Access Ins. Company Is In Receivership

    As reported in September, 2017, BFW filed a complaint with the Alabama Department of Insurance against Access Ins. Co., an automobile insurer based in Atlanta, GA.  The complaint filing stemmed from the mishandling of vehicle damage claims in Alabama.  While the investigation was inconclusive as to if this mishandling was related to a staffing and/or technology issues within the company, earlier this month insurance regulators placed this automobile insurance carrier into “receivership,” a process that results in the liquidation of the insurance company.  The situation kicked off with an order of impairment dated March 14, 2018 by the Texas Department of Insurance that said Access was an impaired insurer with liabilities greater than its assets. Under the March 13, 2018 liquidation order, all policies not previously expired will be terminated as of April 12, 2018. The Alabama Department of Insurance advised those in Alabama with Access policies to find a new insurance provider and said claims will be paid by the Alabama Guaranty Association.  For more information as to how to file a claim with the Alabama Guaranty Association, please contact us:

Boteler, Finley& Wolfe
www.bfw-lawyers.com

3290 Dauphin Street, Ste. 505
Mobile, AL 36606
251-433-7766

Uninsured Driver Leave Your “Worn” Car Damaged?

    As our cars get older, we are left with a decision - do we insure our cars for property damage.  Typically, the decision to remove this coverage gets easier as the car gets older - “the cost of insurance to protect the car outweighs its benefit.”  Inevitably, though, when you make the tough decision to relinquish this coverage, the unexpected happens - a car accident that was not your fault. Even worse, it is discovered the at-fault driver does not have any liability insurance.  Frustrated with this turn of events, you seek out the advice of a lawyer only to be told, it is cost prohibitive to hire a law firm to pursue damages in court for an old clunker.  What do you do?

    For a majority of states where liability insurance is mandatory, there is a little known administrative remedy that can be found through the state’s department issuing drivers licenses.  For example, in Alabama, the Law Enforcement Agency (ALEA) is responsible for administering such a process.  By filing a claim form (ALEA Form SR-31 in Alabama) against the uninsured, at-fault driver with the responsible state agency, you are submitting a claim for damages, without the need for filing a lawsuit.  Upon receipt of the claim, the state agency will administer the claim and notify the uninsured at-fault driver of the claim. If the claim is not contested by the at-fault driver, his/her  license will be suspended until you receive the damages submitted in the claim form.  If the claim is contested by the uninsured driver, a hearing will be conducted wherein you can bring your evidence of damages suffered to the officer charged with making the decision.  Again, if the hearing officer awards you damages, the uninsured driver’s license is suspended until you are compensated.

    This low cost administrative process is very effective for collecting property damage against an uninsured driver.  Of course, this administrative proceeding is not effective against those whose driver’s licenses were suspended before/after your accident.  Again, remember this is an effective remedy for those who carry “liability only” on their vehicles.  Those who carry full automobile insurance coverage need to speak with their insurance carrier and/or a lawyer before pursing a claim against an uninsured driver as it may limit their ability to recover against their own policy.

Boteler Finley & Wolfe
3290 Dauphin Street, Ste. 505
Mobile, AL 36606

251-433-7766
www.bfw-lawyers.com

AUTO INSURANCE TOTAL LOSS CLAIM TIPS FOR THE CONSUMER

TOTAL LOSS:

Under Alabama law when the cost of repair for a vehicle is 75% or more of its fair retail value the vehicle is deemed a total loss. [ Ala Code Sec. 32-8-87(d)].  In such a situation the insurance carrier buys the vehicle from the claimant for the fair retail value of the vehicle, not the replacement value, and then applies to the State’s department of motor vehicles for a Salvage Title.
    In a total loss situation some claimants find themselves owing more on the car than the fair retail value of the vehicle. This means they may still owe money on a car that they no longer have or can use.  Again, the insurance company for the at -fault driver is not responsible for money owed on a vehicle in excess  of  its  fair retail  value.  If  you  think  you  might  be  in  this  situation,  then immediately check  with  the bank or  finance  company  that  provided  the  car  loan  to  see  if  you purchased  GAP  Insurance  when  you  financed  the  vehicle.  GAP  Insurance  pays  the  difference between the fair retail value and the balance owed on the vehicle. The finance company can provide you with information and claim material for this type of claim.

CONSUMER TIP #1:

If you think the adjuster’s valuation of your vehicle is low, ask the adjuster to provide you with the valuation report. Most reputable insurance companies will allow their adjusters to provide a copy of this report to claimants [typically, referred to as a CCC Valuation Report].  Review the valuation report to make sure information about  your vehicle was correctly  entered.  Mistakes in details such as mileage, options, transmission type, and/or engine size can make a difference in the reported fair retail value of your vehicle

CONSUMER TIP #2:

GAP Insurance should be purchased if there is little or no equity in the vehicle; however, check with the dealer and/or finance company to make sure you can drop the GAP coverage once the equity and fair  retail value of the vehicle equals or exceeds the finance price. In other words once the “GAP” is gone there is no longer a need for GAP Insurance.

Additional Questions?

Boteler, Finley & Wolfe
www.bfw-lawyers.com

251-433-7766
550 Dauphin Street, Suite 505
Mobile, AL 36606

WHAT IS THE "GUEST STATUTE"  IN ALABAMA?

Alabama law makes a distinction between a “passenger” and a “guest.” This distinction becomes important if someone is injured or killed in an accident while riding in an automobile and the accident is the fault of the driver of the car occupied by the victim. Section 32-1-2 of the Alabama Code states: “The owner, operator or person responsible for the operation of a motor vehicle shall not be held liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injury or death is caused by the willful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.” Simply put, in Alabama a guest in a motor vehicle cannot recover against the owner and/or operator for damages suffered by the guest as a result of the operator’s negligence.

 Alabama law defines the term “guest” as one who is invited to enjoy the hospitality of a driver of an automobile only for his or her (the rider’s) benefit without making any payment or conferring any material or tangible benefit upon the driver. APJI 26.05. A passenger can recover from the owner and/or operator for the damages suffered as a result of the operator’s negligence. Alabama law defines a “passenger” as one who is carried in a vehicle for hire or reward or for the material benefit,present or anticipated, of either the driver or of both the driver and rider, which benefit arises out of the transportation provided. APJI 26.04. Alabama law recognizes two situations wherein a “guest” may become a “passenger” and thereby allowed to recover from the owner and/or operator for damages suffered as a result of the operator’s negligence:
 1. “A misrepresentation by the driver or another which induces one to become a rider in the automobile causes the rider to be a passenger and not a guest.” APJI 26.25.
2. Also, a guest’s protest against the operator’s driving can change the guest status to that of a passenger. APJI 26.26.

It is important to remember that the guest statute only prohibits a victim’s right of recovery from the owner and/ or operator for “negligence” of the operator. A victim can recover if the operator’s conduct was wanton and or willful or if the accident is caused by someone other than the owner. On this point, potential claims under Dram Shop or Product Liability theories should not be overlooked.

For More Information Contact:

Boteler, Finley& Wolfe
www.bfw-lawyers.com

3290 Dauphin Street, Ste. 505
Mobile, AL 36606
251-433-7766

BFW-Lawyers Files Complaint Against Access Ins. Co.

Last week, Boteler Finley & Wolfe (BFW-Lawyers) filed a complaint with the Alabama Department of Insurance against Access Ins. Co., an automobile insurer based in Atlanta, GA.  The complaint filing stemmed from the mishandling of vehicle damage claims in Alabama.  Over the course of the last several months, BFW found the vehicle damage claim practices of Access Ins. Co. to be untimely and burdensome on claimants. In most cases, a simple repair of a claimant's vehicle took over thirty (30) days to process.  While an investigation is on-going, it has been determined that Access Ins. Co. recommends all claimants email pictures of his/her property damage to its claims department.  From there, the photographs are to be forwarded to a company repair appraiser who makes a recommendation and, then, returns the file to an adjuster. Unfortunately, this recommended process takes at least thirty (30) days for processing.  At this point, it is not known whether the delays in processing is due to a staffing issue and/or deficiencies in the company's technology department.   Of course, if additional property damage is discovered that was not included in the emailed pictures, e.g. frame work damage, a claimant could expect additional delays from this company.  Since filing the complaint, BFW-Lawyers had attempted to reach out to Access Ins. Co. for an explanation regarding the delay in processing vehicle damage claims; to date, no telephone call has been returned. 

Why Doesn't the Insurance Adjuster Believe Me?

It’s the Adjuster’s Job Not to Believe You!

Mark Wolfe - Personal Injury Attorney

251 433-7766

Having represented insurance claimants for over 30 years, I have received hundreds of calls from people who are upset because, “the adjuster just does not seem like he believes me.” They are angry and frustrated with the adjuster and feel they are being singled-out when they are simply “telling the truth.”  Guess what? It’s the insurance adjuster’s job not to believe you! It’s not that they are necessarily being mean or picking on you, they are simply following the law and they are trained to be skeptical about most claims.

The law requires insurance claimants to prove their claim. It’s not the insurance adjuster’s job to help you prove your claim nor do they have to “disprove” your assertion, but rather you have to prove all elements of your claim.  Let’s take a look at a common claim related to a personal injury claim: lost wages. According the Center for Disease Control (CDC) it is common for someone to miss about two weeks of work for a simple cervical strain suffered in a car accident. You cannot expect to receive compensation for your lost wages by simply telling the adjuster, “I missed two weeks of work and I make $17.50 per hour.” The adjuster is going to require you to produce documentation supporting your wage rate such as a pay stub or a note from your employer. The adjuster will also require you to produce a doctor’s excuse or a medical notation in the records that the time off of work was in fact required because of the injuries you suffered in the accident. They are simply making you prove the validity of your claim. That’s their job!

“But Mr. Wolfe, I’m not like those people who fake a claim or exaggerate an injury to get money they don’t deserve,” is another common statement I hear. Yes that may be true, but adjusters deal with lots of opportunistic fraud claims every day. In my opinion, this has desensitized them to legitimate claims and makes them very skeptical about all claims. This means not only must legitimate claimants meet the legal burden of proof for their claim, they also must overcome the “burden of doubt.” Claims adjusters have been trained to look for certain “red flags” signaling a potential opportunistic fraud claim. The problem is some of the “red flags” are so broad or discretionary they can get attached to a legitimate claim. Claimants are often given a veracity or truthfulness rating. This rating can have a negative or positive impact on the benefit determination for the claim. Yet most claimants, and surprisingly many personal injury attorneys, have no idea how the claimants perceived truthfulness can impact the benefits the insurance company is willing to pay. There are things that can be done to help emphasize the truthfulness of a claimant or overcome a “red flag” that may be associated with a claim. But again, the adjuster’s job is to be skeptical about a claim.

Meeting the “burden of proof” and overcoming the “burden of doubt” can make the claim process seem unfair and frustrating. While not every insurance claim requires or needs a lawyer,  all claimants should know their rights and understand the claim process. Our office provides free consultations to personal injury claimants and other insurance claimants. We also have numerous publications available to help claimants. These can be downloaded at no charge from our web site: http://www.bfw-lawyers.com/publications/

About the Author: Mark Wolfe is a highly rated personal injury attorney with over 30 years of experience prosecuting insurance claims on behalf of individuals and businesses. He has been a guest lecturer for doctors and lawyers about personal injury claims. He has published numerous articles concerning insurance claims, personal injury litigation and law office management in National and Regional law journals. Contact Mark for more information or to schedule your free consultation: mark@bfw-lawyers.com or 251 433-7766.    

REQUIRED DISCLAIMERS: Alabama Rule of Professional Conduct 7.2: No representation is made that the quality of legal service to be performed is greater than the services provided by other lawyers. The Mississippi Supreme Court advises that a decision on legal services is important and should not be based solely on advertisements. Free background information is available upon request to a Mississippi attorney. The listing of any area of practice by a Mississippi attorney does not indicate any certification of expertise therein. See Mississippi Rules of Professional Conduct Rule 7.2(d), Rule 7.4(a), Rule 7.6(a) (1997). General Disclaimer: This information is posted for general information purposes to help those interested parties or persons with potential civil claims better understand their rights and potential causes of action. If readers are currently represented by an attorney on the subject matter of this post then they are encouraged to continue with said representation. No attorney-client relationship is established by this post.

Three Things We Know About PI Claims That You May Not Know

At Boteler, Finley & Wolfe we’ve been helping personal injury victims present and prosecute their insurance claims for 29 years. We’ve helped thousands of victims recover the full and complete compensation they are owed and most of these claims were settled without ever having to file a lawsuit! Why is that? Because we know and understand three very important factors for recovering full and complete compensation for personal injury claims. Those factors are: Reserves, Computers and Attitudes. Knowing and understanding these three factors allows us to insure our clients get the full and complete compensation they are entitled to!
RESERVES: In insurance jargon “reserves” is the amount of money an insurance adjuster estimates will be required to settle an injury claim. Because money held in reserve to pay claims is not invested in the stock market or bond market, adjusters are under a lot of pressure to keep reserves low so investment profits can be maximized by the insurance company. Yet if an adjuster has “under” reserved a claim, there’s a very good chance the claim will not settle for its true value. At Boteler, Finley & Wolfe, we understand how and when reserves are set and adjusted and we know what information is needed by the adjuster to adequately set the reserves for our clients’ claims.
COMPUTERS: Or more specifically computer assisted claim evaluation programs. Almost every major insurance company uses a computer program to “assist” with the claim evaluation process. Adjusters are required to input data known as “value drivers” into the program. These value drivers can push the “value” of the claim up (positive) or down (negative). Most insurance companies use similar programs and have similar value drivers and most have specific requirements as to when the adjuster can or should input a value driver. These input requirements can be technical and stringent.  This is especially true if the value driver adds value to the claim. Negative value drivers can be overridden or deleted if certain information is included with the claim material. Mark Wolfe at Boteler, Finley & Wolfe has been lecturing and teaching lawyers and medical providers about computer assisted claim evaluation programs for over 15 years! His expertise in this area allows us to make sure all positive value drivers are identified and included in the claim material for our clients and any negative value drivers are minimized or excluded.
ATTITUDES: Did you know insurance adjusters are trained to believe that almost all personal injury claimants are lying, faking or exaggerating their injuries simply to recover “undeserved” compensation? Adjusters go to classes and seminars on “opportunistic fraud” so they can learn how to identify these fraudulent claims. They are given factors to look for when handling a claim to rate the claimants “veracity.” This rating is then factored into the evaluation process. Obviously, if the adjuster thinks a claimant is not honest, the settlement offer will reflect that belief. The truth is many of these veracity factors are so open and vague, it allows adjusters to lump honest claimants in with the dishonest claimants. At Boteler, Finley & Wolfe we only want to represent honest claimants who are truly deserving of compensation for their injuries. To that end, our claim presentation protocol includes several things that accentuate the honesty and truthfulness of our clients and the legitimacy of their claim.
So there you have it! Three important factors that can be the difference between getting full and complete compensation for your injury claim and just taking what the insurance company offers. If you don’t have a lawyer who understands these factors and knows how to utilize and incorporate them into your claim, you may be shorting yourself of the full benefits you are owed. Call us today for a free consultation. 251 433-7766 or get more helpful information about personal injury claims from our web site: www.bfw-lawyers.com (Note: our new and improved web site is under construction. In the interim, please visit our old site.)

REQUIRED DISCLAIMERS: Alabama Rule of Professional Conduct 7.2: No representation is made that the quality of legal service to be performed is greater than the services provided by other lawyers. The Mississippi Supreme Court advises that a decision on legal services is important and should not be based solely on advertisements. Free background information is available upon request to a Mississippi attorney. The listing of any area of practice by a Mississippi attorney does not indicate any certification of expertise therein. See Mississippi Rules of Professional Conduct Rule 7.2(d), Rule 7.4(a), Rule 7.6(a) (1997). General Disclaimer: This information is posted for general information purposes to help those interested parties or persons with potential civil claims better understand their rights and potential causes of action. If readers are currently represented by an attorney on the subject matter of this post then they are encouraged to continue with said representation. No attorney-client relationship is established by this post.

Karlos Finley Addresses Issues Facing HD 97

Recently Karlos Finley a partner at BF&W and a candidate for House District 97 sat down with Reggie Copeland, Jr. of the South Alabama Trial Lawyers Association for an interview about his ongoing campaign for the open seat in House District 97. 

RC: On your campaign facebook page and at various forums and events, you have asked people and business owners in House District 97 about their concerns and what issues they feel need to be addressed. What has your inquiry revealed as the most important issue or concern and what will you do to address and fix that problem?

KFF: The overwhelming issues facing the citizens of our district are jobs and education. These issues are so interrelated its impossible to talk about one without the other. In order for our city grow in a healthy way, we must address economic development. Jobs and education are the key to this issue. We are all hoping for a bright future with Airbus coming to Brookley Field. I would like to also see some of the tier one and tier two suppliers located in some of the abandoned buildings on the north side of Downtown. There is good ingress and egress to these locations and the businesses would create jobs in our district as well as throughout Mobile. Also, that would help to rid the area of abandoned dilapidated properties. Bishop State Community College and Brookley Field Aviation College are excellent institutions for training skilled trades persons to fill the positions created by the new industry.

RC: In addition to the above issue or problem, what other issues and concerns did the people and business owners in House District 97 bring to your attention and what do you think can be done regarding those other issues?

KFF: In that the HD 97 is such a diverse district, there are many important issues facing us. Environmental issues such as water quality in the north and south of the district are important issues. The Dog River Watershed and the Three Mile and One Mile Creeks have pollution problems that need to be addressed. I attended a meeting of the Dog River Clearwater Revival and learned that they are testing a litter trap in order to catch debris running off into the river. There is a need to educate the people in our community and make them aware that many of the ditches and creeks that run throughout the city drain into the Dog River. As for the Three Mile and One Mile Creeks, there are environmental concerns with erosion to the cap that covers the old Hickory Street landfill/dump. This is an issue that must have continued monitoring. There is also the Mobile Gas, “Tar pit” located at the corner of MLK Ave. and Broad St. The area is fenced off, but we need in depth investigations in the nature of what contaminations are present there. Homeowners insurance has been an issue that many constituents have voiced major concerns about. I would urge all homeowners to take note of the recently passed Clarity Law and discuss it with their State Representative. Progress has been made in the area of insurance reform, but there is still a lot of work to do to make sure coverage is affordable and beneficial. Public safety is a real concern in the district. There are issues within some areas of the district regarding prostitution, drug infestation, theft and home invasions just to name a few. In response to these issues, I would like to work with community leaders to engage law enforcement to have more officers patrolling on foot and bicycles. This will foster a greater interaction and stronger relationships between patrol officers and residents in the community. Finally, the blighted properties across the district are also a significant problem. This issue encompasses both businesses and residential. This is a matter I would like to work with municipal and county officials to remedy. We could explore raising the minimum standards of the condition a property must be kept in.

Because of my experience in so many different areas, I believe as a representative of House District 97 I can help address these issues.

RC: A recent national poll showed that only about 25% of eligible voters participate in Statewide or local elections on a regular basis. Is this an important issue to you and what can be done to encourage more people to participate in the election process?

KFF: This is a very important issue to me! People have died and been maimed in order for our citizens to have the right to vote. I think the biggest thing that can be done to help is for public servants to act in ways that will restore confidence in the leadership. People want to feel that they can make a difference. We also need to educate our youth on the sacrifices that have been made for this right. For this reason, I have been a member of the League of Women Voters for the last three years. This organization does a tremendous amount of work toward educating the public regarding the election process as well as who the candidates are. We work from a non-partisan perspective in order to reach as many people as possible and try to help engage them in the political process. Each year League members come together for a strategic planning meeting in order to frame how we will address issues for the coming year. Greater participation in organizations like this will be an integral part of increasing voter participation.

To learn more about Mr. Finley and his campaign for House District 97, please click here. To read Mr. Finley's bio and qualifications, please click here.  Your vote can make a difference, please Vote Finley for House District 97 on Tuesday, February 26th!

Mark Wolfe of Boteler, Finley & Wolfe Joins Elite Attorney Organizations

Attorney Mark Wolfe of the Mobile, Alabama law firm of Boteler, Finley & Wolfe was recently invited to join two of the most prestigious legal forums in the United States. In December of 2012 he was invited to join the Million Dollar Advocates Forum and the Multi-Million Dollar Advocates Forum. Membership is limited to those attorneys who have resolved a case in excess of a million dollars and/or a case in excess of two million dollars. Of the estimated 1.2 million lawyers in the United States (estimated by the American Bar Association) only 4,000 lawyers are members of these exclusive organizations. Mark is only the 14th lawyer from Alabama to become a member of the Multi-Million Dollar Advocates Forum.

BP Oil Spill Claims: Important Update

Many Gulf Coast and Alabama and Mississippi businesses have not yet submited a claim under the recent BP Oil Spill class action settlement because owners and/or management have misconceptions about the conditions and requirements for making a claim. While some businesses have already had their potential claim analyzed and submitted many businesses have not. A local claims examiner reported that, "so far business loss claims are signifigantly lower than we expected." He also stated that he believes the reason for this is because many business owners in Alabama and Mississippi do not understand just how favorable the terms of the settlement are regarding qualifying. Below is the body of a recent Memorandum to our business clients on this subject.

MEMORANDUM
DATE: August 3, 2012
TO: BF&W Current and Former Business Clients
FROM: Mark Wolfe
RE: BP OIL SPILL CLAIMS

I hope this communication finds you and your business doing well. I wanted to take a moment to advise you of recent developments in the BP Oil Spill litigation and business loss claims related thereto. As you may recall, Knox Boteler in our office has been involved in the BP Oil Spill litigation since shortly after the disaster occurred in April 2010. You may have heard there has been a recent class action settlement which includes potential business revenue loss claims and includes any business located in Alabama and Mississippi. What you may not know is that the terms of the settlement are very favorable for business loss claims and, under the new settlement agreement, many of the burdens imposed on claimants via the Gulf Coast Claims Facility (GCCF) have been removed.

Knox reports that many of his business clients have been reluctant or hesitant to pursue a claim under the new settlement agreement because they do not believe they can “prove” their revenue decline after the oil spill can be directly attributed to the disaster. This is a common misconception and could result in your business missing an opportunity to make a financial recovery from the approximately seven billion dollars allocated by BP for claim payments under the settlement.

Under the new settlement agreement if your business suffered a decline in revenue after the oil spill it may qualify for a financial recovery. Under the terms of the settlement, if a business meets the revenue stream testing requirement, commonly called the “down and up” test, then the calculated loss is automatically presumed to have been from the oil spill. Simply put if a business qualifies under the new testing requirements there is no longer a burden to prove the loss was directly caused by the oil spill. These testing requirements are very favorable for area businesses and the closer your business is located to the Gulf Coast or to a roadway deemed a “critical corridor” the more favorable the testing requirements are. However, under the terms of the agreement, any business located in Alabama and Mississippi may qualify for compensation if the testing protocol is met.

Knox also reports that he has been able to qualify several area businesses for claims that have been previously told by accountants and/or other attorneys they “do not qualify” or that may have only received a partial payment under the old GCCF claim process. I believe this is specifically because of his long standing involvement in this matter and his detailed knowledge of the 1000+ page settlement agreement. This knowledge has allowed him to provide solid legal advice for our business clients regarding their various legal options under the current settlement agreement.  

There are some critical time deadlines approaching in October. The passage of these deadlines will not prohibit a claim in the future (claims can be presented until April 2014) but will close your opportunity to opt-out of the settlement agreement. There is no charge for analysis of the potential claim and claims will be processed and presented on a reduced contingency fee of 20-25% of the funds recovered. [Larger claims may qualify for further fee reductions.]

__________________________________________________________________________________

For further questions on having your business revenue loss claim analyzed, please e-mail Knox Boteler knox@bfw-lawyers.com or call 251 433-7766 or 1 866 975-7766. Also, for more information on BP Oil Spill Settlement Claims visit the Oil Spill Resource Center on our web site.


DISCLAIMER: To the extent this informational post may be considered an attorney advertisement, the Alabama State Bar Regulations require the following disclaimer: No representation is made that the quality of legal service to be performed is greater than the legal services performed by other lawyers. If you currently have an attorney assisting you on the subject matter of this advertisement then you are encouraged to continue using said attorney. However, if you are not satisfied with the service and advice of your current attorney, you are entitled to seek a second opinion from another attorney.

The Mississippi Supreme Court advises that a decision on legal services is important and should not be based solely on advertisements. Free Background information is available upon request to a Mississippi attorney. The listing of any area of practice by a Mississippi attorney does not indicate any certification of expertise therein. See Mississippi Rules of Professional Conduct Rule 7.2(d), Rule 7.4(a), Rule 7.6(a) (1997).



Car Accident Claims: Important Information

DANGEROUS DRIVING DAYS. The National Highway Traffic Safety Administration (NHTSA) reports that the period from June 30th - September 14th is traditionally the most dangerous driving time of the year. NHTSA also reports that August is the most dangerous driving month of the year. It reports that this period is more dangerous because of more drivers on the roadways including summer vacation travelers, more teenagers on the roads because of summer break and more college students traveling back to college at the end of summer. If you have younger drivers in your household, please take a moment to remind them about this dangerous driving time, encourage them to use seat belts at all times and remind them to never text and drive.

CAR ACCIDENT CLAIM INFORMATION. The BF&W award winning publication for auto-crash victims has again been updated. This free publication can be downloaded at no charge from our web site. This publication was last updated in 2010 and the recent edition has been expanded to include more information for auto-crash victims. Since it was originally written by Mark Wolfe in 1994, this publication has been updated numerous times and over 50,000 copies have been published and distributed to the public. We recognize not every auto-crash victim may need or want an attorney, but we believe every auto-crash victim should know their rights under the law and have a basic understanding of how the insurance claim process works. If you, or a friend or family member, have been involved in a motor vehicle collision we would encourage you to order a free copy of this publication or download it from our web site (CLICK HERE FOR FREE DOWNLOAD).

CAR ACCIDENT RESOURCE CENTER. For more information about car accident claims, please visit the car accident resource center on the Boteler, Finley & Wolfe web site. This resource center incudes information and articles on car accident property damage claims, car accident insurance claims and car accident injury claims. It also has over 100 links to car accident resources on the internet.

BP Oil Spill Settlement - update!

June 19, 2012. Knox Boteler of Boteler, Finley & Wolfe will be participating in several upcoming public discussion groups concerning the recent BP Oil Spill class action settlement. Knox is helping a number of Alabama and Mississippi businesses analyze and present business economic loss claims. He is also assisting Vessels of Opportunity (VOO) owners with claims as well as several medical claims for clean-up workers who suffered chemical exposure injuries during the clean up. Knox reports that many businesses will qualify for compensation under the recent settlement without having to prove a loss was directly caused by the oil spill. "When the settlement was negotiated, it was recognized that many businesses in the Gulf Coast states suffered indirect losses because of the negative economic impact of the spill on this entire region. The settlement recognizes this and provides a simple revenue loss testing procedure." He added, "if a business meets this revenue loss test, then the loss is presumed to have been either directly or indirectly caused by the oil spill."  For more information on BP Oil Spill claims, click here: Consultations about a potential oil spill loss claim are done at no charge and claims are handled on a fair contingency fee, meaning no fees are owed unless compensation is recovered. Call Knox at 433-7766 with questions or e-mail him at: knox@bfw-lawyers.com

BP Oil Spill Settlement: Vessels of Opportunity (VOO) Claims

The recently announced class action settlement in the BP Oil Spill litigation includes claims for owners of vessels registered with the Vessels of Opportunity (VOO) program. The VOO program was initiated by BP after the oil spill and was intended to allow local vessel owners an opportunity to participate in the oil spill clean up operations. The registered vessels were required to be on "stand-by" and the owners had to complete extensive training in advance of receiving a VOO contract. However, many vessels that were registered with the program were either never called into service or used sparingly. Also, some vessels suffered damages in the clean-up operation. In the lawsuit VOO owners claimed that their contract with BP called for payment whether the vessel was put into operation or not and required payment for a specified "usage" period. They also claimed that BP had agreed to compensate vessel owners for any damges to the vessels incurred during the clean-up operations.

Under the proposed settlement, all vessel owners who executed VOO Master Vessel Charter Agreements and completed the initial VOO training program are entitled to compensation under the terms of the BP Settlement Agreement. The fact a vessel owner has previously executed a release of liability against BP or other responsible parties for other claims does not matter. Compensation is determined based on whether the vessel was placed “on-hire” and participated in the program or "on-standby". All VOO vessel owners will get a specified standard charter rate for a set number of days.

If you are a vessel owner and you signed up for the VOO program, you may have a claim for damages under the new class action settlement. For more information, call Knox Boteler at Boteler, Finley & Wolfe, 251 433-7766 or toll free at 1 866 975-7766 or e-mail Knox at knox@bfw-lawyers.com

[Notice of copyright: This summary is the work product of the law firm of Boteler, Finley & Wolfe and can not be copied or reproduced for monetary gain or benefit. It is protected from unauthorized reproduction via DigiCrypt.]

BP Oil Spill Claim Information

The Boteler, Finley & Wolfe web site has been updated to include important information and resources for business owners in Mobile and Baldwin County and Alabama coastal property owners regarding BP oil spill claims. On May 2nd  the proposed class action settlement pending in the Federal District Court in New Orleans was approved. This class settlement will include an estimated pay-out by BP of $7.8 billion dollars to parties impacted by the April 2010 Deepwater Horizon spill. Every business located south of Interstate-10 in Baldwin and Mobile counties is in zone A, B or C of the economic loss geographic area. (Some businesses north of I-10 and east of I-65 are in Zone C) Businesses in those three zones will receive a favorable testing procedure to determine if a claim can be made under the settlement agreement. If the revenue loss testing protocol is met, then there is a presumption that any revenue decline after the oil spill was caused by the disaster.

Knox Boteler of BF&W has been actively involved in the litigation of claims since shortly after the BP oil spill and is now working with area business owners to determine if their business meets the favorable testing protocol under the settlement and evaluating the loss claim value. Knox has developed an integrated spread sheet program to help in the evaluation process. He can work with a business' own accountant or accounting firm to help finalize the necessary financial documents and reports needed for claim submission or we have access to accountants familiar with this process who can help. 

Business loss claims under the class action settlement are being handled on a contingency fee of 15% with a fee reduction available depending on the amount of the claim. A portion of accounting fees related to claim preparation and presentation are recoverable. For more information about the evaluation process for a business revenue loss claim, please contact Knox at knox@bfw-lawyers .   

Win a Pair of Tickets to the Hang-Out Music Fest!!!!

The law firm of Boteler, Finley & Wolfe is giving away a pair of General Admission Tickets to the 2012 Hang-Out Music Fest in Gulf Shores, Alabama, May 18, 19 & 20. More info on Hang-Out Music Fest.

We've been helping injury victims, individuals and small businesses present and prosecute insurance claims since 1988. Read more about BF&W.

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Q & A with Senator Ben Brooks re Insurance Reform

For many years the law firm of Boteler, Finley &Wolfe has been advocating for insurance reform in Alabama to help individuals and small businesses with the issue of rising insurance premiums, diminishing benefits and coverage and what we consider to be unfair claim practices. During his tenure in the Alabama Legislature Senator Ben Brooks of Mobile has been an advocate in our State, and specifically along the Gulf Coast, for insurance reform for homeowners and small businesses. Recently Mark Wolfe of BF&W sat down for a Questions and Answers session with Senator Ben Brooks on the topic of insurance reform.

Wolfe: Senator Brooks since your election to the State Senate in 2006 you have been working for insurance reform in Alabama. Can you tell us why this issue is so important to you?

Brooks: Progress on the issue of property/homeowner's insurance reform is profoundly important to the future of our entire region and state. The insurance crisis impacts economic development, job creation, the availability of housing, and the affordability of housing. It negatively affects people from all walks of life and significantly impacts our business community. Reform in the area of property and homeowner's insurance simply must be a top priority for our community. We should approach the issue in a manner similar to how we would rally to seek a major economic development.

Wolfe: Early on in your attempts to push through insurance reform legislation, some of your colleagues in North Alabama were reluctant to support your initiatives claiming it would only benefit individuals and businesses on the Alabama Gulf Coast. Since the devastating tornadoes in April 2011, do you think your peers from those areas that were hit by the tornadoes will be more interested in this issue?

Brooks: Many of us have argued for years that the property/homeowner's insurance issue is a statewide issue. However, in the first few years of the insurance reform effort there were many hurdles to our efforts. Among these hurdles were occasional sad displays of partisanship and occasionally some lack of support from some other geographic regions. Frankly, over the years the geographic political issues began to decline as we made our case for reform.

When the tornados hit the central and northern areas of our State the first concern for legislators along the Gulf Coast was to seek out ways to help our brothers and sisters to the north. Our prayers and thoughts went out, and continue to go out, to those who suffered the terrible tragedies.

Since the tragedies in 2011 some in the insurance industry have announced the cancellation of tens of thousands of policies in areas north of Mobile and Baldwin Counties. Some legislators in the north and central areas of our state are now working more closely on the matter of insurance reform. It was an honor to work with Senator Gerald Allen of Tuscaloosa after the tornados in 2011 to add additional relief provisions to one of my reform bills. These new provisions expanded the bill to include other parts of the state other than Mobile and Baldwin Counties. We expect this will occur more and more frequently.

Wolfe: A few years ago ALFA Insurance Company was critical of you and your attempts to bring about legislation for insurance reform. What is the basis for their concerns and have you considered the economic interests of the insurance companies on the issue of reform?

Brooks: Without question some in the insurance industry have been more willing to talk about insurance reforms than others. Each of the industry representatives should have to outline why they in the past took a particular position in opposition to reform. However, in general it often seems that when legislation is proposed that may result in changes to the status quo, then some interests are automatically resistant. This has been true in the insurance reform effort as well.

We have a crisis of both availability and affordability in the homeowner's insurance area. Legislators on all sides understand that under our economic system we must and we should do everything we can to improve and strengthen the insurance marketplace. A state-owned insurance company is not the answer.

Wolfe: Have you done research on this issue as far as reform measures adopted and implemented in other States? And, have any other States been able to effectively help individuals and small businesses with their insurance reform measures? If so, what reform measures from other States do you think might be beneficial in Alabama.

Brooks: When I was first elected in 2006 I spent most of my first year in the Senate surveying the insurance reform ideas of others and surveying what a number of other states had done. I found two basic models. First, the Florida model basically meant that Florida started a state-owned insurance company. Under this approach the budget of the State of Florida could be significantly and negatively impacted in the event of a catastrophic event.
An example of the competing approach was the reform enacted by South Carolina. South Carolina primarily sought to improve and promote the private marketplace. In its broad omnibus bill South Carolina included a restructuring of its residual carrier (wind pool), added greater consumer representation on the board of its wind pool, created tax incentives to encourage the expansion of coverages, and added incentives to strengthen existing homes, among many other ideas. Many of the bills I have pursued in Alabama were influenced by the South Carolina approach.

Wolfe: To date, what do you consider as your best accomplishment on the issue of insurance reform?

Brooks: It would be hard to single out one item as a "best accomplishment". However, I suppose I am most proud of just how much the overall insurance reform effort has grown. We really are part of a broad movement now.

In the early days of our efforts there didn't seem to be that many people talking about this crisis. Today we have many people and groups working hard to find solutions. It would be an honor to think that I might have had at least a small role in helping to get that movement started. There certainly is still much work to be done, but sort of like the theme of the movie "It's a Wonderful Life", I do believe that things are better right now versus what they might have been if we all had not been working on this issue.

There are parts of this insurance crisis that would be difficult for any single state to solve. For instance, the cost of international reinsurance is a significant factor in the escalating price of homeowner's insurance. "Reinsurance" is generally provided by large international entities over which Alabama alone would have little influence.

However, there are a number of things we can do in Alabama. Among the bills we've already passed are:

1. Authorization for the creation of captive insurance companies in the context of commercial or homeowner's insurance (this was previously prohibited under Alabama law).
2. The imposition of mandatory insurance premium discounts for homeowners that voluntarily retrofit (strengthen) existing homes or who build new homes to higher standards. This bill is now being used as a model in other states.
3. The creation of the "Strengthen Alabama Homes Act" which established a trust fund under the control of the Alabama Insurance Commissioner through which grants would eventually be available for homeowners to retrofit existing homes and get insurance discounts.
4. Codification of the state "wind pool".
5. Requirement that state filings by insurance companies seeking rate increases must be made public records.
6. Revisions to state regulations so that the state insurance commissioner could more quickly approve the entry of new surplus lines insurance companies into the Alabama market.

There are also a number of bills being pursued and new ideas being explored. They include:

1. Requiring industry transparency in terms of premiums, claims and losses.
2. Restructuring and strengthening the "wind pool" (AIUA).
3. Adoption of tax incentives to encourage private carriers to take individual policies out of the state "wind pool".
4. Evaluation of a tax-deferred catastrophe reserve to encourage the restoration of the market.
5. Studying the modeling systems used by the carriers to evaluate risks and premiums which the industry asserts are actuarially valid.
6. Evaluation of alternatives to strengthen the market to attract a larger industry presence and improve availability.
7. Consideration of alternative insurance products, such as larger deductible products with a catastrophic backstop.
8. Enactment of an insurance fraud law.

Wolfe: What do you think individuals and small business owners can do to help bring about meaningful insurance reform legislation in Alabama?

Brooks: The most important thing that individuals and small business owners can do is to continue to make sure that their elected and civic leaders know how strongly they feel about the need for reform. In 2011 the Governor's Affordable Homeowner's Insurance Commission met in Mobile and there was "standing room only". This sent a strong message to Montgomery about how strongly we feel about this problem. There will be many other such opportunities for us as individuals and in group settings. We must all take political ownership of this difficult issue. Our voices do make a difference.

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For more information please visit,

Insurance Reform in Alabama

Senator Ben Brooks
　
　
　
　

Alabama's Need for a New Constitution

The following article is from Karlos Finley who currently serves on the Board for Alabama Citizens for Constitutional Reform

(News from the Constitution Revision Commission)
It's hard to find any reasonable person who'll make a serious defense of Alabama's decrepit Constitution. It's the longest in the world, it has been amended more than 850 times, it centers most all the power in the state in special-interest-controlled Montgomery and binds local governments.

For some time, The Alabama Citizens for Constitutional Reform has lobbied for some action, any action, to bring the state’s complex, cumbersome Constitution under control. Their preferred method to do so is a popularly elected constitutional convention. This was how the 1901 Constitution was created in the first place. Opponents of this plan claimed an election would lead to special interests taking over the convention and, thus, writing the new constitution. But it should be noted that it was not so much fear that special interests would dominate the convention. Instead, it was fear by some special interests that interests other than their own would prevail. That gets us to the first fundamental point about constitutional reform that we must understand. The state Constitution protects a wide range of special interests, so it stands to reason that special interests from agriculture to education would be wary of changes they could not control. Those changes would be in the state’s antiquated, inadequate and regressive system of raising revenue. Propertied interests would not want changes in the way the state taxes property. Education interests would not want changes in the way revenue is divided.
Enter the state Legislature and the 16-member Constitutional Revision (not reform) Commission.

And, to make sure the commission does not tamper with what is really wrong with the Constitution, tax reform is off the table. So, why bother? Because there is more wrong with the Constitution than taxes. Although business groups, like other special interests, opposed a constitutional convention, they also understood that matters such as local control and decentralization needed to be addressed. So they threw their support behind the commission plan that is in place today. Despite the limitations placed on it, the Constitutional Revision Commission is a step in the right direction. The commission will rewrite 11 of the constitution's 18 articles to put before the Legislature and voters. It leaves untouched the taxation article, which includes limits born of the 1901 convention that keeps a lid on property taxes. Those provisions contribute mightily to Alabama having one of the nation's most unjust tax systems.
Federal Judge Lynwood Smith wrote in his 854-page ruling that Alabama's property tax system does not violate the U.S. Constitution, however Smith practically begs for a federal lawsuit that challenges the validity of the Alabama Constitution because, as has been well-documented, supporters stole the referendum that approved it. The 1901 Constitution is the state's fundamental charter, "only through fraud, ballot theft, economic and physical intimidation and unmitigated corruption," Smith wrote.

In an October Revision Commission meeting Mobile Republican Sen. Ben Brooks, a commission member, wondered whether Jefferson County could have avoided its crisis with "more liberal home rules," the ability of Alabama cities and counties to have limited autonomy to pass laws without needing the approval of the Legislature. Sonny Brasfield, Executive Director of the Association of County Commissions of Alabama, told him the fight over the county's occupational tax showed how hard it is for counties to solve problems on their own. "I think that if the Jefferson County Commission had more authority, they wouldn't have to be up here seeking an answer to the problem," Brasfield said. Some, including lawmakers, have portrayed Jefferson County as a poster child for why counties don't need any more power. The way the constitution reads currently, we can't amend local laws once they get advertised.. We can't debate a bill, find a middle ground, and can't improve it as the legislative process goes along. Brasfield said the system fosters horrible local laws. Jefferson County found out the hard way what happens when the Legislature bucks the process. In 2009, lawmakers passed a new county occupational tax to replace one that courts had ruled invalid. But it, too, was struck down because lawmakers changed the bill from what had been advertised. Finding a better way for local elected officials to make local decisions... not arguing over taxing authority, should be the focus of the revision commission's work, Brasfield said. "I don't want us to get distracted from reaching the conclusion we need, which is change," he said. The local government and its voters would decide which option for change they prefer. What shouldn't be an option is the current silliness. Argue, if you will, that Jefferson County having mucked up so badly makes it the perfect case against home rule. But fixing that mess is the perfect case for it. As Commissioner Brasfield points out, "Does it make sense that the Alabama Legislature has to be called into special session to deal with Jefferson County's financial problems? Should senators have to come from Mobile and Huntsville to Montgomery to work on a solution for Jefferson County?

Alabama's Constitution Revision Commission met Wednesday, January 18, 2012 for the last time before the 2012 legislative session to discuss home rule; while proposals were discussed to give local governments new powers. Brasfield presented the commission with five recommendations for county government. Craig Baab, a senior fellow with Alabama Appleseed, proposed giving counties limited home rule, with an option for counties to opt out or to repeal it. Baab said the centralized government created by the 1901 constitution "doesn't serve the people well." Any changes proposed by the commission would be submitted to the Legislature in the form of constitutional amendments. Should the Legislature approve the changes, the amendments would be submitted to voters for approval.

The proposals, however, drew strong criticism from several people who spoke at the meeting. Supporters of home rule were equally adamant that zoning power would allow counties to guide their development and protect property owners from potentially ruinous neighbors. The commission is reviewing 11 of the 16 articles of Alabama's 1901 Constitution. The commission will not address Article XI, which addresses taxation. The commission late last year approved changes to remove the racist language and changes to the banking and corporations articles. The Legislature should consider those proposals during the next regular session.

AVVO.com is the Best Online Attorney Directory

The cyber geeks at NetNews have rated AVVO.com as the best online attorney locating service. (See article below.) All three attorneys at BF&W have the highest rating possible from AVVO.com. It's a great site for legal consumers. www.avvo.com

AVVO.COM: Best Online Attorney Locating Service
NetNews.Net - December 1, 2011
-NetNews.Net © In the fast paced world of internet searching, one of the most congested search areas for internet users is in the area of locating a lawyer. The world wide web has done a wonderful job of bringing lawyers and lawyer locating services to our finger tips, but maybe, just maybe it’s brought consumers too much information.

A simple non-scientific review of internet searches for attorney locating services brings forth listings of well over 1,000 such services not to mention hundreds of paid ads flopped and pixelated throughout the pages. Add to this confusion the fact that many of the attorney directories on the internet and/or attorney locating services require the attorney to "buy-in" to receive a favorable listing or ranking and you begin to see the internet consumers dilemma when searching for an attorney.

But fear not, your friends at NetNews.Net have searched, reviewed and analyzed these digital repositories of legal service providers, a/k/a shark holding pens, and found that one of these services rises above the rest and warrants our designation as: The Best Online Attorney Locating Service. Obviously if you read the headline you know we are giving this distinguished designation to AVVO.com. Before making the points that led to this conclusion, readers should know two important facts: One, our research is non-scientific but all attempts have been made to analyze and review the online attorney locating services from the perspective of the reasonable internet user who brings forth his or her common sense when searching the internet for information. Two, AVVO.com has paid us to write this review. Not true but it was too easy of a joke to drop in. We have not been paid for this review and as with all reviews, we are simply trying to aid and assist our cyber-peers.

OK, with all joking and tongue-in-cheek commentary aside, why is AVVO.com the best online attorney locating service currently on the internet? Simple, besides offering an ability to "locate" an attorney it combines what we consider the three best qualities of these type services into one web site. These three quality factors are 1) Ratings, 2) Reviews and 3) Q&A Forum. Too many of the online directories we reviewed had none of these quality features. Many others were obviously "buy-in" sites with limited listings and information and featuring only those attorneys who paid for their exclusive listing. We liken these type buy-in sites to your late night sleazy Personal Injury TV ads .... we give these type sites high marks under the "ambulance chasing" category. Several of the other sites we reviewed had one or two of what we considered as the quality factors and they make our "Honorable Mention" roll below. AVVO.com, nor any of the other "Honorable Mention" services, require an attorney to pay to be listed. The listing is free; however, many offer upgraded listings or services for the attorney for a price. However, very important for us in our review was the fact that the listing, and in the case of AVVO.com, the rating, is free. So let’s now review all three quality factors offered by AVVO.com in a little more detail.

Ratings: Attorneys are assigned a rating by AVVO.com on a scale of 1-10. Ten being the "Superb" and the highest level. Their web site does not disclose specifically how it calculates the attorney ratings that are assigned but it does indicate career accomplishments by the lawyer such as legal publications, speaking engagements and affiliations with professional organizations are factors in the rating process. The other factor in the ratings that we like, is that AVVO.com tells you if the lawyer has ever had any disciplinary action brought against him or her by a Bar Association. Not only do we think this is important information for consumers, but we applaud AVVO.com as being the only online directory we reviewed that had the guts to post this information. Very big kudos and big khonies. Finally, AVVO.com reports that peer endorsements (see discussion below) do not factor into the rating they assign an attorney. Quite honestly, we have a hard time buying this since we all know about the "good-ol’ boy network in the legal fraternity. I.e, "you say I’m a great lawyer and I’ll say you’re a great lawyer even though were both really worthless piles of cow dung and the public will never be the wiser." Despite our suspicions on this point, we’ll take their word on this point and give them credit for not allowing an attorney to up his or her rating by having all of his or her peers provide glowing endorsements.

Peer & Client Reviews: As mentioned the AVVO.com site allows for clients and peers to review and comment on the lawyers skills and services. Client reviews through out the various attorney profiles we reviewed often appeared forced or fake, maybe we’re just cynical but the fact that the site allows former clients a place to comment on the attorney’s services is a plus. The peer endorsements from other attorneys is a nice feature but we are skeptical about compliments about legal skills published by other attorneys. It’s akin to a conversation among sharks: "Hey your teeth look extra sharp and dangerous today. Why thank you. Your teeth are looking exceptionally vicious as well." Again a few other online attorney locating services allow for these type peer and client reviews and these features are certainly a positive However, within this category we also include reviews and comments made in response to an attorneys participation in the Questions and Answers forum of the web site. When an attorney responds to a posted question it becomes part of the attorney’s profile. The person who submitted the question has an opportunity to review and rate the response and add commentary. By reviewing the attorney’s responses to questions, you are able to glean more insight into the attorney. You can also see if others thought the attorney offered helpful or meaningful information in his or her response. If you’re going to have to hire an attorney, don’t you want one that is going to help fix whatever legal mess you’ve found yourself in? We think being able to access and review the attorneys responses to questions may be more beneficial than the client and peer reviews.

Questions & Answers: As just mentioned besides offering a process to locate an attorney in your area for a specific type legal question or problem and offering a rating service for the attorney, the site also has a very easy functioning Q&A Forum. To use the forum you have to register as a user and establish a password but it is free. Once you’ve done this then just fire away with your legal question. Questions stay open for about a week and you get an e-mail notification when an attorney has responded to your question. It’s free. The site has parameters and warnings about reliance on free legal advice but it also offers tips on how to ask or word questions.

In our opinion, this third feature is what makes AVVO.com the overall best online attorney locating service.

In conclusion if you want to use the internet to help address a legal issue and/or locate an attorney, we recommend AVVO.com. In our opinion it is by far the best and most comprehensive and user friendly online attorney directory on the internet.

Five Important Things to Know About an Insurance Claim in Alabama

[The following material is an excerpt from our recently published Guide for Insurance Claims. Download the entire guide at no charge at: http://www.bfw-lawyers.com/pdfs/Guide-for-Insurance-Claims.pdf]

1. Burden of Proof: The first and most important thing to remember about any insurance claim is that the person or business making the claim (the claimant) carries the burden of proof related to that claim. The person who is handling the claim on behalf of the insurance company (the adjuster) does not have to “disprove” the legitimacy of the claim. The adjusters job is simply to determine if the claimant has presented adequate proof of a covered loss with proper supporting documents or material to pay the benefits being claimed. It is important to understand and realize, the adjuster has an obligation to the insurance company to only pay benefits that are legally owed under the policy. The claim files of adjusters are periodically audited to make sure they are not paying more benefits than required by the terms of the policies and that claims are properly documented before making a payment. In some instances, insurance companies even pay bonuses to adjusters and/or agents based upon claim pay-outs, or more specifically, the lack thereof.

2. Adversarial Process: As nice and friendly as you think the insurance company will be to you in the claims process; understand, Alabama law defines the insurance claim process as an “adversarial proceeding.” This does not necessarily mean the insurance company is going to be mean and nasty to you during the claim process, rather it simply means you have to recognize that your objectives and the insurance company’s objectives are not the same when it comes to an insurance claim. You would prefer they pay the claim and they would prefer not to pay the claim. Because the claim process is defined by law as an adversarial process, insurance companies are granted a certain amount of latitude in how they handle and adjust an insurance claim, even if it works to the detriment of the claimant. Specifically: 1) there is no obligation for an adjuster to “help” you better present your claim, 2) the adjuster does not have any obligation to tell you about critical time lines or time limitations related to your claim, 3) the adjuster does not have to tell you about other possible coverages available to you for the loss, and 4) the adjuster often can not give you advice or suggestions on how to best coordinate multiple coverages related to a loss. Simply put, because it is an adversarial process, you can not expect the insurance company to tell you how to effectively and timely present your claim or provide you with any helpful information . Because this process is considered “adversarial” a claimant does not have a right to justifiably rely on anything an adjuster says about the terms and conditions of the policy and/or the merits of the claim! [See, Apkan v. Farmers Insurance Exchange, Inc. 961 So.2d 865 (Ala. Civ. App. 2007): Insurance adjuster has no duty to help or assist claimant. In fact, adjuster’s duty is to protect the insurance company. Southern Bakeries Inc. v. Knipp, 852 So. 2d 712 (Ala. 2002): If a party owes no legal duty of disclosure to another, then material facts can be suppressed with out recourse for failure to disclose.]

3. No Reliance on Agent’s Oral Representations: As difficult as this is for most of us to believe, Alabama law has held that insurance customers do not have a right to justifiably rely on an oral representation made to them by the agent concerning the terms or conditions of the policy. This means if the agent tells you some event or loss will be a “covered loss” and the policy says it is not, the policy language will control and the loss may not be covered despite what the agent may have said. See Foremost Insurance Company v. Parham, 693 So.2d 409 (Ala.1997).

4. Clauses and Exclusions: Another legal reality that insurance customers have a hard time accepting is that Alabama law considers insurance policies to be “mutual contracts.” See Wolfe v. ALFA, 880 So. 2d 1163, 1169 (Ala Civ App 2003). What this means is our laws consider the customer and the insurance company to be “equals” in the negotiating process. Because of this legal concept (some call it a legal fairy tale) unfavorable and/or sometimes down right unconscionable clauses that work against the claimant are upheld on the basis that the customer got what he or she “bargained for” when “negotiating” for the purchase of the policy. Some of these type detrimental clauses include “commercial” arbitration clauses, forum and venue selection clauses, appeal protocol and procedure clauses, strict compliance clauses, cooperation clauses, indemnity clauses and many more often buried in the fine print of the policy. This also means well crafted exclusions for covered losses can be included, and upheld as valid, under the guise of a “negotiated” contract. One outrageous example of this is an exclusion for property damage losses currently found in some Alabama issued policies. It is an exclusion for “a loss to a covered property caused, or contributed to, by negligent construction.”

5. Notification of Claim: No matter what type of claim is being presented, it is always the responsibility of the insured individual and/or business and/or claimant to properly notify the insurance company of the claim or even the potential claim. All insurance policies have guidelines and procedures for notification of a claim and/or a “covered loss.” If these procedures are not followed, they can provide the insurance company with a legally recognized excuse to not pay the claim. Upon being notified of a claim or of a potential claim, many insurance companies will send out “claim forms” to the claimant. If the company does not provide “claim forms” it would be wise to verify the notice of claim in writing to verify that “timely notice” of the claim has been provided.

Loser Pays: A commentary by Mark Wolfe

The Alabama legislature is considering passing a law that will require the loser in all civil actions to pay the other side's attorney fees. (SB 1 126852-1). I am an attorney who handles civil litigation claims for individuals and small businesses against insurance companies. I am also a small business owner who pays my fair share in taxes and insurance premiums. Maybe to the surprise of many, I have been a proponent of a loser pay concept for many years. We win many more cases than we lose and conceptually many of my clients would benefit from such a law. Such a law would also make it much more economical for many of my clients with smaller claims or cases to pursue the matter through Court if they could recover the attorney fees. For example, day in and day out I have insurance adjusters say something like, "Well yes Mark, the property damage claim is probably really worth $15,000 but your client will have to pay you and the expenses of Court, so we’re only going to offer $9,000." This common occurrence economically forces many insurance claimants to have to settle for less than they truly deserve because the attorney fees and court costs to battle the insurance company will financially eviscerate their victory. For this reason, I think a well conceived loser pay bill could be beneficial for individuals and small businesses in Alabama.

However, the current proposed bill as has too many problems and issues. As the bill is currently written, it will not achieve its desired effect to curtail frivolous lawsuits, but rather I believe it will result in even more litigation and further burden our all ready strained judicial system. However, before addressing why I think that will happen, I want to point out that we already have several laws in place that help prevent frivolous litigation in Alabama. Alabama Rule of Civil Procedure 11 allows for sanctions and the award of attorney fees for pleadings or motions filed without "good ground[s] to support it." Alabama Rule of Civil procedure 37(a)(1)(4) and 37(c) provide an avenue to recover expenses and attorney fees to parties for the opposition’s inappropriate pleadings or motions. Alabama Rule of Civil Procedure 68 allows a party to a civil lawsuit to shift the costs of litigation to the opposing party via a pleading known as an Offer of Judgment. In addition, to help curb frivolous medical malpractice actions we have Ala Code § 6-5-551, which is specifically intended to thwart the filing of an unsubstantiated medical malpractice case. We also have in place various evidentiary laws that make it difficult, if not impossible, to file a frivolous products liability lawsuit. So we do already have in place laws and procedures to prevent frivolous lawsuits. The other thing to keep in mind is that most civil cases end up in Court because there is a legitimate dispute between the parties that requires the assistance of a jury to resolve. In our office it is very rare for us to just "up and file a lawsuit" without at least exploring and discussing a pre-litigation resolution. However, sometimes parties have a differing view of "facts." Or, in a contract dispute matter or a case involving insurance polices, the parties have a differing view of the legal application of sometimes very complex terms to a particular fact situation. (Have you tried to read a copy of any of your insurance policies!) For example, in a homeowner claim, the insurance company may believe the "mold" pre-dated a water leak and therefore they believe the claim is excluded under the "mold exclusion" portion of the policy. The homeowner may believe the mold is a result of a water leak and therefore it should be covered. I.e, a legitimate dispute that may need the help of a jury to resolve. If a case is a "close call" do we really want to penalize the loser? What do you think will happen to our insurance premiums if insurance companies lose too many cases and have to pay attorney fees in all those cases?

The current proposed "Loser Pay" bill as written is too broad and open to way too many subsequent secondary issues that will simply create too many secondary issues which will require protracted litigation. Also, it will lend itself to some very outrageous and unfair results. The current bill reads in part as follows: [I]n all civil actions, the court shall award attorney’s fees as a part of the cost to the prevailing party; and to provide that a prevailing party may bring an action against another party for abuse of process arising in any part on the same facts in the action in which the attorney’s fees were awarded; however, the prevailing party may not recover the same attorney’s fees twice." OK, this sounds and easy on a first read, but let’s look at this closely. What does it mean by "prevailing party?" Are we simply looking at "winning or losing?" (Emphasis added) If so, how are we going to define a win or a loss? I sue a deadbeat Dad for a client for back child support claiming he owes $4,750 in back child support, at the trial he produces a check receipt for a $250.00 payment that my client either didn’t receive or forgot she received. The judge enters an award for my client in the amount of $4,500.00. Who has "prevailed?" If we go by a simple "win or loss" scenario then my client "won." But deadbeat Dad’s attorney will say no he "prevailed" because we did not "win" everything that was claimed. Now we have lawyers fighting over their fees and we all can imagine how litigious that situation may be. An attorney for a landlord goes to an eviction hearing but forgets to bring a properly authenticated lease for admission into evidence at the trial. Case dismissed with leave to re-file. Can the tenet’s attorney now recover attorney fees against the landlord because she "prevailed." What if the tenet’s lawyer was a quasi-government attorney provided free through Legal Services Corporation? A garnishment action is a "civil action." Will companies who are trying to secure a judgment repayment through a garnishment action now have to pay if the subject debtor of the garnishment action is no longer an employee of the garnishee? The dispute scenarios surrounding just the "prevailing party" language in this proposed bill are endless. Every dispute will require further litigation ad nauseam as attorneys argue about who really prevailed in a civil action.

Now let’s look at "attorney’s fees." Note this bill does not say "reasonable attorney’s fees" rather just "attorney’s fees." What if my fee contract for my client on an insurance claim is based upon a contingency fee? We win, should the other side now have to pay the full amount of my contingency fee? I guarantee the first time the insurance company has to pay the other side’s attorney the full amount of the contingency fee they are going to screaming bloody murder. OK., let’s say we agree to a "reasonable attorney fee standard." Now we’re going to have all kinds of disputes as to "what is a reasonable fee" for the legal services provided? If I’m the attorney for the "prevailing party" you darn well know I’m going to be arguing that my fees were reasonable while the attorney for the opponent is going to be screaming that my fees were outrageous and unconscionable! Here we go, more disputes more protracted litigation.

Now let’s add one more layer of complexity to this issue. Let’s suppose we can come to some meaningful and workable concepts regarding "prevailing party" and "attorney’s fees." What happens to the rules and laws mentioned above that we already have in place to stop and prohibit frivolous lawsuits and that already exist to help shift the burden of litigation costs in favor of the prevailing party? If I’m the attorney who has lost and the other side did not utilize or avail themselves of those other rules, I’m now going to be arguing that my client should not to have pay the full measure of the claimed legal fees from the other side because they could have mitigated there fees by using those other rules. More complexities, more issues and more litigation.

Finally, this proposal as written will immediately result in an untold number of lawsuits being filed that may not need to be filed. As mentioned above, in almost all civil matters lawyers try to resolve a matter with the other party before filing a lawsuit. We tell all of our clients, that lawsuits are like surgery, you really don’t want to do it unless it’s absolutely necessary. The simple fact is a fair pre-litigation resolution of a civil matter is in everyone’s best interest. The proposed bill says, "This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law." Again, very poorly written and conceived. I assume that it would not apply to those civil cases already pending but only those civil lawsuits filed after the law is enacted. To try and have it apply to those cases already pending would open up all kinds of legal challenges to its validity because it would just not be fair or constitutional, to change the rules "in the middle of the game." So here I am as an attorney with hundreds of claims pending for insurance claimants or businesses that we are trying to resolve without need of litigation and now I’m told this law will be effective three months after enacted. Based upon 24 years of experience I know the vast majority of these matters will resolve without having to file a lawsuit, but now with the "Loser Pay" staring my clients in the face, I’m going to have to move these claims into litigation in advance of the "Loser Pay" deadline. I’m just one attorney, can you imagine the nightmare for our Court system if 10,000 lawyers have to do the same thing. In a three month period, our Courts could be swamped with well over 100,000 lawsuits! The majority of which may never have needed to be filed but for the enactment of this law.

In closing, let me again say, conceptually I am not opposed to a "loser pay" law. Other States have adopted this concept but have taken the time to work through the myriad of secondary issues discussed above. It is clear that the intent of this lawsuit is to stop frivolous lawsuits and that is a good goal. But has anyone asked the Judges in our State Courts if we have a real problem in this State with frivolous lawsuits? I think their answer would be "no" because we already have in place effective rules and regulations to deter the filing of frivolous lawsuits. So if we don’t have a problem with frivolous lawsuits, then why is our legislature in such a rush to pound us with a poorly conceived and unworkable law? Let’s take a deep breath and really think about how we can enact a truly meaningful "Loser Pay" law that does not end up punishing those who need our Courts for the resolution of legitimate dispute.

Mark Wolfe, Advocate for Insurance Claimants

mark@bfw-lawyers.com