David v. Goliath – The Difficult Task of Fighting Your Insurance Company

On July 10, 2012  By Seth Smiley

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I was recently speaking with a client about the posture of a pending case and the client was surprised to know that nearly all of the insurance companies that were originally brought into the suit had whittled their way out due to policy limitations, lack of coverage and policy exclusions. Most laymen, including contractors and homeowners, believe that if they purchase a policy or file suit against another party’s insurance policy that there will be a windfall payout all the way up to the policy limits. This is simply not the case. Insurance companies are constantly, from year to year, changing the language of policies and inserting exclusions so as to limit exposure if there is an occurrence.

A prime example of how far insurers will go to limit exposure is apparent in a recent Louisiana 5th Circuit of Appeal decision where the appeal court put aside technicalities to let common sense prevail. The case appeal opinion is in the Mason v. Bankers Insurance matter coming out of the 24th JDC for Jefferson Parish. Basically the homeowners, Mason and Bankers filed concurrent Motions for Summary Judgment and the trial court ruled in favor of Bankers Insurance, finding no coverage and dismissing the case. On appeal the ruling was vacated and remanded, basically deemed improper.

This happens all the time in law and is not the uncommon or disturbing part. The interesting part is how the facts and law are blended together in such a manner that the trial court was not able to find coverage under the policy. To sum up the facts, the Mason’s experienced plumbing issues whereby their toilet would back up, raw sewerage would enter the home and a subsequent bacterial contamination was the end result. Upon investigation, there was a breach in a sewerage line in the slab causing the damage. The Mason’s incurred over $14,00o in damages and then made a claim against their homeowners insurance, just as we would all do in this instance.

Bankers did as most insurers do, they denied the claim as not being covered, therefore the Mason’s were forced to file suit to recover their damages. Bankers argued and the trial court agreed that the underground (in the slab) plumbing system of the home was not a property that is covered under the policy. Bankers claims that the plumbing system is not attached to the dwelling! The main crux of this argument is that a structure needs to be habitable in order for it to be covered. Bankers wanted the court to rule that any attached structure (to the main structure) be habitable. Of course a plumbing system is not habitable, neither is an HVAC system or a roofing structure. This is just one of many clever ways insurance company lawyers attempt to avoid coverage.

Although, the Appeal Court ruled in favor of the homeowner here, it did leave the door open for Bankers to win at trial if it can prove certain exclusions that it is asserting. The reason why the trial court erred is because there are facts in dispute. All lawyers know that if there are facts in dispute, Summary Judgment is not proper. The Mason’s are not out of the woods yet and from the looks of it have a long fight ahead dealing with Bankers.

Cases and situations like this are not the exception, but rather the norm when claimants are battling their insurance companies. It is an unfortunate status quo that has been created. Most insureds do not even make it to court and simply let the insurance company win by either doing nothing or taking pennies on the dollar to resolve the claim. Know these facts as true when deciding to sue or make a claim against your insurance company: 1) insurers will do all that they can do exclude or preclude coverage, 2) insurers have the resources to fight it out to the bitter end, and 3) the only way to make insurance companies pay what they are supposed to, is to get represented and fight back!