Jun 16, 2020 - Events and Seminars by Walton Lantaff
How to Turn an Opposing Counsel’s Sneaky Tactic into a Winning Defense
When defending a first-party property insurance hurricane claim, ensuring that the plaintiff’s counsel complies with the insurance policy’s supplemental claim provision is critical. Many policies require that the Insured provide a supplemental claim prior to filing suit when the cause of loss is due to a hurricane.
The supplemental claim is almost always a repair and/or replacement estimate provided by a public adjuster on behalf of the plaintiff. One trick notably utilized by plaintiff counsels representing Insureds is altering such estimate after months, if not years, of litigation. Defense counsel can use this to their advantage and turn a sneaky maneuver by opposing counsel into a strong defense. In fact, WLSC recently obtained a dismissal of a hurricane claim after more than two years of litigation on this precise issue.
In such an instance, the Plaintiff’s counsel provided an estimate of about $43,000. More than a year and a half later, Plaintiff’s estimate increased to about $54,000 (more than a $10,000 increase). The issue before the Court on Defendant’s motion for summary judgment was regarding the failure to submit a supplemental claim. The Judge’s main question during an oral argument was why the estimate had increased by more than $10,000? The Judge gave the Plaintiff’s counsel leave to explain this large discrepancy.
During the period of leave granted by the Court, Plaintiff’s counsel filed a third estimate, splitting the difference between the first two estimates. Thus, the issue was once again in front of the Court on the Defendant’s renewed motion for summary judgment for failure to submit a supplemental claim. WLSC argued that Plaintiff’s counsel failed to explain the discrepancy between the first and second estimates—despite the Court’s clear directive to do so—and that not only did filing a third estimate fail to shed any light on the issue, but it further muddied the waters.
The Court agreed and found that the second and third estimates were not the same claim that Plaintiff’s lawsuit was based on. WLSC further highlighted to the Court that the insurance carrier could not have breached the policy by failing to pay a supplemental claim that did not exist. The Court, while not granting final summary judgment on this issue, ultimately dismissed the case without prejudice.
Although a final judgment in favor of Defendant against Plaintiff is always the sought after result, the Dismissal by the Court presents a different, yet major, victory. This ruling essentially eliminated more than two years of fees and costs by Plaintiff’s Counsel and re-set / leveled the playing field, forcing Plaintiff’s Counsel to start again from scratch if they want to continue pursuing the claim. Essentially, the ruling was a two-fold victory for Defendant. First, because WLSC was able to successfully defend this claim on behalf of the Defendant Insurer. Second, WLSC was able to hold Plaintiff’s counsel accountable to the original estimate. Altering an estimate post-suit, no matter how far into litigation, should not be allowed. It is wholly unfair to the insurance carrier, and it is a breach of the policy. Defense counsels should force plaintiffs to stand by the original estimate provided to the insurance carrier for payment, as this is the estimate for which a Plaintiff almost always utilizes as the basis for a breach of the policy action. Our recent dismissal proves that the Miami-Dade courts agree.
The next time opposing counsel attempts to alter an estimate after suit has been filed, keep the above strategy in mind. Insurance carriers cannot be expected to hit a continually moving target. If the plaintiff’s counsel attempts to employ this sneaky tactic, turn it into a strong defense.
Presented (on behalf of the Firm) by
