Disciplined in Sophisticated Defense and Insurance Litigation

November 30, 2017 | Publication| A Home After the Storm: How does additional living expense coverage respond to insureds impacted by hurricanes?

Richard D. Gable Jr., Michael J. McLaughlin

This article is originally a publication of CLM MagazineNovember 2017. Legal opinions may vary when based on subtle factual differences. All rights reserved.

Hurricane Harvey recently displaced more than 1 million people, and news reports indicate that it left behind wreckage over an approximately 300 mile area. Hurricane Irma caused an estimated 6.5 million people to evacuate the storm in Florida. Victims of both hurricanes could not access their homes and stayed in hotels and other temporary housing as they awaited repairs and return of normal utility services.

When catastrophes like these strike, homeowners will naturally look to their insurance policies to assist with the increased costs of living outside of their homes, including housing, food, and travel. Let’s look at how the additional living expense (ALE) coverage in a traditional homeowner’s insurance policy responds to these circumstances.

ALE coverage is designed to reimburse homeowners for reasonable increases in living expenses necessary to maintain their normal standards of living when a covered loss makes their residential premises uninhabitable. The coverage usually continues until a reasonable time has passed for the repair of the damaged premises or, if the homeowner permanently relocates, for the shortest time required to settle the household at a new location. The particular wording of an insurance policy may impose additional restrictions of this coverage.

For Texas residents, courts have determined that a house is deemed to be “uninhabitable” when it cannot be used for the purposes for which it is intended and cannot be restored using ordinary repairs without unreasonable interruption of the occupancy, as seen in Flores v. Allstate Texas Lloyd’s Co. Florida, however, requires that the homeowner must be forced out of the property due to a covered loss, as noted in Bankers Sec. Ins. Co. v. Brady. Stated differently, the purpose of the “loss of use” coverage is to make whole a displaced homeowner, as affirmed in Highlands Ins. Co. v. Kravecas.

Debates frequently arise between the homeowner and insurer as to whether or not a house is uninhabitable following a loss. In the case of Williams v. Auto Club Family Ins. Co., the homeowners argued that the house was rendered uninhabitable by Hurricane Katrina because there was no power in the house, even though the roof, walls, windows, and doors were all intact. The homeowners only made minor repairs after returning to their house, mostly limited to the garage and the HVAC unit. By definition, to be uninhabitable, the house would have to be unable to be lived in by the homeowners. Although the homeowners claimed that certain living spaces were not “fit for habitation,” such as the master bath that had not been used since Hurricane Katrina, the court found that this does not render “the part of the residence premises where you reside not fit to live in,” as the house had been inhabited with little-to-no repairs following the hurricane. Further, the court determined that the house was not rendered uninhabitable due to the absence of electricity because the policy did not provide coverage for interruption of electric service.

Another interesting issue is whether a homeowner is entitled to ALE coverage for evacuation expenses incurred before the storm hits. For example, many Florida residents fled the area before Hurricane Irma struck either by voluntary or mandatory evacuation orders. What if a resident flees before the hurricane hits, but the house luckily avoids any damage? On its face, ALE coverage should not provide pre-storm evacuation expenses because the coverage is not triggered until a covered loss renders the house uninhabitable. In other words, the mere threat of a hurricane does not render a house unfit for habitation. Some policies, however, provide an exception if the house is not accessible due to civil authority or government mandate. Insurance policies may pay ALE for up to two weeks when a homeowner is prohibited from use of their house because of civil authority under these circumstances.

In light of coverage limits for certain types of losses in insurance policies, there may be a question as to the true reason why the homeowner vacated the house when different types of losses occur concurrently (for example, if a house is damaged from both a flood and windstorm). In the case of Kurland v. ACE Am. Ins. Co., the house sustained water damage partly due to a leaky roof. The water damage also caused mold to grow, including inside the HVAC system. The homeowners vacated after mold was detected inside the residence. The policy capped ALE coverage incurred because of the presence of mold in the house at $2,000, but imposed no such limit if the homeowners moved out of the house for some other reason. The insurance company asked the court to determine if the homeowners moved out solely because of mold, or if other covered losses—such as water damage—also made the residence uninhabitable. The court noted that if the homeowners would have had to move out anyway, even absent the presence of mold, then they may be entitled to more than $2,000 in ALE. The homeowners argued that many reasons compelled them to move out, including mold, water damage, equipment breakdown, and the presence of “chemicals and toxins in the home.” The court found that this presented an issue of fact for the jury to resolve as it could not decide the issue on the papers before the court.

The phrase in the typical ALE provision of limiting coverage to the “shortest time required to repair or replace the damage or, if you permanently relocate, the shortest time required for your household to settle elsewhere,” is intended to put a reasonable limit on the length of time that the insurer is required to provide benefits. In Christmas v. Nationwide Mut. Ins. Co., the homeowner argued that the “shortest time required to repair or replace the damage” had not expired because she did not have sufficient funds to repair the house. The North Carolina court rejected this argument, finding that the provision does not condition the ALE coverage on the payment of the replacement cost of the property. The court construed the natural reading of the ALE coverage to mean that the insurer will pay living expenses for the shortest time period required to repair the property or permanently relocate generally, “without regard to the insured’s financial ability to fully rebuild the damaged property.” In Taladay v. Metropolitan Group Prop. and Cas. Ins. Co., a court in Washington, using its rules of contract interpretation, rejected the North Carolina’s court reasoning in Christmas, finding that the court had added conditions not expressly stated in the insurance policy. Instead, the Taladay court interpreted the meaning of the time required to repair the damaged property to include the actual circumstances and not simply an estimate of construction time. Consequently, the time spent to assess the damage, participate in an appraisal process, wait for the insurer to issue payment, and complete the repairs on the structure could also be factored into the analysis.

In the context of a hurricane that damages a widespread area, it can lead to shortages of building materials and labor that may increase the time and cost required to repair the damaged property beyond what is normally expected. This situation may require the claims professional for the insurance company to review construction industry data and other local factors to calculate the reasonable time required to repair or replace the damaged property, given the impact of the storm.

The homeowner, of course, cannot profit or otherwise receive a windfall from the ALE coverage. In one case, Thompson v. State Farm Fire & Cas. Co., the homeowner sought the cost to move into a new apartment, where the rent in the new apartment was less than the amount they paid before Hurricane Katrina. The court held that to the extent that the homeowners sought coverage for rental costs that were less than those of their insured premises, the homeowners could not recover.

An ALE claim only belongs to the insured who actually experienced the loss of use of a house. In the Kravecas case, the plaintiff purchased a house damaged by Hurricane Andrew. The buyer attempted to assert his own claim for loss of potential use instead of asserting the prior owner’s claim for actual loss of use. The court determined it would create an unwarranted windfall if the third-party buyer could assert a claim for the potential loss of use, as he had never been a resident on the premises.

In conclusion, ALE coverage is a useful and helpful tool to a homeowner seeking to return normalcy to life following a catastrophic event such as a hurricane. The coverage should be reviewed carefully by both the claims professional and the homeowner to ensure that their actions in finding new housing, decisions about repairs, and the timing of returning to the house are in accordance with the insurance coverage. The time limitation on ALE coverage can become tricky in the context of a hurricane, where it can take a longer period of time to return to the house and locate a suitable contractor and building materials. In these circumstances, the claims professional may have to study the actual conditions as opposed to relying wholly on a construction estimate.

Richard D. Gable Jr.

A Partner at Butler Weihmuller Katz Craig LLP in Philadelphia, PA. Richard practices in our Arson & Fraud, Aviation, Extra-Contractual, First-Party Coverage, Reinsurance, and Subrogation & Recovery departments.

Michael J. McLaughlin

A Senior Associate at Butler Weihmuller Katz Craig LLP in Philadelphia, PA. Michael practices in our Casualty Defense Litigation, Extra-Contractual, and First-Party Coverage departments.

February 23, 2018 PublicationSubrogation in a Machine's World - How automation and connected devices are changing subrogation investigations

When people hear the word “internet,” they usually think of search engines, funny videos, or personal interactions through social media. But the internet involves so much more. Machine-to-machine (M2M) communication represents a significant portion of all internet communications.

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April 02, 2019 PublicationWHITE PAPER: THE "BOMB CYCLONE" AND FLOODING IN THE GREAT PLAINS: FLOOD AND SURFACE WATER IN PROPERTY INSURANCE POLICIES

In March 2019, a “bomb cyclone” struck the Great Plains, producing blizzard like conditions, high winds, heavy rains, and causing historic flooding, primarily in eastern Nebraska and western Iowa.  There was extensive property damage...

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October 29, 2018 PublicationThe Importance and Requirement of Having a Representative with Full Settlement Authority at Mediation

Mediations are one of the most common and effective forms of Alternative Dispute Resolution.  They typically occur with an attorney, a party representative and a mediator all present at the same location.  Most mediations follow a standard procedure that begins with the mediator providing a short explanation of the mediation process, followed by an opening statement by the Plaintiff and Defendant, and then lead to the parties breaking off into caucus where the mediator will meet with each attorney and party representative to begin the negotiation process. 

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February 23, 2018 PublicationSubrogation in a Machine's World - How automation and connected devices are changing subrogation investigations

When people hear the word “internet,” they usually think of search engines, funny videos, or personal interactions through social media. But the internet involves so much more. Machine-to-machine (M2M) communication represents a significant portion of all internet communications.

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November 29, 2017 PublicationExisting Tools to Curb Runaway Attorney FEE Awards

Florida provides one of the most generous insurance fee-shifting mechanisms in the nation. The lure of a large attorney fee award has spawned the very litigation that the fee-shifting statute was intended to avoid. It is common for attorneys representing insureds to file lawsuits over matters that could easily be resolved informally or to drive up a fee claim by unnecessarily aggressive litigation. Courts often reward these tactics by failing to adjust a claim for attorney fees to account for unnecessary litigation, or, worse, by applying a contingency fee multiplier. But courts can only respond to arguments made by the litigants. Florida law provides existing tools that, if applied, can help curb a runaway attorney fee award. This article sets out the current legal environment and discusses ways defendants can fend off a runaway attorney fee award.

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July 12, 2017 PublicationState Specific: Tennessee Addresses Production of Underwriting Files, Similar Claim Materials and Reserves in First Horizon National Corporation v. Houston Casualty Company, et al.

As a result of the coverage denial, First Horizon sued its insurers. This article will address a few of the discovery disputes that arose in the coverage case and how they might be relevant to issues that might arise in litigation of a subrogation claim.

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February 23, 2017 PublicationIs It Hot in Here? Significant Recovery Opportunities with Boiler Failures

Water boiler failures provide significant recovery opportunities. By understanding how these relatively simple systems work, one can realize that recovery potential and identify the probable failures modes, skillfully directing the recovery investigation, and asserting the proper legal theories that afford recovery.

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February 22, 2017 PublicationPennsylvania – VOIDED Terms and Conditions: Unlawful and Unconscionable Exculpatory Clauses

How many of your subrogation claims have been closed because of the subrogation killing terms and conditions of a contract? A recent decision in the Eastern District of Pennsylvania, United States District Court found in favor of a subrogating insurance carrier and held that the terms and conditions barring recovery were both unlawfully drafted and unconscionable, thus allowing the subrogating carrier to move forward with its subrogation claim. State Farm Fire & Cas. Co., a/s/o Sara Rivera v. Petroleum Heat & Power Co., Inc., 2016 WL 5816182 (E.D. Penn. October 5, 2016).

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January 27, 2017 PublicationWhen Pipes Go Pop

Although we may not see the historic low temperatures associated with the polar vortex of 2014, the winter season always brings with it an influx of freeze-related claims. Notably, the involvement of Mother Nature does not automatically preclude a subrogation recovery, and these types of claims should be triaged promptly and efficiently in order to avoid overlooking subrogation potential.

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January 26, 2017 PublicationDamages Proof in Subrogation Cases

In the past few years, savvy defense lawyers have taken a more inquisitive approach on the valuation of subrogation damages across all lines of insurance. Gone are the days of assuming the damages must be right because no carrier wants to pay more than they should.

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November 21, 2016 PublicationBoom! Maximizing Recoveries in Catastrophic Explosions

An explosion is an extraordinary event that forever changes the psyche of those affected. The bigger the scale of the explosion, the bigger the challenges are to move forward and to develop viable recovery claims. It is a dilemma that requires sophisticated leadership and seasoned subrogation counsel, forensic consultants, and loss adjusters.

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October 20, 2016 PublicationKentucky- Business Personal Property Damages Excluded under Daubert

Have your personal property or business personal property subrogation damages ever been excluded under a Daubert challenge? They could be if the damages are not sufficiently supported by evidence.  If any of the steps are not followed in calculating the actual cash value of the personal property damages, the entire claim may get excluded. 

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October 11, 2016 PublicationHold on to Your Recoveries so They Don't Spoil

The phrase "spoliation of evidence" invokes thoughts of discarded pipes and compromised fire scenes. Even the greenest of first party adjusters and subrogation professionals are quick to ask an insured if the physical artifacts related to a loss are still available. Given that most documents are now transmitted and stored electronically, the potential for spoliation of evidence exists not only with physical artifacts, but also with the preservation of documents and electronically stored information ("ESI"). In order to prevent a claim of defense alleging the spoliation of evidence, adjusters and subrogation professionals should be implementing litigation holds for all claims where subrogation is pursued. 

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October 10, 2016 PublicationWho, What, When, and How Much? Key Questions to Ask When Faced With a Potential Sovereign Immunity Defense

With each new claim we navigate a myriad of potential obstacles to recovery.  As subrogation professionals, we work to quickly identity these issues and evaluate the best recovery strategy.  In doing so, some obstacles may first appear insurmountable, but later give way to the ever diligent subrogation professional.  One such obstacle is the concept of sovereign immunity.

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June 27, 2016 PublicationHistoric Hotel, Restaurant & Nightclub Fires Provide Common Threads for Developing Significant Subrogation Recoveries

Countless fires occur every year. They cause billions of dollars in property losses, and sometimes result in bodily injuries and deaths. Public assembly fires arising out of hotels, restaurants and nightclubs are prone to significant calamities, given the fire risks, types of use, occupancy, and human factors. While fires are frequently avoidable, the fires themselves would oft be smaller in scope “but for” the failures of fire suppression, detection and alarm systems; lack of effective containment; material flammability; and other failures. This article discusses the common thread of historic hotel, restaurant and nightclub fires—many of which are iconic.

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June 21, 2016 PublicationThe Inadequacies of the Diminution of Value Approach to Damages to Real Property in Tort Claims

Generally speaking, the purpose of tort damages is to make an injured party whole and restore the injured party, as nearly as reasonably possible, to the position in which he or she would have held absent the injury. When dealing with damages sustained to real property, most jurisdictions provide that the cost to repair the property is the proper measure of damage so long as the cost to repair does not exceed the diminution in value, which is the difference between the fair market value immediately before and immediately after the damages are sustained.

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April 15, 2016 PublicationIt's a Recovery: Opportunities to Recover Advanced Deductibles, LAE and Unpaid Premiums

Reimbursement claims stem from basic contract principles. These recovery rights turn on the promises contained in the insurance policy that the law will enforce. After all, it is all about enforceable promises that give rise to contractual recovery from one’s insured.

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December 17, 2015 PublicationIntroduction to Insurance Subrogation

Published by LexisNexis, Appleman on Insurance has long been considered a comprehensive resource in the field of insurance law.  It is showcased by LexisNexis as an “authoritative analyses of insurance law across the nation with insights provided by expert practitioners and scholars . . . .”

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October 13, 2015 Publication(Un)Reel Legal Ethics: Obscure Critiques of Ethical Issues in Hollywood Films About Civil Litigation

Dean S. Rauchwerger, Geoffrey M. Waguespack, and Jonathan M. Levy of Butler’s Chicago office authored (Un)Reel Legal Ethics: Obscure Critiques of Ethical Issues in Hollywood Films about Civil Litigation, published in NASP’s Subrogator, Fall 2015. The article cleverly explores issues of legal ethics that arise in modern movies involving civil litigation, set in the style as written by movie critics.

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October 13, 2015 PublicationWhen is the Contract Complete? Court Rules that Statue of Repose Commences Upon Final Payment.

Recently, Florida’s Fifth District Court of Appeal reviewed the statute of repose relative to improvements to real property.

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July 07, 2015 PublicationImposition of Duty to Those with Easily Accessible and/or Specialized Knowledge

In denying AutoNation’s motion and finding that a duty existed, the Court reasoned that AutoNation's status as a General Motors dealer gave it easily accessible and specialized knowledge about the truck recall via the electronic VIN check.  The Court explained that the “the decision to impose a legal duty is a multifaceted issue requiring courts to balance a number of factors,” including risk and utility.  

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May 05, 2015 PublicationProduct Liability Blackjack (21) Ways to Win, Bust or Fold!

Strategic thinking in prosecuting or defending product liability actions often mirrors the creativity, gut-check and fortitude to play the winning blackjack hand. As in blackjack, in the litigation game, it is often not how you start but how you finish that decides the winner. Though the cards often favor the house or your adversary, playing your cards to their maximum potential yet recognizing when it is necessary to fold, is vital to smartly beating the odds. Below is a practical checklist of 21 ways to win, bust or fold in your product liability game.

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March 13, 2015 PublicationLiability and Damages: Understanding Property Insurance Bad Faith Litigation in Florida

Florida recognizes two general categories of insurance bad faith: first-party and third-party. A cause of action for third-party bad faith exists at common law, but also may be brought under the Florida bad faith statute. The essence of a cause of action for third-party bad faith is that the insurer breached its duty to its insured by failing to properly or promptly defend claim, which resulted in the insured being exposed to a judgment in excess of the coverage limits.

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December 01, 2014 PublicationThe Only Thing We Have To Fear Is Spoliation Itself … and Sanctions: How Spoliation Can Erode, or Even Destroy, the Potential for Recovery

Successful subrogation recoveries generally start with proper documentation and preservation of the relevant evidence.  For this reason, every effort should be made to involve a subrogation professional at the earliest possible moment following a loss.  However, early involvement is not always plausible.  Additionally, at times, the circumstances surrounding the loss simply do not allow for the desired preservation of evidence.  When the relevant evidence is not sufficiently documented or preserved, a claim for recovery is likely to be met with a spoliation defense. 

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October 01, 2014 PublicationOptimizing the Use of Technology in Mediation

From cell phones, to the world wide web, to electronic mail, and beyond, over the past twenty years, we have experienced an unprecedented growth in technology, as well as a growing dependence in our day-to-day lives on these technologies. Accordingly, it is of little surprise parties and mediators alike have implemented the advancements in information technology to the mediation process. Various forms of technology can be utilized to assist parties from the initial stages of selecting a mediator to the actual day of the mediation conference, and all points in between. This article details a number of ways technology advancements have affected the way parties mediate.  

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June 26, 2014 PublicationThe Language Was Not Enough: Florida Supreme Court Holds that the Standard "Transfer of Rights" Provision Does Not Abrogate the "Made Whole Rule"

The scope of these transferred rights had not been addressed in Florida until the Eleventh Circuit certified the issue to the Florida Supreme Court. In its recent opinion, the Florida Supreme Court clarified that a basic transfer of rights provision, without more, does not give the insurer a right of priority. Under such circumstances, priority of recovery remains dictated by Florida's common law "made whole doctrine." 

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April 01, 2014 Publication"How to Succeed at Subrogation (...but you do have to try!)"

Success in Subrogation can be measured in many ways, and depends greatly on what type of business is at issue for the underlying recovery claim.  There can be different strategies for each type of subrogation claim (Property is different from Health Care which is different from Workers Comp which is different from Auto) but there are some universals, and we will try to discuss those here.

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April 01, 2014 Publication"Texas Damages"

In Property Subrogation, one of the most difficult damages situationsto deal with is a commercial loss where older equipment is destroyed and that equipment is integral to the operation of a facility.  Oftentimes, the business decision is made to replace used equipment (which may not have a fair market value in the marketplace) with new equipment, to minimize the downtime and the associated business income loss.  A recent Texas case may give property subrogators some ammunition to contest how those pieces of equipment get valued for recovery purposes.

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December 01, 2013 PublicationProving Lost Profits In a Subrogation Case: It's No Easy Matter

This article was originally published in the Subrogator, a publication by the National Association of Subrogation Professionals, Winter, 2013. © Copyright 2013 by NASP. All rights reserved. Republished by Butler with permission from NASP.

As subrogation professionals, it is sometimes easy to overly focus on the liability issues in each case, leaving a thorough damages analysis for another day. However, it is a better practice to perform a complete evaluation of the legally recoverable damages early during the subrogation investigation, so that the true value of the claim can be ascertained and relayed to the subrogating insurer. This is especially so in cases where the business interruption portion of the loss is significant, since an error in proper quantification of the recoverable portion of the business interruption loss could dramatically change the overall valuation of a case -- both for settlement and trial purposes.

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July 01, 2013 PublicationSeventh Circuit Holds that an "Amorphous Litany of Complaints about a Myriad of Workplace Decisions" Is Insufficient to Establish Discrimination under the Direct Method of Proof

If you would like to discuss this topic further, please contact Geoffrey Waguespack or directly 312-462-9157.

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May 01, 2013 PublicationAvoiding The Economic Loss Rule In Construction Claims

The Economic Loss Rule  was initially developed in the products liability context....

However, over the years, courts have used the product liability concepts created in the early cases interpreting the Rule to expand the Rule's application to include construction claims, which has created problems in applying the Rule in non-product liability claims. "[T]the troublesome cases discussing the dreaded economic loss rule have usually arisen in the field of construction."

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May 01, 2013 PublicationStuck Between a Collapsed Wall and a Hard Place: The Failure to Establish the "Standard of Care" in a Negligence Claim

Generally, "to establish a claim for negligence, a plaintiff must show: (1) the defendant had a legal duty to conform to a certain standard of conduct; (2) the defendant breached that duty; and (3) the plaintiff sustained damage that was proximately caused by the defendant's breach.

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May 01, 2013 PublicationExamination Under Oath: A Vital Tool in Examining Potentially Fraudulent Claims

SIU Manager, Ryan West, was used to the smell. You know the smell. It is scorched. It is bitter. It is the seemingly everlasting and sticky odor of smoke.  He's at the fire scene to take a recorded statement of Belinda Peters. Her house burned last night. Burned as she started frying some chicken for dinner.  Her attention was diverted from the stove while she took a call from her aunt in the Netherlands. Her story, to the fire department, is that she left the stove unwatched, unattended, for a mere minute.

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April 01, 2012 PublicationWhat Nearly Two Decades as a Subrogation Attorney Has Taught Me about Product Safety

The other day when I was asked to write an article about "product safety" I pondered how to best approach this.  As we all know, what is or is not a "safe product" is often in the eye of the beholder (or which side of the "v" you are on!).  Is any product that fails even once an "unsafe product?"  If 1,000,000 items have been manufactured and "only" 73 of them have failed, is that an "unsafe product?"  What about 133 of them?  If a product fails when it was being used improperly, but it was not a stretch for the manufacturer to have anticipated this "alleged misuse", is that an "unsafe product?"  If a product has been tested by agencies and groups with an international reputation for such testing, and the product has passed, can that product be an "unsafe product?" 

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April 01, 2012 PublicationMade-Whole Interpretations Leave Insurers Feeling Empty

There is a growing trend among state courts to interpret the made-whole doctrine in ways that have the potential to make it very difficult for insurers to effectively exercise their subrogation rights.  In recent years, state courts’ decisions have increasingly created hurdles for insurers to overcome before they are able to actively pursue recovery for payments made to their insured.  These requirements could have a potentially chilling effect on the field of insurance subrogation.

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February 14, 2012 Publication"Freedom to Contract" Gives Rise to Big Recovery Opportunities from Policyholders for Self-Insured Retentions, Deductible Reimbursements, Retrospective Premiums and Loss Adjustment Expenses

Insurance policies often include language that allows insurers to recover amounts they have advanced for the insured's benefit. For instance, if the insured's policy has a SIR, the policy may contain a provision similar to the following:

We shall have the right but no obligation, in all cases,  to assume charge of the defens and/or settlement of any claim, and, upon our written request, you shall tender such portion of the SIR as we may deem necessary to complete the settlement of such claim.
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October 29, 2009 PublicationThe Daubert Tango: "Recent Developments In Fire and Explosion Litigation"

In 1923, the Court of Appeals for the District of Columbia, affirming the exclusion of an expert witness at trial, stated:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

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October 07, 2008 PublicationLanding the Knockout Punch: Contacting Another Party's Current And Former Employees Within the Ropes

Winning litigation requires that you and your counsel land the devastating uppercuts at the key moments in the fight. Big opportunities for critical testimony and evidence exist by pursuing permissible ex parte contacts with another party's current and former employees. The ethical ropes and practical tips for effectively contacting and interviewing such witnesses are discussed below.

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December 03, 2007 PublicationDrowning in Black Water: Water Restoration Contractors' Deviations from Industry Good Practices & Standards of Care Trigger Potential Mold Liabilities

Entry of errant water into a building or other structure can lead to serious mold problems, physical damages and substantial property and business interruption losses. This  article provides a roadmap on developing viable recovery claims against restorative drying contractors who were involved in improper and careless restoration and remediation of water  damaged property. As in any garden-variety tort claim, it is imperative that your counsel appreciate the critical importance of identifying the target contractor's vulnerable liability exposures.

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December 05, 2006 PublicationUnderwriters Laboratories—The Forgotten Island In The Litigation Seas—"Full Of Fruit"—For Bolstering Or Undercutting Product Integrity

Underwriters Laboratories Inc. ("UL") is a nonprofit organization conducting product safety evaluations. UL Marks are on 19 billion products ( www.ul.com ). As of 2005, there are more than 71,000 manufacturers producing UL-certified products and 97 countries where UL customers are located. UL publishes hundreds of safety standards and disseminates safety information globally.

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August 01, 2006 PublicationThe Big Daubert Hurdles in Fire & Explosion Litigation

Over a decade has passed since the U.S. Supreme Court's ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc ., 509 U.S. 579 (1993), and it is time to evaluate where we've been, where we are, and where we are headed on the admissibility of expert opinion testimony in fire and explosion cases.

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June 05, 2006 PublicationA Product Supplier's Liability Exposure for Noncompliance With its Obligation Under the Consumer Product Safety Act and Related alternative Statutory Authorities

Manufacturers, importers, distributors and retailers have the obligation to place only those products that are safe for use into the stream of commerce. In addition to those obvious duties, these entities also face significant duties under the Consumer Product Safety Act (CPSA) ' and other legislation and regulations enforced by the Consumer Product Safety Commission (CPSC).

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May 09, 2006 Publication"Top-Dog" Depositions The Hurdles to Overcome

High-level executives are frequently sought to be deposed because of their unique corporate roles for, inter alia, policy making, corporate governance and implementing policy compliance and corrective actions. On a tactical basis, the executive deposition is pursued so that your adversary's "figurehead" directly feels the "hot buttons" of your case, real-time, without layers of filtering and spin. "Top-dog" depositions, commonly called "apex depositions," cover a wide range of executives, including CEOs, presidents and other senior management positions.

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May 09, 2006 PublicationTaking A Closer Look For Deep Pockets

A CORPORATION is a legal entity created by filing certain documents with the state. It offers many benefits that are found in other entities, such as limited liability, centralized management, transferability of ownership, continuity, and taxation. On the other hand, some of these benefits pose problems for securing legal liability when the corporation is used as a shield to avoid liability or to perpetuate a fraud. In these cases, a victim may be left without any avenue of relief. Fortunately, all hope is not lost!

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May 01, 2006 PublicationAlternative Ways To Use Evidence Of "Other Conduct" That Would Otherwise Not Be Admitted

In developing your case, as plaintiff or defendant, it is important to appreciate the various alternative ways for opening the door to "other conduct" evidence to prove relevant facts at issue. Below is a synopsis of strategic methods and insights for proffering evidence of character for a non-propensity purpose, habit, subsequent remedial measures and prior occurrences/failures.

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January 03, 2006 PublicationGetting the Winning Edge: Appreciating the Permissible Boundaries, in Qui Tam and Other Litigation Contexts, for Contactiong Your Adversary's Current & Former Employees

To say the least, litigation is frequently competitive, hard-fought and fraught with many hurdles. Developing a winning case requires that you seek the edge at every step in the journey. Big opportunities for marshalling critical testimony and evidence exist by pursuing permissible ex parte contacts with your adversary's current and former employees. Below is a general discussion of the ethical boundaries and practical tips for effectively contacting and interviewing such witnesses

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October 05, 2005 PublicationCourageous Whistleblowers are not "Left Out In The Cold": Legitimate Justifications Exist for Collecting Evidence of False Claims Act Violations

It is the courage of whistleblowers, standing up in the face of great adversity and overwhelming pressure to "look the other way;' that enables the False Claims Act ("FCA") to fulfill its primary purpose of combating fraud on the U.S. Treasury. By marshalling evidence and collecting company documents, the whistleblower provides the necessary proof to shed light on fraudulent and illegal FCA activities.

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May 03, 2005 PublicationHow "What We Learned in Little League" Paves the Way for Winning Litigation!"

As in baseball, whether being the batter, pitcher, or outfielder, successful litigation requires a strong belief and conviction that one has the power to shape reality. Certainly, without the batter's confidence that he or she will hit the ball, irrespective of its speed, twists or turns, few home runs would be made, let alone "singles or doubles"

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April 01, 2005 PublicationLive . . . From The House Of Subrogation!

 The Hilton Hotel in Austin, Texas will truly be "The House of Subrogation" from November 13 through 16, when over 1,200 subrogation professionals from around the globe assemble for the NASP Annual Conference. And this year's conference is expected to be even bigger, better and more alive than ever before!

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January 06, 2004 PublicationGoing Toe-to-Toe With Your Opposing Expert

Experts oftentimes make or break cases.  As knowledge and science have grown, so has the range of experts that parties call upon to advocate their cause.  Not only must a party always look to bolster one's own expert case, a party must simultaneously be mindful of the need to undercut your adversary's expert.  As the client, you want to ensure that your assigned counsel appreciates the following practical ways for tackling the opposing expert during the discovery process

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PublicationUnraveling The Complexities Of Contractual Disputes

If you would like to discuss this topic further, please contact Dean Rauchwerger or directly (312) 462-9147.

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PublicationDeveloping A Claim Of Successor Liability—A Practical Guide To Recovery When Your Primary Target Defendant Has No Seizable Assets

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PublicationProtective Orders- Not Everything Can Be Swept Under The Rug!

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PublicationSix Critical Steps For Achieving A Successful Mediation

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PublicationAll Is Not Lost Simply Because A Target Defendant Has No Assets—Pull Out The Magnifier And Investigate The Corporate Connections Of Your Target For Alternative Deep Pockets!

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PublicationContracting Outside The Four Corners Of The United States—A Closer Look At The United Nations Convention On Contracts For The International Sales Of Goods

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PublicationThe Top 100 Ways To Build A Winning Recovery Case: Effective Claims Management Of Subrogation Cases

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PublicationMCS90 Endorsements Provide Significant Subrogation Recovery Opportunities

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PublicationSubrogating The Spill: What Are An Insurer's Options For Recovering Claims Paid As A Result Of The Gulf Oil Spill?

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PublicationSignificant Recovery Opportunities Where An Insured Breaches Its Reimbursement Policy Obligations For Advanced Deductible, Self-Insured

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PublicationBig Daubert Hurdles In Fire & Explosion Litigation—Revisiting The Importance Of Testing An Expert's Theories

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PublicationMass Confusion in Transactional Business: Boilerplate Forms and Competing Contractual Terms Often Lead to a "Battle of the Forms"—Practical Considerations for Minimizing Litigation

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PublicationUnited States' Liability For Negligent Disaster Response Under The Federal Tort Claims Act

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PublicationUndue Delay In Pursuing Subrogation May Result In Missing The Recovery Boat

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PublicationFederal Tort Claims Act: Pursuing Uncle Sam's Deep Pockets By Unlocking The Right Doors

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PublicationRailroad Subrogation And Third Party Recoveries—"Getting Back On Track"

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PublicationWhen Businesses Compete Fiercely, Crossing Certain Boundaries May Give Rise To Tortious Interference Claims

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