Approval Of Property Damage Release Claim #04102014: Fill & Download for Free

About 20 years ago, I was representing an electric utility that many years earlier maintained its headquarters in a rural area that subsequently became a very busy part of the city. In the early 80s, the headquarters building and several acres of property had grown in value so the utility decided to sell the property and relocate to an area with less traffic and more room. The property was sold to an auto dealership pursuant to a lease-purchase agreement, with the understanding that after the ten-year term of lease expired, the car dealership would pay the balance due and take title to the property.When the ten-year deadline arrived, the dealership began the process of obtaining the necessary financing required to pay off the balance. To no surprise, the lender conditioned its loan to the dealership on receipt of a clean environmental Phase I site assessment. I knew that was bad.In the years that the utility had owned the property and maintained its headquarters on the site, it was a common practice to bury trash and other objects on the property, many of which are now considered toxic. That was in the years before the PCBs found in numerous components of an electrical system, including capacitors and transformers, were understood to be carcinogens. When the results of the Phase I Site Assessment came in, it was ugly. Numerous indicators of the presence of contaminants dictated that a Phase II assessment and site cleanup would be required. Ground-penetrating radar revealed the existence of several buried dump sites and the utility was faced with bearing the cost of a site cleanup or a breach of the lease-purchase agreement and millions of dollars in damages.The site cleanup process began. The “burial sites” were excavated, the contaminants and contaminated soil were removed and the excavation sites were back-filled with “clean” dirt. As the process went forward and the cost of the cleanup and remediation escalated, it occurred to me to check the utility’s old liability insurance policies to see if there might be coverage for some of the cleanup expenses. I was able to locate policies for 1967–1975 (the utility entered into the lease-purchase agreement in 1975). To no surprise, the policies had environmental contamination exclusions (and specifically, coverage exclusions for environmental contamination of the insured’s property caused by the insured), except, that is, the liability policy from 1969. For some reason which I was never able to determine, the policy in effect in 1969 had no environmental exclusion for contamination caused by the insured, whether such contamination was of property of a third party or property of the insured.After finding that the 1969 policy did not contain the environmental contamination exclusion, and satisfying myself that coverage under the policy was provided on an “occurrence” basis (coverage was provided for incidents which occurred during the policy period, without regard to the passage of time between the incident, discovery of the incident and the date of the claim), I decided to contact the utility’s CEO to propose making a claim under the 1969 policy.I learned that the utility’s CEO was at the site, checking on the progress of the cleanup, so I drove to the site to tell him about my discovery. I found the man standing near the back of the property, looking at the many excavation holes and all the excavated materials rapidly piling up, with a forlorn look on his face. Obviously, the cleanup was becoming an expensive proposition. I told the CEO about the 1969 policy and pitched to him my theory of recovery, suggesting that we should make a claim for the cleanup cost against the liability insurance carrier who wrote the 1969 policy. I reasoned that under a worse-case scenario (and most likely), the insurance carrier would deny coverage. I also pointed out the possibility that we might be able to recover some portion of the cleanup cost. Given my young age and relative inexperience, he gave me a rather dubious look and asked whether I really thought an insurance company would provide coverage for damages to the utility’s property that was caused by its own actions that were undertaken over 20 years earlier. With unwarranted confidence, I told him that there was a reason that the other policies I had found and reviewed contained an environmental contamination exclusion and thus, there must be a reason why the 1969 policy did not contain the exclusion. I further explained that the insurance policy was written by the carrier and would be construed against the carrier. As he thought about what I was proposing, an employee of the utility overseeing the cleanup walked over to where we were standing and said, “Look what I found at the bottom of the hole we are digging.” He handed the CEO a rusty license plate dated 1969.With the license plate as evidence (and a sign from God), I sent a demand letter to the insurance company seeking indemnity under the 1969 policy for the cost of the cleanup which was quickly approaching $1.5 million. To no surprise, the carrier did not respond. I then consulted with the CEO (who didn’t like being ignored anymore than I did) and secured his consent to file suit against the carrier, seeking indemnity, bad faith damages and attorneys fees. That got the attention of the carrier and generated a response. The carrier’s answer to my suit was an incredulous denial, together with a suggestion that my demand and subsequent suit were frivolous.I no longer recall the exact sequence of events but after several months and the exchange of various pleadings, by which time the cleanup had been completed at a cost of $2.1 million, one day I received a phone call from the carrier’s general counsel, along with a vice president. After the customary exchange of pleasantries, the carrier’s vice president stated emphatically that the company would never pay such a ridiculous claim and that they were not in the business of paying their insureds to contaminate their own property. Before the words, “Well, why the hell are you calling me?” could formulate in my mind, the V.P. continued, “While we will never pay a claim such as this one, we find the risk of being haled into court every time an issue arises which implicates our coverage obligations for actions your client took in 1969 to be unacceptable (because such claims are so frequently asserted, no doubt). We are no longer willing to accept exposure to such risk. Accordingly, we propose to buy out of all of our risk and liability under the 1969 policy by paying your client the sum of $2.1 million.” After making sure I fully understood his offer (I did), I calmly told him that I would discuss the offer with my client. I silently prayed I could reach the CEO and obtain his approval before the insurance execs changed their minds.I called the CEO and explained the phone call and offer. Three times. The insurance company would not pay the utility’s claim, but it was willing to pay the utility $2.1 million (the cost of the cleanup), in return for which, the utility would sign a Release of Liability, agreeing that the utility could never again assert a claim against, or seeking coverage from, the insurance carrier for any liability attributable to any act of the utility occurring in 1969 (25 years earlier). We both agreed that the offer was immensely fair. His only words to me following his grant of consent to the settlement was, “Hurry!” It was the craziest suit in which I was ever involved.

People hire attorneys because they think that they are incapable of handling their own claims. Nothing could be farther from the truth. You do not have to sue. Most of the time you do not even need to have an attorney. Most people can and do handle their own claims when the at-fault party has insurance. If the at-fault party was uninsured, the injured party may be able to pursue an “Uninsured Motorist” claim with his own insurance company.It is a misconception that insurance companies will try to cheat claimants. Reputable insurance companies expect their adjusters to handle claims promptly and fairly, neither overpaying or underpaying. When money is involved there may be disagreements. Disagreements do not mean that one is being cheated.Comparative negligence may be applied to a claim settlement (based on the law of the state), which will reduce one’s right of recovery by one’s own degree of contribution to the accident. Comparative negligence is negotiable.Property damage claims are pretty cut and dried. An appraiser will obtain a guaranteed price of repairs from the shop of the owner’s choice. If additional damage is found during the work, the appraiser is recalled to write a supplement. Even if a property damage release has been signed, the insurance company will honor an approved supplement.If a car is a total loss, the insurance company will try to establish a fair market value for the vehicle. Total loss settlements are negotiable.Bodily injury (sometimes called “personal injury) claims are based upon the nature of the injury, the duration and cost of medical treatment, the length of disability and wage loss, additional expenses such as home care, permanent disability or scarring, possible future treatment, plus “pain and suffering”. Injury claims are not settled until treatment has been completed. There is no formula for determining the value of an injury claim. Injury claims are negotiable.The recurring message above is that claims are negotiable. The claimant asks for a high amount. The adjuster offers a lower amount. The parties make an agreement somewhere in the middle.If one is stonewalled and cannot make any progress toward resolution, then consider hiring an attorney. If the statute of limitations is approaching and the claim is not near settlement, hire an attorney. If one is very seriously injured, maimed, or killed, an attorney should be hired, because there is more at stake. Consider the available policy limits before hiring the attorney. If the policy limit is only $25,000, one cannot get $100,000 by hiring an attorney.Remember that an attorney will get a contingency fee and expenses off the top of the settlement. The contingency fee may be 25–50% depending upon the retainer agreement. Getting an attorney does not guarantee that one will get a bigger settlement. Indeed, in most instances, the adjuster will offer the same amount to the attorney that would be offered to the claimant. However, getting an attorney will almost always guarantee that the claim will take longer to settle. Get that? Not sooner, but longer. Working directly with the adjuster will move the claim along much faster. Just sayin’.

I’ve been watching the progress of trade war closely. Unfortunately the western media only covers what has been done by the US side. There are a lot of counter attacks made by the Chinese are less reported.As far as I can see, the trade battle is fierce and wide-spread. The US seems a bit advantageous, however the counter-attack made by China is hurting US a lot harder. The casualties are beyond what we’ve imagined for both China and US. Meanwhile Europe seems to benefit the most from this trade war.Counter Attack 1: currency fightsEffect: Lose 10% of HP, increase Attack by 50%A weaker currency is one of China's key tools to deal with Trump's trade war -- but it comes at other costsTrump Says China's Currency 'Dropping Like a Rock'Although the Chinese currency is claimed to be fully based on the market, there are still a lot of big players including the top banks in China that could impact the currency rates. Since the trade war, they have been releasing huge amount of RMB to buy dollars through various means. This made the value of the Chinese currency fall faster and faster. It also caused a huge fear in the stock market in China. And it seems there were no further actions from Chinese banks to stop it falling, which means they want to devalue RMB further.The impact of a cheaper RMB is a double-edged sword.It can make the Chinese exports cheaper and properties in China cheaper.Both Chinese and Foreign investments that are already in China lost a fraction of their property values since their investments are in shrinking RMB.Since properties become cheaper, the Chinese labour become cheaper, new foreign investments are willing to invest more in China. Therefore the long term impact is that they will attract new foreign investments.Inflation would rise and all commodity prices would rise due to more expensive import prices including oil and other ingredients.In simple words, the Chinese government is draining a fraction of the blood from all its people and properties in China and gains enormous strength to negate the US trade action.The Chinese government places on a bet that the loss of this blood will be compensated by attracting more product orders from the rest of the world and more foreign investments in the near future. This is what currency manipulation does and it proved so effective that leads more US companies to come to China since 2001.The effect is also significant. We already saw that the US companies including Harley Davidson and Tesla announced that they will be building new factories in China meanwhile the trade war is on-going. Facebook and Google are planning to build new branches in China as well however Baidu is trying everything to prevent that happening.As there are more foreign companies and investments that operate in China, especially US companies such as Apple, Walmart, Starbucks etc. Their blood are can be drained using various legal actions made by the Chinese government. This blood would eventually compensate the loss caused by the US tariffs.The trade would eventually stablise into a new equilibrium with updated trade tariffs.Counter Attack 2: technological fightsEffect: Inflict damage to the US companies in China and small damage to China itselfWhen the US announced the sanctions on the Chinese company ZTE, the Chinese government announced the ban of a similar memory chip US company called Micron.Micron has the same revenue $20 billion, which is similar with ZTE. However over half of its memory chips are sold in China. Now all its memory chips and SSD hard disks are banned in the Chinese market.Chip stocks fall after report China court rules against MicronThe Chinese government also made the US company Qualcomm’s life more difficult to operate in China. Recently it also prevented the Qualcomm acquisition of the Netherland semiconductor company NXP. As the acquisition needs the approval of regulation authorities from nine major markets, China is the only one market that blocked this acquisition.China Deflects Blame for Qualcomm Nixing $44 Billion NXP DealAs you can see, China is targeting on those big chip manufacturing# companies. There are quite a few US companies that are heavily relying on the Chinese market. So far, China has already targeted two of them.However the it seems the Chinese government is not picking on the US companies whose products are manufactured in China or providing huge employments in China. Therefore Apple, Nike, Walmart, Starbucks etc will not be targeted.Counter Attack 3: counter tarrifsEffect: Inflict huge damage to the US companies and products in US and also damage back to China itselfAuto Makers in the U.S., Including Tesla and Ford, Brace for Additional Tariff From ChinaChina announced that all car manufactures from the US faced 40% tariffs meanwhile the rest of car manufacture from Europe, Japan and Korea the tariffs are reduced from 25% to 15%.And we don’t have to mention the soybean tariffs. It seems this is heavily reported in the US media.China could bring more pain to US soybean farmers if Trump escalates the trade warEventually if the trade war escalates, all the US imports could be charged 10% to 40% more. Both the Chinese buyers and US sellers would suffer.Counter Attack 4: expand new marketsEffect: Seek new growth.China understands perfectly that placing all eggs in one basket is a very dangerous move. That’s why it is actively expanding its market in the rest of the world. As far as I know, those low-end goods exports to US only account for 15% of the Chinese total exports. And China is actively diversifying its export partners and expanding its market in less developed areas such as South Asia, South East Asia, Eastern Europe, Africa and South America.China is not just building massive infrastructures on those countries, but also pushing very hard to sell its products in those countries. These are the efforts made not just by the Chinese government but also private companies in China. You can have a visit to any shops and supermarkets in those countries and examine the fraction of made-in-China products there.For example the Chinese mobile phone companies have occupied around half of the Indian mobile phone market.The new trade links has also brought huge political influences in those countries. By connecting China with those countries more, China is then less vulnerable in the trade war with US.Meanwhile, the high-end manufacturing in China has been growing rapidly since the China 2025 initiatives. This is the sector where US is mainly targeting for. However the high-end section still accounts for a very small faction of Chinese exports. Attacking this sector does not hurt the root of Chinese exports.If US is enforcing tariffs to all made-in-China products in the US, China may lose 10% of its sales. At the same time, China can expand its market in Africa for another 10% to compensate its losses. Therefore China can use this approach to minimise the damage and negative impact to itself.There are a lot more moves made by the Chinese government that are not reported by both media. I will update this page if something new happens.Therefore by using the four counter attack mentioned above, China is fighting harder and it would never surrender in this trade war.