Month: November 2015

Wear and Tear

Property Damage Insurance Claim Denials Based on Wear and Tear

Before insurance companies began including wear and tear exclusions in their policies, it was common for them to write “named perils” insurance policies which only covered the exact types of losses listed in the policy. That is why older policies were called “fire policies,” because they only covered risks associated with fire or other specific events. Today, however, most policies are written as “all risks” policies – they cover damages for any type of catastrophic event, unless the type of loss is specifically excluded. It was the rising popularity of all-risk insurance policies that gave way to the wide use of wear and tear exclusions.

How does an all-risk insurance policy work?

All-risk insurance policies covering your personal or commercial property are generally more expensive because they are more comprehensive. Under an all-risk policy, the policyholder must demonstrate a covered loss was sustained during the policy period. Then, the insurance company is obligated to cover the loss unless an exclusion in the policy specifically states the damage is not covered. However, many insurers are crafty and include various exceptions in these all-risk policies, one of which is the “wear and tear” exclusion.

What is the wear and tear exclusion?

The wear and tear exclusion in an insurance policy asserts that damage done to the insured property will not be covered if it was caused by expected and normal deterioration. Insurance companies routinely include these exclusions in their policies since they are designed to keep the insurer from being liable when the policyholder fails to properly maintain, repair, and replace deteriorated and/or defective portions of the insured property. Within an all-risk policy, the named exclusions and limitations are what determine if a property loss is covered, and these lists of exclusions are generally extensive.

How does this lead to a denied insurance claim?

In an effort to avoid a contractual payment, many insurance companies will claim damage is the result of wear and tear – even if that is not the case. When there is a natural disaster such as a hailstorm, hurricane, tornado, or flood, insurers will frequently pin the blame for property damage on a preexisting condition. In these types of situations, one of the most common exclusions that insurance companies invoke to deny claims is “wear and tear.”

Other exclusions include poor maintenance, prior damage, manufacturing defects, or faulty installation. A prevalent example involves roof damage claims: insurers often improperly cite the age of the roof or the maintenance record as the cause of damage as opposed to a hailstorm which was actually responsible for denting or destroying the roof.

The wear and tear excuse is also particularly prevalent when assessing aging commercial properties, even if they are in good shape. Many times, the insurance company will inspect the property prior to selling the insurance policy and these underwriting reports show the property was in acceptable or even good condition; however, the insurance company will still trot out their war horse excuse that the damage resulted from wear and tear. In these types of situations, the insurance company may be denying the claim improperly, and a false claim by an insurance can often result in an insurance bad faith lawsuit.

What should I do if my property damage claim is wrongfully denied based on wear and tear?

If an insurance company denied your claim and cited wear and tear, then contact a commercial property insurance lawyer. The attorneys at Raizner Slania have extensive experience combating bad faith tactics. We have successfully taken action to address the many serious legal violations committed by insurance companies, including when insurers falsely claim damage was pre-existing or the result of wear and tear, poor maintenance, or manufacturing problems. Get in touch today to schedule a free consultation and take the first step towards receiving the money you are contractually owed.


Las Cruces New Mexico Hail Storm Damage Claims

Recently, a very intense major storm hit Las Cruces, New Mexico and left behind a swath of damage over the course of a few hours. Most of the New Mexico Hail Storm Damage was caused by hail, which some witnesses described as being about one inch in diameter, but the storm also featured a significant number of lightning strikes, as well as heavy rains and strong winds. Although the National Weather Service also issued a tornado warning, there were no tornadoes, so people were thankful for that.

The storm left behind a significant amount of damage throughout the Las Cruces area. It is estimated that the storm damage led to thousands of claims for all kinds of building and other property damage. And because it’s been an expensive year for insurance companies, it is very likely they will be more difficult than usual to deal with when it comes to paying storm damage claims.

Because of this, while it is always a good idea to file a claim and document damage as soon as possible, it is especially important in the wake of a devastating natural disaster like the Las Cruces storms on October 5. It’s also important, when filing a claim for storm damage, to include as much detail as possible, including photos and videos of any storm damage, so as to make a claims adjuster’s job a little easier, and to make it more difficult for an adjuster to deny a legitimate claim. The adjuster will likely show up within a few days or weeks after you make the claim, but sometimes it will take a lot longer, especially after a huge, damaging storm.

When the adjuster gets to the site of the storm damage, they will examine the property, assess the extent of the damage and the total value of the building, as well as calculate the cost of needed repairs and file a report with the insurance company. One thing everyone should remember, however, is that the adjuster works for and represents the insurance company’s interests, which will always be to minimize their payout.

The amount of time it takes your insurance company to offer to settle your claim can vary greatly, but if your loss was caused by a natural disaster like the Las Cruces storms, it is unfortunately common for claim payments to be delayed. However, when they do offer a settlement, if you question the relative fairness of either the settlement or the adjuster’s report, you always have the option of accepting an undisputed payment from the insurance company, and then subsequently pursuing the full and correct amounts.

New Mexico Hail Storm Damage Lawyers

Due to the sheer volume of claims insurance companies will likely be handling from the Las Cruces storm, many of them will likely tend to underpay or deny a legitimate claim and they will try to put off payment as long as possible, which can be extremely hazardous to your business and its bottom line. Whenever an insurance company delays payment or denies a legitimate claim, the person who filed that claim has every right to file a lawsuit against that carrier. Anytime you’re dealing with an insurance company on a property damage claim, you should always have an attorney, like the experienced insurance attorneys at Raizner Slania, because they know how to evaluate a case and get the insurance to honor their contract and pay you for your legitimate claim.

IVC Filter

IVC Filter Lawsuit Settlements

Lawsuits involving Bard and Cook IVC filters have been underway for a few years. Recently, a few of these cases were settled, one of which during trial.

In October 2014, several federal court IVC filter lawsuits were consolidated into multidistrict litigation. Since that time, now at least 56 lawsuits are on file in the Bard MDL (In Re: Bard IVC Filters Products Liability Litigation, MDL 2641) and at least 133 lawsuits have been filed against Cook Medical in MDL 2570 (In Re: Cook Medical, Inc., IVC Filters Marketing, Sales, Practices And Products Liability Litigation).

IVC Filter Claims That Have Been Settled

A Nevada IVC filter lawsuit where a patient implanted with a Bard Recovery Filter System had his organs perforated, requiring open heart surgery was recently resolved during trial.

IVC Filter
IVC Filter

While some courts have found in favor of the medical device manufacturers, several claims have been resolved positively for the injured plaintiffs. In Nevada, a Bard plaintiff filed suit after his implant migrated to his heart, requiring emergency open-heart surgery. Ten days into this year’s February trial, C.R. Bard settled with the plaintiff for a confidential amount.

Another confidential settlement was reached after 11 days of a Bard trial in January of this year. According to court documents in that case, the Recovery Filter fractured at a rate 28.3 times higher than all similar devices combined.

So far, no IVC filter lawsuits have gone to a verdict, but the first bellwether trials in the Cook Medical MDL have been requested for August 2016.

What’s So Bad About IVC Filters?

IVC filters are placed to prevent blood clots in certain patients. There is a growing body of clinical evidence regarding the association between inferior vena cava (IVC) filters and life-threatening health complications, even going so far as to question whether trauma patients really benefit from having these implants placed at all.

A June 2015 study in the Journal of Vascular Interventional Radiology found that Cook Celect IVC filters have a statistically significant risk of puncturing a major blood vessel and a 43% rate of perforation when compared to other types of filters.

The latest study on IVC filters was published in the October 2015 edition of the Annals of Surgery, where researchers analyzed 803 cases in which trauma patients were implanted with IVC filters. The research found that if these patients had their filters removed, they had an 83% increased risk of developing deep vein thrombosis (DVT), a type of blood clot. They also found that there was no increase in life expectancy with the implant versus without, indicating these devices may be largely prophylactic and without purpose.

Raizner Slania Handles Defective Medical Device Claims Nationally

Our experienced IVC filter lawyers are currently reviewing potential claims across the country. Plaintiffs may be entitled to compensation for medical expenses, lost income, lost future earning capacity, pain and suffering, and more.