| Author |
 Topic  |
|
ChuckDeaton
USA
373 Posts |
 Posted - 05/06/2003 : 11:52:00
|
Duties owed, under the policy, are to those entities with an interest. Those with interests could be the Named insured's, Additional insureds, Mortgagees and those with assigned interests. When there are multiple interests it is a crapshoot as to where the claim check is mailed. Since possession is nine tenths of the law, PA’s and Attorney’s want possession of the claim check. Those providing service, various contractors, cleaning services, remediation contractors, air quality tester, and what not also want to be paid direct. This group usually always has the insured sign an agreement to pay them direct.
In virtually all cases claim checks should go to the Named Insured.
Simpler said than done.
|
 |
|
|
JimF
USA
1014 Posts |
Posted - 05/06/2003 : 12:50:12
|
Hey Chuck, maybe independent cat adjusters should have the insureds sign an assignment of interest form to protect themselves from the few slow and no pay vendors out there?
Cat adjusters have an interest in the claim too you know!
Whadda ya' think? |
|
|
|
ChuckDeaton
USA
373 Posts |
Posted - 05/06/2003 : 13:22:50
|
| That is a novel idea. |
|
|
|
ALANJ
USA
159 Posts |
Posted - 05/07/2003 : 07:33:38
|
Get the insured to sign a form granting you a secured interest in the home. Including but not limited to the adjustment fee and legal expenses incurred to collect same.
Attorney repersentation does constitute assignment of rights under the policy. Please refer to the Guiding Principals.
I suggest some research on the definition of assignment. |
|
|
|
ChuckDeaton
USA
373 Posts |
Posted - 05/07/2003 : 08:18:29
|
Alan, please provide a Texas case cite that references your comment re the Guiding Principles. What "rights" would you think the insured "assigns" when the named insured signs a contract and a power of attorney with an attorney or PA. How does the named insured's actions affect others with an interest in the policy and coverage.
Situation: Joe Blow and Ethel Blow buy a house from John Doe and Mary Doe on a contract. John and Mary's interest stems from a similar contract sale from Peter Pickle, Jean Pickle and their daughter, Eloise Pickle Johnson, Eloise is married. The Pickles have a conventional mortgage on the property with Chase Mortgage, however Chase sold the paper to Fleet Mortgage who sold it to Greensboro Financial. The Blow's live in a community property state. The others do not. Joe is cantankerous and wants to milk the insurance claim to generate income for a bass boat. Joe and Jim Adjuster can't come to an agreement so Joe signs a contract and a power of attorney with an attorney. 1. How does Joe's action affect the other interests? 2. Whose name should be on the claim check? 3. Where should the check be mailed? Oh! I forgot to mention that Joe is a truck driver and is unavailable most of the time and Eloise Pickle Johnson is handling her parents business and call twice a day for status. |
|
|
|
ALANJ
USA
159 Posts |
Posted - 05/07/2003 : 09:11:03
|
1) Joe signed a contract with attorney. I must assume to repersent him in the claim. The attorney does not need a power of attorney to act on his clients behalf. However, you have given the attorney a (power of attorney) so the attorney can settle and execute any documents on behalf of his client.
It appears from above all have an interest in the property. The attorney only repersents his client and his clients interest in the property. I assume once again that this property is in the process of being sold. Usually the sales contract determines who bears the burden of the (risk of loss).
It doesnt matter that Joe is a truck driver, you gave his attorney (power of attorney) so he can settle claim and execute proof or release on behalf of his client.
2) Check should include all parties that have an insurable interest in the property. Whomever insurance company can determine has an insurable interest in the property. (Courthouse check if your state is a filing state.)
3)Upon settlement the attorney should receive the check. Let him get everyones endorsement. Check goes into escrow account and funds disbursed when all parties agree on split. Eventualy all parties will have to sign off and the attorney will never agree unless he handles the booty.
Tell Eloise that attorney is holding up claim and no payment can be made unless all parties agree. Or you could send her a blank proof and advise she make claim for only their interest in claim. However, that would be impossible to do.
In the real world, attorney would wind up repersenting all the parties or sweat other parties out until they agreed to his claim settlement proposal. Community property state is not relevant to this claim.
You need to write bar exam questions. I think I reconize this one. PS I missed the bar by 1 point. So I may be the wrong person to comment on this problem. |
|
|
|
ChuckDeaton
USA
373 Posts |
Posted - 05/07/2003 : 11:14:11
|
| Alan, this isn't a trivial question, my posts have a solid base in reality. As you and I both know there is no one exclusive "right" answer. However, I have to come to a resolution of the problem at hand. I urge you to comment. |
|
|
|
ALANJ
USA
159 Posts |
Posted - 05/08/2003 : 15:13:58
|
| I did not mean to imply your question was trivial. I must have read the thread a little to fast. I wasn't sure this was a real live problem. Please accept my apologies. |
|
|
|
ChuckDeaton
USA
373 Posts |
Posted - 05/08/2003 : 15:57:15
|
No offense taken. Please, I posted here in hopes of generating comments. My point is that my posts are not "made up" test questions. They all relate to a claim I have in hand and the problems related. Real life generates situations that have to be experienced to be believed.
I met with the attorney this morning and have a well reasoned, well written opinion in hand. Very illuminating, something that anyone handling complex claims would benefit from. Unfortunately the opinion does not belong to me so sharing it verbatim, word for word is not possible. However, I will paraphrase it when I have the time. |
|
|
|
william s cook
53 Posts |
Posted - 05/11/2003 : 08:58:32
|
An interesting oddity,,,, In the community of Carl Junction Missouri, it has came to light that any damage to homes from the recent tornado that is compensated by insurance coverage will be made payable to the city and put in an escrow account. 75 percent will be given to the home owner to start repairs and 25 percent will be kept in escrow and interested added when house restoration is completed and inspected. The theory is that many will take the check and run and will leave the city with cleanup chores. The city council enacted this policy.
This came information has not been verified by this writer, but may portend things to come.
William S Cook
Public Adjuster |
|
|
|
olderthendirt
USA
370 Posts |
Posted - 05/11/2003 : 09:30:40
|
| This is not an uncommon requirement in Missouri when there is a total loss, it is to guarntee that structure will be demolished. |
|
|
|
CCarr
Canada
1200 Posts |
Posted - 05/11/2003 : 10:48:18
|
I think the concept - that Bill is telling us about and that Mark seems to affirm - has merit from a municipal standpoint.
However, I am at a loss to understand the legalities of this. A municipal bylaw decrees that insurance claims proceeds must be made payable to the municipality. Why and how is an insurer required to consider the municipality as "legally entitled to receive payment", on a first party contract.
Aside from those thoughts in the "Loss Payment" section of the Conditions section of the policy, the only other area of the contract with any applicability seems to be the "Exclusions" section - "Ordinance or Law". If an insured does not have "OorL" coverage, can an insured demand to the insurer that the municipal bylaw in question has no applicability to the insurer? Then, the bylaw issue is solely between the insured and their municipality?
I can see any insurer quietly thinking this is a great situation to find themselves in. It certainly will eliminate the existence of unrepaired damage. Therefore, I can see their acquiescence without any conflict to the "demand" of the municipality.
But, I think it is a different story for the insured's rights. Regardless of the merit of the bylaw, it is just another level of governmental control of a person's money.
I know that a Proof of Loss is not a commonly used document in "straightforward" losses and those not a total loss, in storm events. However, what happens to an insured who demands that his loss is documented on a properly completed Proof of Loss, and notes the direction to pay as only the insured and anyone else named in the policy?
Chuck, enlighten us with the legal opinion you obtained. Does it shed any light on this bylaw situation? |
|
|
|
CCarr
Canada
1200 Posts |
Posted - 05/19/2003 : 22:10:22
|
| Chuck, further to the issues brought forth resulting from your opening post, and your May 8th post, then Bill's interesting input re a municipality in Missouri; I do look forward to hearing more - as per the last sentence of your May 8th note. Thanks, in advance. |
|
|
|
william s cook
53 Posts |
Posted - 05/20/2003 : 07:44:14
|
The Florida Statutes provide for assignment of insurance policy benefits and once a valid assignment is completed, then the laws of contract would provide for enforcement of the assignment. It is likely that other states will have similar statutes allowing assignment and the laws of contracts operate in similar fashion in most states. I have very little concern for collecting my fee and in addition attorney cost from an insurer that has ignored a perfected assignment after proper notice. It is always a hassle to collect from someone not wishing to pay but as long as legal contracts remain enforceable, a public adjuster will get paid.
William S Cook
Public Adjuster
William S Cook |
|
|
|
Newt
USA
657 Posts |
Posted - 05/20/2003 : 09:27:28
|
This would be a duplication of ordinances in most cities. If you have a property that is not considered " maintained" , such as high weeds, junk, or an uninhabitable building, you can be cited with a period of time to clean up. If you do not comply, the city in some cases has the job done for you and add the cost to your tax bill.
Orig.topic
Assignment of the contract to the attorney, in my oppinion is the insured's option. They still have oversight of the claim. They can have legal council, and that contract would be between the insured and the attorney. This contract puts the attorney in the shoes of the insured so to speak, and as such, notice must be given to the carrier. If the carrier is not made aware of this agreement, a problem could rise up and bite all concerned especially the attorney if he failed to notify the carrier. After being notified, the carrier should have only have dealings with the Attorney. The insured is also responsible for not dealing with the carrier directly in accordance with the contract with his attorney. As to the proceeds of the claim, unless the carrier is instructed to do otherwise, the names on the check would include the name of the mortgage company and insured, unless it is directed to an escrow account where proceeds will be alloted. There must be a paper trail in this situation that would say that more than one mistake was made by more than one party, if I understand what I read. |
Edited by - Newt on 05/20/2003 09:29:53 |
|
|
|
Topic |
|
Assignment of Interest
Forum Locked
