LIVE WEBINAR: Disaster Preparedness Initiatives
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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.
Flood vs. Property Insurance: Do You Understand Which Covers What? Free Webinar
Did you know you can potentially collect full policy limits from both your flood and property insurance policies? Do you know how?
According to the National Flood Insurance Program, flood is the most common disaster in the United States. On average flood claims stem from more than thirty thousand ($30,000) worth of damages.
Did you know that almost 25% of flood insurance claims come from moderate to low risk areas?
Floods do not discriminate. They can and do happen all over the country. Flood damages may be due to a heavy rainstorm or hurricane, melting snow, plumbing malfunctions, levee or dam failures and rising bodies of water. Even new development can cause floods due to a change in the drainage patterns of adjacent properties.
Becker & Poliakoff's Disaster Claims Recovery Team is in place to help you prepare for the consequences of a flood in your community. Answers to important questions will be provided in this live web event:
- What exactly does flood insurance cover?
- Who needs it?
- Are community associations required to carry it?
Join moderator Ken Direktor, Esq. of Becker & Poliakoff ( Ft. Lauderdale ), and Greg Marler, Esq. of Becker & Poliakoff ( Naples ), who will present with guest speaker Tammy LoVecchio, AAI of Gulfshore Insurance for this Free Webinar Flood Insurance: What You Should Know to Protect Your Community.
Register below and you will receive a confirmation email with information on how to participate.
Live Webinar on Thursday, August 19, 2010
10:00 AM-11:00 AM EDT (9:00 AM-10:00 AM CDT)
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.
Time Change: Anatomy of a Disaster Claim Webinar
PLEASE NOTE THE CHANGE IN TIME FOR THIS PRESENTATION
We apologize for any inconvenience.
Live Webinar
Friday, July 23, 2010 from 10:00 Am–11:00 PM EDT
(9:00 PM-10:00 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
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.
|
|
|
| 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
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.
Court Rules Condo Can Move Forward With Bad Faith Action Against State Farm
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Seville Place Permitted to Add a Bad Faith and Punitive Damage Claim against State Farm after Umpire Signed Appraisal, but before Final Judgment.
On October 14, 2009, the Third District Court of Appeal ruled that an insured could proceed with a bad faith and punitive damage claim against State Farm in its initial lawsuit against the insurer for damages from Hurricane Wilma.
The association made a claim under the policy for hurricane-related losses. State Farm inspected the property and estimated the total amount of loss was $324,017.00 for repairs to the roofs. In January 2006, it made two payments on the claim which totaled $90,564.62, reducing the amount payable by the deductible and depreciation. On the other side of the spectrum, Seville Place’s estimate of the damage exceeded $4.6 million.
In October 2006 (a year after the loss), Seville Place made a written demand for appraisal. The policy contained a typical appraisal clause that said:
If we [State Farm] and you [the Association] disagree on the value of the property or the amount of loss, either may make written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser. Each party will notify the other of the selected appraiser's identity within 20 days after receipt of the written demand for an appraisal. The two appraisers will select an umpire. If the appraisers cannot agree upon an umpire within 15 days, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding. . . . If we submit to an appraisal, we will still retain our right to deny the claim.
The association filed suit after State Farm would only agree to appraisal under certain conditions. The appraiser and the umpire signed a final appraisal award, fixing the insured loss at $2,960,405. The Association then filed a Motion asking to amend its complaint to include bad faith and punitive damage claims. State Farm objected, indicating that Seville Place must obtain a final judgment from a jury before it may proceed with its bad faith and punitive damages claim. The Court disagreed. It said:
State Farm originally estimated the Association's covered loss at $324,017. This is less than eleven percent of the amount determined by the appraisal process. State Farm will have an opportunity to explain this fact, to explain the extraordinary length of time it has taken to resolve the Association's claim, and to defend State Farm's aggressive legal tactics (including the unfounded imposition of conditions on the contractually-stipulated appraisal provision and the last-minute attempt to remove the neutral umpire). For now, however, we find no basis in this record to quash the orders below as requested by State Farm.
The Court also rejected State Farm’s argument that a bad faith claim is premature until the insurer exhausts all appellate remedies regarding liability and loss amount, noting no “decision by this Court or the Florida Supreme Court has held that liability and the extent of damages must also be “finally final,” surviving any appellate remedies sought by an insurer, before the insured's bad faith claim is ripe.”
Of course the decision is not final until all post-trial motions have been resolved. However, it does give hope to the thousands of community associations that are still struggling to obtain insurance proceeds for losses sustained from Hurricane Wilma and other storms.
