In an opinion handed down last week, the Sixth Circuit Court of Appeals refused to adopt a new cause of action under Kentucky law for a reverse bad faith claim by an insurer against its insured where the Kentucky Supreme Court had not previously done so in State Auto Prop. & Cas. Ins. Co. v. Hargis, — F.3d –, 2015 WL 2081922, 2015 U.S. App. LEXIS 7475 (6th Cir., May 6, 2015). The Sixth Circuit further refused to certify the question to the Kentucky Supreme Court for review. Slip Op. at *4-5.
At issue in this case was a fire loss sustained to the insured’s, Lori Hargis, residential home. State Auto Property and Casualty Insurance Company (“Insurer”) insured the home. Ms. Hargis submitted a claim for the fire loss totaling over $866,000. The Insurer paid out over $425,000 on the claim before it filed a lawsuit seeking to void the policy for Ms. Hargis’ alleged conspiracy to cause the fire and inflation of the claim. Ms. Hargis filed a counterclaim against the Insurer for breach of contract and bad faith. Id. at *2. Through the course of litigation, Ms. Hargis admitted that she hired a friend to burn down her house to collect the insurance proceeds. Ms. Hargis and her friend were then indicted on conspiracy to commit wire fraud, where Ms. Hargis eventually pled guilty. Ms. Hargis received a 60 month prison term and was ordered to pay restitution to Insurer. After the indictment, the Insurer moved for partial summary judgment on Ms. Hargis’ bad faith claim, which was granted. The Insurer also filed an amended complaint asserting causes of action for insurance fraud and a common law tort claim for reverse bad faith. Id. at *3.
This recall involves wall chargers with USB cords that are used to charge the iPhone 5 and 5S. The chargers have a geometric print in mint green and peach colors. Style numbers CRGT-003 or CRGT-004 are printed on the UPC sticker on the back side of the package. “Charlotte Russe” and “USB Cord & Wall Charger for iPhone 5/5S” are printed on the packaging.
See the full details at CPSC
In the new issue of NFPA Journal®, President Jim Shannon said the Association will focus on the leading causes of home fires, including cooking. "We also need to continue to push hard for home fire sprinklers. That's still a large priority for NFPA, and we plan to work very aggressively in 2014 on our residential sprinkler initiative," he said.
NFPA 921, Guide for Fire and Explosion Investigations plays a fundamental role in fire and explosion investigations. A new edition of NFPA 921 is scheduled to be published in 2014. For years, this document has played a critical role in the training, education and job performance of fire and explosion investigators. It also serves as one of the primary references used by the National Fire Academy to support its fire/arson-related training and education programs. It is imperative that investigators understand the scope, purpose and application of this document, especially since it will be used to judge the quality and thoroughness of their investigations.
SAN DIEGO - A Team 10 and Scripps News investigation found arson fires are not investigated properly in many American cities -- including San Diego -- due to a chaotic patchwork of reporting systems and standards.
Many deliberately set building fires are not reported to the federal government.
Nationally, just 5 percent of all residential building fires are intentionally set, according to the National Fire Incident Reporting System, which is part of the Department of Homeland Security. Data collected by Scripps News suggests the national arson rate to be significantly higher.
The following article was submitted by Randy Martin, CCAI Chaplain.
As I arrived at the parking lot of the HP Pavillion in San Jose, I was greeted by a red sea of fire apparatus. The San Jose Fire Department had provided two ladder trucks that were set up in the parking lot; ladders fully extended facing each other with a very large American flag hanging between them. It was a spectacular site, and what an awesome tribute to Rob. The flag hanging is this manner has always impressed me.
After arriving, I located the Chaplain that would be performing the service. As it turned out, he was a Captain that had I worked with in Riverside, California. It was good to see him again.
The procession that entered the parking lot was laden with fire apparatus and was followed by the limousines that carried the family. The procession route was lined with fire personnel standing at attention and saluting as the fire engine, which carried the casket, made its way through the crowd.
The San Jose Fire Department had positioned two additional ladder trucks with their ladders fully extended, donning the American flag hanging between them inside the Pavillion.
The service opened with music and a warm welcome to everyone in attendance followed by prayer, guest speakers, the eulogy, and a message to the Fire Family, a Law Enforcement prayer and a song. The Benediction was followed by the Fire Fighters prayer, the Last Alarm and the Riffle Volley. Taps rang out from the bag pipes, which always gets to me. In closing, they had the Flag Folding after which the pipes and drums played Amazing Grace and ended with the presentation of gifts for the Family.
Rob was only on this earth for 47 years; he left us way too soon! He will be missed dearly.
by: Larry Arnold
Faced with growing losses, insurance companies are focusing on fraud management and implementing risk mitigation controls, while at the same time remaining cognizant of their duty of good faith to policyholders. So what happens when an insurer makes good faith payments on legitimate elements of an insurance claim but subsequently uncovers fraud in other elements of the claim? Is the insurer entitled to recover all monies paid as part of the claim? Or only the amount paid in reliance on the insured's misrepresentations?
Previously, there was no clear answer. It was safe to assume that an insurer could recover monies paid on a claim under the right circumstances – the difficulty occurred when trying to recover payments made prior to the established fraud date. For example, in California, the insurance code states, “If a representation is false in a material point, whether affirmative or promissory, the injured party is entitled to rescind the contract from the time the representation becomes false.”
Recent trial court rulings in favor of insurance companies, however, are changing the claims landscape. These rulings will impact the way insurance companies handle genuine claims that are subsequently tainted by fraud, encouraging them to be proactive in recouping good faith payments.
Steps for Recouping
What options do insurance companies have to recoup these payments? There are several avenues available.
Deny the Claim. When the SIU has completed a claims investigation and determined that an insured has breached the policy by materially misrepresenting facts, the claim can be denied – even the legitimate part. Appropriate cases should be referred to law enforcement for prosecution. In addition, the insured has a duty to present and prove the merits of the claim. Failure to cooperate with insurance company representatives can independently result in denial of the claim. This includes an examination under oath (EUO), which plays a key role in obtaining information. Typically, the named insured (or others, as dictated by the policy) is required to submit to an EUO as a precondition for claims settlement. Failure to do so can result in denial of the claim.
Void the Policy. An insurer may void or cancel its policy in the event of material misrepresentation or concealment of facts by the insured. This includes fraudulent claims.
Litigation. If a policy is voided for fraudulent claims, insurers must then decide whether to sue the insured to recoup payments - even legitimate ones. One advantage with litigation is that it allows for pretrial discovery process, including depositions and the ability to subpoena documents previously unavailable during the claims process.
A Case in Point
A recent case illustrates that insurance companies are entitled to recoup good faith payments when fraud is uncovered. Here is some background on the case.
An insurer issued a fire insurance policy to the owner of a dry cleaning business located in Southern California. A fire destroyed the business, so the owner submitted claims for replacement equipment, debris removal, damage to customer goods and loss of business income. Based on these claims, the insurance company paid the owner $527,000.
However, during the insurance company’s investigation of additional claims, a forensic accountant uncovered inconsistencies in a laundry services contract submitted as part of the owner’s claim for loss of business income. As a result, the owner was asked to sit for an EUO. The owner declined and withdrew his pending claim. The insurer then declined the claim, rescinded the policy and sued the business owner to recoup all loss payments.
At trial, evidence and witness testimony was presented that showed the owner had falsified the laundry contract and also inflated amounts paid for replacement equipment, debris removal, and payroll, among other items. Attorneys argued that the insurer was entitled to full recovery (payments made before the fraud occurred) for several novel reasons, including:
Though portions of the claim were legitimate, the judge ruled in favor of the insurer and its decision to rescind the fire insurance policy. The insured was ordered to repay $452,064, which represented all payments less monies paid to customers who lost clothing in the fire and the policy premium.
Implications for Insurers
This decision is important as it reinforces the rights of insurance companies not only to decline a claim when fraud is uncovered but also to rescind a policy and sue the insured to collect good faith payments. Previously, the law was not clear about what happens to monies paid as part of a legitimate claim, when fraud is discovered in a separate area. It is now clear that fraud in part of a claim translates to fraud in the entire claim.
Claims managers should have an open discussion with claims adjusters and SIU team members, with the goal of establishing a claims review protocol that outlines what to look for and what to do if fraud is suspected. This is critical, as claim adjusters are the first line of defense against fraud. Once fraud is uncovered, insurance companies should not hesitate to consult with an attorney and pursue the insured in order to recover monies already paid. In the end, both insurance companies and policyholders will benefit by reducing the high cost of fraud.
Larry M. Arnold, P.C., is a senior partner at Cummins & White, LLP. He can be reached at (949) 852-1800,
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