Fla. Appellate Court Upholds Business Exclusion Written in Policy

April 21, 2005

  • April 21, 2005 at 8:09 am
    Fred says:
    Like or Dislike:
    Thumb up 0
    Thumb down 0

    So a strict interpretation of the law is OK if it is beneficial to the carrier; but not if it is detrimental. The VPL is clear; there is a difference between “a” and “the”. Perhaps the underwriters failed to recognize this? It could be argued that in a total loss situation, with multiple causation, the apportionment of cause is not discernible. Especially if there is little evidence and no witness. The fact is, the statement “The fact is the court blundered just to do “the right thing”, is an opinion. Thank you for sharing it.

  • April 21, 2005 at 8:25 am
    Fred says:
    Like or Dislike:
    Thumb up 0
    Thumb down 0

    The idea that FWUA paid Mierzwa for flood damage is also confusing. Mierzwa was paid his flood claim. He requested that FWUA pay his wind claim in accordance with the law (VPL). The 4th DCA ruled in his favor. Among other things, the court found that there was a conflict between the policy’s anti-concurrent clause and the VPL. And, in following common and accepted legal “theory”, where there is an ambiguity in a contract, the ambiguity is resolved against the party who drafted it. Apologies if my gender case of Mierzwa is wrong.

  • April 21, 2005 at 10:54 am
    bs detector says:
    Like or Dislike:
    Thumb up 0
    Thumb down 0

    Forgive me, but it smells like Fred may be an attorney and I can only relay the sad fact that the value policy law is NOT to blame here, but the weasel attorneys and lawyers that drafted it years ago might be, regardless I am sure the intent of the VPL was not to allow people to have double payments for a single loss. THIS DEFEATS THE PROVISIONS THAT DO NOT ALLOW DUPLICATE COVERAGE. Why can’t you have several homeowners policies on a single home that would all pay out in a single claim, because the concept is to make you whole after the loss, not to let you yell BINGO. If the home was totaled by flood and the only wind damage was below the deductible on the wind policy, the flood policy should pay out as it did and thats it. If the insured was responsible and guided by his agent(if he was willing to listen) his flood policy would have been for adequate amounts to rebuild, if the building was over the max $250k he should have bought excess flood. He suffered no recoverable loss from wind. No witnesses are needed to determine where the water line is on the walls. If the home was not totaled by flood then when are they going to repay the Feds for the payout from the flood claim. Make up your mind, do you think finding a loophole in a long standing law is really the best thing for everyone, or should the lawmakers not waste another minute and plug the hole in the VPL by amending it to what the original intent was. I consider this scumbag fraud when a lawyer finds a way to sidestep the basic principles and steal money from the pockets of all other consumers who will have to pay increased premiums to counteract this wrong doing. Just because Mierzwa won, does not make it right, it just caused a major step back in the Florida insurance market for ALL Floridians, because companies will have to figure out ways to plug the hole that lawyers seem to continually dig. If a peril is excluded on a policy is should NEVER be covered unless the policy allows it. Why in the Hell do you think there is a seperate flood policy and wind policy, it is because they cover two different perils and each policy excludes the other. And what the hell is the ambiguity in the policys anti-concurrent clause. The policy language is not difficult, this policy covers loss from wind & hail… It excludes loss from flood or rising water! If the actual cause of loss could not have been determined, and it was agreed that the home was a total loss by both flood and wind, then each policy should pay half. This would result in a total loss paid eaqually by both policies and the insured would be made whole. Instead he has just given a lot of thiefs and lawyers (did I repeat myself?) the oppourtunity to strike it rich, unless our state can fix the problem and stop wasting time.

  • April 21, 2005 at 1:57 am
    Tom says:
    Like or Dislike:
    Thumb up 0
    Thumb down 0

    Companies owe it to the their investors, shareholders and policyholders to require the courts to render decisions based on the facts and strict interpretation of the law. In many instances we have an out-of-control (do your own thing)judiciary system that must be held in-check by pursuing higher court (appelate decisions)when the facts require it. Way to go First Protective Insurance Company.

  • April 21, 2005 at 3:17 am
    Ken says:
    Like or Dislike:
    Thumb up 0
    Thumb down 0

    Once in a while the courts get it right.

  • April 22, 2005 at 3:26 am
    Sanford Plumlee says:
    Like or Dislike:
    Thumb up 0
    Thumb down 0

    BS: I can’t add to what you have stated so well.

    The sad truth is after a calamity such as the 4-hurricane season in Florida is a communal effort to form a united front on the part of the masses that were harmed by the events to make it “ok” to do whatever it takes to “get mine”.

    Make no mistake, I am not excusing the dismal showing the insurance industry as a whole made in Florida. The industry caused this problem over the last five years by systematically excluding more and more of the independant field from the few events that did occur. This caused the majority of seasoned adjusters to “hang it up” The ones that did come to Florida were mostly gone before Christmas and did not come back as they chose to work for the companies that were offering an honest job for honest pay. I know of one man that closed out over 400 moble home losses and was home before Christmas. The adjusters that could not make it to appointments and took on commercial losses and had never seen one before should be shot.

    I guess what I am saying is both the consumer and the adjusters were both consumed by GREED.

    The need to justify why insureds want to be payed twice is not hard to understand but it is hard to stomach. I have been adjusting for over 35 years and if Florida does not learn from last year and clean up its act (both insureds and companies alike) we may have a situation like what occurred in Ian Rands book Atlas Shurgged. A storm will happen and no one will show up.

  • April 21, 2005 at 4:08 am
    Tiger says:
    Like or Dislike:
    Thumb up 0
    Thumb down 0

    Can you say agent E&O anyone? Did they tell their agent they had a day care going there? If so…….

  • April 21, 2005 at 4:35 am
    Small Potatoes says:
    Like or Dislike:
    Thumb up 0
    Thumb down 0

    I’m not an attorney, but I play one on TV, and as such: The client is not responsible for telling the agent anything, the agent is held to be “clairvoyant” and shold have known or at least asked about possible day care exposure OR should have reiterated, with great physical detail, each and every standard exclusion and applicable coverage endorsement for the insured prior to or at the time of policy delivery.

    Consequently, my law firm of “Dewey, Cheatum and Howe”… will eat this agent’s E&O for LUNCH!

    REALITY:
    This is a very sad tragedy, with or without recompense from insurance, how can you put a price on a lost loved one?

    There, but by the grace of God, go I.

  • April 21, 2005 at 5:18 am
    Fred says:
    Like or Dislike:
    Thumb up 0
    Thumb down 0

    Tom,

    Does your zeal for the strict interpretation of law carry over to Florida’s Valued Policy Law? and the Mierzwa case?

  • April 21, 2005 at 5:56 am
    Sanford Plumlee says:
    Like or Dislike:
    Thumb up 0
    Thumb down 0

    Which came first, the Mierzua case or the very clear exclusion regarding flood or surface water?? If the Mierzua case is not a clear case of judicial activism I don’t know what is. The underwriters never intended or rated a policy for valued policy status invisualizing having to pay policy limits on a dwelling when the amount of damage caused by a covered peril is both decernable and documentable. The fact is the court blundered just to do “the right thing”.

    The state legislators now want to have the policy put in “Plain English” when the wording in the policies has been hammered out in courts for years. The courts are very good at saying . . .”if the company had ment (whatever) . . . they had every opportunity to have said so” . . . Now the legislature wants the companies to just start over with verbage that is and will be vague as it has not been test in the courts YET!!



Add a Comment

Your email address will not be published. Required fields are marked *

*