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Motels, Apartment Complexes, Restaurants, And Businesses Serving People Should Manage Risks

Posted in Coverage Disputes, Liability

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The typical Oklahoma business manages a considerable part of its liability risks by purchasing insurance coverage. While hardly news, businesses sometimes take their insurance coverage for granted and just assume insurance will be there if an accident happens. It is not a wise risk management practice to simply assume you will have coverage for every situation.

A recent decision by the Oklahoma Supreme Court brings the point home. In Siloam Springs Hotel, LLC v. Century Surety Company, 2017 OK 14, a hotel purchased liability coverage to protect against accidents and negligence. The policy was sold by Century Surety Company.

Guests at the hotel were injured when carbon monoxide entered the air ducts due to leakage from the heater for indoor swimming pool.The hotel believed it had insurance to cover the claims and potential lawsuits. The insurance company said there was no insurance to cover the injuries due to an exclusion in the insurance policy.canstockphoto8944045

There was no suggestion in the opinion by the Supreme Court indicating the cause of the leak was an intentional action the part of the hotel management. The incident appeared to be an accident.

The hotel argued the exclusion for indoor air pollution was against public policy and should not be enforced. It asserted the leak was sudden and unexpected like an accident:

¶27. . . according to Siloam, because the Indoor Air Exclusion as applied to a sudden carbon monoxide leak violates public policy because it potentially denies compensation to victims under circumstances in which a reasonable person would expect that liability insurance would be available to compensate for the injury. “

Siloam explained that an indoor air exclusion for long-term air quality issues like mold might not violate public policy, as a reasonable person would not expect liability coverage in that situation. In those situations the policy holder would have ample time to detect and fix the problem.

The hotel also pointed out that the average person would expect there to be coverage for a sudden, accidental discharge of carbon monoxide and the reasonable expectation for coverage. In other words, there should be coverage for acts of negligence.

The Oklahoma Supreme Court drew a clear distinction between insurance coverage and whether the hotel was responsible:

¶31 The issue before this Court is not potential compensation to injured parties and the reasonableness of expecting it, but the enforceability of an exclusion limiting insurance coverage. Even were the exclusion to fully exclude the events of this cause from coverage under the insurance contract, that does not necessarily mean injured individuals will be unable to recover from Siloam itself. The insurance contract limits what Century must pay, and does not serve to limit Siloam’s potential liability. Just because one believes the air they breathe might become contaminated, and expects a business should carry insurance to cover that eventuality, does not mean the law requires it.”

canstockphoto8750756In other words, the hotel may still be legally responsible for the damages and injuries even though it had no coverage. Risk management is assessing potential risks and attempting to control them. It is a challenging task and sometimes seemingly impossible. Oklahoma businesses need to know the coverage purchased to properly manage  risks.

Long story made short, businesses should not presume to have insurance for injury claims just because the premiums were paid.  Mistakenly assuming there is insurance coverage when it’s not there can bankrupt the family business.

We review insurance policies and assist in coverage questions all the time. If you have a coverage dispute or want some assistance with an insurance policy question, give us a call.

Arbitration Might Not Be Required If No Mental Capacity To Knowingly Enter Into Contract

Posted in Damages

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The Plaintiffs Walker Bark and Debra Yahquo signed two contracts with Lake Country Chevrolet to purchase automobiles. A disagreement arose over the vehicles. Unable to resolve the dispute to their satisfaction, the Plaintiffs filed a lawsuit. They asked the court to rescind or set aside the contracts and to recover damages for fraud by the car dealer. The car dealership filed a motion to compel arbitration to avoid litigation in court. The dealership argued that the contracts signed by the Plaintiffs said any disputes were to be determined through arbitration, not a lawsuit.

In response, the Plaintiffs asserted that Mr. Bark suffered from a service-related disability and cognitive impairment and because of this, he did not knowingly agree to any of the terms of the contract including the arbitration clause. As an alternative, the Plaintiffs requested the court hold a hearing where it could hear evidence on the issue of whether cognitive impairment existed and the affect, if any, it had on the Plaintiffs ability to comprehend the contract. The trial court refused to hold a hearing or hear evidence and instead denied the dealership’s motion and allowed the lawsuit to proceed.

arbitration2The dealership appealed the decision. The appellate court reversed the ruling of the trial court and remanded the case back to the trial court with instructions that it conduct an evidentiary hearing. As part of this hearing the trial court was instructed to make a determination as to the existence of the Plaintiffs’ mental capacity and ability to knowingly enter into a contract and agree to arbitration.

Arbitration clauses are present in many contracts as a means to resolve disputes. Legal scholars  disagree over the advantages/disadvantages of arbitration. For businesses, one benefit can be the confidentiality of the proceeding and the absence of any public proceedings that other customers might discover. A disadvantage is the courts are provided at taxpayer expense to everyone. In arbitration the participants are in reality paying for the services of a private decision maker. The courts generally speaking will require arbitration if it appears the parties to the contract agreed to do so.

If you have questions about a contract, arbitration or need legal assistance with legal problems, maybe we can help you. Give us a call!

Bark v. Lake Country Chevrolet Cadillac, LLC, 2014 OK CIV APP 24, __ P.3d __.

Oklahoma Wildfires Destroy A Staggering 800,000 Acres

Posted in Fire Loss

A grass fire burns March 7 in Harper County, Oklahoma. (KOKH/Steven Anderson)

Fires in northwest Oklahoma have damaged more than 800,000 acres. The extent and size of the area damaged is hard for many of us to comprehend. As a couple of measuring sticks, there are 640 acres in one square mile. So it means you would have to jog four miles to go around a section of land with 640 acres in it. If you divide 800,000 acres by 640, then you have 1,250 sections of land if each parcel was a separate property. When you consider the Boston marathon is considered a grueling 26 mile run, the entire race would be less than 8 sections if you ran around them one at a time.

Many people in Tulsa and Oklahoma City shop for homes with an acreage to have a little space from their neighbors. Often, these properties sit on 2.5 acre or 5 acre lots. The ones that mow their 5 acre yards know how long it takes in the Summer months to mow 5 acres even on a yard tractor or riding mower.

The size of this fire and the amount of the damage is difficult to imagine. The photographs from the news account shows the entire skyline lit with fire. At night the specter of the fire becomes more real against the night sky.

Fire in Oklahoma is always serious, but rarely this widespread.

Insurance Coverage For Restaurants; You Definitely Want Drive Through Coverage

Posted in Damages, General Insurance

Fortunately no one was hurt when a car drove into the Silver Dollar Restaurant in Collinsville, Oklahoma.

 In a news account by Emory Bryan with the above photograph, she reported:

The police started an investigation, but witnesses told them the car that went inside first grazed another car, went over a curb and through the intersection before it hit the Silver Dollar Cafe.

“It didn’t really look like he slowed down until he hit the building, enough force to go right inside it,” witness Gary Nunley said.

Nunley was across the street on the sidewalk.

“Surprised me to see that, but when I saw the whole front of the building collapse, implode, and a huge cloud of dust roll across the street. . . .”

The car was barely visible under the roof with a large beam down on the trunk.

A firefighter told News On 6 the car knocked down the main support pillar at the front of the building. He said the next support pillar is what stopped the car.

The event offers all sorts of potential insurance issues. The driver should have liability insurance coverage for property damage. Of course, the minimum limits of insurance coverage in Oklahoma require only $25,000 of insurance. Although the damages aren’t estimated in the news report, the photograph shows extensive damage to the building. It is unknown if there is sufficient liability insurance to pay for everything.

Damage alone isn’t enough to require the auto liability insurer to pay for the loss. The driver must have also been negligent in some fashion. Granted at first blush, hitting a building with your car carries a bit of a presumption that proper attention wasn’t being paid. Nonetheless, negligence must be proven for there to be responsibility for the accident.

The police investigation will reveal more, but the obvious questions are what was the driver doing and where was he going. If the driver was working in the scope of his employment, then the employer may have some potential exposure to the damages by virtue of the employment status. Depending on the type of coverage of the employer, there might or might not be coverage for the losses.

Assuming the restaurant leased or rented the space, there could be a question about division of the liability insurance. For example, if the building was owned by someone other than the restaurant, there may be disputing claims for the available insurance. The building owner would potentially have a claim for structural damage while the restaurant might have its own claims for damaged equipment and downtime.

If the building was owned by someone other than the restaurant, the owner may have property damage insurance providing protection. We constantly advise our business clients to purchase insurance for the unexpected circumstances. Here is just one more example. It would be a safe bet that the building owner went to bed the night before without any concern a car was going to crash into the structure the next morning.

The restaurant, like most businesses, hopefully purchased property insurance with some form of business interruption coverage. The business personal property would usually be covered by the insurance policy allowing replacement of the items. The loss of revenue while the facility is closed is another matter. Business interruption claims can be a little more complicated than property damage to equipment, chairs, and tables.

Still yet is the vehicle and the damage to it.  The owner, who may or may not be the driver, may have collision coverage for the car. If so, payment may be available for the vehicle. Of course some people elect not to buy collision coverage if there isn’t a loan on the vehicle.

We haven’t touched on health insurance, disability insurance, or workers’ compensation insurance. All three might be implicated depending upon the facts and circumstances. To top it all off, the various insurance companies who end up paying the claims will probably want to subrogate or sue to recover for the amounts that have to be paid out.

It can simply be amazing how many types of insurance can come into play with a simple automobile accident with no report bodily injuries. Insurance is needed by everyone for those unforeseen emergencies.

There’s More Than One Way To Burn Down An Apartment Complex!

Posted in Fire Loss

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You can take the girl out of the country, but you can’t take the country out of the girl! A woman burned down an apartment building causing reportedly $2 Million in damages. She was cleaning a squirrel for dinner by using a propane torch to remove the fur. A lot of folks enjoy squirrel, but they don’t like the cleaning and skinning part. This was first time we heard about using a propane torch. Well, here are a couple of takeaways for you:

  • Renter’s insurance is a great idea, you never know when a fire will occur.
  • Apartment owners need to make sure they have sufficient coverage limits.
  • There always a better way to skin a squirrel, well maybe?

Fire Season Isn’t Over As Oklahoma Heads Into Storm Season

Posted in Damages, Fire Loss, Storm Damage

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Insurance claims for loss of property or damage seem more predictable in previous years. It used to be that fires and the resulting insurance claims were over by March. It didn’t mean there would not be a fire or a claim, but the winter rains and the warmer weather reduced the number. This year fire officials are warning the drought has left the vegetation drier than normal and winds create the danger of grass fires and wild fires. 

Simultaneously, Oklahomans know that March – June tends to be the time of year for hail, tornadoes, strong winds, lightning, and all sorts of storm damage. These storms produce a large number of insurance claims as a rule.

While tornadoes and fire are always the most dreaded property insurance claims due to the obvious dangers, hail accounts for a lot of damage. Driving in to work, there is a RV dealership with what looks to be $7 – 9 Million in inventory. One hail event could be devastating if it landed there.

Hail4Car dealers, RV dealers, and all types of commercial coach and trailer distributors are wise to carry sufficient dealer open lot coverage to protect against hail. Homeowners and vehicle owners should make sure their property is properly covered. Some people prefer not to pay for comprehensive coverage for their older vehicles, yet one hail storm can total a car.

The question we sometimes ask, is what other piece of property worth say $6,500 do you leave sitting outside in the driveway uninsured. Our law firm doesn’t sell insurance and we do not receive any commissions for recommending people to carry insurance coverage. We routinely see all kinds of insurance claims and disputes over losses. It is sad to hear about those situations where people or business suffer damages without adequate insurance.

If you have questions or issue involving insurance coverage or bad faith, consider calling us to discuss the situation. 918-587-1525.

Oklahoma Storms Are Brutal, Insurance Softens the Blow

Posted in Homeowners' Insurance, Property Insurance

Storm2Oklahoma is home to torrential rainfall, hail, high winds, and tornadoes. When spring begins, these storms can cause a lot of damage to homes. Wind and hail can damage roofs, tornadoes can demolish a house. Rain can quickly cause water damage if it enters the home. Thunderstorms caused over a $10 billion in losses in the Spring of 2013. Thankfully insurance can be purchased to help in the event a storm causes damage to a home.

But, not all insurance policies are equal. Some insurance policies will include coverage where others have exclusions. The policy language differs. Therefore, it is important to know the exclusions and limitations of the insurance policy under consideration. Generally, homeowners insurance policies cover more than just damage from a storm, but it is still a good idea to know what other damages are covered.

Damage to a roof caused by high winds blowing shingles off will typically be covered by most policies. If a hail storm causes damage to a roof, an insurance poliStorm5cy will commonly provide coverage for the damage caused by hail. However, an insurance policy may exclude some types of damage. Insurance adjusters inspect the property and determine the cause of the damage. The damage caused by a storm will be paid under the insurance policy terms and conditions.

Damage caused by a tornado is commonly covered under homeowners policies. Whether the storm caused damage by high winds, falling trees or other objects, or building collapse a policy will likely allow for repair to the home. If a home is totally destroyed or becomes uninhabitable due to a storm, many insurance policies allow for payment of additional living expenses. Additional living expenses, or ALE, is often viewed as the increase in cost to live while repairs are being done. Additional living expense can include the cost of a hotel room plus any increase in the cost of food from eating out.

Thunderstorms with lightning can be a real hazard too. Lightning strikes can cause fires or cause electrical equipment to fail. Lightning strikes may or may not be covered under an insurance policy. If lightning strikes and causes your power to fail and this causes damage, many insurance companies exclude the power failure. Damage caused by storm or wind driven rain is another area typically covered by homeowners insurance. However, it is important to differentiate between water damage caused by flood damage. A homeowners policy will usually not cover flooding. Flood insurance is a separate kind of insurance.

Coverage for damage caused by storms can be vast and complex, and insurance policies can be genuinely hard to understand. Hiring an Oklahoma attorney who is experienced in insurance law is the best way to ensure you have an understanding of what the policy covers, what the exclusions are, and what the limitations are. Our Tulsa-based law office has worked insurance coverage matters all over the state of Oklahoma.

Court Approves The Denial Of Homeowners Claim For Failure To Cooperate With The Insurance Company During The Investigation

Posted in Homeowners' Insurance

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The decision to deny a valid homeowners claim for lack of cooperation is complicated. In Oklahoma, you really need an attorney. Not just any attorney, but one familiar with Oklahoma law. There is a balance the Courts strike in being fair to the insurance company and the homeowner. Nearly every insurance policy has a clause requiring cooperation during the claim. By honoring the insurance policy terms, the Courts protect against prejudice to the insurer. The insurance company has a right to information about how the loss occurred and the damages. A homeowner who blocks that right can end up not being paid.

One question that springs to mind is why wouldn’t the homeowner want to cooperate. Common sense suggests giving the information to the adjuster will result in faster payment. This is usually true. Many homeowners don’t have a great deal of experience in claims. They don’t understand the normal adjusting practices. They also don’t always trust the insurance company to be fair to them.

Courts balance the competing interests between the insurance company and the homeowner. The Courts want justice. There are occasions where the homeowner may not be able to comply. Situations arise where the homeowner is slow in giving the needed information. The Courts don’t want to see insurance companies looking for “legal loopholes“ to deny valid claims. This is why experienced attorneys are needed to guide you in following Oklahoma law.

Denial of a claim for the wrong reason can be bad faith. As insurance companies know, bad faith occurs when a claim is denied for an improper reason. Although bad faith is more than making the wrong decision, the motive for denial will be examined. If the facts suggest the insurance company adjuster was looking for reasons to deny a claim that should have been paid, then there may be a problem. The hard question for the adjuster becomes, “Do I have to beg for information? If so, for how long?”

In Johnson v. Geo Vera Specialty Ins. Co., 2016 U.S. App. LEXIS 17530 (5th Cir. September 27, 2016) the homeowner, Johnson, had damage from strong winds. Later, in a separate event, the house was damaged by fire. The homeowner asked for payment for both losses. However, the adjuster was not given information about the claims in a timely manner. Like most homeowner policies, the insurance policy required cooperation.

GeoVera’s policy imposed the following duties of cooperation on Johnson: (1) “cooperate with GeoVera in the investigation of a claim,” (2) “prepare an inventory of damaged personal property showing the quantity, description, actual cash value and amount of loss,” (3) “attach all bills, receipts and related documents that justify the figures in the inventory,” (4) “show the damaged property as often as GeoVera reasonably required,” (5) “provide GeoVera with requested records and documents,” and (6) “submit to examination under oath.” The policy provided that GeoVera would owe no coverage if Johnson’s breach of any cooperation duty prejudiced GeoVera.

The Court found Johnson in violation of numerous cooperation duties. Johnson invoked her contractual appraisal right under GeoVera’s policy, but demolished and remodeled a significant portion of the house before GeoVera could conduct its appraisal. Johnson “almost completely gutted the interior, performed extensive framing repairs, and then terminated the appraisal process.” GeoVera, after invoking its own contractual appraisal right, subsequently requested that Johnson produce “several videos and thousands of photos of the fire damage” known to be in Johnson’s possession. Johnson refused to provide the requested videos and photographs until well after the coverage litigation had commenced. Johnson refused to testify under oath regarding the incident until over a year following the loss. Johnson further refused to provide documentation justifying the figures in her proof-of-loss list. The Court concluded that Johnson had clearly not complied with Johnson’s cooperation duties under GeoVera’s policy.

In Oklahoma, two basic rules come to mind from the 30 plus years of litigating coverage disputes and bad faith cases. First, the insured needs to cooperate with the investigation of the claim. If the homeowner feels the insurance adjuster is being unreasonable, the homeowner should consult with a knowledgeable insurance attorney to find out their rights. Second, the adjuster should document any refusal to cooperate with letters, e-mails, or clearly stated requests for assistance. The right to cooperation does not exist in a vacuum. It has to be asserted by the adjuster and evidenced by documentation of the requests.

AgentOklahoma coverage questions like denial of a claim for the refusal to cooperate should be made with the advice of counsel. The risks in a wrongful denial can be severe which is why an adjuster should seek legal advice. Oklahoma policy holders need to cooperate with their insurance company. Any decision not to cooperate should be made with the help of an attorney who understands insurance law in Oklahoma. The risk in not cooperating can be high.

We enjoy the area of insurance law and helping to reach the right decision about insurance claims. Let us know if we can help you. Call us 918-587-1525.

Churches Need Liability Insurance Just Like Everyone Else!

Posted in Liability

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You don’t always think about a church needing liability insurance. Churches aren’t bad, in fact,  churches are known for doing good. Some church groups engage in food banks, food drives, clothing centers, and all sorts of work to make this world a better place. Why would a church doing good have anything to worry about? Well, things happen!

Last Thanksgiving, one church served a meal with unexpected consequences. Three people were killed according to Food Safety News. It reported:

It remains unknown exactly what food, or foods, served by members of the Golden Hills Community Church on Thanksgiving Day was contaminated. Several hundred people ate the food, served at an American Legion auditorium in Antioch.

“But after extensive interviews we found most of the ill people ate turkey and mashed potatoes and they all ate around the same time. Some dishes served at the event, including cooked turkey, were brought to the site after they were prepared in private homes,” Marilyn Underwood, county environmental health director, said in the release.

The local officials had said it might take months for laboratory confirmation of the specific pathogen responsible for the more than two dozen illnesses and three deaths. However, the U.S. Centers for Disease Control and Prevention notified the county it had confirmed the illnesses were caused by Clostridium perfringens.

Many of the estimated 800 people who ate the church meal on Nov. 24 were elderly or infirmed residents of assisted living centers, including the three people who died. They were 43-year-old Christopher Cappetti, 59-year-old Chooi Keng Cheah, and 69-year-old Jane Evans, according to the Associated Press.

All of the reported illnesses occurred within 24 hours of consuming food at the church dinner, which is in line with the CDC’s published information on Clostridium perfringens.

The bacteria is commonly found in meat and poultry, but thorough cooking kills it. However, extremely small amounts of it can survive on utensils and surfaces and cross contaminate cooked foods. It multiplies very quickly when foods are left at room temperature.

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The food was undoubtedly served with every good intention and with many kind thoughts. Unfortunately, mistakes can happen even while doing good works or perceived errors can be inferred. Charitable acts don’t alleviate the need for safety. Although many states have laws that protect good samaritans, these statutes are usually designed to protect aid rendered during an emergency or crisis. Whether the good samaritan laws apply to serving food will clearly depend upon the jurisdiction, but in many venues it is not going to prevent lawsuits for contaminated foods or improperly prepared meals.

Regardless of whether the church was at fault in this story, our point is the need for liability insurance for all activities, nonprofit or for profit ventures. Even if you didn’t make a mistake, it doesn’t mean your actions will not be brought into question. The use of prudence and good judgment are sufficient to keep you out of trouble. Liability insurance is there for good reason. If for no other reason, then defending lawsuits. The duty to defend under a liability insurance policy is invaluable.

We help businesses, churches, nonprofits, and others in a review of their risk management practices by starting with their liability insurance coverage. A comprehensive liability insurance policy that fits your needs is critical. You want to make sure you have the right coverage.

Living in Oklahoma’s Tornado Alley and Needing Insurance

Posted in Homeowners' Insurance, Insurance Coverage, Storm Damage

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Living in Oklahoma means living with tornadoes, and living with tornadoes means having to deal with tornado damage. The damage caused by tornadoes can be catastrophic. The aftermath can leave whole towns devastated. Comfort can be found in knowing that a homeowners insurance policy can help ease the pain of the damage caused by tornadoes.

Many of today’s homeowners insurance policies will contain language providing coverage for wind, wind-driven rain, trees or other falling objects, and collapse of the home. An insurance policy may not technically say that it covers tornadoes, but this list does provide coverage for the types of damage that typically arise from a tornado. It is also important to know what damages are not going to be covered if a tornado strikes. Insurance policies usually contain exclusions and limitations as to coverage.

It is important to understand the terms of an insurance policy before a tornado strikes. Statistically, 64% of policyholders have been found to have their homes under insured. People don’t always realize how much they own. If under insured when a tornado causes damage to a house, the homeowner will not be able to recover the full 100% of the value of the home. A study showed that many homes are only insured for 81% of the value to rebuild the house.

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Roughly 1,000 tornadoes hit the United States every year. Most of these tornadoes touchdown in Oklahoma, Kansas, Texas, and Nebraska, but can occur anywhere in the United States. Tornado warning systems have on average a 13 minute lead time with a 70% false alarm rating. Tornadoes can happen during any time of the year, but they most frequently occur in the Spring time. If you have a tornado claim, insurance is there to protect you and your family from the loss. Always keep in mind, the house and contents can be replaced, they are merely property.

Before the next Oklahoma tornado touches down, homeowners should review their insurance policy and reevaluate the value of the house. Renters and homeowners alike should take inventory of all personal belongings and review their insurance policies. Understanding the coverage, exclusions and limitations can help with the settlement process.

Our Tulsa based law office has experience in tornado coverage. We have reviewed claims in Tulsa, Oklahoma City, Skiatook, Sapulpa, Stillwater, Cleveland, Foyil, Muskogee, Moore, Sand Springs, Norman, Broken Arrow, Enid, and all over the state of Oklahoma helping both homeowners and adjusters understand the coverage. Call us 918-587-1525.

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