I won’t keep you waiting while I compose a post. The Mississippi Supreme Court, with all Justices concurring, has issued its decision in Corban v USAA .
8 thoughts on “BREAKING NEWS: Mississippi Supreme Court rules in Corban – Clarifies ACC!”
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My quick thoughts:
The decision is in line with what Judge Senter has repeatedly stated about how the ACC applies. This decision merely reflects what State Farm now admits, but what Nationwide obviously didn’t get, i.e. if the excluded peril of storm surge causes damage and you, insurer, can prove what damage the excluded peril caused, you do not have to pay the value of the excluded damage.
This is a win for policyholders.
I only wish that it came much sooner when there were more active cases.
Come on, Chip, better late than never, right ?
How about all these ads I see (both from law firms and public adjusting firms) saying that if the insured thinks they got ripped off (which they probably did) they can have their claim reviewed for FREE? I mean I know that this decision isn’t probably going to be retroactive or anything, but most people won’t know that and HOPEFULLY they will come forward NOW w/their settled claims, ask if they got the shaft, seek help and HOPEFULLY get it!
SHIRLEY HEFLIN
ACC Clause issue was always a red herring…..massive misinterpretation by the public. It doesn’t apply. Nice to see them address the “in any sequence” phrase which is the source of much of the confusion. It’s crazy to assert that a covered event could be invalidated by a subsequent excluded event.
The most important part of the decision is the burden of proof rules…..homeowner files for coverage of losses….burden shifts to the insurer to prove the “flood” exclusion by preponderance…..i.e. “look at the water line”…..but that doesn’t end the search for the truth…..and there are standard operating procedures on what constitutes a good faith effort by the adjuster…including in the NFIP’s Claims Adjustment Manual.
My take is that the homeowner has to hire their own adjuster….because if the area is impacted by storm surge, the homeowner will have to counter with some evidence supporting preexisting wind damage……otherwise the “preponderance” standard (51% or more likely than not) favors the insurer………
I have cited “Greer” (Greer v. Owners Ins. Co., 434 F.Supp. 2d 1267 (N.D. Fla. 2006)) where there were four separate adjuster reports as an interesting example……..with wide variance in apportioning of wind vs. flood damage……The Greer
Well stated James. Throw in that “inherent conflcit of interest” on part of the WYO and it makes no sense to have these perils seperate.
So you follow the money trail to find out who is making out from the flawed setup and the trail ends in tax havens like Bermuda and special purpose entities like Merna Re.
The scam on the treasury is multi level.
sop
To Mr. Barbieri: Very lucid analysis. The sad “truth” is that no insured or plaintiff’s lawyer, representing the insured, is going to be able to finance a litigation involving “competing expert witnesses”, unless the “numbers” constituting the insured’s “loss” make it financially worthwhile to do so. Such litigation can, generally, only be financed by the rich, and corporate monied interests. The only “hammer’ which the insured has is the risk of punitive or bad faith damages against the insurer, if the jury concludes that the insurer acted arbitrarily and capriciously, or was in actual bad faith. In Louisiana we have two such statutes. I do not know what Mississippi has. The “problem” with such an argument is that if an insurer presents evidence under oath from an “expert” who the Court accepts as such, because the insurer’s “expert’s” credentials “qualified” him as such, then that very fact undermines the argument that the insurer was in bad faith, ie. The finder-of-fact was simply confronted with an “honest disagreement” between competing “experts” who swore to tell the truth as they saw it, under penalty of perjury. In short, the issue of “bad faith” will never reach the jury, because the Judge will rule that there was no bad faith under such circumstances as a matter of law. Welcome to the American system of “injustice”.
These guys nailed it.
(If the wind peril causes damage resulting in a loss either before or after the water peril (
To Mr. O’Dwyer:
I agree big money has always been an obstacle to democratic justice, but a second opinion doesn’t cost that much….few hundred dollars…..
To correct the confict of interest problem the government can change the rules….all adjusters should be independent (public adjusters) not beholden to the insurance companies.
As example of misuse of the gatekeeper function vis-a-vis the government I cite: The deposition of Brian Ford in Rigsby….particularly recounting his conversation with Bob Kochan where Kochan tells him his services wont’ be needed anymore….because State Farm thought his analysis was too “conservative.” ,,,,,that kind of thing gets around to all adjusters…it tells them: “if you see wind damage don’t report it”…that’s the hidden message……..
which is why i repeatedly emphasize the “fiduciary” relationship language in the WYO Arrangement….as fiduciary you cannot exhibit a conflict of interest…..period. Any WYO employee that exhibits self-interest in carrying out the functions of the WYO program has breached the contract…….
only the penalty needs to be determined…….and remember, over 50% of the NFIP premiums are paid to WYO in commissions and fees….they could recover all of it.