Wrongful Death Lawyer in Atlanta, GA
BUSINESS INTERRUPTION AND PROPERTY INSURANCE CLAIMS LAWYER GA
The Krause Law Firm represents businesses in business disputes. Originally, attorney Roger Krause was trained to defend insurance companies, but now, the Krause Law Firm sues the insurance companies for failure to pay its insurance claims.
Operating a business takes guts. Business owners buy commercial insurance to protect them from harm that is out of their control. Most business insurance or commercial insurance policies cover three fundamental issues:
- Liability protection against claims from third parties for injuries
- Damage to business property, including fire and water protection
- Business interruption
Please continue reading for information about insurance claims and disputes.
The Marketing – Claims Adjudication Paradox: They Want to Sell Policies, Not Pay Claims
Insurance companies are in the business of making money. Insurance companies are wildly successful at making money, for they are some of the most profitable companies in the world.
To sell a product – insurance contracts or “policies,” insurance companies spend billions of dollars on promoting insurance as a method of protecting against all losses. Insurance companies are marketing masters because insurance is a difficult “product” to sell. Insurance is not a consumer good, such as a computer or orange juice. Nor is it a service, like teeth cleaning, window washing, or car repair.
Instead, insurance is an intangible product – a promise that the insurance company will pay if bad things occur. The insurance company fails to explain in its cute ads that the promise is very specific. The insurance company will pay only for specific types of losses – not all losses. Only specific persons can recover, and the claim must be made in a particular fashion. Finally, they will pay a limited amount – and not the actual loss.
This is why insurance companies employ huge marketing departments, advertise continually, and create fun and interesting commercials. They are selling very sophisticated and complex products, and packaging those products may reduce your average level of skepticism. For example, the insurance company does not sell contracts; they sell “policies.”
This is a great deception. The companies advertise broad coverage – akin to a warm security blanket – yet in truth – the blanket has many holes. You only learn of these holes at the time that you make a claim, during the so-called “claims adjudication process.” (Read: how to exclude your claim.)
As one Court of Appeals described the marketing-adjudication paradox: “It seems that insurers generally are attempting to convince the customer when selling the policy that everything is covered and convince the court when a claim is made that nothing is covered.” Universal Underwriters Insurance Co. v. Travelers Insurance Co., 451 S.W.2d 616, 622-623.
Three Strategies Insurance Companies Use to Avoid Paying Claims
Insurance companies rely on three general strategies to avoid paying claims entirely or to pay less than what is truly lost. This is the “claims adjudication” process, in which the insurance company uses its contract to exclude or eliminate coverage.
Insurance Companies Write the Contracts To Exclude Coverage
Insurance contracts are drafted to cover only specific events and exclude all others. For example, one purchases a property insurance policy, expecting to receive coverage for any losses to their property, regardless of whether the property is an individual home or a warehouse. After a severe rainstorm, you learn that the policy may or may not cover the property’s loss, the insurance company arguing that the damage was due to grown water. Coverage disputes arise when the insurance companies inappropriately interpret the terms of the policy to exclude coverage. When refuting the insurance company’s arguments, a claimant must show why those exceptions and exclusions should be read for the policyholder’s benefit, not for the insurance company’s use. (This is, technically, not the policyholder’s legal obligation; instead, it is for the insurer to deny coverage. Yet, the practicalities require that the policyholder is forced to carry this burden). As one Court of Appeals observed: “Ambiguity and incomprehensibility seem to be the favorite tools of the insurance trade in drafting policies. Most are a virtually impenetrable thicket of incomprehensible verbosity…. The miracle of it all is that the English language can be subjected to such abuse and still remain an instrument of communication.” Universal Underwriters Insurance Co. v. Travelers Insurance Co., 451 S.W.2d 616, 622-623, (1970).
Insurance Companies Pay Less than Your True Loss.
The second way that insurance companies limit their risk is to pay less than the actual loss. This is accomplished in many different approaches. One way the insurance company achieves this goal is by having specified limits within the contract. For example, if a business loses $3 million worth of inventory due to fire, but the limit is specified at $2 million, coverage will only be issued for the $2 million. Sometimes the insurance company applies a co-insurance penalty, stating that you should have had more insurance. Since you did not have sufficient insurance, they will penalize you by an additional 25%, and now, the $2 million loss is reduced to just $1.5 million—another way for an insurance company to pay for a loss than the actual loss. In a business setting, lost or stolen inventory is often replaced at cost. As such, no compensation is given for lost profit or even the associated carrying or financing costs. Even when the insurance allows for actual replacement cost, rarely does one truly recover all their expenses.
Recovery and Claims Must Comply with All the Contract Provision.
The third way insurance companies limit their risk is by requiring that the claim be made in a particular fashion. For example, the claim must be made in a timely manner. The general rule in Georgia is that written contracts have a four-year statute of limitation, meaning, if there is a breach of the terms of a written agreement, one must file suit within four years. However, these insurance contracts have a significantly shorter time period and require suit as soon as one to two years, from when the period the loss was known or should have been known. The insurance companies further engage in gamesmanship because the adjuster may be “adjudicating” the claim while the time period to file suit expires. Likewise, the person claiming the insurance must be the named beneficiary, regardless of whether or not they paid for the policy. If the beneficiary is not properly identified, folks may not be properly protected. Finally, under the terms of the insurance contract, you are obligated to assist the insurance company in its investigation. In other words, you must continually provide the insurance company with information and documents. The adjustors often request documentation that you do not have and will hold up the claims process waiting for an unavailable document to appear. The failure to continue to engage with the insurance company may be grounds for the insurance company to deny your claim.
Those are the most common strategies insurance companies use to avoid paying policyholders. However, insurance companies will formulate many other deceptive strategies and tactics if it means maximizing company profits.
Is there favorable law business, or does the law only support insurance companies?
There is some favorable law.
One of the most important is the Supreme Court of Georgia ruling that insurance contracts must be construed from a lay person’s perspective, not an insurance adjuster. York Ins. Co. v. Williams Seafood of Albany, Inc., 273 Ga. 710, 712 (2001). The Georgia Court of Appeals has stated that insurance contracts are to be read to favor rather than exclude coverage. “[W]here a provision in a policy is susceptible to two or more constructions, the courts will adopt that construction which is most favorable to the insured.” Ace American Ins. v. Truitt Bros, 288 Ga. App. 806, 808 (2007). Combined, these cases and other favorable case laws allow plaintiffs to win in an adequately prepared litigation battle.
At the same time, there have been some interpretations that ignore the general rules. In 2010, the Georgia Supreme Court addressed the question of what the term “accident” means in an automobile case. In State Farm v. Matty, a car hit two people, severely injuring each. The first person was hit, and two seconds later, the second person was hit. The driver had insurance of $100,000 of coverage per accident. The term accident was undefined in the policy. The question, therefore, was whether there were two accidents or one. In other words, could each injured person recover $100,000, or would the plaintiffs have to share the $100K? The Georgia Supreme Court determined that even though the term was undefined, the term accident had to mean both collisions, and thus payment was capped at $100K. However, note that the dissent, lead by Justice Benham, Chief Justice Hunstein, and Presiding Justice Carley, argued that since the term was arguably ambiguous, the term should have been construed against the Defendant insurance company. See our Blog on the Matty Case.
Can you sue for punitive damages or mental distress? What is Bad Faith?
As a general rule, claims for punitive damages or mental stress are generally prohibited. Of course, there is an exception to every rule, but we will address that very narrow exception later.
For almost all claims, a Georgia plaintiff suing their insurance company can only recover bad faith damages.
What are the bad faith damages? For most types of Georgia policies, the damages for bad faith are limited to the following: (i) the amount of the loss, (ii) additional damages of $5,000.00 or 50% of the liability, whichever is greater, and (iii) all reasonable attorney’s fees for the prosecution of the action against the insurer. O.C.G.A. §33-4-6 (a).
What is bad faith? The answer is unclear, for the term is not defined in statutory law and is only loosely defined in case law. However, bad faith can include:
- The unreasonable denial of a claim.
- A failure to promptly and thoroughly investigate a claim.
- Unreasonable delays in paying a claim.
- An improper or overly narrow interpretation of the policy underlying a claim.
Moreover, just as with all insurance, you must properly notify the insurance company of potential bad faith claims. Under most statutory schemes, this is limited to providing notice of the claim 60 days before filing the suit and providing such notice to the proper address by way of certified mail. Failure to do so could result in the loss of the bad faith claim.
Unfortunately, winning bad faith claims is difficult in this context, and Georgia law is stacked against businesses. This is because merely demonstrating the insurance company was wrong does not mean that there was bad faith. Progressive Amer. Ins. v. Horde, 577 S.E.2d 835 (2003). Many Georgia courts have held that there is no bad faith so long as the insurer has a reasonable and probable cause for refusing to pay a claim. The insurance companies thus “create” such issues, for example, by paying some money on a loss but not paying all the monies due because the total amount due is in dispute. This burden-shifting is different in Georgia than in many other states, such as Florida. If an insured wins on the underlying matter, they most often recover at least their attorney fees. See generally, State Farm Florida Insurance Company v. Seville Place Condominium Association, Inc., ____ So.3d ____ (Fla. 3rd DCA October 14, 2009). Given these limitations, Georgia’s bad faith damages are considered weak for plaintiffs and favorable for insurance companies.
How Can Roger Krause, Esq. Help?
Fundamentally, this is a contract dispute and the question of the intent and meaning of the exchange of promises. The start of all good analysis is a careful review of all the terms and contract language. Roger Krause, Esq., was initially trained by the insurance companies and knows how to analyze the insurance policies and apply the facts of the loss (fire, business interruption, etc.) as a covered loss. If the insurance company does not resolve the matter, attorney Roger Krause will take the case to trial.
KGW works with clients in various fee payment arrangements, including hourly, contingency, and blended fees. Call attorney Roger Krause to discuss your case.
Wrongful Death Lawyer Atlanta, GA
Given the challenges that might come with pursuing an accident claim, contacting a wrongful death lawyer in Atlanta, GA, is likely to be imperative. When negligence is a factor and a fatality is a result, victims’ families may have the ability to pursue a wrongful death case. Several types of accidents may result from wrongful death claims. With the assistance of The Krause Law Firm, our team can help determine the most appropriate course of action and whether it’s in your best interest to pursue an insurance settlement or a lawsuit. Speaking with an experienced attorney will be the best way to start to ensure that your case is managed within the appropriate timeframes.
Common Reasons for Wrongful Death
When someone passes away as the result of a tragic accident, family will be left to grieve and pick up the pieces left behind. It’s utterly devastating to lose a loved one. When a person is in a fatal accident, the losses are substantial. Examples of wrongful death cases include:
- Boating Accidents
- Swimming Pool Accidents
- Pedestrian Related Accidents
- Motorcycle Accidents
- Bicycle Accidents
- Car Accidents
- Medical Malpractice
- Workplace Accidents
- Product Liability Cases
When someone dies unexpectedly in such a tragic way, the last thing on your mind will be the process of taking legal action for damages. However, despite this, you may also want to hold the responsible party accountable. With our Atlanta, Georgia, wrongful death lawyer, the family can have peace of mind with a professional who can help weigh your options and determine whether you have a case against the responsible party.
Insurance Settlement or Lawsuit? How to Proceed
In the wake of tragedy, taking steps towards legal recourse can be a difficult decision to make. One critical decision will be whether to proceed by pursuing an insurance settlement or a lawsuit. These two forms of seeking damages have stark differences and it’s crucial to understand the two.
What to Know About Filing an Insurance Claim
Can resolve within a reasonable timeframe
Allows the opportunity for negotiations
The best opportunity at walking away with compensation
What to Know About Filing a Lawsuit
Put the plaintiff at risk for walking away without a settlement for losses
It can take much longer before a resolution is reached
It puts case outcomes in the hands of the legal system
Also, keep in mind that while choosing whether to pursue an insurance settlement or a lawsuit may appear to be a clear decision, it’s not. While in most cases, it will be necessary to first pursue an insurance claim before filing a lawsuit, sometimes, your lawyer may recommend that you initiate your case by filing a lawsuit.
Statute of Limitations
The statute of limitations is the length of time the victim (or their family) has to take legal action against the responsible party. In the state of Georgia, the statute of limitations for wrongful death cases is two years. Once the injury or discovery of injury occurs, the clock starts ticking. Once the two-year timeframe closes, the opportunity to take action is no longer an option. It’s important to not hesitate as failure to do so will close the door to seeking damages for the losses you and your family have experienced.
The Krause Law Firm has witnessed firsthand the impact that the loss of a loved one can have, especially when they have passed away tragically. Working with our wrongful death lawyer in Atlanta, GA, can play a crucial role in assisting with the process of moving forward and holding the responsible parties accountable.