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Last Post 04/05/2010 10:41 AM by  Ray Hall
standard duty of care by insurance contractors
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RJortberg
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03/22/2010 8:08 PM

Leland-

About the plumber / shower... regardless of the actual facts, I think many would have responded that the water damage had already caused the tile to separate from the durock, and there was no need to damage the drywall on the other side of the wall since the tile was already loose and bubbling, the wall already had to be replaced, etc. Point is most will say that what they did was required by x,y or z facts.

But assuming that the plumber did admit that he had not given this other approach much thought per your scenario, I think duty to pay is based on a question or standard of reasonableness. Most plumbers would know better than this plumber, and therefore the plumber in this case was negligent / less than professional in his services when compared to the actions of his peers. Therefore the property owner is the damaged party. and the plumber is responsible for curing the damages due to his neglect. This is probably a case for small claims court even if the plumber files a mechanic's lien. I'd guess the net damages would be based on the cost to cure the negligence less the cost of the basic service performed (as if fixing the shower through the drywall).

About adjusting the wrong structure... I'd like to hear how the carriers would view this. The interesting fact here is that the insureds fence encircles the neighbor's building, and that poses a question of adverse possession. Assuming the fence is a non-factor and that both the neighbor and insured agreed that the improvements are in fact owned by the neighbor, then a few questions are raised - why did the insured file a claim on a property he knowingly does not own. Next, assuming the carrier pays, then is the adjuster liable for the $50K? He/she certainly does not get to keep the $800 fee since the property adjusted was not on the dec sheet, but is he/she liable for the $50K? I would say the carrier would probably pursue the insured first for false reporting / insurance fraud, and the adjuster would get off w/ a slap on the wrist. But he could be liable for a shortfall since he/she did not verify the property address / legal description.   I'm curious to see how this would actually play out from a carrier's standpoint.   

And Olegred - you may want to watch for your ongoing use of absolutes.  When I hear the words "only", "any", "every", etc., I cringe because it unnecessarily opens up potential for conflict... maybe you want that, but I would shudder if I heard that on a regular basis, because some of us have sufficient life experience to know that rarely is anything 100% one thing or another, and tempering judgment and facts helps reduce potential conflict.  Anyway, that's my absolutely valuable $.02. 


 

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Ray Hall
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03/23/2010 1:08 AM

I think the insurors have found over the years a recommended contractor for any repair on a auto or building by the carrier has more bad ponts than good. Just pay a fair amount and move to the next loss. The higher  deductible amounts have changed many Homeowners into doing more clean up task themselves.

If you look at the NFIP program you will see it,s designed for "do it yourselfers".T he exactimate  data base has enough cleaning codes for a person to take his family on vacation for a week on a good smoke claim.

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Olegred
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03/23/2010 2:52 AM
advise taken :) I will never use never...
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claims_ray
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03/23/2010 3:12 AM
Your showing how well your Masters Degree is working with your spelling on that one Olegred.
Advise or Advice?
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Olegred
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03/23/2010 1:07 PM
hey, man when you speak 5 languages and E is not your mother tongue, you make mistakes ... advice is the noun... thanks for correction ... you can eat another fat burger with fries to celebrate...
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sbeau4014
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03/23/2010 3:36 PM
Olegred, I was just wondering, what did you get your Masters Degree in and from what school? Did you actually work in your field of study after getting the degree, and if so, what convinced you to make the jump to cat adjusting? I would think that getting a masters degree and being able to speak 5 languages would make one pretty marketable in your field of study.
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Leland
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03/23/2010 5:04 PM
I am bilingual in Xactimate and can get by with basic MSB.
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Leland
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03/23/2010 5:12 PM
I wanted to mention the "duty of care" I now realize is more of an issue with people getting hurt as in "the contractor (or landlord etc.) did not exercise the 'standard duty of care' to clean up the spilled water and barricade the open pit and therefore people got hurt"

I think the term I needed was something along the lines of professional negligence...

Obviously it is one of the common torts but not being a lawyer I don't know the right words.
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Olegred
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03/24/2010 6:06 PM

Shoot, man, I came 7 years ago with 24 dollars in my pocket, no papers, no friends, no family... Had to survive for a couple of years, so I did what I could ... namely, putting roofs on, siding, drywall.... :)  Then, started estimating and selling for my own little company, then moved to hailstorms chasing, then to adjusting...  I was studying Linguistics, I can still go back to the field, maybe I will... but it's  much less money.... I'd rather be CAT for a while... then, I am working on my own little business to fall back on, if times are slow... and maybe will go back to get my PhD but really not as a job but rather as self development project  :)

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sbeau4014
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03/24/2010 8:53 PM
I understand now Olegred. Leland, the legal terminology you are discussing is malpractice, whether it be legal, medical or professional (accounting, engineering, adjusting, architectural, contracting, etc). All have a standard duty of care in any given situation, and to determine if someone is "guilty" of malpractice in a given situation, the plaintiff attorney has to estabilish what the standard duty of care would be for that situation (by testimony of other professionals in the same field) and that the defendant breached that duty.
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Olegred
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03/24/2010 9:21 PM
back to the topic, that standard of duty you are talking about ... it just doesn't apply to the contract between insured and the insurance company, it's a 2 party contract, how does contractor fit in?
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sbeau4014
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03/24/2010 9:31 PM
It does apply to the contract between the contractor and the insured. As mentioned earlier in the thread, there would be a written contract between the two (in the absense of one the insured wouldn't have to pay the contractor anything).
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Olegred
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03/24/2010 9:50 PM
well, in that case there will be scope of work in the contract.... to verify if this scope would be covered by ins company is policyholders responsibility,,, how do you hold contractor liable for this?
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claims_ray
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03/24/2010 10:36 PM
I believe that the scope of work is not necessarily in question but maybe the way in which it is performed so as to increase the necessary costs. The questions state that the contractor is claiming to be a specialist in handling of the damages portrayed. If you weren't so quick to dismiss what has been posted here you would understand.
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Olegred
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03/24/2010 10:56 PM
ok.... if the scope of work is not in question, then the manner in which this scope is performed is up to the contractor... but now we are back in the domain of quality of work and the insurance is out of the picture.... if the homeowner is not satisfied let him take contractor to court... on basis of unsatisfactory work... :)
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RJortberg
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03/25/2010 2:56 PM

Scope of work should be at issue since actual work completed should reflect reasonableness. If there is a weak scope, there is greater potential for contractor to abuse situation. A better scope limits the ability to abuse situation. For example, say contract is signed and the contractor is going to repair x and says after the fact that 10x normal hours were required to fix x. Contractor can say all he wants about the bill, but prudent insured should / will balk at paying due to excessiveness, especially if there is a tight scope. If not, this becomes a negotiation issue, a BBB issue and a litigation issue. Carrier is not going to pay for massive over billing, and insured should be somewhat educated going in at least by getting multiple bids, reviewing scope, etc.

I worked one claim in Florida after Wilma when a roofing contractor charged a homeowner $7,000 for a roof repair. When I went up to look at the damage, I found a can of the white elastomer paint still on the roof, and an area about 5x5 or so painted over concrete tiles with replacement of about 2 broken concrete tiles (which were still on the roof). That was it! I did an estimate for roof repair based on Xmate, showed the insured pictures of the "repair", and told them that they should contact the contractor now that they had seen photos of the small scope of the repairs for the first time. Without seeing the pictures, the insured really could not judge how bad she was taken advantage of. Invoice said "roof repair - $7,000". No prior contract, no scope, etc. Just a big fat bill, with the shortfall absorbed by Insured.

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Leland
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03/25/2010 4:59 PM
OK if the general contractor is using a jackhammer on the first floor and the vibrations make a china cabinet fall over on the second floor, should the insurance company pay for the china? What if the general says it was a totally unforeseen circumstance, and besides, the floor may have been up to code but it was a little bouncy and they didn't know about it ahead of time.


What if the adjuster calls a second concrete demo contractor who says, "oh yes, that happens sometimes, we always check the second floor and tie off stuff and make the insured sign a release."
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RJortberg
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03/26/2010 3:13 PM

Yes - Carrier pays and could subrogate IMHO.

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Leland
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03/26/2010 3:40 PM
Well, notice in my example the SUB was aware of the potential problem but the GENERAL contractor was surprised.

Should a General contractor taking on work normally or often done by subs, be liable for screwups caused by the general not knowing about the standards normally used by the subs that know that trade and do it every day?

So to compare it to adjusters- if a property adjuster takes on a vehicle damage claim, and makes a mistake that no regular vehicle adjuster would make, could the property adjuster say, "Well, its true that I AM an adjuster, but don't hold me liable to the standard of quality adjusting that vehicle adjusters follow, just hold me to an imaginary standard of the kind of job a property adjuster would do on a car if they never did a car claim before"

Now you male a good point, the insurance company could pay it and subrogate but not if it was a DP1 ploicy (named peril) unless they made a very liberal coverage determination (ie the proximate cause of the china falling was the original peril).
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Ray Hall
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03/26/2010 9:12 PM

Many contractors work insurance losses. It is a niche biz, and twice as many contractors will not deal with insurance claims. Any time any person connected with the claim process makes a recomendation of how to repair a structure or or any object in the house the carrier has to live with good and bad results. Its always best to work with the contractor if the insured has one in mind. A lot of smoke and water remediation contractors giggle with gleewhen the adjusters "leave it to them".

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