LIVE WEBINAR: Disaster Preparedness Initiatives
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Lloyd's Class Action Suit Approved by Florida Court
On June 9th, the United States District Court for the Southern District of Florida granted preliminary approval of a class action settlement concerning the improper application of separate hurricane deductibles on certain Lloyd's policies.
The preliminary settlement provides for a $39,000,000 settlement fund. Eligible recipients will receive no more than 65% of the original miscalculation.
Under the proposed settlement, potential class members holding applicable Lloyd's policies should receive written notification of eligibility with a notice of claim form beginning July 15, 2011. There are two categories of potential claimants:
Category I claimants are those where Lloyds has sufficient information to calculate the potential refund. They will be given a 9 question proof of claim form.
Category II claimants are those where Lloyds currently does not possess sufficient information to process a refund. They will be give a 15 question proof of claim form.
Potential class members have until Aug. 29, 2011 to submit a claim or opt out. Final hearing on objections to the settlement is scheduled for September 30, 2011.
We wish to acknowledge Public Adjuster Zevuloni & Associates (954) 742-8248 who brought this unpublished (in the Florida Federal Law Weekly) order to our attention.
The claims administrator is Kurtzman Carson Consultants, Tel: 866-381-9100 E -mail: info@kcclic.com
Contracting for Storm Related Repairs - Important Considerations - Webinar On Demand
The Firm's Hurricane Preparation & Claims Recovery Team recently held the second presentation in its 2011 Disaster Recovery webinar series. Firm attorneys were joined by Licensed Engineer Steve Mainardi of Delta Engineering & Inspection, Inc. to discuss the major considerations community leaders and managers must take into account after a significant loss. Topics included:
- Essential elements of a reconstruction contract;
- The distinction between contracting for emergency mitigation work and reconstruction work;
- Construction Lien Law compliance including the importance of a Notice of Commencement and Contractor Release of Liens;
- Understanding the pro's and con's of different types of construction contracts;
- Defining the Scope of Work, Change Orders and much more....
If you were not able to attend the live event, click HERE to view the webinar in its entirety at your convenience.
Hurricane Webinar Follow Up Q&A
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We want to thank the hundreds of people that registered for our webinar on June 1. You raised important questions and issues for community leaders and managers. The webinar is now available for replay if you could not attend. Click HERE to view the recorded webinar.
We received so many questions both during the live event and after that we couldn't respond to due to time constraints. Some of those questions are answered on the Florida Construction Law Authority blog. Others are:
Question: If a unit owner does not maintain their personally owned shutters and is notified in writing by the Board and the shutters fail and parts fly off and cause damage to the building or personal property of other owners, is that owner deemed negligent and responsible for the costs of repair of any such damage?
Answer: Even if you suspect negligence, treat any damages as a casualty losses. The shutters wouldn’t have created damages without the storm or casualty event. Make sure the adjuster knows what damages occurred and do not exclude damages from your Proof of Loss or report to the insurance company.
There are actions you can take now to mitigate losses in the event of a storm – have a professional inspect all hurricane shutters to confirm they are operating properly. If not, the board can then address the issue directly with the home owner. Many governing documents allow the association to perform repairs on an owner’s account (if the owner fails to do so after notice) and there are other remedies available as well. An ounce of prevention is worth a pound of cure.
Question: Please discuss whether there are changes for association requirement to repair to air conditioning equipment on the roofs of high rises.
Answer: This issue confuses both board members and unit owners. The laws changed in 2009. The condo master policy must include coverage for all HVAC – that means air conditioners, air handlers, compressors, duct work, etc. Having insurance coverage doesn’t mean the association is always responsible for repairs to air conditioners though. The association is only responsible for casualty losses – not wear and tear, not unavoidable damages as a result of age, etc. If your a/c unit is 15 yrs old and cannot be re-installed after roof work – that is not a casualty. If your a/c stops cooling – that is not a casualty. If your a/c unit is hit by lightening, that’s a different story.
Question: Discuss the extraordinary powers granted to condominium BODs during an emergency.
Answer: If a state of emergency is declared where the condominium is located:
The board can contract for debris removal without bids.
The board can, prohibit unit owners, family members, tenants or guests from entering the condominium property upon advice of emergency management officials or licensed professionals. (i.e. the condo is unsafe for one reason or another)
The board can require residents to evacuate in the event of a mandatory evacuation order. The board can authorize removal and disposal of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the condominium property.
The board can levy special assessments without approval of the unit owners.
The board can even borrow money and pledge association assets without prior unit owner approval.
The purpose of this law is to give boards flexibility to handle the immediate needs of the condo – once the state of emergency expires (for that area) the emergency powers expire as well.
Question: Responsibility for damages to condos that are in foreclosure and have not yet been auctioned by the bank.
Answer: This is a good question – the association still wants to take actions necessary to mitigate further damage to the building. So, that means you would still board up windows, remove items that must be removed to prevent or minimize mold and get the a/c working for the same reason, etc. It is money well spent (and should, for the most part, be included in insurance coverage), even if you suspect you will never recover the money from the deadbeat owner or the bank.
Don't forget to join us for upcoming webinars for community leaders and managers.
Disaster Planning for the 2011 Hurricane Season - Are You Ready to Weather the Storm?
LIVE WEBINAR
Disaster Planning for the 2011 Hurricane Season - Are You Ready to Weather the Storm?
Wednesday, June 1, 2011
10:00 AM– 11:00 AM
Hurricane Season is officially here. While we have had a couple of years in Florida that have perhaps lulled us into a certain complacency, the prediction in 2011 is for nine hurricanes in the Atlantic. Are you ready to weather the storm?
Join Bill Strop, who will moderate this webinar, and Rob Rubin and Sanjay Kurian, to learn about recent cases and experiences resulting from recent disasters that will affect how you prepare yourself and your community before the storms hit. Both Bill and Sanjay are Florida Board Certified Construction Lawyers with tremendous expertise in repair/reconstruction issues. Bill and Rob both spent years working on behalf of insurance companies, so they know the tactics and techniques relied upon by carriers to deny or discount claims.
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William Strop, Esq.
Fort Lauderdale |
Sanjay Kurian, Esq.
Fort Myers |
Robert I. Rubin Esq. West Palm Beach |
Click below to register and you will receive a confirmation email with information on how to participate
Major Insurance Bill Signed Into Law
Floridians Must be Aware of Major Impacts of SB 408 including:
- Changes to Citizens Property Insurance;
- The Imposition of New/Restricted Time Limitations for Hurricane & Sinkhole Claims;
- Granting Carriers Permission to Withhold Partial Payment of Insurance Proceeds; and
- Rate Change Procedures, Obligations of Public Adjusters, Changes in Notices of Cancellation or Terms of Coverage and much more ...
Governor Scott, insurance companies and agents are excited about what they consider positive changes for Florida's insurance market. Governor Scott and proponents of the bill contended that "burdensome regulations" on insurance companies increased costs and detracted new companies from offering products in Florida. Some of the more significant changes are explained below:
- Premiums can go up by up to 15 percent a year as a result of adjustments in reinsurance and other financing costs (including a profit margin on those costs), with less scrutiny;
- Insureds only have two (2) years from when they knew or reasonably should have known about sinkhole losses to make sinkhole claims;
- All hurricane claims (whether the initial, supplemental or reopened claim) must be filed within three (3) years after the hurricane first makes landfall or the windstorm causes covered damage (down from five years);
- Insurance carriers can withhold full payment for home damage claims until the work is performed and expenses incurred - the carrier is only required to pay the actual depreciated cash value of the loss minus the deductible. The insured will not be paid for the replacement costs until the costs are incurred, somewhat like a construction loan;
- The Statute of Limitations to bring a breach of contract action against a carrier runs from the actual date of loss rather than the date of alleged breach;
- Insureds will have to pay up to half of the cost of testing for sinkholes if the insurer denies the claim and its engineer determines there is no sinkhole;
- Sinkhole coverage will likely be limited to coverage for the main building on a property - not any other structures or improvements (parking lots or structures, seawalls, tennis courts, etc.); and
- Carriers can refuse to renew policies covering both a home and vehicle for any reason with at least 90 days advance notice.
There is a lot to digest in this 129 page bill and we will include more analysis, as well as comments regarding the potential impact on community associations, in future posts.
Post Disaster Planning Guidebook Available
The Florida Department of Community Affairs and Florida Division of Emergency Management announced availability of the latest guidebook in the State's Best Practices Series titled, “Post-Disaster Redevelopment Planning: A Guide for Florida Communities.”
Over the past four years the Department and the Division have concentrated efforts on community resiliency and long-term sustainability through Post-Disaster Redevelopment Planning. Statewide experts with the Division of Community Planning, the Department of Community Affairs and the Florida Division of Emergency Management worked together with funds from the National Oceanic and Atmospheric Administration through the Florida Coastal Management Program, the Florida Department of Environmental Protection, and the Federal Emergency Management Agency through a Hazard Mitigation Grant researching lessons learned from previous disasters and developing guidelines for the future. This research was evaluated when drafting the planning process. The guidelines were tested through a series of pilot projects. This new 152 page guidebook is the culmination of this effort.
This guidebook, along with other resources, is located on the Department’s website here: Post-Disaster Redevelopment Planning; A Guide for Florida Communities.
Community Associations can learn a lot from these and other resources published by the Department of Community Affairs.
Flood Insurance Webinar Follow-Up
By: Tammy LoVecchio, Gulfshore Insurance (Naples & Ft. Myers) and Greg Marler, Becker & Poliakoff, P.A., (Naples)
We were pleased to present a one-hour flood insurance webinar on August 19th.
Please feel free to view the webinar in its entirety.
We especially appreciate the interest shown and questions raised by the attendees. There were some recurring follow-up questions that warrant brief discussion.
Mortgagee Demands
First, it appears that several owners and associations have recently received demands from mortgage lenders to obtain flood insurance. Some report being asked to increase the amount of current coverage above the maximum available through the National Flood Insurance Program (NFIP), that being $250,000 per home or unit, or in some cases, above the replacement cost of the property. Some associations have even been threatened with force-placed insurance on the entire community.
As we discussed during the webinar, the most common source of the requirement to have flood insurance is the National Flood Insurance Reform Act of 1994, which requires most lenders to require flood insurance on any property located in a Special Flood Hazard Areas (SFHA). But that Act, and all of the regulations and guidelines adopted by FEMA and government sponsored entities such as Fannie Mae, clearly only require flood insurance up to a maximum of $250,000 per home/unit. It is not at all clear why these new demands are being made. It is certainly within the authority of a lender to make risk management decisions and impose insurance requirements in excess of those imposed by the Act. To determine if the lender can then force place insurance on you as a borrower, you must read your mortgage. But there is no legal authority for a lender on a home or unit in a shared ownership community to force place flood insurance on an entire association. Our advice is that you inquire directly with the demanding lender to determine its specific basis for making the request.
Homeowners’ Associations
Some questions seek clarification of flood insurance requirements for a homeowners’ association. Because single family homes, and usually the lots on which they are built, are separately owned and freestanding, insurance on those homes must be obtained directly by the owner. But what about an association’s clubhouse or other amenities? Must the association carry flood insurance for those improvements?
Unlike condominiums, the law governing homeowners’ associations in Florida does not contain mandatory insurance coverage requirements. But you should review your governing documents to determine if they contain insurance requirements. Unless the association has a mortgage on its property, in which case it would be reasonable to expect there are insurance covenants, the only possible, remaining source of a flood insurance requirement on homeowners’ association-owned improvements is the fiduciary obligation of the board to protect and maintain the property against known or reasonably foreseeable risks. We are not aware of any cases that have established that a homeowners’ association has a legal obligation to carry flood insurance. But since the issue will likely arise only after a catastrophic flood loss when the stakes are high, there is some risk to simply dismissing the issue.
To add to the risk, directors and officers liability insurance policies typically exclude coverage for claims against the directors based upon the failure to obtain insurance. It is true that the exclusion can be removed, but obtaining flood insurance is a condition of removing the exclusion. This is akin to obtaining auto insurance on the condition that you agree never to own or drive a car.
Coral Insurance Company Placed in Receivership - FIGA is now Handling Claims
Florida Insurance Guaranty Association (FIGA) issued the following announcement:
Effective July 26, 2010, Coral Insurance Company (“CIC”) was ordered into receivership for the purposes of liquidation by the Second Judicial Circuit Court in Leon County, Florida.
With the entry of the liquidation order, the Florida Insurance Guaranty Association (“FIGA”) has been activated to help pay outstanding claims for property and casualty policies. The processing and payment of covered claims will be made by FIGA (subject to the lesser of policy limits or FIGA’s maximum cap). The maximum amount FIGA will cover is generally $300,000 per claim or $100,000 per unit for condominium and homeowner association claims. An additional $200,000 is available for structure and contents on homeowners’ claims.
FIGA is the state backed system that pays portions of claims against insolvent insurance companies. Since FIGA is statutory, there is a shorter period of time to report and/or file an action with respect to a disputed claim. Pursuant to Section 631.68, Florida Statutes, the deadline for settling a claim or filing suit against FIGA for damages from a loss formerly insured by Coral Insurance Company is July 25, 2012.
For more information on claim filing deadlines or refunds of unearned premiums, please visit Alex Sink's website: myfloridacfo.com.
HURRICANE CHECKLISTS PART TWO: What to do after the storm
Within hours of any disaster, affected communities will be besieged with offers by companies and individuals offering disaster recovery assistance.
Please resist the urge to contract with these initial providers until you have done the following:
- Activate Your Disaster Plan. Once residents are safe, the community must begin surveying the property and assessing the damage. A designated information facilitator should set up system of information sharing among local homeowners and a disaster coordinator should serve as liaison to emergency services providers;
- Secure your community from acts of vandalism and looting;
- Remove storm debris to prevent accidents from occurring on the property;
- Secure building structures to mitigate further damage;
- Evaluate & Determine needs for immediate reconstruction and evaluate financing options including advances from insurance company for financial advances. BEWARE OF ANY INSURANCE COMPANY OFFERING MONEY IN EXCHANGE FOR RELEASES OR SETTLEMENTS.
- Suspend or cancel on-going contracts such as lawn or pool maintenance if allowed for in your contract;
- Review governing documents particularly anything related to "repair after casualty" provisions in the insurance section to establish process for reconstruction;
- Initiate reconstruction planning using the five phases of reconstruction: project planning/scheduling; construction bidding; contract negotiations; construction/repair/rehabilitation; project completion/close out.
- Review Insurance policies to determine filing requirements for proof of loss forms.
- Meet with licensed professionals familiar with your community which may include: a) architect/engineer to assess damage and prepare plans; b) construction manager to oversee selection of general contractor and begin competitive bidding process; c) attorney to review insurance policies, governing documents, construction contracts and any vendor agreements; and d) public adjuster who is independent of your insurance company's adjuster who can be helpful with the nuances of an ambiguous insurance policy. Most independent adjusters work for a fee based upon percentage of insurance proceeds.
Following these ten steps will help communities recover and rebuild as quickly and effectively as possible.
Best Advice: Make sure every contract is with a Florida Licensed and Insured Contractor and that it is reviewed by a Licensed Florida Attorney, prior to signing.
We thank all the webinar participants who shared personal experiences and submitted well thought-out questions to the facilitators. If you could not attend today, please return to this site for a link to the recorded presentation.
HURRICANE CHECKLISTS: WHAT TO DO BEFORE & AFTER THE STORM
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In anticipation of Friday's webinar, here is the first in our two-part checklists for community associations.
Becker & Poliakoff's 12-point Hurricane Preparedness Checklist includes the following tips for those who need to prepare their communities for the upcoming hurricane season:
- Disaster Plan – Do a risk analysis of potential consequences of a storm and develop a complete disaster plan, designating a responsible community member as Disaster Plan Coordinator and another as Information Facilitator to field queries and respond to from community members;
- Evacuation Routes - Establish clear building or community evacuation routes and be sure that all community members are provided with copies or printouts and that routes are clearly marked as storms approach; conduct building or community evacuation drills in the weeks leading up to hurricane season;
- Emergency Generators & Supplies – Be sure emergency generators are in working order and have adequate fuel supplies, stock a building or community emergency supplies storeroom with flashlights, batteries, water and other necessities for residents and employees in the aftermath of a tropical storm;
- Backup Computer Files – Be sure that computer files crucial to running the building and association are backed up to CDs or Portable Storage Devices and keep a list of office computer hardware and software vendors and repairmen in case computers crash or systems fail;
- Secure the Premises – Make preparations for routine lockdown of the building or other facilities as a storm approaches, so the building is secure during the storm and safe from vandalism or looting if a hurricane strikes;
- List of Owners & Employees – Have on hand a current, hard-copy reference list complete with the names all property owners, emergency contact numbers and details of second residence addresses, as well as a list of all association employees, with full contact details;
- Photograph or Video Premises – Keep a visual record through video or photographs of premises, facilities and buildings to facilitate damage assessment and speed damage claims in a storm aftermath;
- Building and Facilities Plans – Make sure a complete set of building or community plans are readily available for consultation by first-responders, utilities workers and insurance adjusters following a storm;
- Insurance Policies & Agent Details – Be sure all insurance policies are current and coverage is adequate for community property, facilities and common areas and compliant with State Law; full contact details for insurance companies and agents should be readily available in the event of a storm;
- Bank Account Details & Signatories – Keep handy a list of all bank account numbers, branch locations and authorized association signatories, and make contingency plans for back-up signatories in case evacuation or relocation becomes necessary;
- Mitigation of Damages – In the immediate aftermath of a storm, take the necessary steps to mitigate damages -- this includes "Drying- In," which is the placement of tarps on openings in the roof and plywood over blown out doors and windows, and " Drying –Out," which is the removal of wet carpet and drywall to prevent the growth of mold; and,
- Debris Removal – Have a plan for speedy removal of debris by maintenance staff, outside contractors or civic public works employees, should a hurricane topple trees and leave debris in its wake.
Learn more valuable tips during the free webinar Anatomy of a Disaster Claim, presented by Board Certified Construction Law attorneys and special guest engineer Rick Slider. Return to this site for a checklist of items for communities to consider immediately after a storm.
Live Webinar: Anatomy of a Disaster Claim
Live Webinar
Friday, July 23, 2010 from 2:00 PM–3:00 PM EDT
(1:00 PM-2:00 PM CDT)
Anatomy of a Disaster Claim
With hurricane season upon us, now is the time to gear up for the potential of a disaster claim against your insurance company. Learn what you can do now to prepare a complete and well-documented claim, thereby lessening the worry and ensuring the likelihood of a maximized recovery.
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| Steven B. Lesser, Esq. | Herbert O. Brock, Jr., Esq. | Rick Slider, P.E. |
Join Board Certified Construction Lawyers Steve Lesser, Esq., and Herb Brock, Esq. of Becker & Poliakoff, along with Rick Slider, P.E., of Slider Engineering Group, a firm specializing in structural engineering and forensic investigation, for this live webinar on the Anatomy of a Disaster Claim.
Register below and you will receive a confirmation email with information on how to participate.
http://event.vcallinteraction.com/r.htm?e=226711&s=1&k=023C0E8B69E94BF7A3493AF48E9B32E9
BP Claims Process; Q&A From & Link to Gulf Oil Spill Webinar
Many of the participants in the Gulf Oil Spill Webinar held on Friday, June 25, 2010 asked questions regarding the types of claims to submit, the mechanics of the claims process, whether insurance policies will provide coverage for losses and whether there is other financial assistance available.
BP bears responsibility for various categories of damages, explained in:
BP Claims Process for Damages from Deepwater Horizon Oil Spill
You can file claims by visiting the website www.bp.com/claims or visiting one of the BP claim centers. Lost rental income as a result of cancellations are included, but you have to substantiate the loss of revenue by tracking cancellations and showing historical earnings.
Reductions in Staff / Loss of Employment
One participant indicated the association needed to let go of staff as a result of decreased demand and asked whether fired employees could file claims for lost income. The answer is yes and they should file those claims. They will need some form of documentation from the former employer. Associations in this predicament should have counsel prepare or at least review this documentation to ensure it doesn't jeopardize their claims.
Calculation of Damages or Losses
Another participant asked whether they needed to file multiple claims or wait until the season was over to calculate and file claims. You only need to file your claim once - you can update your claim file as damages accrue. However, please read the fine print carefully! Sometimes even cashing a check operates as satisfaction of the claim. If you're not sure, please consult with counsel.
Insurance Issues
Many participants asked about insurance coverage. Officials from the NFIP (National Flood Insurance Program) announced that it will pay claims for property damage to homes (and contents) from oil driven ashore in storm surges, but there are limitations. Flood insurance does not cover any special clean up costs associated with oil contamination. Flood insurance provides coverage for damages from rising water (storm surge), not contamination or damages from wind containing water saturated with oil. Many casualty/property insurance policies exclude damage from pollutants so please check with your agent (or the carrier) to learn what your coverage includes.
Other Financial Assistance
Florida offers Small Business Emergency Bridge Loans. These are short term loans to established businesses.
SBA announced that it has made Economic Injury Disaster Loans (EIDL) available and has deferred payments on many disaster loans in the impacted areas. Funds may be used to meet payroll, accounts payable and other financial obligations.
What if BP denies my claim?
If claims are denied or not addressed after ninety (90) days, you may appeal to the U.S. Coast Guard. You may also submit a claim to the National Pollution Funds Center.
Link to Webinar
If you could not attend the webinar or would like an opportunity to absorb the information again, here is a link: BP Claims Process Webinar
We thank all the webinar participants for their valuable input and will continue to provide information to assist you through this process.
BP Claims Process for Damages from Deepwater Horizon Oil Spill
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BP announced that it has accepted responsibility under the Oil Pollution Act of 1990 (OPA) and created a claims process for obtaining compensation for losses. Even though oil has yet to hit Florida's beaches, condominium and other property owners have both lost income and incurred expenses as a result of the oil spill. Click HERE to review the claims manual. A word to the wise - think carefully before you accept compensation or sign any documentation supplied by BP. You may inadvertently release BP from additional claims or damages.
BP bears responsibility for various categories of damages, such as:
- Removal and Cleanup Costs
- Property Damage
- Subsistence Loss
- Net Lost Government Revenue
- Net Lost Profits/Earning Capacity
- Costs of Increased Public Services; and
- Natural Resource Damage
BP has reportedly paid out more than $3 million in damages to Floridians thus far. The Miami-Herald indicated there are complaints about the lack of oversight regarding these claims, while BP's 40+ page claims manual states that the United States Coast Guard plays a "significant role".
Condominium associations are not immune to losses and damages from the oil spill. Many associations in the Panhandle area run in-house rental programs and/or collect revenue from an on-site rental agent to supplement annual budgets. Moreover, associations are joining together to decide whether to devote funds to protect the beaches with barriers such as floating booms and the like. Those types of efforts are expensive.
Attorneys John Cottle and John Townsend have been hard at work meeting with community association clients to discuss potential losses, the powers and duties of the association with respect to mitigation efforts, preserving evidence of loss and the claims process. We strongly encourage community association leaders and managers not to bear the burden of this event without appropriate legal counsel. One mistake and the next claim could be against you, instead of (or in addition to) BP.
You can find the state of Florida’s online resource for information about its response to the oil spill at http://www.dep.state.fl.us/deepwaterhorizon/default.htm.
The Gulf Oil Spill: Prepare for the Worst - Hope for the Best
With the oil still gushing off our shores and no end in sight, only one thing is for certain, the impact on the environment and economy of Florida’s Gulf Coast will be devastating.
Governor Crist said Floridians must “prepare the worst and hope for the best”. We completely agree with the Governor. It is imperative that anyone with a financial or other vested interest that needs protecting begin doing so as quickly as possible. Some prompt actions are recommended while it may be wise to consider waiting (as difficult as that may be) regarding others.
Make a Record of Everything
Having been through major disasters and the arduous claims process that follows, I can assure you that there is no such thing as “too much information” when it comes to establishing conditions prior to a casualty loss or in proving “damages”. Some actions which should be taken immediately include:
- Take photographs – lots of them – and as soon as possible, before any physical damage is caused by the oil spill. If any damage is sustained, photographs of the damage are indispensable.
- Prepare a video with narration.
- Rental losses due to canceled reservations should be well-documented.
- Document all information you receive from anyone who contacts you regarding the oil spill.
Governmental Jurisdictions Can Be Confusing
Beaches, in general, fall under the regulatory authority of several agencies including the Army Corps of Engineers (“ACE”) and on the state level the Florida Department of Environmental Protection (“DEP”). It is essential to confirm in advance what regulations apply and to obtain any required permits before proceeding with any actions that may violate state or federal laws.
Engaging Professionals
Engaging professionals may be a prudent course of action. Condominiums and community associations should consider securing the services of a competent coastal engineer. The advice and recommendations of a professional may provide significant assistance in protecting property and in navigating the confusing web of state and federal regulations applicable to beachfront property. Additionally, it would be wise to seek legal assistance to help protect your assets and income. Some pundits are predicting that this incident will create more lawsuits than any other single event in history. Beware of the contractors, public adjustors and attorneys from all over the country trying to get in on the action. While many are competent, capable, and professional, others are not. It is important to check the history and credentials of any professional before engaging their services. No substantial claims are likely to be settled quickly, and prudence rather than haste in choosing legal representation will pay off in the long run.
The cleanup from the oil spill will take years. The litigation and claims processes will take even longer. Property owners who follow the steps outlined above and keep on top of the news will be in a better position than those who act out of desperation and panic.
Condominiums, Gulf Coast Communities, Resorts & Businesses All Prepare for Losses from Oil Spill
Community Leaders, Management, Staff and Owners Must Act Now to Protect Their Investments, Livelihoods and Homes.
Gulf Coast communities have dealt with a lot of casualties over the years. Many owners were displaced for years after Hurricane Opal. Opal's 20 foot storm surges destroyed buildings and businesses. While special assessments mounted to cover mitigation, repair and other costs, property owners & businesses that cater to community association management/vacation rentals lost their source of revenue - a double whammy.
Oil continues to gush into the Gulf of Mexico. This disaster is as potentially damaging to the Gulf Coast communities as any hurricane or tornado. News reports indicate an oil slick the size of Delaware hovers offshore and is likely to make landfall in significant amounts. Gulf shore residents can expect tar on the beach, an ocean sheen, fish and birds washing up onto shore and more. Needless to say, tourists are already canceling their plans to visit the Gulf Coast and business are showing signs of distress. While there are still a lot of unknowns, the effect of this spill on the environment and the economy on the northern Gulf Coast is certain to be devastating.
Community leaders, managers, staff members & owners all have a role in minimizing losses. Please, protect yourselves and your investments. Implement your disaster plan and document all losses, including cancellations of vacation plans, beach clean up, damages to personal property and the like.
As with any catastrophic loss, Gulf Coast owners and residents can expect a mass influx of outsiders looking to benefit from this unfortunate event. Contractors, public adjusters and yes, even attorneys, are likely to swoop down on the region. BP created a claims process - anyone believe that the oil company is looking out for your best interests?
Becker & Poliakoff Attorneys have represented community associations in the Gulf Coast/Panhandle area for more than twenty (20) years. Helping clients recover from casualty losses is one of our services. Attorneys Ray Newman, John Cottle, Angela Chao Clark and John Townsend are already in the process of advising clients how to minimize their losses and prepare for the legal issues they will need to confront in the coming days, weeks, months - perhaps years.
John Cottle explained to Tallahassee Democrat publication that obtaining the remedies available under the federal Pollution Act of 1990, requires evidence of losses. Board Certified Construction Attorney Sanjay Kurian (a contributor to this blog) indicated that insurance claims are not easy or simple matters in an article published by the News Press. His experience comes from helping community associations recover insurance proceeds from Hurricanes Charley, Jeanne, Francis & Katrina (among other cases).
Becker & Poliakoff has maintained a fully staffed office in Panhandle area since 1998, representing hundreds of community associations with respect to board/association operations, interpreting and enforcing covenants and restrictions, regulatory compliance issues, disaster recovery, insurance claims, construction disputes and more.
For more information on what you can do now to prepare, minimize your losses and ultimately recover for your damages, please visit www.hurricane-recovery.com. We wish for the best for the Gulf Coast, surrounding areas and all of Florida.
Using a Public Adjuster for Your Insurance Claim?
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OPPAGA Report Finds that Insureds Received Larger Insurance Settlements when Public Adjuster Involved in Claim. Florida Legislature Considers Additional Regulations Governing Solicitation by Public Adjusters.
The number of public adjusters in Florida increased by more than 300% over the last six (6) years - no doubt as a direct result of the catastrophic damages caused by hurricanes in 2004 and 2005. As the deadline to file Hurricane Wilma claims becomes closer and closer, more homeowners, association leaders and building managers are being solicited to re-open old claims. In the aftermath of Hurricane Wilma many distraught association leaders readily 'signed on the dotted line' after being told 'not to worry' about the association's insurance claim or repairs to the property.
Did the use of a public adjuster make a difference? The report issued by the Office of Program Policy Analysis & Government Accountability (OPPAGA) finds that claims took longer but payouts were higher when a public adjuster represented the insured. In fact, Citizens Property Insurance Corporation paid insureds represented by public adjusters at least five time (5x) more than it paid insureds handling claims by themselves.
While Section 626.8795, Florida Statutes specifically prohibits the public adjuster from having anything to do with the repair or reconstruction of the damaged property, contractors and public adjusters often seemed interchangeable to association leaders. The Department of Financial Services recently stepped-up enforcement efforts against contractors - including United Roofing Systems. Moreover, solicitations became so intrusive that the Florida laws were amended in both 2008 and 2009 to impose restrictions:
- limiting hours of solicitation (in person or by telephone) from Monday through Saturday between 8:00 a.m. and 8:00 p.m.;
- prohibiting contact with policyholders until at least 48 hours after an event; and
- limiting fees to 10% of the claims related to declared emergencies and 20% for all other new claims.
SB 2264, filed by Senator Bennett seeks to control solicitation by public adjusters even more and according to the Sun-Sentinel, industry groups are all for it, claiming that public adjusters lead to higher premiums. Among other things the bill seeks to:
- prohibit solicitation in person or by phone (unless the insured is someone they know or a family member);
- require written communications to include the word 'ADVERTISEMENT' in red ink and be sent via regular mail (not certified or registered);
- prohibit mailers until 30 days after the insurable event takes place; and importantly
- cap fees at the 10%/20% limits for re-opened claims.
Contracts between insureds and public adjusters often result in disputes leading to expensive and protracted litigation. It is therefore extremely important to consult with counsel before entering into any contract with a public adjuster or contractor after a casualty occurs. For more information on disaster planning and recovery, please go to www.hurricane-recovery.com.
Hurricane Preparedness & Insurance Claims Recovery Webinar
Members of Becker & Poliakoff's Hurricane Preparedness and Claims Recovery Team presented "Hurricane Season 2009: Are You Ready to Weather the Storm?"
Shareholders Ken Direktor and Herb Brock explained the importance of developing a disaster plan that includes safeguarding documents by making digital backups, advising residents of local shelters and identifying and coordinating with the Local Emergency Management Coordinator.
Participants learned about the emergency powers granted by the legislature in Section 718.1265, Florida Statutes and what they, as community leaders and managers, need to do to prepare for a substantial casualty.
Participants were reminded to review insurance policies and create a spreadsheet showing the types of policies, the carriers, policy numbers and contact information for the agent. The speakers encouraged community association leaders to make arrangements with landscapers or other contractors in advance, so they are "first in line" to receive debris removal and other emergency services.
If you would like to view/listen to the recorded webinar, click on the link below.
http://events.vcall.com/VCall/ReplayLogin.aspx?room=2146003661
Becker & Poliakoff, P.A. maintains an extensive library of disaster recovery resources for community associations, including a 12-point preparedness checklist, videocasts and numerous articles on its hurricane recovery website. Click here to review those materials.
What Happens when the Hot Water Heater Bursts?
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This is a question I am asked seemingly on a daily basis. It has some variations in format; perhaps involving a burst pipe, toilet/shower leak, or air-conditioner drip pan overflow but the theme is always the same. That is, something involving the unexpected flow of water happens within a unit which causes damage to other units, typically the unit(s) located directly below the water event, and to the common elements. Who is responsible to repair the damage? Who is responsible to pay for the repairs?
Water intrusion events like these are usually considered casualties. A casualty is something that happens unexpectedly, through no fault of anybody. Hurricanes, tornadoes, strong storms and other Acts of God are easy examples of casualty events. A burst pipe within the ceiling, floor or wall is also, most often than not, a casualty because no one can accurately predict when a pipe will fail. Of course, this will change where, for example, a unit owner or the association is aware of an existing pipe leak and does nothing to fix it. Similarly, where a condominium association has a rule requiring owners to replace their hot water heaters at least once every 10 years, the 11 year-old hot water heater that bursts will probably not be a casualty event.
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