September 30, 2008 by Zale.

Slip and falls are some of the hardest cases for plaintiffs to win in Tennessee.  In order to win, one of the key elements the plaintiff my prove is that the premises owner knew or should have known of the hazard.  You also have to show that you, the person who is injured, should not have seen or noticed the condition, especially if it is “open and obvious”.

In my eleven years of handling insurance claims, I handled quite a few slip and fall claims.  Only a few truly seemed valid.  Here’s a recent case where the plaintiff was unsuccessful in proving the above.

Posted in Litigation, Injury Law | No Comments »

September 30, 2008 by Zale.

Be careful if you do.  Here’s a recent Tennessee Court of Appeals case where Farmers asserted an exclusion against one of their policyholders.

Everyday individuals trying to make a living use their personal automobiles to conduct business.  Often, this is encouraged by their employers.  Its good for those individuals to check their insurance policy to make sure their business activities are covered.

It seems to be a fairly rare instance where the insurer for a personal auto policy asserts this type of business use exclusion, since they are usually fairly narrow exclusions.  The point of the exclusion is for the vehicle owner to get a commercial auto policy, which is designed for business use vehicle.

In this instance, the exclusion stated:  “[w]hile used in employment by any person whose primary duties are the delivery of products or services[.]”  Both the trial court and the Court of Appeals agreed with Farmers on this one and the policyholder was out of luck.

Posted in Litigation, Injury Law, Insurance Practices, Insurance Law | No Comments »

September 26, 2008 by Zale.

Farmers Insurance just got hit for a $130M verdict, $80M of which was for bad faith and punitive damages. Wow!

In case you didn’t know Farmers is one of those companies that has created for themselves a reputation of being very hard to deal with when it comes to resolving claims.  I still don’t understand the logic behind a company making such a name for itself in the market place.  Wouldn’t it be better to have a reputation of being fair to the policyholder? Don’t kid yourself.  Someone on that jury knew of Farmers reputation.

Posted in Negotiations, Litigation, Insurance Law | No Comments »

September 24, 2008 by Zale.

No.  Surprised?  Heard otherwise?  Most states look at the comparative fault of the parties when considering who should pay for an accident.  NORMALLY, when one car rear ends another, the one in the rear is at fault.  However, there are instances where the vehicle that gets rear ended is the one at fault.

Don’t believe me. Well, here’s a recent case from another state that illustrates this point.  Believe it or not, there are folks out there that try to cause this type of accident just to get paid.  Unfortunately, some insurance companies believe that that is every claim they get, which that is simply not the case.  Now, I’m not saying that this is the case in this recent case, but it does appear that the jurors, at least, liked the defendant more than the plaintiff.

Posted in Litigation, Injury Law | No Comments »

September 24, 2008 by Zale.

Generally a slip and fall in Tennessee is a losing battle.  Why?  Comparative Fault or, simply stated, “watch where you are going”.

Here’s a recent TN case where the plaintiff (the injured one) was going into a bank, while it was icy outside.  It appears that the drive through windows was open at the time, but he parked, got out of his car and fell on the ice.  I suspect that the plaintiff was advancing a theory that the bank should have put out more salt or had all the ice cleared.  Well, maybe yes, but no state has ever held that a property owner has the duty to hold back nature.  Which is exactly what that theory often amounts to.  More importantly, the plaintiff recognized the danger, which was “open and obvious”, and decided to take his chances anyway.

This case tells us that “open and obvious” dangers are still a viable defense in Tennessee.  If we did not have drive through windows, ATMs and online banking, the plaintiff might have had a better shot, but as it is, he really did not have much of a reason to get out of his car, or  even leave his house.

Gotta go, I need to log on and check my bank balances….

Posted in Litigation, Injury Law | No Comments »

September 24, 2008 by Zale.

I noticed this recent TN bad faith case.  In short, this is one of those cases where the insured’s property burns down and the insurance company insuring the property calls the fire arson, which is not covered.

Let’s set the stage.  If you have a claim like this, one of the first people out there, other than the property adjuster, is the C & O or Cause and Origin expert.  They are there to try to figure out why this piece building, all of a sudden, decided to increase it’s output of carbon and, consequently, lower its roof line to the ground.  The adjuster is going to have the insured fill out proof of loss statements and that sort of thing.  If the insurance company suspects that the policy holder or insured intentionally set the fire, then the  insured can expect to have to sit for an Examination Under Oath, which is often followed by a denial of coverage.

Well, in this case, the jury found that they believed that the insured had made some misrepresentations as to what they had.  This happens all the time, but the stuff that was misrepresented was no where to be found in the debris. So, the court said “no coverge for you!”

What do we learn from this? Just be honest.  At the end of the day, its only money.  Is your integrity really worth trying to inflate a claim?

Posted in Litigation, Insurance Practices, Insurance Law, Business Law | No Comments »

September 18, 2008 by Zale.

This is a bit of a touchy subject with me, because I believe that the insurance companies have it all wrong.

A Diminished Value claim is simply a claim regarding property, usually a vehicle, that was damaged and has been repaired.  But it still may never have the same value as it would if it has not been damaged at all.  At one time, if the vehicle was properly repaired, then there was truly no Diminished Value.  Now we have CarFax and similar information providers.  These are great tools for buyers, but if a vehicle has been damaged in an accident, I don’t care how  well you repair it, its always going to have a CarFax notice for that accident. Therefore the value is permanently diminished.

Georgia is one of the few states that has legislated Diminished Value. (Georgia legislates a LOT anyway, so this is not too surprising.)  What’s surprising is that the insurance industry had a formula it used based on the Georgia statute.  I used this formula as an adjuster myself.  Well, it appears that the insurance industry has now run afoul of the statute.  (I know, you’re surprised.)   It seems that the insurance companies have been saying that their “formula” was approved by the Georgia Insurance Commissioner.  According to the Insurance Commissioner, that statement was not true.

You know, if insurance companies would simply be nice and give the consumer the benefit of the doubt, there wouldn’t be any need attorneys who handle insurance matters for the consumer.  But it appears that we have plenty of work to do because of them.

If you want to read more on this topic, check out this blog post.

If you have a question about a Tennessee Diminished Value claim, please feel free to contact the Dowlen Law Firm, PLLC at 615.497.0763 to discuss it.

Posted in Diminished Value, Insurance Practices, Insurance Law | 1 Comment »

September 10, 2008 by Zale.

“What’s the Rush?” is a program where the Tennessee District Attorneys speak in local schools to potential FATHERS about the legal and financial burdens of being an unwed father.  This is such a great approach by the DA’s.  Way to go!

Posted in Right To Life, General Law | 1 Comment »

September 8, 2008 by Zale.

Under a liability policy of insurance, whether it be a policy for an automobile, business or anything else, the insurance company has two duties.

• The duty to indemnify the policyholder for the loss and
• The duty to defend the policyholder.

Most people just think about the duty to indemnify.  This means that if the policyholder gets sued, and the plaintiff wins $500, then the policy pays $500.

Contrast this to the duty to defend.  The duty to defend has to do with whether or not the insurance company is going to hire one of their attorneys to defend the policyholder at all.  This phase is well before finding out whether or not the claim is worth the above $500.

The duty to defend the policyholder is broader than the duty to indemnify the policyholder.  So, if the insurance company says that part of the lawsuit is excluded under a policy provision, this means that they still pay an attorney to defend you.   If the insurance company does not defend or indemnify the policyholder, then they are just completely leaving the policyholder out in the cold.

So, if you find yourself in a position where the insurance company is denying you a defense, that’s a big deal.  Have an attorney look at that denial for you.  Being an attorney who has actually dealt with coverage denials, feel free to give my office a call.

Posted in Insurance Practices, Insurance Law | No Comments »

September 4, 2008 by Zale.

For those of you who have visited my website in the past, you might notice that it is different.  Instead of trying to focus my practice on Injury, Criminal AND Business Law, I’m now trying to emphasize the Injury portion of my firm.  Why? Because I spent so much time assisting people with their injury claims when I was an adjuster, I want to do that now as an attorney.  Sure, I still take the other cases, but that is not the focus of the firm.

Posted in Criminal Law, Injury Law, Business Law, General Law | 1 Comment »