Articles Posted in Insurance

Pandemic-related closures have ravaged small businesses. Many thought they could rely on insurance to step in and cover losses, but that hasn’t been the case. Businesses have been denied lost income coverage almost uniformly. Small business owners have felt helpless.

A federal court in Missouri, however, has breathed life into the possibility of coverage for small business owners. (Read about the details of the case below.) Here’s what this means for you:

  1. If you are small business owner, contact your agent or broker;
  2. Request a copy of your full policy;
  3. If you haven’t made a claim with your insurance company, do not do so until you speak with a lawyer;
  4. If you have made a claim and been denied, collect all correspondence from the insurance company, along with your policy.
  5. Contact the attorneys at Breakstone, White & Gluck for a free case evaluation. Know your rights and options on how to proceed.

Act promptly so your rights will be preserved!

Business Interruption Claims Score Victory

In an important victory for business owners, a federal court in Missouri permitted the claims of five businesses (restaurants and hair salons) to go forward against their insurance company for business interruption losses due to the COVID-19 pandemic.

On August 12, 2020, the United States District Court in Studio 417, Inc. v. Cincinnati Ins. Co., No. 20-cv-03127-SRB, slip op. (W.D. Mo., Aug. 12, 2020) denied defendant’s motion to dismiss plaintiffs’ first amended class action complaint. The complaint sought to cover losses by small business owners from The Cincinnati Insurance Company for business interruption due to the COVID-19 pandemic. All five plaintiffs sought coverage under their “all-risk” property insurance policies.

The All-Risk Policies

All-risk policies cover all losses except for those specifically excluded. The court noted that all plaintiffs had business income coverage during the applicable time period, which contained the same relevant language.

The plaintiffs’ policies did not include any exclusions for losses caused by viruses or communicable diseases. The policies agreed to cover business income losses sustained “due to the necessary ‘suspension’ of [ ] ‘operations’ during the ‘period of restoration.’”

Further, the policies included coverage for “Civil Authority” decisions; meaning losses incurred “by action of civil authority” that prohibits access to the businesses or surrounding areas.

The policies also included coverage for losses sustained due to dependence on others to deliver materials or services. Each policy required all business to take reasonable steps to protect their business from further damage and to record the losses incurred. Again, the policies did not exclude or limit losses from viruses, pandemics, or communicable diseases.

The Business Owners’ Claims

The business owners articulated the cause of their losses in various ways: that it was likely that a person with COVID-19 visited their premises and infected the property with the virus; that the virus lives on property and is emitted into the air; that the virus rendered their property unsafe and unusable; and that they were forced to suspend or reduce their business.

Furthermore, the virus caused the civil authorities in Missouri and Kansas to order suspensions of business, including the plaintiffs’ businesses, which required the plaintiffs to cease or significantly reduce their operations. Together, the virus and closure orders denied use of the property and damaged the property. Under the various provisions of the business income coverage, the plaintiffs argued they were entitled to be made whole for their losses. Defendant denied their claims.

The Insurance Company’s Denial Explained

The defendant insurance company argued that plaintiffs did not suffer a “physical loss” as required by the policies. In other words, there was no “actual, tangible, permanent, physical alteration of property,” such as in a fire or storm. In this conception, COVID-19 did not damage the plaintiffs’ property. The virus hurts people, defendant argued. Absent physical damage, coverage was rightfully denied.

The Court’s Decision

The case was before the court on defendant’s motion to dismiss the plaintiffs’ claims. Plaintiffs argued the case should not be dismissed; because although defendant’s interpretation of the policy language may be reasonable, so is plaintiffs. Therefore, the court should not dispose of the case before it starts and let it proceed.

The court noted that plaintiffs agreed “physical loss” is a key phrase in the policies, but noted that the policies provided coverage for “physical loss or physical damage.” The court, examining the policy language, stated that “loss” or “damage” was the first requirement for coverage. But given that both phrases were included, “loss” must be distinct from “damage,” the court reasoned. Plaintiffs’ argument that defendant’s focused only on “damage” or physical alteration and ignored “loss” was persuasive. The court acknowledged plaintiffs’ argument that the policies could have defined “loss” and “damage” but did not. As such, the court looked to the plain language of loss and defined it by the dictionary definition as “the act of losing possession” and “deprivation.”

Ultimately, the court agreed with plaintiffs. It held that COVID-19 did present some direct physical loss given that COVID-19 particles attached to and damaged the respective properties. Where the properties became uninhabitable or unusable for their intended purpose, the owners suffered a loss. Because plaintiffs could also not receive materials and services from dependent businesses, plaintiffs suffered a loss. This was enough, according to the court, to survive a motion to dismiss.

Regarding the closure orders by civil authorities, the court held that it was sufficient for plaintiffs to allege that access was prohibited to such a degree as to trigger the civil authority coverage in the policies. Plaintiffs did not have to show that all access was denied. Or any access. Not at this stage. The direct physical loss, together with the  closure orders by civil authorities, caused damage to the properties. Thus, the court held, the case should not be dismissed at this juncture.

Of note, the court concluded its opinion with a nod to other cases also being litigated construing similar insurance provisions. It conceded that those decisions may be persuasive on the court’s future opinion of the case.

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Car accidentUnder the law, Massachusetts drivers must purchase auto insurance before they get behind the wheel. But this is not always cheap. A new study reports auto insurance has become too expensive for 19 million Americans, making it important to shop around so you can find the most coverage for your budget.

The report, “Study on the Affordability of Personal Automobile Insurance,” was released in January by the Federal Insurance Office of the United States Treasury. The Federal Insurance Office (FIO) was created by Congress with the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The office is charged with monitoring consumers’ access to affordable insurance products.

The report found basic liability automobile coverage is unaffordable in 845 zip codes where 19 million people live. Households in those areas had average auto insurance costs which exceeded more than 2 percent of average household income.

Driving on U.S. roads became more dangerous in 2016. Preliminary data from the National Safety Council shows more than 40,000 people died in motor vehicle crashes last year, a 6 percent increase from 2015.

  • This was the first year more than 40,000 people have died in traffic accidents since 2007.
  • According to The New York Times, 2015 and 2016 saw a 14 percent increase in traffic deaths, the largest two-year increase in more than half a century.

Man flying a droneMore than a million drones were sold this holiday season. If one happened to land in your pile of presents, remember that taking to your neighborhood skies comes with responsibilities. We offer a few reminders about insurance and protecting yourself from financial liability if there is injury or property damage. As a drone operator, you want to make sure that you will be able to pay for damages or personal injury that was caused by your negligence.

Homeowners and Renters Insurance. Start by reviewing your homeowners and renters insurance policies. Then speak to your insurance agent to learn if drone-related accidents are covered.

According to the Insurance Information Institute, drones are most likely covered under these policies. The liability portion of your homeowners insurance may cover you in lawsuits for bodily injury or property damage. Your policy may also provide no-fault medical coverage if someone is accidentally injured by your drone. But there are limits; medical bills for you and family members may not be covered by no-fault medical coverage.

Another reason to have insurance for your drone: If your drone causes bodily injury or property damage, and a claim is brought against you, proper insurance will not only cover the damages; the insurance company will also provide a lawyer to defend the claim against you.

Check with your insurance agent. The insurance industry is actively discussing this topic. Already, some insurers may exclude drone-related accidents from homeowners insurance policies. Others may choose to do so in the future.

Car Insurance. Your auto insurance policy may cover property damage resulting from crash landings or related accidents. Ask your auto insurance agent.

Commercial Users. If you operate a drone for business (even for a part-time business), you should ask your agent if you are covered. This would not typically be covered under your homeowners insurance policy.

Safety Reminders. Never use your drone recklessly and always follow current safety regulations. Drone owners are required to register drones with the FAA and fly at or below 400 feet. Failure to do so could result in a fine. To learn more, watch this safety video from the FAA.

Theft. Consider theft insurance if it make sense. Some drones are small and can be easily stolen. But remember many homeowners have to pay a deductible if they file a claim. If you own an inexpensive drone it will likely be less than your deductible. Maybe it was time to upgrade to the fancier drone anyway.

Memberships. If you do not have adequate coverage, consider your options. You may be able to buy more insurance coverage from your carrier or research other insurance carriers. You may also qualify for coverage if you belong to a membership organization or club. The New York Times reported the Academy of Model Aeronautics offers group liability coverage as part of its $75 per year membership. This may pay for damages after your homeowners insurance policy is exhausted.

Time to Get Started
If you are a drone owner, we hope you take the time to check with your insurance agent so you understand your potential liability. Drone crashes can happen on your property or a neighbor’s property and you want to be prepared.

Here are two resources:

“Getting a Drone as a Gift? Check Your Insurance,” New York Times.

“Going Drone for the Holidays? Make Insurance Part of Your Pre-Flight Check,” Insurance Information Institute.

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reza-breakstone-web.jpgBy Reza Breakstone

In a major victory for the rights of injured workers, the Supreme Judicial Court ruled today that pain and suffering damages, to which injured workers are entitled in their accident cases, are not subject to liens from workers’ compensation insurance companies. As a result of the ruling, workers will be able to keep more of their personal injury settlements and verdicts.

Until today, there was confusion over the relationship between workers’ compensation liens and damages paid by a third party to employees for worksite injuries. If an employee gets injured, he or she is entitled to workers’ compensation for lost wages, medical bills, and other specific damages. But workers’ compensation insurance does not pay for pain and suffering damages.

Car windshieldThe Supreme Judicial Court recently issued a ruling favorable to Massachusetts drivers on the subject of medical payments coverage in the standard Massachusetts automobile insurance policy.

Medical payment coverage, often called MedPay, is one of eight optional coverages which drivers can purchase on their auto insurance policy. All Massachusetts drivers are required to purchase compulsory coverage, which includes $8,000 in Personal Injury Protection (PIP) benefits. They can also purchase other optional coverage types, such as MedPay. This pays co-pays and deductibles not covered by PIP benefits and medical services not covered by your health insurance policy.

In Golchin vs. Liberty Mutual Insurance Company, SJC-11305, the plaintiff suffered serious personal injuries traveling as a passenger in her husband’s car. Her medical expenses exceeded $100,000.

The car was insured by Liberty Mutual and the policy had up to $25,000 in optional MedPay benefits. Golchin had a health insurance policy with Blue Cross Blue Shield, which paid her medical bills (expenses totaled $100,883, but Blue Cross actually paid $32,033). Blue Cross placed a lien in this amount on any award Golchin received from her car accident case.

Golchin submitted documentation of medical expenses to Liberty Mutual, seeking coverage under MedPay. The insurance company refused the payment, claiming it was not required since Blue Cross had already paid the bills. When she settled her personal injury case, Golchin had to pay Blue Cross $32,033 out of her award to satisfy the lien, even though she had MedPay coverage.

Golchin filed her lawsuit in Worcester Superior Court in September 2008, alleging a breach of contract, a breach of implied covenant of good faith and fair dealing, and a violation of G.L. c. 93A, § 2.

In its August 8, 2013 decision, the Supreme Judicial Court held that Liberty Mutual could not avoid the payment of the medical payments coverage, and that the standard Massachusetts auto insurance policy provided for payments to the insured even when the health insurance company had made the payment.

There was certainly no unjust enrichment of the plaintiff in this case; all she got is what she had already paid for, and the auto insurance payment will only replace some of what was paid to the health insurance company to satisfy its lien.

Did you know that health insurance companies can recover their payments from your bodily injury claim? Most clients are stunned when they realize that their health insurance company can demand repayment of the bills that they paid. So even if you have great health insurance, the company will claim a lien on any personal injury case you have, and has the right to get paid, even before you do, and even if the settlement amount is not enough to cover all of your damages. Some insurance companies will negotiate their liens; others are not so sympathetic. Medical payments coverage on an auto policy is a good way to insure against lien repayments, and the cost of the coverage is very low.

Do you have MedPay coverage?
Ask your auto insurance agent if you have MedPay coverage. To learn more, read: Understanding and Buying Massachusetts Car Accident Insurance.
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treedamage.jpgIn the aftermath of Hurricane Sandy, many people are assessing damage to their homes, cars and property. Insurance losses across the country are already estimated at $7 billion to $15 billion, while total losses will easily exceed $50 billion. If you are affected, it is important to act promptly. If you made it through the storm with property intact, now is a good time to plan for future hurricanes.

The lawyers at Breakstone, White & Gluck offer these tips:

Contact your insurance company. If you suffered damage, immediately contact your insurance company. Call your agent, or call the company directly. Let them know what damage you suffered, and ask them to send claims forms. If the damage is extensive, you may find it useful to hire a public adjuster to catalog and estimate your damages.

File the claim. Obtain as much supporting information as you can, such as receipts and photographs if you have one. If you did an inventory of your home, that will be useful proof.

Cooperate with the adjusters. A field adjuster will visit your property to assess the damage to your home or your vehicles. Provide any additional information they need.

Understand your insurance policy.Nobody likes reading insurance policies (well, we know a few lawyers who enjoy that, but nobody else), but the policy will spell out the steps you must take during the claims process. Follow those steps to protect your rights in the event of a dispute of the money you are owed. Failure to cooperate or to follow claims procedures may lead to a denial of your claim.

Tree damage may be covered. Standard homeowners insurance policies cover damage if a tree falls on your home or a garage, shed or fence on your property. If it hits a neighbor’s property, then their policy or yours may cover it. If it just lands in your yard, it is likely that you will have to bear the entire cost of its removal.

Beware of Short Statute of Limitations. Contract claims in Massachusetts generally have a six-year statute of limitations. But it is likely that your insurance policy has provisions governing disputes that are much shorter, often just months after the insurance company makes its tender of settlement. If there is a dispute, get legal help quickly!

Make Sure You Are Protected for the Next Big Storm

Inventory your property. Filing a claim is easier if you know what you own and have documented it, including writing a list and taking pictures or a video. Keep a back-up copy of everything in a safe place away from the house. For help, the Insurance Information Institute has online software you can find at www.knowyourstuff.org.

Understand your policy. Have your agent or broker explain key provisions, exclusions, and other options. For liability insurance, consider adding an umbrella. For property damage, consider earthquake insurance.

Know your insurance policy’s hurricane deductible. Massachusetts is one of 18 states which allows homeowners insurance companies to set a specific deductible for hurricane damage.

Consider flood insurance. Flood-related losses are only covered if you have flood insurance. Standard homeowners and renter policies cover damage from wind and wind-driven rain that enters a home. But damage from water on the ground or seeping into a basement is not covered. This will be the main reason many victims of Hurricane Sandy will not have insurance coverage.

In fact, only about 20 percent of homeowners who should have flood insurance actually have the coverage, according to the Insurance Information Institute. Meanwhile the average residential flood results in $30,000 in damage, according to the National Flood Insurance Program. Consumers can learn more at www.floodsmart.gov.

Car Insurance. If you have a comprehensive auto insurance policy, flood damage to your car should be covered. But motorists carrying only liability coverage will not be covered.

Please explore some of our other articles on insurance basics. The policies you have protect you from claims, cover your property losses, and in many cases pay you for damages caused by others who may be underinsured. Usually it is worth the extra cost to have that peace of mind.

Understanding and Buying Massachusetts Car Accident Insurance

What Every Massachusetts Bicyclist Needs to Know About Car Insurance
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bluecarcrash_200.jpgBuying car insurance in Massachusetts can seem complicated, with various types of coverages and state laws which have changed in recent years. The state requires all drivers to carry some level of insurance, but in 2008, drivers gained new buying options as Massachusetts moved away from a highly regulated industry to managed competition. At the same time, insurers have started changing their policies, so not all companies use the standard Massachusetts policy.

In the past, the state had set rates. But under “managed competition,” each insurance company can set its own price and compete for consumers’ business.

If you are a Massachusetts driver, you should shop around to obtain the best rates while still buying adequate insurance to protect yourself in a car accident. Here, the Boston car accident lawyers at Breakstone, White & Gluck offer some tips on what to consider before purchasing auto insurance for you and your family:

Compulsory Coverage
Massachusetts requires drivers to buy basic car insurance coverage, including:

  • Bodily Injury to Others: $20,000 per person, $40,000 per accident
  • Personal Injury Protection: $8,000 for medical bills and lost wages
  • Bodily Injury from an Uninsured Driver: $20,000 per person and $40,000 per accident
  • Damage to Another Person’s Property: $5,000

Optional Coverage
The compulsory coverage provides insufficient protection for car accidents. These other insurances offer additional protection.

  • Bodily Injury: You can buy up to $500,000 per person per accident. If you cause a serious motor vehicle accident, this protects you from claims against your personal property.
  • Underinsured Auto: You could be injured by another driver who does not have car insurance. You can protect yourself by purchasing up to $500,000 in coverage per person per car accident.
  • Medical Payments: This coverage pays for medical expenses that exceed your $8,000 PIP coverage. You can obtain an extra $10,000 in coverage for a small cost.
  • Collision Comprehensive. This coverage pays for damages to your vehicle in a car accident. This coverage is paid by the policy of the driver found to be at fault. Many people choose a high deductible to save money on their policy price, but this can cost you far more if you caused a car accident and have to pay a deductible for your own vehicle.

Click here for information on auto discounts and how to get additional insurance coverage through your homeowners’ insurance policy.

Related Blogs, Articles and Websites

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house_200.jpgA new study shows the property/casualty insurance industry creates periodic crises in which insurance becomes unaffordable or unavailable. It alleges the industry is currently trying to create such a crisis now to drive up profits.

The study was undertaken by the Americans for Insurance Reform (AIR), a coalition of nearly 100 consumer and public interest groups which represent more than 50 million people. Casualty and property insurance is important because it provides coverage for accidents for individuals, businesses and governments. Rate hikes could stifle their ability to operate and prevent accident victims from obtaining fair compensation.

The Study
The study is called “Repeat Offenders: How the Insurance Industry Manufactures Crises and Harms Americans.” It presents data showing the typical insurance rate cycle for and the dramatic rise in insurers’ current surplus – the amount insurers set aside to pay estimated future claims. In 2010, the insurers had an all-time high $580 billion surplus on hand, more than double the amount in 1996.

The United States has been in a “soft market,” since 2006, during which insurance rates have been stable and dropped in states where no tort reform has been enacted.

But the AIR report states in early 2011, the insurance industry began pushing the country into a “hard market,” when rates skyrocket and become unaffordable. It says the insurance industry is attempting to use Hurricane Irene as another push into a hard market. The next step, AIR says, is the insurers will deny the cycle’s existence and hire lobbyists who call for tort reform legislation.

Call for Action
AIR is releasing its report to all 50 state insurance commissioners, the new Federal Insurance Office and key members of Congress. It calls for the following steps to protect property owners, car owners and business owners who carry insurance as well as accident victims:

Data Disclosure. AIR calls on the industry to provide meaningful insurance data to state insurance departments. They ask that officials be allowed to substantiate or refute allegations about the industry’s health for accident coverage and recent legal action.

State Repeal of Anti-Competitive Laws. AIR said states should enact stronger regulation and oversight of the industry, while also repealing anti-competitive laws.

Repeal Federal Anti-Trust Exemption. The AIR calls on Congress to repeal the federal anti-trust exemption under the McCarran-Ferguson Act and have the new Federal Insurance Office review the impact of the McCarran-Ferguson Act on consumers.
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carphoto_web.jpgEach September, thousands of college students in Boston, Cambridge and across Massachusetts settle into campus life. And many students enjoy the extra freedom of bringing a car from home to school.

But students often make one costly mistake in the transition to college life. Students who have Massachusetts car insurance policies are required to inform their insurance companies about where the car is primarily kept. Otherwise, if there is a car accident, the insurance company might disclaim coverage, leaving the accident underinsured or uninsured completely. Students who fail to report their change of address and get into a car accident can be denied the Optional Insurance coverages on their policy.

Even if a student relocates a short distance, such as from Dedham to a dorm in Boston, he or she must inform the car insurance company where the vehicle will now be kept. The reason? Car insurance companies rate the coverage — and therefore the cost — on where the car is principally kept. If the car moves from a low-rated area (with fewer accidents) to a higher-rated area, the cost goes up. And if you are not paying the premium for the place where the car is principally kept, the insurance company has the legal right to disclaim coverage. And that can be harsh.

Optional Insurance Coverages Potentially At Risk Include:

Bodily Injury: This protects you from claims against your personal property if you cause a serious car accident.

Uninsured Auto: This coverage protects you and the people in your car if the person who causes the motor vehicle accident has no insurance.

Medical Payments: The first $8,000 in medical bills and lost wages are covered under the Personal Injury Protection (PIP), part of the Compulsory Coverage all Massachusetts drivers must purchase. Medical Payments provides policy holders extra protection for medical and health insurance.

Collision Comprehensive: If you are involved in a car accident, this coverage insures the damage to your vehicle.

Insurance issues can be very complicated, and you should not hesitate to call your agent if you have any questions.

Click here to read our article, “Understanding and Buying Massachusetts Car Accident Insurance.”

Another resource is, “Frequently Asked Questions on Auto Insurance,” by the Massachusetts Consumer Affairs and Business Regulation office.

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