subtracting from their deductible, the couple would only get $3,204.60.

After The Post contacted Heritage with questions about the Van Sickles’ claim, the couple said they received a revised estimate with an additional $1,000.

“It’s the classic horror story right now,” Van Sickle said. “This is a lot of money to a lot of people, and you can’t help but wonder what happens to them when they don’t get it. Those people will suffer greatly.”

‘We have never seen that before’

At the end of September, Ben Mandell and Mark Vinson, two veteran independent adjusters, started handling claims for Florida Peninsula Insurance Co., a regional carrier that is rated as financially stable and insures about 181,000 homes across the state. Shortly after starting on 30 Ian-related claims, they too started noticing unusual behavior, such as claims not being processed, or desk adjusters or supervisors gutting or rejecting their reports of what they saw was credible damage. These actions further delayed payouts to residents.

What was also strange, the adjusters said, was that they were seeing the same or similar edits in all of their reports, even though the homes were in different areas and built in different years. The denial of wind-battered roofs seemed to be a “pattern,” Vinson said.

“We had 150-mile-per-hour winds come through and destroy roofs, and these folks decided they would not replace any of the roofs, but pick an arbitrary number of shingles to repair and just replace those,” said Mandell, who owns a home in Florida. “We have never seen that before.”

When hiring contracting companies to help out on major disasters, insurance companies set guidelines for each storm that those workers have to follow, insurance experts, adjusters and attorneys said. Essentially, those guidelines dictate how much the insurer believes should be allocated for that storm, what it will cover, and how to describe and document the damage.

In multiple emails obtained by The Post, managers at Tristar and another third-party adjusting firm referenced these agreements.

On Oct. 27, for example, a claims director at Tristar wrote to all adjusters that “we are seeing too many reports describing damage and mentioning ‘wind’ as the cause of loss. Per Heritage: WE DO NOT DETERMINE COVERAGE!” he wrote, reminding them, “Do NOT say what caused it!”

“Heritage does not want to see that word [wind] in photo descriptions or in the General loss reports,” he said. “Let’s make sure we are just describing the damages we see and leave the cause (wind) out of it!”

He thanked them for their “hard work” and said that higher-ups were “seeing the fruits of [their] efforts.”

Mandell said that after he realized what was happening to his reports, he grew uncomfortable, spoke up to his manager and was fired. In their email exchange, the manager lambasted Mandell for arguing over revisions.

“You have been told repeatedly that the desk adjusters have the final say for what coverages are afforded, yet you continue to argue with the carriers when revisions are requested,” the manager wrote. “As an independent adjuster it is not your responsibility to make coverage decisions on behalf of the insurance carrier.”

In his reply, Mandell said he did not have a problem with desk adjusters making decisions, but what crossed the line was “a desk adjuster or anyone else demanding or threatening me to remove items off an estimate that are legitimately on that estimate. … I also have a problem with you folks removing items off of my estimates and leaving my name on that estimate making it look like I made the decision to remove those items when I did not.”

“I am not the only adjuster you are doing this to,” he said. “This illegal practice seems to be a standard practice on this deployment with you folks.”

His manager did not reply.

Asking lawmakers to take action

Over the past year, Florida Republicans called two special legislative sessions focused on the state’s insurance industry and passed more laws that further protect and insulate property insurance carriers, largely at the expense of homeowners. Two major industry wins include funneling $1 billion in taxpayer money into a reinsurance fund and stopping carriers from having to pay policyholders’ attorneys’ fees when they sue.

At the December session, Lee, Mandell, Vinson and other adjusters joined residents in speaking out against the legislation. Their testimony was covered by Insurance Journal.

After Mandell accused insurance carriers of fraudulent behavior that is “more widespread than any of us could have imagined,” state Rep. Bob Rommel (R), the chair of the Commerce Committee, asked the group of adjusters to come to his office later with that information “to make sure the attorney general and [Office of Insurance Regulation] takes care of that.”

They did. And according to four people present, Rommel asked to see evidence and told the group, “If this is really happening, this needs to be taken care of,” Lee recalled. Vinson had brought a flash drive with dozens of files to show, but the representative said it was not safe for a government computer.

The next day, Dec. 14, Mandell emailed Rommel’s office with the evidence the lawmakerrequested, including a file of four documents showing how his estimate of $40,468.54 of damage was revised to show $2,658. “You will note that they left my name on this bogus estimate,” the adjuster wrote in the email, obtained by The Washington Post.

In an email, Rommel told The Post that the adjusters came to his office with “no evidence. Told them the door was open if they could produce the evidence.” After multiple emails from The Post, Rommel’s office said that it had forwarded the adjuster’s email to the state’s chief financial officer, Jimmy Patronis, and that Patronis’s office will contact Mandell.

“We have asked the CFO’s office to keep us in the loop,” a spokesperson for Rommel said. The CFO’s office said in a statement that it has received the information from Rommel, met with the property owners from the report and that “an investigation is currently open and ongoing.”

Meanwhile, homeowners like the Sebastians don’t know how much longer they can last without a payment, let alone answers. Their temporary housing ended Monday and they had no choice but to move back into their home, which has a new roof but feels like a “construction zone,” Mary Sebastian said. Heritage promised them a check soon, she said, but they’ve heard that before. If they do get anything, they’re bracing for “pennies on the dollar.”

“I don’t know how much fight we have left in us,” she sighed. “I want to walk away.”

Her husband, though, refuses to.

“That’s what they want us to do,” Terry Sebastian said.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Michigan Court Waives Goodbye to Subrogation Claims Except as to Gross Negligence

Posted on March 30, 2023 by admin

Lian Skaf | The Subrogation Strategist

In Ace American Insurance Company, et. al. v. Toledo Engineering Co., Inc., et. al., No. 18-11503, 2023 U.S. Dist. LEXIS 15222 (Ace American), the United States District Court for the Eastern District of Michigan determined whether insurers could pursue their subrogation claims against the defendants despite a waiver of subrogation in each of the contracts the insured had with the respective defendants. Based on the language of the contracts and the circumstances leading up to the loss, the court held that the insurers could not pursue their subrogation claims – other than their claims for gross negligence – due to waivers of subrogation in the applicable contracts.

In Ace American, the insured, Guardian Industries, LLC (Guardian), retained Toledo Engineer Co., Inc. (TECO) and Dreicor, Inc. (Dreicor) to renovate a glass furnace in the insured’s glass manufacturing plant. Guardian and TECO entered into a contract on December 6, 2016. Guardian and Dreicor entered into a contract on September 29, 2013, that the parties later updated on June 3, 2016. Both defendants began work on the project in the spring of 2017 and were finished with the portion of the work known as the “Cold Tank Repair” prior to the loss.

On June 3, 2017, there was an explosion and fire at the plant that caused significant property damage. The plaintiff insurers (Plaintiffs) made payments in the amount of $80 million and became subrogated to its insured’s rights. Plaintiffs then initiated this action.

The defendants filed motions for partial summary judgment, arguing that the waivers of subrogation barred all of Plaintiffs’ claims except claims for gross negligence. The court denied the motions, without prejudice, to allow for discovery. The defendants renewed the motions at the end of discovery.

The court first looked at the contract Guardian had with TECO and held that there were no ambiguities to allow for extrinsic evidence, thus making the terms applicable to the subject project. To reach its holding, the court rejected the argument that the contract applied only to engineering and design work, which would have allowed Plaintiffs to pursue their claims for project management or administration against TECO. Instead, the court read the contract’s terms to include all work on the project.

The court held that the waiver of subrogation in the TECO contract applied even though the contract only required Guardian to have insurance applicable to the waiver “until final payment has been made or until no person or entity other than [Guardian] has an insurance interest in the property to be covered.” Because TECO and Dreicor were both still on site at the time of the loss and Guardian had not made final payment to TECO, the court held the waiver to be applicable.

Similarly, the court held that the waiver of subrogation in the Dreicor contract with Guardian barred all claims expect gross negligence since Dreicor was only “winding down its work on the project” and, thus, the project was not complete. Because of this, Guardian was still required to hold insurance for the project and the waiver still applied. In reaching its holding, the court rejected the Plaintiffs’ argument that damages separate from the work done by Dreicor should be outside the reach of the waiver, again taking a broad view of the application of the subrogation waiver.

This case is a reminder of how difficult it can be for subrogation practitioners to convince a court to ignore a waiver of subrogation clause in a contract. Here the court was not interested in considering ambiguities or nuance, instead looking to the intent of the waiver, which it interpreted as all encompassing. While the court seems to have left the door slightly open for an argument that a waiver would not apply in instances where the work was in fact complete and final payment had been made at the time of the loss, this would likely depend on the language of the particular contract. Regardless, it is crucial that practitioners identify waivers of subrogation in contracts early in their investigation, including whether the jurisdiction applies such clauses to claims of gross negligence, before investing significant effort and money into what may be a losing battle.

Court Denies Insured’s Motion to Dismiss Complaint Seeking to Compel Appraisal

Posted on March 30, 2023 by admin

Tred R. Eyerly | Insurance Law Hawaii

The court denied the insured’s motion to dismiss after the insurer filed suit to compel an appraisal. Allied Trust Ins. Co. v. Tsang, 2023 U.S. Dist. LEXIS 352 (E.D. La. Jan. 3, 2023).

The insureds reported damage to their property arising from Hurricane Ida. The insurer, Allied Trust, investigated and determined that the covered damage was $1,978.18, which was less that the policy’s deductible. The insureds estimated that the covered damage was $135,270.78.

Allied Trust invoked the appraisal provision. Allied Trust later filed suit alleging the insureds failed to comply and participate in the appraisal. The insureds moved to dismiss the complaint as moot. In their motion, the insureds argued that because they were now complying with the appraisal clause, all relief sought by Allied Trust had either already occurred or was currently underway.

The court noted that the insureds conceded that at least some of the relief sought remained underway. Because the appraisal process had not concluded, the alleged noncompliance could recur. Therefore, the insureds failed to meet the heavy burden of showing that their non-compliance could not reasonably be expected to start again. The motion to dismiss was therefore denied.

Florida Policyholders Face New Hurdles In Dealing With The Appraisal Process

Posted on March 30, 2023 by admin

Kevin B. Dreher, Caroline Upton and Charles P. Edwards | Barnes & Thornburg

Highlights

The Florida Supreme Court reviewed whether an appraiser who entered into a contingency agreement with an insured homeowner can be considered “disinterested” under the terms of the policy

Policyholders may wind up inadvertently punished for using industry standard contracts and risk finding out the appraiser is conflicted out of assisting with their claim

Policyholders in Florida now must incur the cost of paying appraisers to get the presumed benefits for which they paid an insurance premium

The first few months of 2023 have not been kind to Florida policyholders. In January, Gov. Ron DeSantis approved a bill (SB 2A) that completely reformed and overhauled how Florida insureds are able to obtain property insurance coverage in the aftermath of losses such as those sustained from Hurricane Ian.

In another recent blow to insureds with property located in the state, the Florida Supreme Court significantly limited the scope of a policyholder’s ability to recover for its first-party property claims via the appraisal process. As savvy policyholders know, when coverage issues are being disputed, insurers often demand an appraisal to avoid a court or jury ruling on the actual damages at issue, while also attempting to limit or exclude coverage. While the appraisal process is supposed to be a way of expediting resolution of a claim, it can be expensive and frustrating and can even prolong resolution of a claim.

In the decision in Parrish v. State Farm Florida Insurance Co, the Florida Supreme Court reviewed whether an appraiser who entered into a contingency agreement with an insured homeowner can be considered “disinterested” under the terms of the policy – ultimately finding the answer to be no. Contingent fee agreements and assignment agreements (which were restricted by the recent legislation) have been means by which policyholders can reduce the cost and risk of appraisals.

Parrish retained his own adjuster to examine and provide support for his property loss. Although the adjusters for both the policyholder and the insurer conducted an inspection of the damage, the insurer disagreed with the assessment provided by the policyholder’s adjuster. Both parties eventually demanded an appraisal, at which point the insurer argued that the policyholder could not use its adjuster as part of this process, claiming that the policyholder’s adjuster was not “disinterested” as required by the policy.

The Florida Supreme Court examined the policy’s appraisal clause and specifically, the term “disinterested.” The policy provided in relevant part that:

If you and we fail to agree on the amount of loss, either party can demand that the amount of the loss be set by appraisal. A demand for appraisal must be in writing. You must comply with Your Duties After Loss before making a demand.

Each party will select a qualified, disinterested appraiser and notify the other of the appraiser’s identity within 20 days of receipt of the written demand.

Because the term disinterested was not defined by the policy, the court eventually reviewed two dictionary definitions in order to define the term. First, relying on Black’s Law Dictionary, the court found that the term disinterested meant “[f]ree from bias, prejudice, or partiality and therefore able to judge the situation fairly; not having a pecuniary interest in the matter at hand.” Second, reviewing Webster’s dictionary, the court found that the term meant “1: lacking or revealing lack of interest . . . apathetic . . . 2: not influenced by regard to personal advantage: free from selfish motive: not biased or prejudiced.”

Comparing these two definitions, the court held that “a ‘disinterested’ person cannot, consistently with the generally understood meaning of that word, have a pecuniary interest in the matter at hand.”

Although the insured notified his insurer of the appraiser’s involvement in the claims handling process and the insurer was well aware of the appraiser’s role, the court nevertheless found that the appraiser’s agreement created a financial interest in the ultimate insurance recovery, thereby creating a purported conflict of interest.

Many policyholders realize that retaining a public adjuster and/or appraiser is a wise move, and contingency agreements are often used in the insurance industry in order to level the playing field and provide a second, objective assessment of any property loss. Nevertheless, under this recent ruling by Florida’s highest court, responsible policyholders may wind up inadvertently punished for using these industry standard contracts and risk later finding that the appraiser is conflicted out of assisting with their claim.

Further, policyholders now must incur the cost of paying appraisers to get the benefits for which they paid an insurance premium, given that most policies require each party to pay its own appraiser and split the cost of the umpire.

Given these significant changes to Florida law over the last few months, Florida policyholders should consider reaching out to coverage counsel early in the claims handling process to receive advice on how to best position their claim for a potentially successful recovery.

Judge Wants Fla. Adjuster Suspended, But Question Arises: Must Appraisers Be Licensed?

Posted on March 29, 2023 by admin

William Rabb | Insurance Journal

A public adjuster that has been vilified by insurers for disrupting and delaying property inspections could soon be suspended for two years following a recommended order by an administrative law judge.

But state regulators’ recommendations in the case have raised new and potentially far-reaching questions about whether appraisers must be licensed adjusters before they can decide loss amounts in insurance claims disputes.

“This could throw a big wrench into the whole industry,” said Florida attorney Gina Clausen Lozier, who often represents policyholders in claims litigation.

First, the adjuster suspension: Administrative Judge Robert Cohen, with the Florida Department of Administrative Hearings, in January ordered that public adjuster Scott David Thomas’ license be suspended for 24 months and that Thomas must pay a $5,000 fine. The order stopped short of a recommendation by the state Department of Financial Services, which had urged Cohen to revoke Thomas’ license altogether.

Thomas’ lawyer noted that the DFS must accept the judge’s order before it is final.

Thomas, owner of Indemnity Public Adjusters, in Fort Lauderdale, has been a thorn in the side of several insurance companies in recent years. Thomas had repeatedly harassed insurance company adjusters and engineers, blocked their access to insureds’ property and sometimes threatened them with violence, the DFS said in its complaint against him. His actions against Citizens’ Property Insurance Corp., Tower Hill Insurance, Lloyd’s of London and QBE Specialty Insurance resulted in claims being denied altogether or delayed for months, DFS said.

Insurers reported that Thomas often demanded that insurance company adjusters produce proof of insurance, including workers’ compensation coverage – something carriers said was an unnecessary delaying tactic.

Thomas, reached last week by phone, told Insurance Journal that he asked for that information in order to protect the homeowner, so that an adjuster would not sue the owners in case of an injury from falling off a roof.

“The homeowners benefitted in every case Scott was involved in,” said Thomas’ lawyer, Matthew Ladd, of Coral Gables.

He noted that in most claims Thomas adjusted, the final settlement was far more than what the insurer initially offered. “Homeowners are not the ones complaining here,” Ladd said.

DFS officials declined to comment further on the Thomas case. The adjuster has filed a 145-page list of exceptions to the DOAH order. If the judge does not change his ruling, and it is accepted by DFS, Thomas has the option of appealing to a Florida District Court of Appeal.

Now to the appraiser-license question.

In its recommendation to the administrative law judge, the DFS attorneys in the Thomas complaint wrote that “because the work of an appraiser falls within the statutory definition of ‘public adjuster,’ an appraiser is subject to the requirements of the Florida Insurance Code” and the adjuster’s code of ethics.

That has raised alarms for appraiser associations and the Windstorm Insurance Network, which provides education courses for appraisers. The network, known as WIND, along with the Insurance Appraisal and Umpire Association, and the Property Loss Appraisal Network, filed a petition Feb. 23 with DFS, seeking clarity on the issue.

“Petitioners are in doubt as to whether their training and certification of unlicensed individuals as appraisers is compliant” with Florida law, the petition reads.

Appraisers are key ingredients in insurance claims disputes in Florida. When insurers and insureds cannot agree on the value of losses in a claim, appraisers are often called to step in. For an appraisal panel, the insurer picks one appraiser, the policyholder chooses one, and those two pick a third.

But until now, many appraisers have not been required to be licensed adjusters. They can receive some training, though. The WIND organization in 2012 established its certified appraiser program and each year, hundreds of property claims professionals complete the four-hour course at the Windstorm Insurance Conference in Orlando.

The IAUA and PLAN organizations also offer training and education programs.

If appraisers suddenly have to be licensed as adjusters, that could create a shortage of people available for insurance disputes, the petitioning groups said in an email to Insurance Journal.

“By limiting the current appraiser pool to licensed adjusters, the DFS will be creating a backlog which will further delay resolution of the appraisal,” the groups said.

Because appraisals generally weigh in only on the amount of loss, not on coverage decisions or policy language questions, an adjuster license is not necessary, they argued. Most other states do not require appraisers to be licensed adjusters, the organizations said. In Louisiana, appraisers must simply register and pay a fee, but no licensing is required.

Requiring a license would also go against the Florida insurance industry’s and regulators’ move toward more alternative dispute mechanisms and away from litigation. Appraisal panels offer a way to resolve at least some questions without further courtroom time. “The shortage of appraisers would likely trigger increases in litigation due to delays and challenges created for appraisal,” the petitioner groups noted.

To obtain a license in Florida, public adjusters must: be a resident of Florida or maintain an office in the state; complete a six-month apprenticeship program; put up a $50,000 surety bond; be fingerprinted; and pass the adjuster exam.

The organizations said they are prepared to offer updated training for appraisers-cum-adjusters if it comes to that. But not all appraisers may want to take the time to become licensed adjusters. In some specialties, such as boilers, fine art, yachts or special machinery, appraisers may be considered experts in their fields, something an insurance adjuster may not be.

Other segments of the insurance industry appear divided on the question. Josh Beck, an insurance defense attorney in Boca Raton, noted that as long as the designated appraiser has knowledge and experience in adjusting claims or in repairing properties, “they should be qualified to act as an appraiser; it should not be limited to only licensed adjusters.”

Requiring a license would create the possibility of a shortage of appraisers, he noted.

The Florida Association of Public Insurance Adjusters, on the other hand, contends the law is clear that only a licensed public adjuster may aid an insured in effecting the settlement of a claim for loss or damage covered by an insurance policy.

“It is our belief that providing the protections associated with licensure (required training, continuing education, and apprenticeship) ensures regulatory oversight of insurance professionals for consumers,” FAPIA President Edwin Leal said in a statement. “This oversight includes required criminal background checks which do not take place when someone is acting as an appraiser without an adjuster’s license.”

It could be summer before the matter is resolved. Florida law gives DFS 90 days to respond to petitions for declaratory judgments, said Devin Galetta, communications director for DFS.

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