In Dunlap v. Empire Trading Group, LLC, the buyers of a home sued the seller and the seller’s real estate agent for fraud after the home flooded three times in the first year after they bought the home. The seller was a home-flipper who disclosed two prior flooding incidents, both of which occurred during the ten months the seller owned the home.
However, the plaintiffs later discovered the home had a substantial flooding history when they requested a flood insurance quote from the National Flood Insurance Program. The quote included a report that identified eighteen incidents of flooding and flood insurance claims at the property over the ten years before the plaintiffs purchased their home.
The plaintiffs argued the seller’s agent committed fraud because she concealed her knowledge of previous flood claims. The seller’s agent moved for summary judgment, arguing that the plaintiffs could not prove that she knew about any of the prior undisclosed flooding incidents. The plaintiffs had no direct evidence to dispute the agent’s defense.
Instead, they argued that circumstantial evidence was sufficient to defeat the motion. They claimed that because the seller had a flood policy on the home, it also would have received the same flood claim history the plaintiffs received in connection with the same federal program. However, the plaintiffs had no evidence to show the seller, or anyone affiliated with the agent’s firm, actually received the flood claim history as they alleged.
Based upon these facts, the court agreed that without evidence that the seller’s agent actually received the flood claim history or otherwise had knowledge of it, the plaintiffs could not carry their burden of proving misrepresentation by the agent.
Case Reference: Dunlap v. Empire Trading Group, LLC, 2021-0180 (La. App. 1 Cir. 10/18/21), 331 So. 3d 932.
In the wake of Hurricane Ida, the Louisiana Department of Insurance (LDI) implemented a mediation program to assist policy holders with disputed insurance claims. Effective October 18, 2021, the program was implemented to assist in the prompt and reasonable settlement of disputed insurance claims.
The program is open to all authorized property and casualty insurers, as well as all surplus line insurers for personal lines residential insurance claims up to $50,000.00. Both the insurer or policyholder can submit a written request for mediation; the opposing party is free to accept or deny the invitation. If initially denied, the parties are free to later opt to participate.
If both parties agree to mediation, a mediator will be assigned and within 30 days a mediation will be scheduled at a local Mediation & Arbitration Professional Systems (MAPS) or Perry Dampf Dispute Solutions location in the Baton Rouge or New Orleans area. The initial mediation session allows for 90-minutes; however, parties are allowed to continue the mediation beyond the initial session at the agreement of the mediator.
The mediation program is free to all policyholders and a $600 fee is assessed to the insurer for the first 90-minute mediation session. If the parties and mediator agree to continue the mediation beyond the initial 90-minute session, additional fees will be assessed for the mediator’s services. The parties are to determine among themselves who will be responsible for the additional costs.
The parties are required to provide all relevant documentation to the assigned mediator and a detailed explanation of the claim and any obstacles to resolution. The policyholder can represent themselves or through counsel. They are even encouraged to bring knowledgeable individuals such as adjusters, appraisers, or contractors.
If a resolution is reached, even just partial, both parties will reduce the agreement to writing and sign the agreement. The insurer will be required to furnish any required payment to the policyholder within ten (10) days of signing the agreement. If the parties only reach a partial agreement, they will be permitted to continue to use the mediation services and schedule future mediation dates.
At this time, the program is scheduled to continue through June 30, 2022.
In response to Hurricane Ida, the Louisiana Supreme Court issued three Orders which affect litigation in Louisiana:
Proceeding before the Supreme Court
The Supreme Court Clerk of Court’s office will be closed until September 19, 2021. All filings due during this period of closure shall be deemed timely filed if filed on or before Monday, September 20, 2021.
Cases scheduled to be heard on the September docket (September 7-9) are postponed to the October docket, the week of October 18, 2021.
Civil Cases Statewide
All prescriptive and peremptive periods are hereby suspended statewide for a period of thirty days commencing from August 26, 2021.
All periods of abandonment are hereby suspended statewide for thirty days commencing from August 26, 2021.
The Court also extended time periods in criminal matters but limited the order to parishes most impacted by the storm.
Individual District Courts and Courts of Appeal may take additional actions because of the damage and loss of power experienced in multiple areas of the state.
Unfortunately, Louisianians have endured many natural disasters in the past several years. From the historic flooding in Baton Rouge in August 2016 to the devastation caused by Hurricanes Laura and Delta in 2020, Gulf Coast residents are very familiar with significant storms and flooding events. While the rebuilding process will take months or years to complete, this article is designed to provide some basic information on how to document and report your property damage claim and apply for and obtain disaster assistance.
DOCUMENT, DOCUMENT, DOCUMENT – Once you are able to do so, make sure to document the damages to your home and contents. Whether for a homeowners or flood insurance policy or to obtain government assistance, take plenty of photos of the damage. Make a list of the items in your home that were damaged or destroyed. One way to organize this list is to list each item from each room together, approximate its age, where it was purchased and its value when purchased. As you rebuild, and materials and items are thrown out, it will be much more difficult to document your claim.
REPORT YOUR CLAIM – Report your damage to your homeowners or flood insurer as soon as possible. Provide as much detail about the damage as you can. If you are unaware of your insurer, contact your insurance agent who can help you to report your claim.
OBTAIN MULTIPLE ESTIMATES – Although it is often difficult to do so after a natural disaster because of the volume of work, obtain multiple estimates for the work needed on your home. Pay for the estimate if necessary. If you have three estimates and the amounts are close, they are much more credible. Also, try and get as much detail as possible in each estimate, including specific materials to be used, dimensions, and finishes.
SAVE YOUR RECEIPTS – Whether for repairs you undertake to fix the damage to your home, to replace contents, or for living expenses after the storm, save your receipts. These receipts will be used to document your losses and verify the amount of your claim to your insurer.
FOLLOW UP WITH YOUR INSURER – Provide whatever is requested by your insurer as they adjust your claim. Communicate with your insurer on a regular basis. Although it may seem tedious, communication with your insurer during the claim is important.
APPLY FOR ASSISTANCE – Especially if your property is not insured, make sure to immediately apply for government assistance. You can apply for federal assistance at www.disasterassistance.gov. Oftentimes, the state government will also administer federal or state disaster assistance funds.
Unfortunately, recent flooding and storm events have again affected our area in Louisiana. Many people experienced flooding and storm damage to their homes and businesses. If you experienced flood or storm damage, please consider following these steps to ensure your damage claim is properly documented and submitted:
DOCUMENT, DOCUMENT, DOCUMENT – Once you are able, make sure to document the damages to your home and contents. Whether for a homeowners or flood insurance policy or to obtain government assistance, take plenty of photos and video of the damage. Make a list of the items that were damaged or destroyed. One way to organize this list is to group items from each room together, approximate its age, where it was purchased, and its value when purchased. It will be more difficult to document your claim once the cleanup or rebuilding begins.
OBTAIN MULTIPLE ESTIMATES -To the extent you are able, obtain multiple estimates for the work needed on your home. Pay for the estimate if necessary. If you have three estimates and the amounts are close, they are much more credible. Also, try and get as much detail as possible in each estimate, including specific materials to be used, dimensions, and finishes.
NOTIFY YOUR INSURER – Whether a homeowners or flood policy claim, or other insurance claim related to your business, promptly notify your insurer of your damage. Your insurer will send someone to inspect the damage and start your claim. Provide as much information as possible to make their job as easy as possible. That will likely quicken the pace of your claim.
FLOOD CLAIMS – If you have flood insurance, it is likely provided by the federal government through the National Flood Insurance Program (NFIP). There are specific rules for submitting your claim through the NFIP. YOU MUST SUBMIT FEMA FORM 086-0-11 (NOTICE OF LOSS) WITHIN 120 DAYS OF YOUR DAMAGE. You can find this form here.
In Louisiana, we are all too familiar with natural disasters. Every “hurricane season,” we hope the storm causes only minor inconvenience; but history teaches us to prepare for more. When these storms come, home and business owners inevitably make post-disaster insurance claims to repair the damage. While the specific amount owed for property damage is determined by the terms of the policy, the amount received may be affected by when (and if) the damage is repaired.
An insurer will work with you to identify the “actual cash value” or “ACV” of the damaged property when handling your claim. “ACV” is defined as the cost to repair/replace the damage, less depreciation. Jouve v. State Farm Fire and Cas. Co., 2010-1522 (La.App. 4 Cir. 8/17/11), 74 So.3d 220. Many policies provide that an insurer is not obligated to provide you with more than the “ACV” of the damage, unless and until you actually make repairs. Later, you can recover the depreciation amount once you submit proof that the repairs are complete. Courts have enforced such provisions in many cases, regardless of the type of loss.
So, what happens if you never make the repairs? Simply, the insurance company may never owe the depreciation. In Hackman v. EMC Ins. Co., 07-552 (La.App. 5 Cir. 3/25/08), 984 So.2d 139, the plaintiff’s property was damaged by a fire. The insurer paid the ACV of the loss but withheld depreciation pending repairs. The plaintiff never made the repairs and ultimately sold the property. The Court ruled the plaintiff was not entitled to recover the difference.
Similarly, in Jouve v. State Farm Fire & Cas. Co., supra, the plaintiffs’ home was damaged by wind during Hurricane Katrina. Their insurer paid the ACV of the loss. Thereafter, the plaintiffs sold the home “as is” and sought recovery for the depreciation. The court reviewed the policy and found the plaintiffs’ sale of the home without repairs limited their recovery to ACV.
As with any insurance claim, you should always read your policy before losses occur to ensure you understand its terms and conditions. Maybe add this as an unusual step to your hurricane checklist. As these cases show, your ultimate recovery can be affected by what you do, or do not do, following the loss.
Unfortunately, Louisianans (and their property insurers) have endured many natural disasters in the past several years. From the historic flooding in the greater Baton Rouge area in August 2016 to the devastation caused by Hurricane Harvey in August 2017, Gulf Coast residents are all too familiar with significant storms and flooding events. While the rebuilding process will take months or years, this article is designed to provide some basic information on how to document your property claim and apply for and obtain disaster assistance.
DOCUMENT, DOCUMENT, DOCUMENT – Once able, make sure to document the damages to your home and contents. Whether for a homeowners or flood insurance policy or to obtain government assistance, take plenty of photos and even video of the damage. Make a list of the items in your home that were damaged or destroyed. One way to organize this list is to group items from each room together; approximate the item’s age, where it was purchased, and its value when purchased. If you have receipts, try to salvage them. As you rebuild, and materials and items are thrown out, it will become more difficult to document your claim. Proper documentation will lessen the burden upon your insurer’s claims handlers and adjusters and may speed the processing of your claim. A lack of documentation may require the insurer to investigate longer and result in delay.
OBTAIN MULTIPLE ESTIMATES – Although the volume of work and distractions which follow a natural disaster make this difficult, try to obtain estimates for the work needed on your home. Pay for the estimate, if necessary. If you have three estimates and the amounts are close, they are more credible. Also, try and get as much detail as possible in each estimate, including specific materials to be used, dimensions, and finishes. Your insurer is looking to determine the true amount of the loss and thorough estimates help to define your claim.
APPLY FOR ASSISTANCE – Especially if your property is not insured, make sure to immediately apply for government assistance. You can apply for federal assistance at disasterassistance.gov. Oftentimes, the state government will also administer federal and state disaster assistance funds.
Recovering after a disaster may not be a quick or easy process, but spending more time and effort initially may ultimately save you time and allow you to present a claim your insurer will agree to pay.
“Disaster Declaration” Expanded. The list of parishes now declared disaster areas by the federal government has increased to include the following parishes: Acadia, Ascension, East Feliciana, Iberia, Lafayette, Pointe Coupee, St. Landry, and Vermilion.
Potential Tax Implications for Flood Victim. For those insured, it is critical that you document your losses with as much detail as possible; serial numbers, make/model/description—the more detail the better. Keep receipts and credit card statements. Time-dated photos are also important. Even those without flood insurance should do the same as it may assist in obtaining FEMA assistance. However, the same documentation of your losses could also help to reduce your tax exposure. The attached link provides key information and outlines the impact the flooding may have on tax-filing and other deadlines.
Thousands of people are currently dealing with the devastating flooding in Baton Rouge and surrounding areas. Here are a few pieces of information that may assist you as you begin to recover from this event: