Renewed or Was it New? Dispute over UM Coverage in Auto Policy

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:

1. Do your best to document your property damage claim as best you can. Take as many pictures of the damage as possible, whether of your house, commercial building, personal contents or inventory. These photos will be your proof of damage for whatever damage claim you are able to make, whether through your insurance company or otherwise.
2. Similarly, try and compile whatever pictures you can of your house or business, and its contents, from before the flood. To the extent, there is a dispute of whether a specific item was damaged or not, or even existed in the home or building before the flood, these pictures will be invaluable.
3. As soon as possible, attempt to itemize all of the contents in your home. A handwritten list is fine. Go through each room and attempt to list out every one of your possessions. Try and identify the make or model of each item, what you paid for it, and how old it is. Some insurance companies will require this specific information before you will be paid for each item. Of course, it is unlikely that you will have purchase documents for each item in your possession. Although this type of documentation is not required to prove your claim, it is obviously helpful for the insurance company to process it.
4. Keep records of what you spend to live elsewhere, including food and toiletries. If you rent a hotel room or are required to rent a house, make sure to keep records of what you pay.
5. Likewise, keep good records of any expenses you incur to repair your home or business. An organized and well-documented insurance or property damage claim is always better received and more quickly processed than one that is not.
6. With respect to insurance claims, and to the extent the policy provides coverage for your specific loss, an insurance company has an obligation, by law, to pay all undisputed amounts to you within a certain period of time. In other words, your insurance company has to at least pay you for everything that is undisputed. If there is a legitimate dispute over something, the insurance company can withhold payment for those items but must pay you for the items for which there is no disagreement. If the insurance company does withhold payment without a legitimate reason or fails to pay you within a certain amount of time, it may be responsible for certain statutory penalties and costs. You will need to discuss this with an attorney if you feel your insurance company is not treating you fairly.
7. To this point, because the insurance company must pay all undisputed amounts if there remain any disputed items, do not sign anything until the claim is fully resolved. You are not required to sign anything to receive any undisputed money under your policy.
8. If you have flood insurance, depending on the policy language, you may be eligible to receive immediate, emergency payments. Ask your insurance company what your policy provides, but do not assume what you are told is correct. Ask for a copy of your policy and read it for yourself.
9. To date, President Obama has made available federal disaster aid to residents of the parishes of East Baton Rouge, Livingston, Tangipahoa, and St. Helena. If you do not have flood insurance, you should immediately register with FEMA. You can also call FEMA at 800-621-3362. More information about the available federal assistance, including those for some businesses, can be found here.
10. The Louisiana State Bar Association and the Baton Rouge Bar Association will be providing free legal services to assist anyone with any legal issues arising from this disaster. For now, you can call the LSBA at 504-566-1600 or 800-421-5722 or the BRBA at 225-344-4803. More information will be disseminated as efforts are further coordinated.

Hopefully, this information will provide you with a little bit of information about the property damage claim process.

The Louisiana Supreme Court recently held that failure to pay filing fees necessary to add a defendant does not invalidate the proceeding as to other defendants. Prior to the ruling, Louisiana courts held that a failure to pay for one defendant invalidated the entire proceeding.

In Kirt v. Metzinger 2019-C-1162 (La. 04/03/20), plaintiffs requested a medical review panel after the death of their mother due to complications after surgery. Plaintiffs named three defendants—two doctors and the hospital. A letter from the Patient’s Compensation Fund Oversight Board (PCF) was mailed to the plaintiffs, confirming that the defendants were qualified under the Louisiana Medical Malpractice Act, and informing the plaintiffs that they were required by La. R.S. 40:1231.8 to pay a filing fee of $100 per named defendant within forty-five days of the mailing of the letter. Plaintiffs responded, requesting to add two additional defendants to the panel, one of whom was an unidentifiable nurse. Plaintiffs also included payment of $500.

The PCF responded that it was unable to add the nurse without proper identification. Three weeks later, plaintiffs notified the PCF they were also unable to identify the nurse. Upon request, Parish Anesthesia was added to the panel instead. Nearly five months later, plaintiffs provided the PCF with the identity of the nurse in question and requested she be added. The PCF sent confirmed the addition and requested another $100 filing fee which was never paid. Nevertheless, the medical review panel thereafter determined that none of the defendants, including the nurse, breached their standard of care. Suit followed against all defendants.

The defendants moved for summary judgment, arguing that the failure to pay the additional filing fee invalidated the proceeding as to all defendants. The trial court granted this motion, and the appellate court affirmed. Reversing the lower courts, the Supreme Court found that the failure to pay the additional $100 filing fee did not invalidate the entire proceeding. The court observed that separate confirmation letters sent by the PCF provided a different forty-five day period during which to pay the filing fee tied to each individual defendant.

The Kirt court stated: “[t]he notion of ‘one filing fee’ for every panel proceeding cannot be reconciled with the different payment deadlines that arise when the PCF sends separate letters confirming defendants’ qualified status. A single filing fee cannot be subject to different payment deadlines.” The court dismissed only the nurse and remanded the remainder of case to the lower courts.

Chad A. Sullivan is a partner with Keogh, Cox & Wilson, Ltd. Prior to becoming an attorney, he worked as a licensed Registered Nurse. He utilizes his background in nursing on a daily basis in his law practice that primarily focuses on automobile liability, medical malpractice, nursing home litigation, healthcare professional licensure and discipline, and products liability.

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.