Burg Simpson Shareholder Thomas R. Henderson Comments on Important New Insurance Case
Burg Simpson shareholder Thomas R. Henderson comments on an important new insurance case that was decided yesterday by the 10th Circuit Court of Appeals:
On October 1, 2021, the 10th Circuit Court of Appeals resolved a long-standing question about the appraisal clause present in most insurance policies. Almost all insurance policies include a dispute resolution mechanism in them call “appraisal”. Either side can trigger it when there is a dispute over the “amount of loss”. Insurance companies have long claimed the appraisers are not allowed to decide what caused the loss but instead can only decide how much should be paid. The Tenth Circuit Court of Appeals decided the insurance industry is wrong, that appraisers can decide questions of causation. The case is Bonbeck Parker v. Travelers, 20-1192 (10th Circuit, Oct. 1, 2021), and involved hail damage to a roof. Even though the appraisers determined the total amount owed for hail damage to the roof, Travelers argued some of that damage was caused by wear and tear and not hail – a common exclusion used by insurance companies to avoid paying claims. Travelers argued that the language in the appraisal clause stating it still retained the right to deny the claim allowed it to use the wear and tear exclusion to deny coverage. The 10th Circuit said NO, appraisers CAN decide questions of causation, which decision is binding on the insurance company.
This is an important victory for policyholders in the ongoing fight against the insurance industry to hold them accountable for their promises in the insurance contract. Insurers will be acting in bad faith when they try to deny claims that appraisers have decided were caused by losses covered by the policy, or if the insurer argues the policyholder cannot use the appraisal process to decide questions of whether a loss was caused by an event covered by the policy or excluded by the policy.
Burg Simpson shareholder Tom Henderson focuses his practice on representing policyholders who are suing insurance companies for bad faith, and he fights to get insurance companies to pay what the insurance policy promises to pay. Mr. Henderson spent the first 20 years of his practice representing the insurance companies, answering their questions about whether the policy provided coverage for various claims, and even defending them when they were sued.
Tom Henderson now uses this unusual background to his clients’ advantage because he knows where the weak spots are, where the smoking guns are hidden and how best to structure his clients’ cases to maximize the potential of getting the insurance companies to pay. He represents both individual consumers and businesses in their pursuit of insurance claims. For consumers, this includes auto uninsured and underinsured motorists, homeowners, renters, liability, property, health, disability, and life insurance claims. For businesses, this includes auto, liability, property, lost profits, directors and officers, professional liability, and construction insurance claims. These claims can range from a few thousand dollars to millions of dollars.
One of America’s foremost plaintiff trial firms, Burg Simpson Eldredge Hersh & Jardine, has a longstanding and nationwide reputation for fighting relentlessly and successfully for victims of negligence, malfeasance, malpractice, and abuse. Our attorneys have never hesitated to fight for our client’s rights and consistently face and defeat formidable adversaries that include big insurance companies, big banks, and big pharma. Burg Simpson has secured more than $1 billion in verdicts, settlements, and judgments in practice areas spanning catastrophic personal injury, mass tort and class actions regarding gas explosions, dangerous pharmaceutical drugs and devices, medical malpractice, complex commercial and business litigation, construction defects, and workers’ compensation. The firm’s success has also included more than 200 recoveries in excess of $1 million.
Burg Simpson was founded in 1976 by distinguished American trial lawyer Michael Burg. Mr. Burg is an inductee in the Trial Lawyer Hall of Fame and a recipient of the Clarence Darrow Award. He has also been named to the 2016 RoundTable: America’s 50 Most Influential Trial Lawyers by The Trial Lawyer magazine; Law Week’s “Barrister’s Best” as “Best Civil Litigator”; and one of “America’s 50 Leading Trial Lawyers” by the U.S. Legal 500. Mr. Burg has also been recognized by Best Lawyers in America® and Super Lawyers®. Under Michael Burg’s leadership, Burg Simpson Eldredge Hersh & Jardine now has more than 75 lawyers and over 90 legal professionals. The firm is based in Colorado and has offices in Arizona, Florida, Nevada, New Mexico, Ohio, California, and Wyoming.
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