Recent Question: My insurance company hired an engineering firm, who found sinkhole activity at my home. Immediately after we received the report, we were instructed to appear at a law firm to bring documents including tax returns, the closing documents at the time of sale, and a bunch of other things. Can they do this? Continue reading Sinkholes and Application Defenses
As Florida’s sinkhole issues continue to become national news, the Wall Street Journal recently decided to get into the fray. Unfortunately, the article had a very pro-insurance slant and went out of its way to place those fighting for homeowners in a very negative light. The article focuses on public adjusters here in Florida and their role in the sinkhole claims process.
Debating the Journal’s stance
Kevin McCarty, commissioner of Florida”s office of insurance regulation, led the charge in this article bashing those that file claims. Mr. McCarty presents numerous statistics demonstrating the rise of sinkhole claims filed and benefits paid out but do these numbers really tell the whole story? Isn’t it possible that homeowners are simply becoming more aware of sinkhole issues and the damages to look out for?
Florida is a state that experiences a tremendous amount of growth yearly. The result is a tremendous amount of new housing and land development. This development is quite often in areas prone to sinkhole activity and in areas that had previously been undisturbed.
Why homeowners are seeing more sinkholes
Many geologists will tell you that the number of sinkholes in Florida today is no different than it would have been a hundred years ago. The difference is we are building in these areas. This is often associated with drilling, compacting soils, heavy machinery, even heavier structures and even disturbance of local aquifers and wells. These activities can literally activate dormant sinkhole activity.
Assuming this to be true, Florida homeowners will always face the potential threat of sinkhole activity. The fact that Florida insurers now are scrambling to drop coverage is a scary proposition for any and all homeowners, especially after they have been collecting sinkhole premiums for decades.
The Journal’s other victims
You will see from the article that public adjusters were not the only target of the Wall Street Journal wrath. Yours truly and the Barfield Law Group were also picked on. The Journal mentions the Barfield Law Group billboard on the Crosstown in Tampa in quite a condescending tone. Sorry guys, I don’t plan on abandoning homeowners to fight alone any time soon.
If you have a situation requiring legal representation for a sinkhole damage claim, contact Morgan Barfield at Barfield Law Group, 813-251-1285.
Have a burning question you’d like to ask about sinkholes? Let us know.
Trial lawyer vs litigator
When it comes to your case, it might be understandingly overwhelming to decide who you wish to represent you. There are a million lawyers out there with different specialties, while you don’t know the first thing about what you’ll need from your lawyer! One common question is if one should employ a trial lawyer vs litigator, and what the difference is between the two.
What is litigation?
In general, litigation is everything that happens before you and your case appear in court before a judge and jury. This includes a variety of stages, including:
- sharing legal documents to commence litigation
- the discovery phase
- post-trial motions
- potentially an appeal
Therefore, your litigator is a lawyer who is experienced in everything right up until it is necessary to pick a jury. This is an important aspect of your case and may require another set of skills and experience.
This is where you need to discuss with your hired counsel what experience they have. Your lawyer may legally be able to choose a jury and try a case, but that doesn’t necessarily mean they are experienced in it. Experience is king, so be sure that you are well-educated on your lawyer’s skills.
When to get a trial lawyer
Therefore, you should think about seeking a trial lawyer when you see your case being put in front of a judge. However, the question now becomes “when do I know that a judge and jury will see my case?” Well, this depends on each individual case, and this question should be brought to a lawyer in a consultation.
For example, if you are interested in settling your sinkhole case quickly, it may not be necessary to engage an attorney with a lot of trial experience.
Finding a trial lawyer
If you have decided the former of the trial lawyer vs litigator choice, trial lawyers will usually maintain lists of the cases they have tried, which provide you with information about their prior successes, the number of times they have actually gone to trial, and the types of cases they’re experienced in.
Of course, if you ask an attorney for documentation of their experience and they are unable to provide any, one might second-guess their ability to handle your case.
Some attorneys have also obtained specific certifications for trial practice from the Florida Bar. A copy of the list of attorneys who are, in fact, board certified in trial practice is available through the Florida Bar website. You should look for an attorney who meets your needs, and if your needs may include an attorney able to take your case to trial, you should explore these issues when you interview counsel.
Organizing sinkhole resources
Due to the sheer number of sinkhole claims filed in Florida, there are a lot of websites sponsored by geotechnical firms, geologists, sinkhole attorneys, and sinkhole repair companies, each attempting to get your attention on how to deal with these problems.
Sometimes the websites are designed to inform, persuade, or, honestly, confuse you about the issues, each for their own reason. Our purpose is to provide you the most balanced sinkhole information available so that you can make informed decisions, whether you are attempting to determine whether to file a sinkhole claim, repair a sinkhole home, or determine whether to file a sinkhole lawsuit. This may be too much information for some or too little for others, but we believe it suits most.
Define the sinkhole issue
The first thing you need to do in looking for a sinkhole lawyer or a consultant is to properly define your issue. What is the real issue, now, that must be resolved before I can move forward to solve the total problem?
For example, if you are unsure whether to file a sinkhole claim because of the damage at your property, it may be premature to be looking to consult with a sinkhole repair contractor.
Additionally, many of these professionals charge for different services on a percentage of your total repair costs, which should be considered as well. A public adjuster may be helpful in negotiating a repair claim, but less helpful for a denied sinkhole claim, where a lawyer will be necessary if a lawsuit is filed.
Plan, educate, execute
My suggestion is to map out your plans carefully and to educate yourself. Read your policy. What does it say your rights are? If you do not understand the terms, ask your insurance company about your sinkhole coverage and demand they put everything in writing to you.
If the answers do not make sense, it may be time to talk to a lawyer. If you have questions about a repair method for sinkholes, it may be good to talk to an independent company who was not hired by the insurance company. As we always tell people, we may not have the answer to your question, but I bet we know who can answer it.
My insurance company sent me a letter after I filed my sinkhole claim telling me I may have to pay them $2,500 if they do not find a sinkhole. Is that true?
Your insurance company is misleading you either because they simply do not understand or they do not want you to pursue your claim. Either way, shame on them.
As long as there is a “good faith” basis for filing a claim, you cannot be held responsible for the costs associated with your claim. Understand, there could be liability if the investigation was filed without a sufficient reason to have done so. The home insurance company bears the burden of proof in showing that property damage did not result from the presence of sinkholes.
To claim or not to claim.
Now, having said that, the standard for whether you could file a claim would mean anything that would be the basis for the claim. If you found, for example, a crack in a wall, tile, floor, or ceiling, you would have a good faith basis to file your claim. I once knew an insured who filed a claim without any damage at all, but had filed it because the neighbor had a sinkhole. In that situation, the Court found a sufficient and good faith basis for what they did.
I can tell you as a sinkhole lawyer, representing both policyholders and insurance companies, no one I have ever met in the business has ever even heard of anyone recovering against a policyholder. I think the law serves no purpose. More than anything, I see this used frequently by insurance companies to deter claims, which is not fair. I suspect this is why no one ever actually recovers from it.
Have a burning question you’d like to ask about sinkholes? Let us know.
Public adjuster vs. sinkhole attorney
When faced with a complicated sinkhole claim, you might get stumped from step one: finding the right kind of representation. There are different options available to you, but it requires some background information for you to be able to make the right choice.
Therefore, should you hire a sinkhole attorney to take a look at your case, or should you think about a public adjuster?
Fortunately, the Florida Association of Public Insurance Adjusters, or FAPIA, is the resource you need to access professionals with the specific skill set needed to answer your question.
This is because, unfortunately, there are reasons to do both, and I cannot tell you over a blog post. Fortunately, the FAPIA provides a good framework for people looking for these services.
Requirements of the FAPIA
To inspire confidence in this organization, the FAPIA have set the following rules for its members:
- The members shall conduct themselves in a spirit of fairness and justice to their clients, the Insurance Companies, and the public.
- Members shall refrain from improper solicitation.
- No misrepresentation of any kind shall be made to an assured or to the Insurance Companies.
- Commission rates shall be fair and equitable, and strictly in accordance with the prevailing custom in the locality, and must, where laws or regulations of insurance departments exist, comply fully with such laws or regulations.
- Members shall conduct themselves so as to command respect and confidence. They shall work in harmony with one another, with their clients, and the Insurance Companies’ representatives, so as to foster a cordial and harmonious relationship with all branches of the insurance business, and with the general public.
- Members must be fitted, by knowledge and experience, for the work they undertake. They must not endanger the interests of the public adjusting profession, or risk injustice to assureds or to the Insurance Companies, by attempting to handle losses or claims for which they are not qualified, and for which they cannot find competent technical assistance.
- Members shall not engage in the unauthorized practice of law.
- Members shall not acquire any interest in salvaged property or participate in any way, directly or indirectly, in the reconstruction, repair or restoration of damaged property, except with the knowledge, consent and permission of the assured.
- Members shall be cooperative and assist one another in every possible way.
- Members shall not disseminate or use any form of agreement, advertising, or any printed matter that is harmful to the profession of public adjusting, or which does not comply with the rules and regulations of the Insurance Department of the state in which such member is professionally engaged, or which might subject public adjusting and public adjusters to criticism or disrespect.