Month: June 2015


It’s Time for Pradaxa Lawsuits, Phase II

The prescription drug Pradaxa (dabigatran) has been prescribed to more than a million patients since the Food and Drug Administration (FDA) approved its entry into the market in 2010. It is a blood thinner designed to treat patients who suffer from a condition called atrial fibrillation, and it’s meant to prevent stroke by thinning the blood. The drug was the first entry into a new category of anticoagulants, or blood thinners, and it was marketed as a safer replacement for the market leader, warfarin, which had been around for more than 55 years at the time.

Within its first two years on the market, the manufacturer of Pradaxa, Boehringer Ingelheim (BI) saw more than $1 billion in revenue from Pradaxa, and more than 725,000 patients in the U.S. were prescribed the drug. Unfortunately, thousands of these patients have experienced negative health problems since then, including many who have experienced excessive and uncontrollable internal bleeding and hemorrhagic strokes, as well as a number of fatal incidents involving brain, rectal and gastrointestinal bleeding.

As early as 2011, the FDA felt it necessary to issue a safety warning after they fielded nearly 3,800 adverse event reports from people who had taken Pradaxa, and there were 542 fatalities associated with the use of the drug. At the time, the agency noted that Pradaxa use had resulted in the highest number of both adverse events and deaths of the nearly 800 drugs the agency monitors regularly.

Pradaxa Lawsuits: Then and Now

Since then, a large number of lawsuits were filed, culminating in a May 2014 settlement, in which Boehringer Ingelheim settled more than 4,000 claims against it for $650 million. Our lawyers handled over 100 of these cases. As part of the settlement, the drug maker admitted no fault, and even doubled down. The company has apparently decided that lawsuits are just a part of doing business, because they continue to market the drug the same way they did before.

According to Boehringer Ingelheim, Pradaxa’s benefits far outweigh its negative side effects and they continue to cite a report released by the FDA in 2012 in which the agency concluded that the bleeding risk for Pradaxa was no higher than that for warfarin. What the company fails to mention, however, is a key problem; while there are several antidotes available to stop excessive bleeding when it occurs while using warfarin, there is no such antidote available when excessive bleeding occurs using Pradaxa.

In other words, despite such a large settlement, Boehringer Ingelheim has not changed course and they continue to market the drug as they did before. They do contend that they are working on an antidote, but in the meantime, they continue to spend hundreds of millions of dollars on marketing, and to claim that Pradaxa is safer and more effective than warfarin.

Because of this, it’s time to work on claims for another lawsuit against Boehringer Ingelheim.

Contact the Praxada Injury Lawyers of Raizner Slania

If you have been prescribed and taken Pradaxa and have suffered any side effects, especially excessive bleeding, please contact the Pradaxa Lawsuit Lawyers at Raizner Slania, so we can work to get the drug company and the FDA to pay attention and do something about this.

The Curious Rise of Surplus Lines Insurance

Everyone buying commercial insurance policies in Texas should be aware of the growing prevalence of what are called surplus lines insurers, who are writing an increasing number of commercial insurance policies throughout the state. The problem with such companies, which include such insurers as Lloyds of London or Lexington Insurance is that they are unlicensed and they sometimes use that status to get around certain regulatory requirements that other insurers are required to follow and to present the insured with so many exclusions as to practically make the insurance worthless.

Surplus lines insurance does serve a purpose, in that it provides commercial businesses with insurance that can fill in the gaps in coverage in which licensed insurers are unwilling to cover. On its website, TDI uses an example of an art collection as the type of risk that is designed for surplus insurance. While some of the coverage they offer may seem a bit exotic, they also carry some traditional lines of insurance, covering things that other carriers decide are too risky.

However, while the Texas Department of Insurance (TDI) regulates most licensed carriers, it only regulates surplus lines insurers indirectly and to a very limited extent. For example, surplus lines insurance companies are not licensed, but the policies have to be purchased by an agent licensed by the TDI. Also, TDI decides which surplus lines carriers are eligible to operate in the state, and they maintain a list of those carriers. They also require that all surplus line policies be “stamped” as such, so the client knows what they are buying. What’s unclear is what the penalties are for those policies that are not “stamped,” given that the policies and the carriers are essentially unregulated.

Because they are not specifically subject to Texas insurance law, surplus lines insurance carriers have a lot more flexibility than regulated and licensed carriers, but it also means that the insured is taking on a lot more risk. And because surplus lines insurers aren’t subject to the same regulatory rules as licensed insurers, their rates aren’t regulated so the insurance is often much more expensive. These types of carriers are doing a lot more business these days. According to a recent report from Moody’s Investors Service, the surplus lines sector of the insurance industry is experiencing significant growth and increased profits, which may indicate a significant expansion of the limited role intended with such insurance companies. Some traditional insurers seem to be capitalizing on the freedoms afforded by selling surplus lines insurance. For example, insurance giant AIG has some entities that are licensed insurers, but much of their commercial policy business is now written through Lexington Insurance Company, which is a surplus lines insurer.

Why Surplus Lines Insurance Can Cause Problems

This is potentially troublesome, for a number of reasons, not the least of which is because of the litigation problems that are raised, such as whether or not it’s possible to sue a surplus lines carrier under the same issues as other carriers that are licensed by the state.

Often, the fact that these companies are unregulated is part of their charm; by not being bound by regulations, they can respond to changing market conditions and provide policies tailored to the business’s needs. However, their so-called status as a “free agent” can also create problems for the insured if they don’t perform as promised. Sometimes, they leave the insured party feeling as if they weren’t told everything, and they were taken advantage of. While regulated insurance carriers are required to make sure the insured understands their policy and must notify the insured of changes in their policies, unregulated carriers aren’t under the same restrictions, obviously.

The bottom line is, surplus lines insurance policies serve a significant purpose and can fill in many gaps, but the law hasn’t been fully developed and is not clear. Given that the surplus lines sector of the market is growing substantially, this could very well cause problems down the road. As TDI warns on its website, “It’s always best to buy insurance from companies licensed to sell insurance in Texas.”

If you have a surplus lines insurance policy, and you are having problems with adjustors or getting claims paid, or you believe an exemption was handle unfairly, please contact Raizner Slania today and let our experienced insurance team hold them accountable.

Types of Flood Insurance: What You Should Know

The heavy rains that pummeled areas of east Texas and caused significant flooding to areas around Houston and Dallas last month are expected to result in flood insurance claims that should break records. The flooding affected thousands of homes, vehicles and businesses, which means the potential for thousands of claims throughout more than 20 Texas counties.

Some of the worst damage, and the largest number of claims, will be to homeowners, with hundreds of homes reportedly lifted off their foundations and destroyed and thousands of others being severely damaged by flood waters, and thousands of cars being destroyed in the floods. Unfortunately, because of the numerous limitations put on homeowners’ flood insurance policies, there is only so much one can do in order to protect someone who is relying on a government-backed flood insurance policy.

Homeowners Flood Insurance

Most homeowners flood insurance is offered by private insurance through what is called the WYO, or write-your-own, programs that were set up through FEMA in the 1980s. This was done to transfer management of the National Flood Insurance Program (NFIP) policies and claims to private insurance, to save on FEMA’s agency overhead and to spread the work around a little bit, and perhaps pay claims a little faster. This type of arrangement is very lucrative for the private insurers because they get to collect costs and fees and administer claims, while FEMA gets to pay. Unfortunately, while FEMA saves money and the private insurance companies make out pretty well, the homeowner is left with coverage that is quite limited, but not nearly as limited as their recourse should they not be happy with any part of the process.

Because of the limitations, we typically don’t handle standard homeowners flood insurance policies, although we can handle some higher-end policies. If a homeowner has a dispute over a flood insurance policy, the dispute must be filed in federal court, and it is extremely rare for federal courts to allow recovery for many types of claims, including bad faith. In fact, the law generally doesn’t allow for the recovery of bad faith damages and attorneys’ fees in a dispute over a flood insurance payment.

Commercial Flood Insurance

While we typically don’t handle claims for most individual homeowners, we can and do handle problems people have with flood insurance on multi-family properties, such as apartment and condominium buildings. If you own a building with more than five apartments or condos and your claim is not handled properly by the insurance adjuster, or you believe someone has acted in bad faith somewhere along the line, we can probably help you.

Also hard hit by the flooding were churches and synagogues. Often, making a claim can take a long time, and a church that has been working on a tight budget based on the amount they get in the collection basket every week can often feel pressured by the time it takes to process claims. When a flood causes serious damage to a church, all the congregation cares about is getting the doors open again, which can often mean approaching the insurance claims process in the most efficient and effective way possible and making informed decisions about the future of their church. We can help with that.

Also hard hit were businesses throughout Texas, which means there will be a lot of attention paid to commercial flood insurance policies. Besides some commercial buildings that are total losses, there are also numerous reports of damage to parking garages and the lower levels of all sorts of commercial properties, including office buildings, shopping malls and strip centers. According to some reports, the Texas Medical Center was extremely hard hit, and saw extensive damage to many of its research labs.

Most commercial flood insurance policies are also handled through the NFIP and those have some of the same types of restrictions as homeowners’ policies, but many businesses also carry excess flood insurance, which covers losses above the federal limit, as well as losses for such expenses as lost income and business interruption costs, which are not covered by the NFIP. Carrying excess flood insurance is a wise idea, but it also adds several other aspects to the claims process, and a business owner should make sure they’re making informed decisions and following all processes accurately. Excess flood insurance policies are often a lifeline for businesses hit by a natural disaster, and that is why we do handle excess flood insurance claims when the insurer fails to honor its agreement.

These types of scenarios are being duplicated all over the eastern half of the state, which means it’s going to be a long, hot summer for those who handle flood insurance claims. It also means a lot of headaches for people who suffered losses during the flooding and who try to collect on claims. Because most Texas insurance companies no longer underwrite flood insurance, most of the claims are handled by FEMA, which means following very strict federal regulations and guidelines when filing claims, lest they miss out on collecting for their claims.

FEMA Extends Proof of Loss Filing Deadline

Officials with the Federal Emergency Management Agency (FEMA) last week announced that they would give Texas and Oklahoma flood victims extra time to file their Proof of Loss statements to the agency.

Last Thursday, FEMA gave flood insurance policyholders operating under the National Flood Insurance Program an additional 180 days to file, over and above the normal 60-day filing deadline, extending the period of eligibility to January of next year (2016). This increase gives Texas flood victims the time they need to have the damage to their property assessed, so that they can make as accurate a claim as possible.

What is a Proof of Loss?

For those who are unfamiliar, a Proof of Loss is a signed and sworn statement by the policyholder of the amount of money they are requesting from the Flood Insurance Program, and it is accompanied by documentation to support that amount. FEMA is very careful to point out that the Proof of Loss is not the claim itself; the claim is the declaration by the policyholder that they are entitled to payment under their flood insurance policy. It is possible for a policyholder to file several Proof of Loss claim forms, but they are only entitled to be paid for one claim per event. In this case, the “event” is what FEMA has described as “torrential rains beginning May 16.”

Under the terms of the National Flood Insurance Program (NFIP), the complete Proof of Loss must include documentation of every element of the loss, must be signed and sworn to by the policyholder, and must be received by the NFIP servicing agent or the company who wrote the policy within 60 days of the flooding event. With regard to the current Texas flooding, that deadline has now been extended to 240 days. Insurance adjusters are supposed to make the Proof of Loss form available to the policyholder, but that is done purely as a courtesy; the policyholder is ultimately responsible for making sure the Proof of Loss is filed in a timely manner. As previously discussed, dealing with wind insurance and flood insurance after these storms will be challenging.

Even with the extension, there are bound to be a lot of disappointed victims of these Texas storms. According to FEMA, there are approximately 603,000 National Flood Insurance Program policies in effect in Texas, which covers only a fraction of the 7.3 million households in the state.

Contact an Experienced Flood Insurance Lawyer

The trial attorneys of Raizner Slania have handled all types of insurance claims against every major insurance company. As your fellow Texans, we look forward to helping you recover as best we can. Please contact us to discuss your excess flood insurance, or commercial or multi-family property flood claim delays, denials, or underpayments, and any other insurance issues we can help with.

Houston Flood

Dealing with Wind Insurance and Flood Insurance After the Texas Floods

One thing is for sure; while the recent rains and terrible flooding that have hit much of East Texas and parts of Oklahoma are trying times for us all, the most trying part of this may still be ahead, as we deal with our insurance carriers to be reimbursed for the damage. Unfortunately, homeowners and businesses commonly see their claims for wind or flood damage delayed, if not outright denied. And even if neither of those happens, the flood insurance company will often try to lowball them after a natural disaster, such as the one we just experienced.

In most cases, homeowners’ insurance policies will cover damage from windstorms, hurricanes and hail. Many will cover what they call “sudden and accidental water damage,” which usually refers to what happens with plumbing accidents, but few homeowners’ insurance or business property insurance policies will cover flooding of any kind, especially rising water or the effects of storm surge. It’s important that everyone with such a policy is fully aware of this.

For those who live in coastal areas, insurance companies began to refuse to write insurance policies for wind events that caused water damage, especially hurricanes, and instead created the Texas Windstorm Insurance Association (TWIA) to provide coverage for wind driven rain, or for water that enters through a damaged roof, window or wall.

Flood Insurance Policies May Not Help You Enough

Flood insurance policies are much more limited, in part because they are all underwritten by FEMA’s National Flood Insurance Program (NFIP), even if private insurers sell and manage this type of policy. This coverage is limited to just flooding, regardless of the impression your insurance carrier gives you. While the flood and wind damage may be administered by a private insurer with a single adjuster evaluating damage from both, because the flood insurance is underwritten using federal money, policyholder rights are more limited. If you have a dispute over a flood insurance policy, it must be filed in federal court, and they rarely permit recovery for some types of damages, including bad faith.

This can be a big problem if the private insurance company decides to push as much damage as possible into the flood damage category, which they often try to do in order to get FEMA to pay as much of the claim as possible. For one thing, it means the policyholder has fewer rights, but it also can mean a much smaller payment; in fact, if the policyholder has no flood coverage, it can mean no payment at all. Sometimes, a private insurer will rely on a policy’s concurrent causation clause to avoid having to pay anything.

Under those circumstances, Texas policyholders would then have to prove, usually through the use of engineer opinions, which portion of the loss is from flood and which portion is from wind. If it’s possible to prove misconduct on the part of the insurance company, different policyholders have different rights. In the case of a standard property policy, which again will not include flood insurance, the insured may bring an action for a number of things, including violations of the Texas insurance code, common law bad faith, fraud, breach of contract and other remedies, and they may recover actual damages, treble damages, attorneys’ fees, punitive damages, and things like that. However, if there is misconduct in the handling of a flood claim, the policyholder has no recourse on that end; all they can recover is the damage they can prove.

There are some things people can do to protect themselves in any case, however, to give them a better chance of recovering from any kind of weather event:

  • Take clear photographs of the damage before it has been repaired, even if the repair is only temporary, because your photos can help experts distinguish between wind and water damage.
  • Make a list of all of your damaged items and make a note of exactly where they were located within the building.  Items on the floor, for example, may be covered by flood while items high on walls or on higher floors may be covered by a wind policy.
  • Work closely with the insurance company’s adjusters to show them your property so that they can better distinguish between flood and wind damage and loss.
  • If you have a flood policy, be sure to file a proof of loss within the required time frame, which is usually 60 days from the date of the loss.
  • If unsure, put both your property insurer and your flood insurer on notice of the loss right away, without delay.
  • Take appropriate and reasonable steps to complete temporary repairs, mitigate damage and prevent further loss.
  • Communicate regularly and openly with your insurer.  If you are dissatisfied with the timeliness, professionalism, opinions or payment from your insurer, let them know in writing as soon as possible.
  • If the insurer is disputing your loss, be prepared to retain your own professional team to fully document the loss, including your own contractor, public adjuster or attorney evaluate the damage and distinguish between flood and wind damage, if need be.