Claims Management October 2013
Click here to go directly to the digital version of the October 2013 edition of the magazine featuring “Water, Water…Everywhere” by Kathy Chaney.
Kathy Chaney and Jerad West obtained a complete defense verdict for a commercial property insurer on claims of breach of contract and unreasonable denial of benefits. The Plaintiff alleged that its commercial and residential mixed use building suffered in excess of $800,000 in damages from road construction which occurred in front of the building. The building had a mix of foundations from the 1800s, 1960s, and 2010s resulting in a great deal of historical as well as more recent damage.
The Court granted a directed verdict on December 7, 2012 on the unreasonable denial claim at the close of the Plaintiff’s case. The jury found the Plaintiff failed to prove the damages claimed fell within the initial grant of coverage in the at-issue policies and therefore entered a verdict for the defendant insurer.
This lawsuit arose from a claim to American Family for wind damage to roofing that allegedly occurred at six apartment buildings owned by Plaintiff. American Family’s adjuster promptly inspected the roofs at the complex and found that the amount of wind damage to the roof fell below Plaintiff’s deductible. Subsequently, Plaintiff retained a public adjuster who demanded that American Family re-inspect the property as he believed that all 6 roofs needed to be replaced. When the insured and American Family could not reach an agreement regarding the appraisal for the roofs, Plaintiff sued for breach of contract, common law bad faith and statutory breach of contract.
The roofing expert retained during litigation by American Family determined that there was minimal damage to the subject roof. Plaintiff’s roofing expert inspected the property and alleged that all 6 of the roofs needed to be replaced due to unsealed shingles. In addition, Plaintiff’s expert claimed that the stucco on the exterior wall cladding and windows of the apartment building were damaged and needed to be replaced resulting in over three million in damages.
Lambdin & Chaney successfully argued that American Family’s conduct was reasonable and the U.S. District Court Judge Christine Arguello granted American Family’s Motion for Partial Summary Judgment dismissing Plaintiff’s extra-contractual claims.
At trial, Plaintiff’s witnesses admitted that the roofs had been inspected prior to the alleged storm, and the prior estimates stated that the roofs required maintenance and replacement. Plaintiff’s expert testified and opined that all 6 roofs needed to be replaced because the seal tabs became unsealed due to wind damage. Upon cross-examination of the Plaintiff’s expert regarding his “unsealed tab” theory, an email from the expert to the public adjuster was introduced which stated that the public adjuster’s report was “wholly inadequate.” The expert was also discredited with prior lawsuits and bankruptcies involving the expert, as well as cross-examination regarding the information relied upon in his report.
The Court held a 702 hearing and ultimately held that Plaintiffs could not testify to any non-roof related damage. American Family then presented the testimony of its adjuster and its roofing expert. Both testified that unsealed shingles could be re-sealed, and the repair estimate in this case fell below Plaintiff’s deductible.
The jury found that there was a storm event, there was damage to Plaintiff’s roofs, but the damage fell within the wear and tear, improper maintenance, or negligence exclusions under Plaintiff’s insurance policy.
Colorado statute 10-4-419 requires every person engaged in the sale, consultation or adjustment of a claims-made policy to be trained and certified. Kathy Chaney is certified by the Colorado Division of Insurance to provide the required training. Please contact her Legal Assistant Alexis Tormey to schedule a training session for your claims adjusters.
Attorneys L. Kathleen Chaney and Amber Ju obtained a favorable verdict in Home Design Services v. Trumble, following a jury trial in United States District Court, District of Colorado, May 16-19, 2011. The Plaintiff, Home Design Services (“HDS”) asserted claims based upon the alleged infringement of copyrighted architectural plans. Plaintiff pursued numerous similar lawsuits in many other jurisdictions across the country against other defendants alleging similar copyright infringement claims. In this case against Defendants Terry and Janelle Trumble, Plaintiff alleged that the Trumbles’ personal residence, located on the Western Slope of Colorado, infringed on an HDS copyrighted plan. Plaintiff sought damages for the price of the plan and all the equity or profits in the Trumble home totaling between $96,000 and $174,000. The jury found for Plaintiff on liability, but limited the award of damages to the cost of the plan,which was $935.
Attorney Jane Bendle Lucero obtained a defense verdict in Cruthers v. Joshua Hill, et al. following a jury trial in Douglas County District Court. The case was a wrongful death action arising out of a single car accident. The driver of the vehicle was drunk, high on marijuana and traveling at 110 M.P.H. in a 50 m.p.h. zone when he drove the vehicle into a ditch causing it to spin and roll. The vehicle was owned by Joshua Hill who lent it to the driver while Mr. Hill was on vacation. The two adult passengers were killed in the accident, resulting in a wrongful death action brought by the eight-year old son of one of the deceased passengers. The plaintiff asserted a claim of negligent entrustment against Mr. Hill. Mr. Hill admitted knowing the co-defendant was a frequent marijuana smoker who would occasionally mix driving with drinking and smoking marijuana. Mr. Hill denied, however, that he should have known that the co-defendant would have used his car in a manner that would endanger others. Both Mr. Hill and the defendant driver argued that the deceased passenger assumed the risk of injury/death by riding with an intoxicated driver. The jury found Mr. Hill negligent but found that his negligence was not a cause of the plaintiff’s claimed injuries. The jury awarded $350,000 to the plaintiff, with a finding of 85% negligence to the co-defendant driver and 15% negligence to the deceased passenger. The 15% negligence of the deceased passenger was chargeable to the plaintiff, which reduced the plaintiff’s award by that percentage.
In Lucero v. Griego, pending in Adams County District Court, Judge Edward Moss found that the relation back doctrine was inapplicable and that the Plaintiff’s claims against our client and co-owner of a vehicle involved in an accident were time-barred.
Attorneys L. Kathleen Chaney and Martha Ferris obtained a defense verdict in Bonnell v. Greenwood, following a jury trial in Adams County District Court. The parties were involved in a single car accident during a night of excessive drinking. The passenger-plaintiff was ejected from the car and suffered severe injuries. The car was owned by the passenger-plaintiff who started out driving that night and drove the car to multiple bars before the defendant took over driving. The jury found the plaintiff 65% at fault.
Attorneys L. Kathleen Chaney and Jerad West obtained a defense verdict in Carillo v. Kasak during a jury trial in Douglas County District Court, which involved a car-pedestrian accident. After a collision with a concrete median on I-25, the two women occupying the car got out and were standing in the middle of the highway. The lights on the disabled vehicle were broken. The defendant did not see the disabled car or the pedestrians on the highway until it was too late to avoid them. When the defendant swerved, his car struck one of the women killing her. The jury found that the defendant was not negligent and was not a cause of the accident.
Attorneys Suzanne Lambdin and Stephanie Montague obtained summary judgment in favor of Fire Insurance Exchange. The court determined as a matter of law that the damage caused by a methamphetamine lab was not covered under the vandalism peril in the insured’s renters policy. Additionally, the court determined that the Pollution Exclusion in the renters policy precluded coverage for the claimed damages caused by methamphetamine.
Accidents happen and sometimes those accidents result in lawsuits. When a person or business is sued and an insurance policy exists for the accident or claim, the insurance carrier will hire a lawyer to defend the insured. It should be a relief to most people to learn that a lawyer will defend the insured’s interests for the liability and damages claimed against the individual or business being sued. Colorado civil litigation attorneys Lambdin & Chaney LLP are among the most experienced and capable law firms serving clients in Colorado and Wyoming. Collectively, the firm’s attorneys have decades of experience handling tort liability claims resulting in civil litigation. The attorneys of Lambdin & Chaney also have dozens of reported appellate opinions to their name. The firm represents clients in state and federal courts in all areas of civil litigation, including class action defense, employer liability, intentional torts, personal injury, premises liability, professional malpractice, third party liability defense and wrongful death, to name a few.
Lambdin & Chaney’s lawyers can be reached in Denver, Colorado by calling 303-799-8889.
