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A Video Explaining the Statutes of Repose14m15s

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A Video Explaining the Statutes of Repose

The Importance of Statutes of Repose Generally, in California and many other states, a lawsuit alleging a latent construction defect must be brought within three or four years (depending on the theory of recovery) after the plaintiff discovers, or should have discovered, the defect. The California Legislature capped the open-ended nature of this “discovery” rule when it enacted Code of Civil Procedure Section 337.15, a statute of repose that “established a further general rule that no action for latent construction defects may be commenced more than 10 years after ‘substantial completion’ of the construction project. This ‘absolute’ 10-year limitations period applies regardless of when the defect was discovered. A statute of repose for actions arising out of improvements to real property differs from a statute of limitations in that the repose period starts to run on the date of the substantial completion of the improvement, while the limitations period starts to run on the date of a plaintiff’s injury. The district’s claim was for damages not subject to the statute of repose and the trial court’s granting of the county’s motion was reversed since there were allegations that could be used to prove a cause of action in favor of the district. The San Diego opinion teaches that the nature of the right sued upon or the principal purpose of the action, rather than the form of action or the relief demanded, determines the applicable statute of limitations or whether a statute of repose applies. In the construction defect context, the opinion should remind those involved with improvements to real property that the mere fact that a damage claim involves, in some way, a construction project does not automatically mean the 10-year absolute statute of repose applies. Other causes of action, not related to construction defects, may allow a plaintiff to recover. The absolute statute of repose is not, therefore, absolute.

date: 6 hours

  views: 1

A Video About The Statutory Fair Claims Settlement Practices Statute and Regulations13m30s

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A Video About The Statutory Fair Claims Settlement Practices Statute and Regulations

California’s Fair Claims Settlement Practices & Regulations California Insurance Code Section 790.03 (h) (a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (h) Knowingly committing or performing with such frequency as to indicate a general business practice any of the following unfair claims settlement practices: (1) Misrepresenting to claimants pertinent facts or insurance policy provisions relating to any coverages at issue. (2) Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies. (3) Failing to adopt and implement reasonable standards for the prompt investigation and processing of claims arising under insurance policies. (4) Failing to affirm or deny coverage of claims within a reasonable time after proof of loss requirements have been completed and submitted by the insured. (5) Not attempting in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear. (6) Compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by the insureds, when the insureds have made claims for amounts reasonably similar to the amounts ultimately recovered. (7) Attempting to settle a claim by an insured for less than the amount to which a reasonable person would have believed he or she was entitled by reference to written or printed advertising material accompanying or made part of an application. (8) Attempting to settle claims on the basis of an application which was altered without notice to, or knowledge or consent of, the insured, his or her representative, agent, or broker. (9) Failing, after payment of a claim, to inform insureds or beneficiaries, upon request by them, of the coverage under which payment has been made. (10) Making known to insureds or claimants a practice of the insurer of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration. (11) Delaying the investigation or payment of claims by requiring an insured, claimant, or the physician of either, to submit a preliminary claim report, and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain substantially the same information. (12) Failing to settle claims promptly, where liability has become apparent, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage. (13) Failing to provide promptly a reasonable explanation of the basis relied on in the insurance policy, in relation to the facts or applicable law, for the denial of a claim or for the offer of a compromise settlement. (14) Directly advising a claimant not to obtain the services of an attorney. (15) Misleading a claimant as to the applicable statute of limitations. (16) Delaying the payment or provision of hospital, medical, or surgical benefits for services provided with respect to acquired immune deficiency syndrome or AIDS-related complex for more than 60 days after the insurer has received a claim for those benefits, where the delay in claim payment is for the purpose of investigating whether the condition preexisted the coverage. However, this 60-day period shall not include any time during which the insurer is awaiting a response for relevant medical information from a health care provider.

date: 2 days

  views: 0

A Video Explaining Ethics and the Public Insurance Adjuster17m32s

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A Video Explaining Ethics and the Public Insurance Adjuster

The Public Adjusting Profession When insured’s are busy professionals they simply do not have the time or patience to deal with the details of a first party property claim. The public insurance adjuster exists to assist insureds in the presentation of a claim to the insurer. The public insurance adjuster is, in most states, licensed by the state insurance department. The insurer’s adjuster is often asked to deal with a public insurance adjuster. The contact between the public insurance adjuster and the insurer’s adjuster is often adversarial since the public insurance adjuster wishes to justify his or her contingency fee to the insured. Both should be working toward the same goal: the payment of proper and complete indemnity to the insured. Public Adjusters claim they are, mostly with good cause, professionals who are employed exclusively by a policyholder who has sustained an insured first party property loss. The public adjuster handles every detail of the claim, working closely with the insured to provide the most equitable and prompt settlement possible. A public adjuster should inspect the loss site immediately, analyze the damages, assemble claim support data, review the insured’s coverage, determine current replacement costs and exclusively serve the client, not the insurance company while working ethically with the insurer’s adjuster. The National Association of Public Insurance Adjusters (NAPIA) publishes a code of conduct which sets forth the ethical standards that all public insurance adjusters should follow. It provides: The following Rules of Professional Conduct and Ethics are applicable to all members of the NAPIA: The members shall conduct themselves in a spirit of fairness and justice to their clients, the Insurance Companies, and the public. Members shall refrain from improper solicitation. No misrepresentation of any kind shall be made to an assured or to the Insurance Companies. Commission rates shall be fair and equitable, and strictly in accordance with the prevailing custom in the locality, and must, where laws or regulations of insurance departments exist, comply fully with such laws or regulations. Members shall conduct themselves so as to command respect and confidence. They shall work in harmony with one another, with their clients, and the Insurance Companies’ representatives, so as to foster a cordial and harmonious relationship with all branches of the insurance business, and with the general public. Members must be fitted, by knowledge and experience, for the work they undertake. They must not endanger the interests of the public adjusting profession, or risk injustice to assureds or to the Insurance Companies, by attempting to handle losses or claims for which they are not qualified, and for which they cannot find competent technical assistance. Members shall not engage in the unauthorized practice of law. Members shall not acquire any interest in salvaged property or participate in any way, directly or indirectly, in the reconstruction, repair or restoration of damaged property, except with the knowledge, consent and permission of the assured. Members shall be cooperative and assist one another in every possible way. Members shall not disseminate or use any form of agreement, advertising, or any printed matter that is harmful to the profession of public adjusting, or which does not comply with the rules and regulations of the Insurance Department of the state in which such member is professionally engaged, or which might subject public adjusting and public adjusters to criticism or disrespect. An example of a public insurance adjuster and the lawyer who failed to follow the requirements set out by NAPIA. Both represented the same client, involved a claim that resulted from the 1994 Northridge, California earthquake. The earthquake caused billions of dollars in damages across Southern California. It drew lawyers and public adjusters seeking large fees like vultures flying over a dead antelope. As a result of the disaster, investigation by insurers was limited because of the extent of losses caused by the earthquake and the need to rapidly serve their needs. Many unnecessary and spurious suits were filed. Insurance fraud was rampant and insurers paid rather than fight because there was inadequate staff available to deal with fraud and governmental agencies threatened insurers with major fines if they did not pay quickly. © 2020 – Barry Zalma Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

date: 5 days

  views: 1

A Video Explaining What Liability Insurance is and How to Acquire It14m43s

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A Video Explaining What Liability Insurance is and How to Acquire It

What Is Liability Insurance? Insurance, by definition, is a contract where the insurer, for consideration (premium) agrees to indemnify another against a contingent or unknown risk of loss. It is used as a method to spread losses among many people who are insured with the same company. The insurer, by its policy, promises, in exchange for a premium, to pay to defend and indemnify the insured, in the event that a certain type of loss occurs within a specified period of time called the “policy period.” By spreading the risk of loss among many, each individual only pays a minuscule portion of the risk of loss insured against. Liability insurance is limited to insurance against the risk of losses that can be incurred by a person for damages done to the person or property of another by an accidental or fortuitous cause. In exchange for the promise to pay the premium charged, the insurance company agrees to provide the insured protection from various risks faced by an owner, developer, or builder of real property. The risks of loss taken by the insurer are listed on the policy. For each promise made by the insurer it charges a premium. The policy will provide coverage for the following: bodily injury and property damage to persons injured by the insured; medical payments regardless of fault; personal and advertising injury; (a coverage that insures against the insured’s risk of loss for multiple offenses like libel or slander, advertising injury, false imprisonment, etc.) and contractual liability. These are the principal coverages available in CGL policies. There are other coverages available to cover special needs of individual people, corporations, partnerships or joint ventures. If special needs exist for a particular construction project that faces risks not contemplated by a CGL, it is prudent to consult with a professional and major insurance brokerage that specializes in the industry involved in the case. You can find such brokers by conferring with others who specialize in similar projects, your state Department of Insurance, professional risk managers, or Chartered Property and Casualty Underwriters (CPCU), who act as insurance consultants. © 2020 – Barry Zalma Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com. Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award. Over the last 52 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals. https://zalma.com/zalmas-insurance-fraud-letter-2/Read last two issues of ZIFL here. Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921 Read posts from Barry Zalma at https://parler.com/profile/Zalma/posts Listen to the Podcast: Zalma on Insurance https://anchor.fm/dashboard/episodesZalma on Insurance Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg/ Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library/ https://visitor.r20.constantcontact.com/manage/optin?v=001Gb86hroKqEYVdo-PWnMUkV7pkuOtkiv6oakpgK33CNlNAYW-WBlLCOZFtgvpSdcL7R-tsWKfMVqG6fEuvmM7Hh7gUEJ7yKOdgHDbGl_cGAU%3De-mail Version of ZIFL, it’s Free! –

date: 6 days

  views: 0

A Video Explaining What Mold Inspections Cannot Do14m02s

Analyzing

A Video Explaining What Mold Inspections Cannot Do

Dealing with Mold Emergency Services When dealing with emergency services (loss-mitigation), restoration, construction, or mold containment, the vendors of such services should understand that the industries they serve are in a business to provide for safety to life and property and protection of human health. When mold is discovered during the evaluation or drying process, steps must be taken to protect the health of workers and occupants within the structure, as well as preserve the structure from further damage. There are no federal or state regulations for loss-mitigation, restoration, or mold remediation industries. Restoration vendors who wish to maintain a professional organization in which the public can place its trust, should institute an internal educational and certification program for all its employees. When retaining the services of a restoration vendor, make inquiries to confirm that it educates its employees continually. Restoration vendors should be able to show customers that they have developed an in-house training program on the use, storage, maintenance, and safety practices of all company owned or rented equipment and all testing procedures and supplies (i.e. chemicals), as well as on their quality control and assurance (QC&A) program. Restoration vendors should have their technicians and managers trained and certified on the Code of Federal Regulations (CFR) safety and health programs and certified with the Federal Insecticide, Fungicide and Rodenticide Act when required by law. Project managers, fire/water managers, and the company’s QC&A manager should receive Certified Restorer (CR) certification and Water Loss Specialists (WLS) certification. Whether estimating, evaluating, or drying losses that involve water, the remediator needs a complete understanding of how structures are built. It is essential to understand air-flow in structures, what water intrusion can do to a structure and its components, and how water flow and humidity works in the structure. In some states, the remediation provider may not be able to obtain payment for the services provided if they are not appropriately licensed. In Louisiana, for example, Tradewinds Environmental Restoration entered into a contract to provide mold remediation services without a license. This action was specifically prohibited by laws intended to protect the public interest, and the contract was therefore ruled absolutely null. Tradewinds was only allowed to recover its “actual cost of materials, services and labor,” but was “not entitled to an allowance for profit and overhead.” Although this is a harsh result, the purpose of the licensing statutes is to protect the public. In some states the unlicensed contractor is not even allowed to collect for the reasonable value of services.

date: 1 week

  views: 0

A Video Explaining Insurance Policy Interpretation and Construction19m35s

Analyzing

A Video Explaining Insurance Policy Interpretation and Construction

A site for the insurance claims professional and anyone who wants to know soThe first thing every person representing an insurer with regard to a potential fraudulent claim must understand that the insurance policy is the basis for every insurance fraud investigation. Without an insurance policy there can be no insurance fraud. The insurance policy contract describes the rights and obligations of the parties to the policy of insurance. It contains, in clear and unambiguous language, weapons to defeat a fraudulent claim. The construction of insurance contracts should be, but often is not, governed by the same rules of construction applicable to all contracts. The courts claim that when they construe an insurance contract it gives the terms of the policy their ordinary and generally accepted meaning. The primary goal of the court is to give effect to the written expression of the intent of the parties to the insurance policy. Some rules that must be followed when construing or interpreting an insurance contract include: If the terms of the policy are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor (the insurer) believed at the time of making it, that the promisee (the insured) understood it. If the language of a policy or contract is subject to two or more reasonable interpretations, it is probably ambiguous. Where an ambiguity involves an exclusionary provision of an insurance policy, courts adopt the construction urged by the insured as long as the construction is not unreasonable, even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the intent of the insured and insurer. In reaching the conclusion that a policy exclusion was ambiguous, and the policy, therefore, provided coverage, the courts should follow the settled rule that any ambiguity or uncertainty in an insurance policy is to be resolved against the insurer and that if semantically permissible, the contract will be given such construction as will fairly achieve its object of providing indemnity for the loss to which the insurance relates. It is a maxim of law that a contract should be construed against its drafter. The maxim is sometimes referred to as the contra preferendum Provisions excluding coverage are strictly construed against the insurer. Ambiguities in insurance applications will usually be construed against the insurer to avoid denial of coverage because of alleged misrepresentations. Where the language of a contract is clear and unambiguous, it must be interpreted solely by reference to the four corners of that document. When a policy is interpreted, the provisions of an endorsement controls the interpretation over the body or declarations of a policy when the two are in conflict. The basic rules of construction or interpretation of an insurance contract are all subject to the limitation that a court cannot and should not do violence to the plain terms of a contract by artificially creating ambiguity where none exists. In situations in which reasonable interpretation favors the insurer, and any other would be strained and tenuous, no compulsion exists to torture or twist the language of the contract. An insurance company has the right to limit the coverage of a policy issued by it and when it has done so, the plain language of the limitation must be respected. © 2020 – Barry Zalma Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com. Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award. https://zalma.com/zalmas-insurance-fraud-letter-2/Read last two issues of ZIFL here. Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921 Read posts from Barry Zalma at https://parler.com/profile/Zalma/posts Listen to the Podcast: Zalma on Insurance https://anchor.fm/dashboard/episodesZalma on Insurance Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg/ Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library/ https://visitor.r20.constantcontact.com/manage/optin?v=001Gb86hroKqEYVdo-PWnMUkV7pkuOtkiv6oakpgK33CNlNAYW-WBlLCOZFtgvpSdcL7R-tsWKfMVqG6fEuvmM7Hh7gUEJ7yKOdgHDbGl_cGAU%3De-mail Version of ZIFL, it’s Free! –

date: 1 week

  views: 11

Just for Fun - A "Heads I Win, Tails You Lose" Story17m17s

Analyzing

Just for Fun – A “Heads I Win, Tails You Lose” Story

The following is a story from my book, Heads I Win, Tails You Lose, a collection of stories from my experience as an insurance coverage lawyer. The book is available from amazon.com as both a paperback and as a Kindle book. Names and places changed to protect the guilty. THE CREATION OF A LIFE OF CRIME Insurers, if they wish to keep frauds like that described here must stop making the crime easy. Underwriters must understand that insured’s do not always treat their insurers with utmost good faith. Risks must be looked at with skepticism. If fraud is to be defeated insurers must make the crime more of a challenge. It is too easy. Honest insureds are tempted to commit fraud because it is too easy.

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