Latest Commentary on Recent Legal Events
Latest Commentary on Recent Legal Events
Jeff Atwater is Florida’s Chief Financial Officer and one of Florida’s four Cabinet officials. He leads the Florida Department of Financial Services and also serves as Florida’s State Fire Marshal. He wrote the following article which was published by the Tallahassee Democrat on September 7, 2016.
Florida’s 10-year no-hurricane streak came to an end late Thursday night as Hurricane Hermine slammed into Florida’s coast and continued on a path that ultimately impacted most of our great state. In the days since, Tallahassee has started to pick up the pieces and return to regular routines.
I know it hasn’t been easy and we have all been working hard, but we are seeing significant signs of progress. In the last week, I have witnessed neighbors helping neighbors, and I have watched as people have stepped up to the plate to help their fellow Floridians. Nothing is more encouraging than to see the best come out of people during the worst of times.
Now that power has been restored across most of our capital city and the surrounding region, many of you must now shift focus and begin filing insurance claims to cover damage to your home or business. I encourage you to contact your insurance company, if you haven’t already, to file your claim. I have seen many insurance companies on the ground in impacted cities surveying damage and adjusting claims. Insurance can be confusing, which is why we have resources available to help.
Insurance can vary widely and every policy is different, but it’s my goal to provide you with the facts and information you need to complete your claim. Tropical Storm Hermine became Hurricane Hermine at 5 p.m. EST on Sept. 1. From the time a hurricane has been declared by the National Weather Service until 72 hours after the final hurricane watch has been lifted, damages incurred during that time are subject to a special hurricane deductible. Instead of your normal fixed-price deductible, a hurricane deductible is calculated as a percentage of the insured value of the home. Look for Coverage A on your policy documents; this could be more than your normal deductible.
As every home holds a different value, every deductible will be different, but your policy document should clearly your specific deductible amount.
As you document your losses, note that most homeowners’ insurance policies cover debris and tree removal if the downed tree damaged your residence or any adjacent structures, regardless of who owns the tree. Some policies also cover these services if the downed tree blocks the main entrance, but your insurance company will typically not cover a tree that falls to the ground but does not cause property damage.
Many policies also cover food spoilage, an unfortunate consequence of prolonged power outages. Certain limits do apply, but talk with your insurance agent about this if you are already filing a claim.
Flood damage is not covered under traditional homeowners’ policies. Flood coverage for your property and possessions must be purchased separately, and flood damage to your vehicle is covered under your automobile policy.
In summary, there is much to be considered even though you still have a lot on your mind. If you have questions about how to file a claim, if you need help finding contact information for your insurance company, or if you are not sure if your losses will be covered under your insurance policy, give my Consumer Insurance Helpline a call. You’ll get direct access to insurance experts who can help with all of these questions and more. We serve all Floridians in every county.
The number is 1 (877) 693-5236, and the line is open 8 a.m. to 5 p.m. Monday through Friday. We hope to hear from you if you have insurance-related questions, concerns, or needs. You can also call this number to report any suspicious or suspected fraudulent activity, and we will refer the information to our insurance fraud investigators for follow up.
Hurricane Hermine was strong, but the state of Florida and its people are stronger. Full recovery efforts will take time, but we will get there. If you need help, don’t hesitate to ask — ask your neighbors, ask your community leaders, give us a call, too. We’re here for you.
You may office call the office of Max Factor Law. We will be happy to assist you with your claim. My telephone number is (850)577-1699. My email address is Max@MaxFactorLaw.com. You can also contact me through the contact page.
When a house is damaged by flooding and/or water which leaks into the structure, the property owner may encounter some problems in making an insurance claim for the cost of repairing the damaged property. It is important for you to remember that all homeowner’s insurance policies are not identical. Therefore, it is important for you to review the terms and conditions of your insurance policy so that you will know what your homeowner’s policy covers and what is not covered. An insured can usually check with his insurance agent or a representative from his insurance company to find out exactly what is or is not covered by the insurance policy.
The following is a list of some of the more frequent questions which are raised when a homeowner encounters flooding and/or water damages to a home:
Water damage because a water pipe inside the house freezes because the temperature falls below zero and the water pipe burst, allowing water to leak inside the house. Normally this type of water damage is covered by the homeowner’s insurance policy. However, some policies will not cover this type of loss if house was left unoccupied and without heat, because the insured failed to perform the necessary upkeep that would have prevented this water damage.
Water leaks from your backyard swimming pool, damaging your lawn and flooding your basement. Under most policies, the water damage to your basement and the personal property inside the basement would be covered under your policy. However, the damage to your lawn would not be covered because most insurance policies exclude coverage for damage to land, including the lawn on which the house is located. Furthermore, some policies do cover certain “named perils” such as fire, explosion, vandalism and vehicles not owned by the insured, so if your lawn was damaged by one of the “named perils”, then there would be coverage for the loss. Swimming pools are not usually listed as a “named peril.” However, if a tree falls on the swimming pool and causes the water to leak from the pool, then there would probably be coverage under the insurance policy.
Your washing machine overflows, flooding part of the house. The key issue of coverage would be whether the overflowing of water was caused by your failure to properly maintain the washing machine or did sudden accidental damage cause the water overflow. Whenever there is damage to the home caused by the homeowner’s failure to properly maintain the property, then this can be excluded from coverage.
A sewer backs up, causing water to flood the basement of your house. Most insurance policies do not provide coverage for sewer backups. However, it usually is possible to add sewer back up coverage to your policy, which will increase the amount of premium you pay for your homeowner’s insurance.
Water seeps into your basement, causing damage. Seepage is considered a maintenance problem, and is normally excluded from homeowner’s insurance.
During a heavy rainstorm, water leaks through your roof causing damage to your roof and to your furniture inside the home. Most policies will not reimburse you for the roof repairs which are necessary because this will be viewed as a house maintenance issue. However, the interior water damages will normally be covered, as will any damage to your furniture. If a neighbor’s tree falls on your roof, the damage to your roof and your interior damages will normally all be covered by the homeowner’s policy.
If your house is damaged by a flash flood from the overflowing of a nearby rive or lake, this type of damage will typically not be covered by the homeowner’s policy. Flood damage is not covered by homeowner’s insurance. But if your house is in a location where flooding is a concern, you can always buy flood insurance to protect against that type of damage.
In summary, it is important for you to know what your policy covers and what it does not cover, and to understand that lack of maintenance can cause to loss to be excluded from coverage. For more information contact Max Factor.
Contempt of Court can occur when someone fails to obey an existing Court Order. For a person to be in “Contempt of Court”, there must be: (1) a Court Order that clearly imposes an obligation, (2) an ability by that person to comply with the Court Order, and (3) a willful refusal by that person to obey the Court Order.
In a family law situation, there are times when one of the parties (either the former husband or the former wife) fails to comply with an Order issued by the family law court. When these circumstances occur, the other party may want to take some type of action which will make the uncomplying party obey the existing court Order. One of the options available for the party seeking compliance with the existing Order is the filing of a Motion for Contempt and Enforcement.
A. Requirements for Motion for Contempt/Enforcement. Before a Motion for Contempt and Enforcement can be successfully filed, the following requirements must be satisfied:
1. Existence of a Court Order that clearly defines an obligation that the other party must comply with. For example, if the Court Order states that the Father must pay the Mother $100 in child support on or before the 10th day of each month until the child reaches the age of 18, then the Father’s obligation to make monthly child support payments appears to be clearly defined.
2. Ability of the Obligated Party to Comply with the Court Ordered Requirement. This means that if the Court ordered the Father to make monthly child support payments to the Mother, then the Court must receive evidence shows that the Father has the financial ability to make those monthly payments.
3. Evidence which shows that the Obligated Party has willfully refused to comply with the existing Court Order. For example, if the Father sill has the income and/or assets which would enable him to make the monthly child support payments, then this requirement would be satisfied. On the other hand, if the Father is no longer employed and/or no longer has the assets necessary to pay child support; and can show the Court that he has diligently sought other employment or other options which can help pay the child support, but has been unsuccessfully, then this requirement may not be satisfied.
B. Sanctions Court May Impose If A Party Has Ability To Comply With Existing Order But Refuses To Do So. If the Court determines that the noncompliant Party has the ability to comply with the existing Order but intentionally refuses to do so, then Court may impose one or more of the following sanctions:
1. Incarceration. If the Court determines that the noncompliant party has intentionally refused to comply with the Court’s Order and has the ability to comply with the Order, then the Court has the authority to incarcerate the non-compliant party. The purpose of the incarceration is to put pressure on the non-compliant party and try to force them to comply with the Order. If the noncompliant party initiates action to comply with the Order, then the incarceration will end.
2. Fines. Another means for the Court to address the contempt issue is to Order the noncompliant party to pay a fine as a penalty for their noncompliance.
3. Other Sanctions. Depending on facts and circumstances regarding a Party’s noncompliance, the Court may order other sanctions. For example, if a Party is employed but refuses to pay child support, then the Court may order a wage garnishment.
For more information contact Max Factor.
Almost every insurance policy (“policy”) requires an insured to comply with certain requirements if there is any loss or damage to property which is covered by the policy. These requirements are usually identified as “Duties After Loss.” One of the most important Duties After Loss is an Examination Under Oath (“EUO”).
An EUO is a formal proceeding during which an insured, under oath and in the presence of a court reporter, is questioned by an insurance company representative regarding the issues related to the insurance claim. An insurance company representative can be an insurance company adjuster, an independent adjuster, an attorney who represents the insurance company or any other representative. The purpose of the court reporter is to transcribe all of the questions and answers during the EUO and then prepare a transcript of the EUO. The EUO transcript is then given to the insured and any other persons questioned during the EUO for their review. Each person who testified during the Examination Under Oath will be asked to read the Examination Under Oath transcript and make any necessary changes to their testimony so that the transcript is true and correct. Each person who testified during the EUO will then be asked sign the EUO to verify the truthfulness of their testimony and any changes made to the EUO transcript.
The requirement that an insured submit to an Examination Under Oath is a contractual obligation that is based on policy language. This language normally requires an insured to: “submit to an EUO while not in the presence of another insured …and to sign the same.” An EUO can be one of the most useful tools available to an insurance company in determining whether a loss is covered under the policy and the amount of the loss covered by the policy.
Generally, the policy language will allow the insurance company to take an EUO of the named insured, any insured seeking coverage under the policy, and any persons assisting the insured in submitting the claim. Under this provision, if a public adjuster has assisted the insured in submitting a claim, then the public adjuster may be requested to submit to an EUO. The specific policy language will normally determine the persons who are required to submit to an Examination Under Oath.
While an Examination Under Oath is similar to a Deposition, one of the significant differences is that the insured’s attorney should not object to a question and instruct the insured not to answer that question. If the question relates to material information regarding the claim, then the insured’s refusal to answer the question can be sufficient grounds for the insurance company to deny the claim.
Another issue which is sometimes raised regarding an Examination Under Oath is whether an insured must submit to an EUO if the insured has already given a recorded statement to a representative of the insurance company. Most courts hold that a recorded statement is not a substitute for an EUO. Consequently, if an insured, who has previously given a recorded statement, is asked to submit to an EUO, the better choice would be for the insured to submit to an Examination Under Oath.
In conclusion, an Examination Under Oath can be a very useful tool for an insurance company to use in investigating an insurance claim. Most courts have held that an insured’s refusal to submit to an EUO is an absolute bar to coverage. Therefore, it is in the best interest of the insured to comply with a request from the insured company to submit to an Examination Under Oath.
If you need assistance with an Examination Under Oath please contact Max Factor.
With Hurricane Season now upon us, it is important to be aware of some of the basic issues which can arise from the insurance coverage applicable to storm damages. Look for the duties after loss requirements in the insurance policy.
Most insurance policies have a section which requires an insured to comply with certain requirements if there is any loss or damage to property which is covered by the insurance policy. These requirements are usually identified as “Duties After Loss.” While each insurance policy may contain a different list of “Duties After Loss”, the requirement for an insured to comply with these “Duties” is usually the same. Most insurance policies will contain language which states that a legal action cannot be brought against the insurance company unless there has been full compliance with all of the “Duties After Loss”.
The following is a list of some of the “Duties After Loss” which may create problems for an insured claiming storm damage:
1. Prompt Notice of the Loss. This duty requires an insured to give notice to the insurance company within a reasonable time after the insured is aware of damage to the property insured by the insurance policy. The reason for this duty is so that the insurance company can inspect the loss and take the necessary action to repair the damages and prevent additional damage to the insured property. For example, if a windstorm causes damage to the roof of a house, prompt notice will allow the insurance company to make temporary or final repairs to the roof which will prevent or limit any interior damage from water leaking into the interior of the building due to the roof damage. If the insured fails to give prompt notice of the loss, then the insurance company may deny a claim for some or all of the interior water damage.
2. Sworn Proof of Loss. This duty requires the insured to submit a sworn document (“Proof of Loss”) containing the information requested by the insurance company. Normally the insurance policy will give a time limit for the insured to submit the sworn proof of loss, such as 60 days. This means that the insured will have 60 days after the insurance company request that a POL be produced to submit a signed and sworn document. The insurance company will normally provide the insured with the forms which need to be filled out, signed and sworn to.
3. Examination Under Oath. An Examination Under Oath (EUO) requires the insured to appear before a representative of the insurance company (usually the insurance company’s attorney) to answer questions under oath about any matter related to the loss or claim, including any records or documents related to the loss or claim. A court reporter will normally be present to record each question and answer during the EUO. After the EUO is completed and transcribed by the court reporter, then the insured will have the opportunity to review the transcript and make any corrections which are necessary to make the transcript true and correct.
Most insurance policies contain a provision which states no one may bring a legal action against the insurance company unless there has been full compliance with all of the policy’s Duties After Loss. For example, this requirement means that if an insured is requested to submit a Sworn Proof of Loss and fails to do so, or is requested to submit to an Examination Under Oath and fails to do so, then the insured will probably not be allowed to file a lawsuit against the insurance company until these duties are satisfied. Another issue which may arise from an insured’s failure to comply with the Duties After Loss, is whether the insurance company was prejudiced by the insured’s failure to timely perform the Duties After Loss. For example, if the insurance company can show that the insured’s delay in performing its Duties After Loss resulted in the insurance company being unable to determine the type and amount of damage caused by the storm and the cost of repairing those damages, then the insured may be prevent from filing a lawsuit to collect the damages caused by the storm. Consequently, the insured should be diligent in complying with the Duties After Loss. Contact Max Factor for more information.
On April 15, 2016, Governor Rick Scott vetoed a bill which would revise Florida’s alimony and child sharing laws. The Florida Governor quickly made his decision after many supporters and protestors spent time at the capitol in order to make their views known. The bill greatly affected the family law community due to its major changes in alimony calculation and child-sharing guidelines. The majority of the parties were in agreement with the section on alimony but greatly disapproved of the new child time-sharing policy.
The bill (SB 668) would change how alimony is determined, getting rid of bridge-the-gap, durational, rehabilitative, and permanent alimony all together. The new policy would require judges to use a calculation guideline based on the length of a marriage and the income of the parties involved. For marriages lasting less than twenty years, the alimony would be calculated by multiplying the amount of years of the marriage by the difference in the monthly gross income and then by 0.015. For marriages lasting twenty years or longer, alimony would be calculated by the amount of years of the marriage by the difference in the monthly gross income and by 0.020. For the shorter marriages (less than 20 years), the alimony would only last a fourth of the time that the marriage did. For the longer marriages (20 years or more), the alimony would last for three quarters of the length of the marriage.
The bill also contained changes to child time-sharing guidelines. It created a policy that assumed that 50/50 time sharing custody would be best for the child regardless of the circumstances.
Gov. Scott cited in his veto statement “This bill’s proposed revisions to Florida’s alimony and child custody laws have evoked passionate reactions from thousands of Floridians because divorce affects families in many different ways. The one constant, though, is that when a divorce involves a minor child, the needs of the child must come before all others. Current law directs a judge to consider the needs and interests of the children first when determining a parenting plan and time-sharing schedule. This bill has the potential to upend that policy in favor of putting the wants of a parent before the child’s best interest by creating a premise of equal time-sharing. Our judges must consider each family’s unique situation and abilities and put the best interests of the child above all else.”
We will see if the alimony and time-sharing issues will return in the upcoming 2017 session.