Want to learn how to argue for coverage? Sometimes, lessons can be learned from cases that do not end favorably for the policyholder. Yesterday’s post, When Vultures Circle, Coverage Can Be a Hard Bird to Land, is one example of a case where an excellent public adjuster and attorney took two steps every public adjuster should consider when arguing for coverage. Although the ultimate decision was not favorable, the methods utilized should be standard practice for public adjusters.
What is one book that all public adjusters should buy and study as a guide to learning how to argue for coverage? The answer is Bill Wilson’s book When Words Collide: Resolving Insurance Coverage and Claims Disputes. We posted a book review of this in Book Review: When Words Collide, by Bill Wilson. Wilson wrote about 10 policy interpretation doctrines that attorneys should quote in their legal briefs. Number four is: The purpose of insurance is to insure. He wrote the following about this doctrine:
While it may sometimes seem that an adjuster is looking for a way out of a claim, that’s not where the search for coverage begins or should begin. As many courts have said, the purpose of insurance is to insure. Consumers and business owners don’t buy insurance in order to not have coverage (though when you shop on the basis of “fast, easy and cheap,” that’s all too often what you get).
…
So, going into the analysis of a claim or coverage question, the presumption is that what happened is covered.
Randy Goodman and Bill Wilson made separate presentations at the recent First Party Claims Conference. Goodman is a past president of the National Association of Public Insurance Adjusters (NAPIA). He was noted in this blog post: Randy Goodman NAPIA Person of the Year.
Randy Goodman’s presentation with Mike Duffy captivated me. It was an outline of what every public adjuster should consider during typical claims handling. One point he made, which is similar to Bill Wilson’s instructions, is that all public adjusters should advocate for the fullest coverage available under the policy and be able to do it in writing. Wilson’s book is helpful because he describes the techniques anybody can use to do so.
Randy Goodman was the public adjuster working for the policyholder in the Vultures coverage case. 1 When I went back to the trial court filings, I found a letter he wrote to the insurance company explaining why the exclusion the insurer was relying upon was incorrect and that coverage should be afforded. He wrote, in part:
The captioned policy that was prepared, designed and issued by Hanover does not include a definition for either nesting or infestation. We have therefore obtained definitions through internet research and provide various definitions to you:
Nesting (of a bird or other animal) building or occupying a nest. “do not disturb the nesting birds”
Nested; nesting, nests. Definition of nest (Entry 2 of 2) intransitive verb. 1. To build or occupy a nest; settle in or as if in a nest.
Infestation—the state of being invaded or overrun by parasites
Infestation—a swarm of insects that attack plants: “a plague of grasshoppers”
Mr. Malmquist’s report does not mention or identify in its pictures any evidence of bird nests or nesting, and the picture of three birds perched on the roof of the building cannot be viewed as “nesting” defined above. There were no nests identified – the conclusion that was reached was the birds chewed and pecked the roof membrane.
The definition of Infestation is likely not needed, as it undoubtedly refers to insects or rodents contained in the exclusion; even so we have elected to include the definition for your consideration.
We are confident that Hanover’s denial was based on the “nesting” exclusion and not “discharge or release of waste products or secretions, by insects, birds, rodents or other animals,” as you’re your engineer’s report does not conclude in any manner discharge or release of waste products or secretions.
It is clear, unambiguous and undeniable that the captioned policy provides coverage for this damage, caused by, as determined by Hanover’s forensic engineer, chewing and pecking by birds on the roof membrane. We therefore respectfully ask that Hanover promptly reconsider its unsupportable denial of benefits and confirm coverage for this insured event.
Finally, as discussed, if Hanover wishes to have another inspection of the property please do so quickly, as the insured is going to commence replacement of the entire roof very soon as a result of the damage.
Public adjusters need to be excellent insurance coverage nerds like Randy Goodman. This means writing coverage letters that are professional and using techniques found in Goodman’s letter and as taught by Bill Wilson. After reading Goodman’s letter, I could more easily see how the exclusion seemed to be limited to the nesting of birds, which did not occur. I also appreciated that vultures may not be seen as infesting animals.
Can an expert help explain the situation that proves coverage? Every public adjuster or person advocating for coverage should consider whether an expert is needed. Finding and retaining an expert regarding vultures is not exactly as easy as finding an expert on roofs, but this is precisely what attorney Brian Goodman (yes, he is Randy Goodman’s brother) creatively did in this case.
In a fact stranger than fiction, the expert that Goodman hired in this case was Dr. Peck. Peck is an ornithologist who studies birds and their behaviors, patterns, and interactions with their environments. Dr. Peck provided an opinion that confirmed that the damage to the roof was not caused by nesting behavior or an infestation of vultures. Rather, Dr. Peck opined “that the damage to the roof was caused by pecking or shredding of the roof’s protective membrane by the beaks of turkey vultures,” likely “a small number of passing turkey vultures temporarily using the roof as a perching site.
If you want to be a great public adjuster, you must first reconcile yourself to the task and joy of becoming an insurance coverage nerd. Randy Goodman’s letter and demeanor showed a high level of professionalism, which all public adjusters should seek in their work.
Great attorneys have to be creative and resourceful. Brian Goodman’s retention of an expert to help put substance around the written words of the insurance contract is an excellent example of what public adjusters and attorneys should be thinking about when developing arguments for coverage.
The four takeaway lessons from this post:
- Study Bill Wilson’s book.
- Attend and learn from experts at the First Party Claims Conference.
- Argue for coverage in a professional manner, which should also be in writing.
- Ask whether an expert can help make the case for coverage, and if so, retain that expert.
Thought For The Day
“Some birds are not meant to be caged, that’s all. Their feathers are too bright, their songs too sweet and wild.”
—Stephen King
1 Mitchellville Plaza Bar v. Hanover American Ins. Co., No. 22-2089 (Jan. 19, 2024).
