We have all seen the modern version of county fair hawkers on the various home shopping channels.

Southern California resident Julia Ortiz was watching Shop HQ in March of this year and saw an item, “That seemed ideal for my 75 year-old husband who suffers from leukemia that greatly has affected his mobility.”

It was a $1,178 electric scooter from Tucson, Arizona, eWheels. “As it was being sold by Shop HQ, I felt confident in the product and eWheels,” Julia said.

Her trust in eWheels was badly misplaced, as it has an “F” rating from the Better Business Bureau, and horrible reviews on both Yelp and Amazon.

Fortunately she paid with her Citibank credit card which permits challenging any improper charge.

Damaged goods

“The Shop HQ operator told me, ‘The scooter will be custom delivered by two individuals who will unpack and assemble it.’ But it was delivered by one FedEx driver who pointed out a large hole in the box.

“I was afraid the scooter was damaged,” she told the FedEx employee, asked him to please send it back, but he refused, saying, “Why not open it? If it’s OK, fine, if not, call me and I will come right back later today to pick it up.”

Later that day, upon opening the box, Julia discovered significant damage to the scooter, including a broken seat. She called FedEx and was told that ShopHQ had to initiate the pick-up.

“So I phoned ShopHQ and the operator tells me, ‘There is nothing we can do unless you pay a $150 return fee!’

“What? This was crazy! It was shipped from eWheels, delivered broken and they expect me to pay to return it!!  Then I called you, Mr. Beaver.”

No help from Mr. Nasty

Requiring Julia to pay anything for the damaged scooter to be returned violates Federal Trade Commission (FTC) regulations, and the eWheels warranty which appears on ShopHQ’s webpage. It states: “Return shipping will be at the buyer’s expense unless the item is damaged or defective.”

It was clear that someone at ShopHQ was unaware or had misread the eWheels policy concerning damaged goods.

Now, you would think that, with ShopHQ selling their scooters, eWheels would want to know about Julia’s experience and help her, right?

Wrong.

With Julia on the line, I phoned eWheels and spoke with Operations Manager, Derrick. After our chat, Julia commented, “He could care less and is so nasty, so sarcastic! He just makes me mad! I worked in retail for years. You can’t treat customers that way!”

I have spoken with few people in his position as unpleasant as this guy. My guess is that he was the founding member of the “Black Eye of the Month” club in elementary school. I would not be surprised if his high school year book describes him as “Most likely to be murdered.”

He refused to pay shipping costs for return of the damaged scooter, instead, proposed sending her a replacement seat – not even knowing if it had sustained other damage.

Anyone considering an eWheels product absolutely must read Yelp and Better Business Bureau reviews.

Angel steps forward

Realizing there was no hope with eWheels, early in the evening of March 24th, I left a detailed voice mail for Cathy Bauer, Director of Customer Solutions at ShopHQ and asked her to look into Julia’s situation.

Talk about customer care — within the hour she called back, and this had to be around 9 PM Chicago time.

Cathy promised to immediately look into the matter, and do what was right for Julia.

Within 24 hours arrangements were made to pick up the scooter and ShopHQ issued a credit to her Citibank credit card account.

So, would she do business with ShopHQ in the future? “Yes, and I would get informed about warranties and return policies of before buying.”

Credit over debit

Especially during the past year, TV shopping has proven itself to be an essential service, with the better known channels having excellent Better Business Bureau ratings. That said, you’ve got to protect yourself when making a purchase, and that means, whenever possible, using a credit card that allows a charge to be contested whereas a debit card usually will not.

Cathy acknowledged, “Mistakes can happen and we try to correct them as soon as possible. Julia’s situation was the result of one of our people not being aware of the return policy for the scooter. We’ve been around for over 30 years, have an A+ BBB rating, and plan to be here 30 more.”

I’m sure they will.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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Long Beach, California attorney John Coates is not someone you want to hear from if you own commercial real property that has, for example, a parking lot open to the public.

There’s nothing wrong with Coates, in fact he is a very nice guy and first-rate lawyer, but a letter from him announces bad news; “You have been sued in Federal Court–not by me–but by a law firm that specializes in violations of the Americans with Disabilities Act, and in your case, something incredibly minor.” My client received a letter from Coates.

You are probably wondering, “So, what did your client do?”

Now, tighten your seatbelt for a wild ride, but first a little history, as Coates related:

“What the United States Congress and President George H.W. Bush accomplished on July 26th, 1990, has cost innocent property owners millions of dollars in fines and attorney fees — paid to lawyers who file hundreds of thousands of suits — most of them petty, ridiculous, and do nothing to further the Access goals of the ADA but make these lawyers multimillionaires in the process.

“Before signing it into law, Bush was cautioned that the ADA was vague, costly and would lead to an explosion of litigation. His reply? “The legislation was carefully crafted to provide clear guidance to the business community.”

Coates points to a 2018, well-researched article in the University of Baltimore Journal of Land and Development, titled, “ADA Regulatory Compliance: How the Americans with Disabilities Act Affects Small Business.” It finds that:

“For all its noble purposes, the ADA is a license for lawyers to print money at the expense of small business owners.”

Got slope?

Have you heard of the term Parking Lot Slope? Until my client was sued, I had not either, but according to the National Association of Truck Stop Owners, an astonishing 95% of all ADA suits contain an issue regarding parking spaces.

“Handicapped accessible parking spaces and aisles must have no more than a 2.08% slope in any direction,” Coates says. “This means there can only be one inch of vertical change for every 50 inches of horizontal change because you don’t want too steep of a slope, so that a person in a wheelchair rolls away too rapidly and is injured.

“However, this is impossible to assure, because natural settling of parking lots, small earthquakes, and just the weight of vehicles constantly impacts the slope.”

I’ll bet you are thinking, “How does something as invisible as the slope of a parking lot wind up getting the property owner sued for an ADA violation?”

“These law firms hire people to wander all over cities with a slope meter,” Coates says, “looking for a handicapped parking space that exceeds the ADA limit. In every case I have seen, there were no reports of injuries due to a slope that was out of compliance.”

If sued, what should you do? Hint: Be objective!

One of the most unfair things about the ADA is that you can be sued without ever getting a notice that you are out of compliance and given a chance to remedy the situation beforehand.

Also, as the bulk of these suits are filed in Federal Court, the plaintiff is automatically entitled to attorney fees that run into the thousands of dollars. In fact, many small businesses have had to shut their doors because of technical, but harmless ADA claims brought by lawyers who judges routinely describe as unethical.

So, what should you do upon either being served with a lawsuit or notified that one has been filed against your business?
Coates outlines these important steps to take:

(1) Contact an experienced, Certified Access Specialist (CASp) inspector to find out if you are actually in violation.

(2) If so, don’t waste your money fighting the lawsuit! These violations are what we call Strict Liability, which is like a speeding ticket. If you are one mile an hour over the limit, you are guilty.

(3) Most likely you will receive letters from attorneys who represent defendants. Do not simply hire the first one who contacts you! Instead, ask, “What is this is going to cost me?”

If the CASp inspector has told you the bad news, and the lawyer can’t give you a solid number or says, “I think we can defend this,” RUN! Speak with a different attorney, as there are far too many lawyers who want to milk their clients!  By fighting these cases you will spend far more than settling.

Can I minimize the chances of being sued?

Coates recommends that all commercial property owners have a CASp inspection performed so they are aware of potential issues and can remedy them.

“But neglect of the property is also an invitation to being sued,” he notes, adding, “for example, nothing says sue me like not taking care of your handicapped signs. If you do not have all three signs or stickers, you are begging for someone to come in and look for more issues.”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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While most business owners are aware they have a legal duty to maintain their premises in a safe, hazard-free condition, some fail to understand or accept the fact that this includes trees on the property.

Trees provide shade, are good for the environment, but unless properly maintained, some are killers, notably eucalyptus.
So, what would a business owner face if one caused damage to property or injury? Would their insurance always cover the claim? I’ll answer those questions in a moment, but first meet “Eric” who lives under the threat of a neighbor’s massive eucalyptus tree crashing onto his office or into a power transformer just feet from the tree, potentially causing a fire.

“Our small accounting office is next to an auto body-repair shop that is on land dotted with eucalyptus trees. Some are dead and one scares the living daylights out of me, as branches are in electrical wires that run from the power pole to both of our offices.

“The tree is massive, it is taller than the pole! I have repeatedly phoned and warned my neighbor that the tree is dangerous and will kill someone if it falls, or start a fire, setting the neighborhood a blaze, but he just ignores me.”

“What should I do at this point?”

Notice – Key to Establishing Liability

San Diego-based attorney Evan W. Walker has had a great deal of experience with these types of cases. He began his analysis with an explanation of why eucalyptus trees are so dangerous.

“Giant eucalyptus drop heavy branches, earning them the nickname ‘Widow Makers.’ They are prone to falling because their shallow, spreading root system does a poor job of steadying the tree. Add to that high winds from a storm, and you’ve got a recipe for trouble with a eucalyptus that has not been properly maintained,” he points out.

I asked Walker what the law requires property owners to do in the situation that Eric is describing.

“Owners and occupiers of land have a legal duty to not expose others to an unreasonable risk of harm, and specifically, a refusal or failure to remove a dangerous condition. Resulting personal injury or property damage can result in an insurance claim, being sued for negligence or for maintaining a nuisance.”

Walker stressed the important of a key factor which must be proven before Eric’s neighbor–or his insurance carrier–would be liable for damages if his tree caused property damage or injury: Notice.

“Two things come to mind, and one is establishing that the tree really is dangerous, the second, providing notice to the neighbor.

“This is the time to cross the t’s and dot the i’s. You do this by having a licensed arborist inspect the tree and write a report. The cost is reasonable and is important in the event the tree does come down and the neighbor denies having any idea of its danger.

“Your reader states that he ‘repeatedly’ notified his neighbor of the danger, but does not say how he communicated that information. Was it simply by placing phone calls, or did he provide written notice?”

Walker then listed the ways that actual written notice should be given–or at least, attempted–to be given to the owner or occupier of that land:

(1) Send a certified letter, which requires a signature.

(2) Politely state in the letter that you are putting your neighbor on notice that one of his trees is dangerous and describe the issues as clearly as you can.

(3) Enclose a copy of the arborist’s report.

(4) Ask that the recommendations made by the arborist are followed immediately.

And just what happens if Eric’s neighbor refuses to sign for the certified letter?

“This will come back to him from the post office, showing the refusal and could be introduced in court if the matter went that far. But if that happened, it would be worth hiring a process server to hand deliver the letter, and Eric would receive a proof of service.”

Could the Tree Owner’s Insurance Refuse to Pay the Claim?

“Both commercial and homeowners insurance is intended to compensate for property damage or injury caused by negligence, but not for intentional acts.

“While it would be extremely rare for a carrier to deny a claim for damages if the tree fell, a refusal to remedy a known risk of harm as Eric faces could lead to his neighbor’s insurance company to deny coverage on a theory of intentional, reckless behavior. It isn’t likely, but could happen,” Walker concludes.

The take-away for both business and homeowners is simple; good neighbors trim or remove dangerous trees. It’s more than treating others as you would want to be treated. It’s the law.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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“Mr. Beaver, I have read a number of your articles about neighbors refusing to maintain their property–especially trees–in a safe condition, or failing to keep a common fence in good repair.

“Of course, most people do not want to be at war with their neighbors, but that’s what I am facing:

–To the south, they refuse to trim or remove a clearly dangerous Pine tree that is leaning towards our property, its limbs and branches are on our roof. When I mention this, they just say, “The tree looks fine to us.” It is as if they cannot see the danger.

–To the north, we share a wooden fence and large, wide driveway serves both properties. This neighbor refuses to participate in the repair or replacement of the fence or re-paving our common driveway.

“Both of these families are very well off. What makes people who can obviously afford to maintain their property act in such an uncaring way and what’s the best way to respond? Thanks, Ken.”

Blame Their Lack of Mental Accounting

We ran Ken’s question by a friend of this column, Dr. Art Markman, Professor of Psychology and Marketing at the University of Texas at Austin. “These are very common situations which cause a lot of unpleasantness. Often it comes down to a form of not seeing the problem, what we call mental accounting–being aware that we will have certain expenses and planning for them.

“For lawn care–or care of our teeth–we have mental accounts and plan for those expenses. In large part because trees are slow-moving targets, unless wind or a bolt of lightning brings one down, we just do not notice most things about our trees. We look at a tree and it seems fine to us, so why worry?

“Regular tree-trimming is something most people ignore as it is expensive, and because it has not been mentally budgeted, even a millionaire might think, ‘I can’t afford to do this now.’”

Do You Really Want to Have This Fight?

In speaking with Markman, two far more important aspects of this cheapskate neighbor scenario became apparent:

(1) An obsession to force the neighbor’s compliance, and;

(2) Destructive stress at home.

“By allowing yourself to be obsessed with someone’s refusal to act, you are allowing them to control you. Once you recognize that, it becomes easy to walk away, you need to ask yourself, ‘Why do I want to have this fight? Am I angry about this primarily on principal, which means feeling that if I go ahead and fix the problem myself, that person would have gotten away with something? What is this stress doing to our family life?”

No Cooperation? Don’t Let Cheapskate Neighbor Ruin Your Day

So, how do we deal with a neighbor who is blind to the danger his property is creating for others nearby? “This is as much about psychological well-being as it is the law,” Markman strongly maintains. “Don’t let other people’s actions determine how you are living your life,” he underscores, and offers these suggestions:

(1) If it is clear there will be no cooperation, do whatever work needs to be done that makes you safe after providing written notice of your plans. You obviously can’t trespass on their property, and so when you are having your own trees done–trimming back anything that would be dangerous to you–and if the fence needs to be rebuilt, do it, send your neighbor the bill for half with the expectation it will not be paid.

(2) This does not mean that you have to be nice to your neighbor. The good side of the fence should face you. If it needs to be painted or stained, have it done on your side.

“This is not forgiveness. It means that you are not allowing your neighbor’s action to define how you are acting. If you turn it into a fight, you give the neighbor the ability of controlling you! He’s making your life miserable. He’s making you go through all sorts of gyrations to change his behavior. He is making it all about him.”

Confrontation Less Satisfying Than You Think It Will Be

“There are people in this world who are petty jerks and often it is tempting to engage with them at their level. In general, when you confront someone it is not as satisfying as your think it will be. But if you trim those branches encroaching on your property, rebuild the fence and give your neighbor the ugly side, you get to enjoy that for the next 20 years!” Markman concluded with a broad smile.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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“Often homeowners and commercial property owners do not understand the importance of maintaining vegetation — primarily trees — and this is especially important if they have neighbors whose homes or offices could be damaged by falling branches or the trees themselves,” observes La Jolla attorney Evan Walker, whose law practice concentrates on property damage and personal injury.

“Often, when buying a house, the last thing considered is the added cost of yard maintenance. With the price of homes off the charts, few real estate agents will tell buyers, ‘And don’t forget that you will need to maintain these trees and the yearly costs will be significant.’

And how significant is significant?

“Depending upon the size of the property, number and types of trees, and proximity to adjoining homes or other structures, the yearly or bi-yearly expense of hiring tree trimmers can run into the thousands of dollars, but that’s often not the more critical problem,” Walker points out.

“It is liability. Negligently failing to maintain your trees in a safe condition invites litigation when, as a direct result of this negligence or willful behavior, property damage, personal injury or death result,” he underscores.

Most lawyers recall cases discussed in law school under the heading, “Owners and Occupiers of Land,” where jury awards have been through the roof when it was shown that the owners had actual notice of the danger their trees posed to neighbors but chose to ignore it.

When Your Neighbors are Misers

This column has heard from so many readers over the years who live in fear of their neighbor’s trees falling. Most had already hired state certified arborists whose reports warned of an imminent danger of major property damage or injury certain to occur, and a copy of the report given to the neighbor.

Often I phoned these people, urging them to do the right thing and have the trees trimmed or removed, only to hear “No! I’m not paying for it and don’t care what the arborist says. Tell your reader to pay for the job!”

In several instances, within days, what was predicted to happen did. Resulting litigation frequently revealed these people to have the word miser stamped on their foreheads, yards overgrown with vegetation, home in a state of disrepair and bank accounts flush with thousands of dollars.

I have also found some of my readers to be just as miserly as their cheapskate neighbor, as an email from a New Jersey reader made clear.

“My name is Michele. I have dead trees right behind my fence and am being ignored by the owners. I need help and am at the point I don’t know where to turn. I’m not getting much help from my Township. Can you help me?”

So, I phoned Michele and learned:

(1) She has a report from an arborist warning, “These trees are as tall as a phone pole and are an imminent threat of falling on her house.”

(2) The neighbor was given a copy of the report, initially promised to have the trees removed, and then refused.

(3) It will cost $1,700 for the job.

(4) Her local government officials have turned a blind eye.

(5) Her source of income? “I am extremely comfortable with dividends from my investments.”

(6) Has she consulted with an attorney for a letter demanding that the dangerous condition be immediately remedied or suit will follow? “No, they charge too much!”

Evan’s Recommendations

“If it were me, I would alert my city or county authorities, law enforcement, code enforcement and elected representative. As it is a human interest story, local television and newspaper should be notified. Also, my own homeowner’s insurance company, putting them on notice of this potential claim as that is my obligation under the policy.”

When Michele told me that a consultation with a lawyer costs too much — in view of her clearly admitting having the financial means and obvious need for legal help — I said:

“You are being unreasonable, unfair to yourself and are exposing friends and family who visit you to a known risk of injury – and then you would be sued!

“Receiving your lawyer’s letter, these cheapskate neighbors will realize that you have the ability to drag them into court, I would expect them to react in a very different way, so after we speak, schedule a consultation with an attorney, please!

Necessity

I asked Evan, “What if, out of a reasonable fear the trees were on the verge of falling, Michele hires tree trimmers and without permission they enter the property, rendering the situation safe and they sue her for trespass. What would her defense be?”

“Her lawyer would raise the Defense of Necessity, explaining to a judge or jury that the law of trespass recognizes times when, to preserve the greater good, it is permissible — in fact necessary — to trespass. We call this an affirmative defense which says, “Yes, I did trespass but was justified in doing so as this was an emergency.”

Evan concluded our interview with two sayings, one 500 years old and from England — “Do not be penny wise and pound foolish.” — and the other credited to Benjamin Franklin:

“An ounce of prevention is worth a pound of cure.”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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“Filing your insurance claim after a wildfire is emotionally draining and should be done sooner rather than later to ensure your place in line is held,” says Los Angeles-based Karl Susman, an insurance broker for over 30 years.

He worries that a great deal of false and misleading advice on how to deal with claims resulting from California wildfires could result in substantial delays in claims being paid. Here, he answers questions that policy holders often ask and addresses how to deal with some scenarios.

I have to file a claim. Do I need a lawyer right away?

Start with the assumption that your insurance company is going to do right by you. Do not rush out and retain a lawyer. If it turns out that they don’t, then ask for a claims manager or supervisor.

If that is still not satisfactory and you feel the insurer is not being reasonable, then it is possible to retain a public adjuster (more on that later). If that still is not satisfactory, then and only then would you want to hire an attorney.

“Hiring an attorney prematurely or unnecessarily for the typical loss slows down the process of resolving your claim and can add considerable expense, as lawyers will typically be paid a percentage of the settlement,” Susman notes.

Also, for the typical storm/fire-related loss, hiring an attorney takes your claim to a completely different insurance company department. There are fewer adjusters who are trained to deal with attorneys. This will cause a delay — sometimes lasting months and even years — with no benefit to the policyholder.

Would it help me to file a complaint against my insurer about the valuation of my claim with the office of my state’s insurance commissioner?

“Generally, it is a zero-sum game,” Susman says. The insurance commissioner’s office will send a letter to the insurance company that essentially says, “Please justify your actions with this customer’s complaint.”

The insurance company will answer the complaint with the same documents they gave to their customer.

“Filing a complaint seldom accomplishes anything, but again, we are talking about the average claim. The exceptional, bad-faith case is a different story,” Susman points out.

Is it worth it to hire a public adjuster? I hear they have a bad rap.

The typical cartoon-character public adjuster shows up at your business or home after it has been destroyed, quickly signs you up and takes a piece of the insurance settlement, leaving you with much less than your own insurance company would have offered you.

“Propaganda,” says Susman. “Just as all lawyers aren’t crooks, there are good and some very poor public adjusters. In my experience, the main reason people are often dissatisfied with having retained a public adjuster is that the expectations of what a PA can do are not often met, and the settlement process can be slowed down considerably. I have seen instances where it took years to resolve a claim, and the insured got nothing different than what the company first offered.”

Insurance companies are not trying to avoid paying claims.

“The public often thinks hiring a public adjuster will in some way force the insurance company to do more,” Susman says. “But that is not how insurance functions. If you can justify the claim, the insurance company will almost always pay it. But they need to justify the payment.”

He recommends, “If you are having trouble getting a claim resolved, put on your claims adjuster hat and ask yourself, ‘If I was the adjuster, what would I need to see in order to pay this additional money?’”

My home business was totally destroyed. I have insurance, so what should I do?

“If you have a total loss like that, I would ask for policy limits,” Susman says. “What often happens is that when people have a total loss, and they realize they didn’t have enough coverage, instead of taking policy limits, they want to fight and get more. It is a zero-sum game, the worst thing to do. The message is simple: If you have a total loss, don’t try to collect more than your policy limits. It is a waste of time and money and will reward you with heartache.”

Some final, important recommendations

– Please, don’t forget that claims adjusters are people. They have good days and bad days just like everyone else. Their job is to hear from folks who are at their worst because something bad has happened. Try to have a little sympathy, a little empathy. Be polite.

– Don’t exaggerate or lie. This can nuke your entire claim.

– Don’t forget that your adjuster gets paid to settle your claim. They want to settle your claim, not reject it. Help them help you.

– Think of technology as your friend when claims people are pulling out their hair with so much to do. Providing good photos and videos to your adjuster will help speed the process.

– Review your insurance needs annually with your agent or broker.

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

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After the first El Nino storm of this year, Doug, a Central California reader phoned in a panic, his trembling voice explaining:

“Two days ago a neighbor’s tree crashed into our home, demolishing it, injuring our baby daughter and starting a fire. A neighbor heard the noise, called 911 and the Fire Department came out, followed by an insurance adjuster — a public adjuster. He asked me who I was insured with, and when I told him, he shook his head and said that I would never be treated correctly.

“He said that could become his clients, and get us all if not even more that what we are entitled to. His fee is only 10 percent, but I needed to move quickly, before our own company gets involved and cheats us. I was in shock and signed his contract.

“The next day my insurance company’s adjuster came out, reassured me that we were in good hands with her, immediately arranged for us to stay in a hotel and handed me a check for living expenses. I want to stay with my company — Can I get out of that contract?”

The average homeowner does not need a public adjuster

A pubic adjuster performs the same task as an adjuster who works for an insurance company, but is paid by the policyholder, usually a minimum of 10 percent of the claim. They monitor fire and police radio transmissions and, like sharks smelling blood, race to the scene of a fire or other property loss, often scaring already shaken up people into hiring them.

It can be a huge mistake, as Southern Florida-based independent insurance adjuster Peter Crosa explained to You and the Law. He conducts well-attended seminars for adjusters and the disaster restoration industry nationwide.

“Retaining a public adjuster at the very outset of a claim can be viewed as an adversarial act by your insurance company. Additionally, unscrupulous public adjusters will try to convert a legitimate $20,000 claim to an exaggerated $50,000 claim and take ten percent of the $50,000 if they get it. But the company may only pay you the $20,000, and then you end up with a real loss, having to pay the public adjuster,” he points out.

Over the years, You and the Law has been contacted by readers who had large losses where policy limits payments were offered by their own insurance company within a few days of the incident. But they had signed a public adjuster’s contract and for doing virtually nothing were on the hook for 10 percent!

“To prevent that from happening,” Crosa advises, “See what your own insurance company offers before retaining a public adjuster. In reality, for a basic claim, under $100,000, the average homeowner does not need a public adjuster. If it is a mom and pop couple who have been with the same insurance company for many years, chances are that they will be treated very well.

“But if it is a person who has a history of claims and questionable financial means, we’ll see that immediately. These people consider an insurance claim as an opportunity for income and will generally only use public adjusters. We see this pattern over and over again, especially with restaurant or night club fires.

You and the Law learned that the inside joke among claims adjusters is a question: “What do incompetent restaurant owners often have? Answer – Two failures and a fire!”

There is a reason that restoration companies such as Servicemaster or ServePro have little nice to say about public adjusters. “They try to slash their bills, while the insurance company pays in full,” Crosa stated. We independently confirmed his observations.

Lawyers who handle insurance claims will tell you that the last person in the world who you want to display a hostile attitude towards is your insurance company’s adjuster. Crosa explains the result of a “You-are-going-to-pay-me-no-matter-what” attitude:

“This puts the adjuster on the defensive. Their job is to control expenses, not cheat you and they have the checkbook. Your attitude should be, ‘Please tell me what I can do to help you with this claim?’ It is always better to come to the adjuster seeking help, rather than telling what you are going to do.”

“Finally, if you involve your lawyer out of concern, as a friend who just wants to make sure that you are doing what is necessary, this is good. Always remember that adjusters do not respond well to intimidation. They know how to drag their heels, so this is no time for a bull in a china shop,” he cautions

And Doug, our reader? He was saved by the three day cooling off period.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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The recent wildfires in Southern California and natural disasters elsewhere in the country have left thousands of people grappling with enormous loss — and the complex insurance claims process that follows.

Insurance companies owe a duty of good faith and fair dealing with policyholders. Unfortunately, some carriers are notorious for using unfair, manipulative and deceptive practices to delay, deny or minimize payouts of valid claims through unethical or illegal means. This is known as insurance bad faith — and it is crucial to be on the lookout for these tactics as you begin to rebuild your life.

While I do not recommend immediately hiring an attorney, under some circumstances — such as when bad-faith tactics are suspected — there is no choice. This is where lawyers experienced in bad-faith insurance practices are worth their weight in gold.

It never hurts to schedule a consultation, even at the very beginning, as a lawyer can help clarify your insurance coverages and be ready to help if it turns out that your carrier isn’t playing by the rules.

But as I stated in an earlier column, How to Deal With Property Insurance Claims After Wildfires, unless your carrier has flat out denied the loss or you suspect bad faith, allow the claims process to proceed and do not rush to retain an attorney, as the expense might not yet be justifiable.

I spoke with a friend of this column, Los Angeles attorney Shant Karnikian, managing partner and trial attorney with one of our country’s leading bad-faith law firms, Kabateck LLP. He addressed the following important points for how to proceed with an insurance claim and avoid common pitfalls.

Get a copy of your policy.

Whatever renters or homeowners insurance you have, contact your carrier to obtain a copy of the complete policy. Review it in detail to ensure you understand your coverage limits, deductibles and specific provisions related to the damage. Don’t forget to check other relevant policies, such as auto insurance or umbrella insurance.

Document everything.

When you can visit your home, take photos and videos of all the damage. You may need professional help, such as appraisers and structural engineers, to assess the full extent of the damage. An attorney can help connect you with the proper experts if necessary, but don’t be in a hurry to incur avoidable expenses. Allow the claims adjusters to do their work. Businesses should document all business losses and interruptions related to the incident.

Save all receipts.

You’ll need proof of whatever expenses you incur related to the disaster.

Keep a diary.

Take detailed notes and save records of every interaction with your insurer — letters, emails, calls, phone numbers, dates and times, names of the representatives you’ve spoken with and so on.

Prioritize your health.

Don’t return to your property until authorities have said it’s safe to do so.

Secure affordable temporary housing.

Most homeowners/renters policies cover a period of additional living expenses (ALE) for housing while you are displaced.

Follow proof of loss requirements and meet all deadlines.

Many insurance policies have strict policies and timeframes for reporting damage and filing claims.

Stay on top of your insurance company.

After filing, follow up on a regular basis to ensure your claim is being processed and that you have completed the requirements and provided all necessary information.

Don’t jump at your carrier’s first offer.

Do not feel pressured to accept an initial assessment or lowball offer, especially if you have not obtained a second opinion on valuation. Do not sign a release when accepting periodic payments.

Don’t rush into contracts.

Don’t sign contracts for repairs, rebuilds, clean-up/debris removal and so forth before you know the status of your claim. Be on the lookout for scammers targeting disaster victims.

Inquire about resources.

You may qualify for assistance through FEMA and/or the Small Business Administration (SBA).

Consulting with an attorney

Seeking advice early in the process from an attorney experienced with property losses — before filing your claim — is advisable, but ethical lawyers will not rush to sign you up unless it becomes clear that you are being dealt with improperly.

If you do encounter bad-faith tactics, a lawyer can advocate for you, analyze and address every aspect of your claim, help you build a strong case, identify overlooked benefits, navigate disputes with your insurer, ensure your rights are protected and help maximize your claim — but only when it is necessary, as avoidance of unnecessary attorney fees is crucial.

How to recognize bad-faith practices

I asked Karnikian to describe what insurance bad faith looks like. He said that insurance bad faith comes in many forms, including:

Failure to respond to a claim promptly
Refusal to communicate
Lack of reasonable standards for prompt investigation or processing of a claim
Failing to conduct a fair investigation
Requiring unreasonable proof of a loss
Misrepresenting terms and policy provisions
Denying policy benefits without a clear or valid explanation
Nondisclosure of limitations or exclusions when the policy was sold, or including those in the “fine print”
Delaying decisions and resolution — failure to approve or deny a claim in a reasonable time period after the loss is submitted
Pressuring policyholders to accept a low-ball offer
Forcing the insured to litigate the claim because the insurer refuses to make an adequate settlement offer
Advising policyholders against retaining a lawyer
Threatening policyholders to compel acceptance of an unreasonable settlement offer

If you believe your insurer is using bad-faith tactics to resist paying a valid claim, you can file a complaint with your state’s Department of Insurance, which will conduct an investigation and has the authority to impose penalties and fines on companies for violations.

In addition, depending on your circumstances, you may be entitled to pursue a bad-faith insurance claim in court to recover compensation and hold the insurance company accountable for its breach of contract.

A successful claim can help you gain compensation for:

Contract damages. The amount of wrongfully denied benefits, plus interest.
Extra-contractual damages. Other significant economic losses, as well as mental and emotional distress caused by your insurance company’s failure to fulfill its contractual obligations, including attorney fees.
Punitive damages. Generally reserved for extreme bad-faith cases and considerably more difficult to prove, punitive damages can be awarded to punish the at-fault party.

Proving insurance bad faith after a natural disaster can be very involved.

Your lawyer can help you build the strongest possible case to demonstrate that your insurer acted unreasonably and without proper cause.

“Lawyers who care will try every way possible to keep their clients out of court,” Karnikian says. “We are here to listen and help.”

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

The post Insurance Bad Faith After Natural Disasters: What to Know appeared first on Dennis Beaver.

March 26, 2016 • By Dennis Beaver

“It could be a storm or a car comes crashing through your home — families who prepare for the unexpected have better outcomes with the insurance claims process, and emotionally are in much better shape as well.”

Those comments are from Southern Florida-based independent insurance adjuster, Peter Crosa. A claims adjuster and seminar leader for over 35 years, he is quick to point out a weakness in the training of adjusters across the country which, “explains why claims adjusters do not receive Valentine cards.”

“What we do tends to make us hardened and not sensitive to the policyholder who has suffered a loss. Few people in claims receive any training on the emotional component of a claim,” Crosa observes.

With major property damage, such as a fire, their home washed away in a flood, or a tree crashing through the roof, “The entire family is often in a crisis situation where anxiety levels are high, revealed by worry, short temper, and at times, depression.

“It is essential to communicate feelings to your family and work with your claims adjuster. This could be a life changing event, that, when we look back, can say, ‘Yes, I know exactly where I was when that happened, and how mom and dad were fighting all the time,” Crosa maintains, adding, “Preparation for a loss you never want to suffer is the best assurance for a positive outcome.”

Assume the worst: your home is washed away in a flood or landslide. You’ll be asked to prove what was there and what you owned. This is not an easy task as Crosa explains:

“If you are hoping to remember after the event, then you are short-changing yourself as memory is often compromised due to stress, making a home inventory prepared in advance of a loss critically important evidence. So, grab a video camera or cellphone and:

• Take video and still pictures of every significant thing in your home, hopefully with a family member in the photo. Model and serial numbers will help.
• Describe the item, when purchased, how much was paid. Keep documentation which proves ownership, such as receipts and instruction manuals.
• When asked, “Can you show me proof that you owned this?” the adjuster is not calling you a liar. Your answer: “I took a photo of it, and here you are,” is a helpful, positive response, a real win-win for you both. 

What not to do following a loss

If ever there is a time to slow down and be a good communicator, it’s after a major property loss or auto accident. “Attitude,” Crosa points out, “Sets the stage between you and your adjuster. For example, the worst thing is to move into a motel or get a rental car without advising the adjuster that you are doing this.

“Especially if you have the attitude, ‘My house burnt and you are going to pay for me staying in a hotel.’ Or, ‘My car is wrecked and you are going to pay for a rental!’ If you go out and get that rental, the rates are probably double what we pay, as we likely have accounts with the same rental car company and most hotels.

“What happens when an insurance company is out of state and they do not have local adjusters What should I do in that situation, after I’ve phoned in the claim?”

Agreeing that this can delay prompt handling of the claim, his advice is to “Go directly to your agent and the agent’s staff, keeping them informed verbally and via text or email of your needs. Politely state, ‘I need to check into a hotel. Is this covered by my policy? Please advise.’ ”

Insurance claims are paid according to the terms of the policy, and most require establishing that the item actually existed. If there are no photos or other evidence of ownership, and you house is filled with things that cannot be restored, there is one huge, costly mistake you do not want to make, as Crosa points out:

“Do not throw property away even if you know the item or items are not going to be restorable or recoverable. Adjusters need an opportunity to inspect and will likely agree with you. But if a claims adjuster is not permitted to see the item, and there is no other independent way of proving ownership, then it is impossible consider it for payment. Therefore, retain the evidence, even it is a corner of your yard.”

Like locust descending on crops, some of the first responders to major events are public adjusters. Next time: Why hiring one could be a costly mistake.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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January 16, 2016 • By Dennis Beaver

‘In one of your recent articles the spokesman for State Farm insurance said something that applies to my situation,” Cheryl’s email began. He said ‘Being a good neighbor requires keeping tree branches and limbs in a safe condition to avoid damaging your home and your neighbor’s property.’

“The house next door is a rental owned by a lawyer here in Hanford. It has a huge, very tall, obviously diseased tree with limbs and branches that extend over — and even rest on — our roof! On both sides of our common fence, branches are in electrical and telephone wires, but not near the power company’s wires, so they will not trim them.

“The trunk is so large, that it is causing our common wood fence to lean, and its roots are damaging the foundation of our garage. Now, with El Niño, we are more worried than ever that a limb – or the entire tree — will come crashing down on our house!

“Three years ago it was bad, now it is terrible, and we have phoned and written the lawyer, begging that he do something, but he just repeats that it costs too much to remove the tree and he plans on selling the property.

“What can we do legally? What should we not do?”

Photos confirmed her description. This was clearly a dangerous situation, especially now with El Niño.

“Your reader’s situation is, unfortunately, common, and meets the legal requirement of a nuisance,” observes Los Angeles attorney Philip Nevinny, explaining that, “When something on your property – in this case, a tree – is permitted to substantially interfere with a neighbor’s use and enjoyment of their property, we call this a private (and sometimes public) nuisance.”

In his 25 years of law practice, Nevinny has, “far too often seen neighbors acting in an unneighborly manner with trees, either cutting them down illegally, or refusing to spend the money to keep their trees safe.

“It is mind-boggling how people who understand the legal consequences of refusing to address a dangerous condition on their property — and who have the financial ability to remedy it – become misers when it comes to the safety of their own families and neighbors who could be injured by falling trees or limbs,” he observes.

So, for Cheryl and other people facing the same danger from miserly neighbors, what can they legally do?

Before self-help — trimming limbs and roots herself — which might be legal but if done improperly, could land her in legal hot water — Nevinny provided guidelines which we feel are an excellent approach, beginning with communication and documentation of the nuisance. From overhanging limbs, encroaching tree roots, water flowing onto your property, late night, loud parties, whatever the nuisance, take date-stamped photos and videos.

Communicate! No matter how upset you are, remain polite. Perhaps your neighbors are unaware of the broken sprinkler head, or, they live in a different city and seldom see the property. If they are jerks, you’re becoming nasty will not help resolve the matter.

Check real property records to determine if there are any CC&R’s recorded against your property, which may grant you rights to (abate) correct a neighbor’s nuisance.

Send a polite letter which points out the problem, and ask for their help. No response? Send another, always remaining polite, because a judge or jury may read your letters.

Nothing happens? It’s now time to see an attorney. A letter from a lawyer to the neighbor should be professional and courteous, giving a fair statement of the facts, asking that they cease the activity.

The tone of your lawyer’s first letter should not be overly aggressive. But often more than one letter will be necessary, the final one making it clear what they are facing, with language such as:

“We wrote you, and nothing has changed. We are hoping to avoid filing suit; therefore please consider this our final demand that you cease and desist the conduct which has been earlier described. This is not a threat, rather, a statement of what you are forcing us to do if the conduct continues.”

“Taking matters into your own hands, Self Help, is risky and severe penalties are out there for the uninformed — so be careful,” Nevinny cautions.

With Cheryl’s permission, we phoned the attorney who owns the rental, asking, “What has prevented you from being a good neighbor?”

“Beaver, don’t mention my name, and I’ll remove the tree this week! Deal?”

Deal it was! Tree gone. Reader happy.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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