Category: General FEMA News

  • Understanding the Federal National Flood Insurance Program as Hurricane Season Approaches

    The Federal National Flood Insurance Program (“NFIP”) is a federal program that allows homeowners to protect against flooding because most homeowners insurance does not cover flooding (You can check out their website here). It is offered to homeowners, renters and some business owners. The federal government works with private insurance companies to encourage them to offer insurance. The government sets a standard rate and then the insurance is actually through the private insurance company, but involves the federal government to a great degree. The federal government underwrites, or supports the insurance company, but the private insurance company does all of the related administrative tasks.

    Because of the federal government’s involvement, when there are issues with the insurance company, you must follow unique litigation paths in order to recover for any damages in many occasions. For example, the federal government will normally cover any litigation costs for the private insurance company. As such, some procedures that would normally be acceptable at the state level may not be allowed in the federal court.

    A case in Mississippi that was appealed to the Fifth Circuit Court of Appeals helps explain these differences. In that case, Grissom, the insured individual, had insurance under the NFIP through Liberty Mutual. He was eligible for a preferred risk insurance policy, but did not know he was eligible. After Hurricane Katrina, he argued that he would have purchased the preferred risk insurance policy if he had known about his eligibility.

    When Hurricane Katrina completely destroyed Grissom’s home, the insurance paid $121,000, which was the policy maximum. Grissom sued arguing that he should be awarded the difference between his current policy maximum and the amount he would have gotten if he were under the preferred risk insurance policy. Grissom won at a jury trial on the state level. Under normal circumstances, this case could be resolved easily under state law. However, because federal money may be involved, the court had different questions to consider.

    First, the Court considered whether federal law preempted the case. If federal law preempted, then the state court should not have heard the case and Grissom should have brought the case directly to federal court. The court has ruled on this issue several times before and decided that federal law controls when there are “tort claims arising from claims handling” Wright v. Allstate Ins. Co., 415 F.3d 384, 390 (5th Cir. 2005). However, federal law does not control when the individual is getting insurance as a new customer. Campo v. Allstate Ins. Co., 562 F.3d 751 (5th Cir. 2009). That is, only if the individual is getting insurance as a first time customer does state law control. Therefore, the question in this case became whether Grissom was getting insurance for the first time. Grissom was renewing his policy when he became eligible for the preferred risk insurance policy. As such, the court concluded that he was renewing, and not a new customer, so federal law controlled. See Borden v. Allstate Ins. Co., 589 F.3d 168, 173 n.2 (5th Cir. 2009) (explaining that claim renewal is considered claims handling).

    Next, since there was a jury in the lower court, the Court considered whether a jury would have been proper. Normally, if federal funds are involved, a jury trial is not appropriate. Under the NFIP, “[t]he federal government pays flood insurance claims and reimburses costs, including defense costs, for adjustment and payment of claims by private insurers.” Therefore, since the government pays for litigation directly, a jury trial is not appropriate.

    Lastly, the Court considered whether Grissom’s claim would have won even under state law. Grissom’s argument was that the insurance providers had a duty to inform him of his preferred status when he renewed. He argued that failure to inform him amounted to a negligent misrepresentation. In Mississippi, there is a five-factor test for negligent misrepresentation. The Court concluded that it should not have won at the state level because it failed one of the tests for liability. In fact, Mississippi law explains that there is no affirmative duty to inform buyers of other insurance policies that may be more beneficial to them given their unique circumstances.

    Programs such as NFIP create unique litigation situations that mesh federal and state law. Experienced attorneys should be employed to deal with these complicated issues. Call The Berniard Law Firm today and we would be happy to discuss your legal needs with you.

  • Attorney Jeffrey Berniard makes New Orleans Magazine top lawyers list

    Licensed attorneys in New Orleans were asked which attorney they would recommend to residents in the New Orleans area. Attorney Jeffrey Berniard, of the New Orleans-based Berniard Law Firm, LLC, was named one of the best mass litigation and class action attorneys in New Orleans in the November 2012 issue of the magazine. Propelled into success by holding insurance companies accountable in the wake of Hurricane Katrina, Berniard has built the Berniard Law Firm into one of the premiere personal injury law practices in not only New Orleans, but the entire state of Louisiana. Since Hurricane Katrina, Berniard Law Firm has focused on insurance disputes and class action litigation.

    Jeffrey Berniard has been involved in several high-profile cases, solidifying his expertise in complex high risk litigation. He worked on the highly publicized Deep Water Horizon oil rig case in the Gulf Coast, representing a very large group of individuals affected by the sinking oil rig. In 2008, Berniard Law Firm secured a $35 million dollar settlement for a class of 70,000 members seeking bad faith penalties for tardy payments by a Louisiana insurance company in the wake of Hurricane Katrina and Hurricane Rita. In 2009, the Berniard Law Firm participated in five class actions against insurance companies and corporations. In the process of these major claims, the firm also helped many residents of the Gulf Coast with their personal injury concerns, insurance claims and business disputes.

    – What is Mass Tort Litigation? –
    Mass tort litigation involves a class of civil actions involving multiple plaintiffs who are injured by a defective product, a hazardous substance or some type of disaster. Mass tort actions can be against one or many defendants in either state or federal court. This type of litigation allows several attorneys or even a group of attorneys to represent several injured parties within an individual case. This becomes a much more effective form of litigation that allows for the pooling of resources and ideas.

    Mass tort typically involves a smaller group of individuals typically limited to a certain geographic area. This differs from the class action, which is one lawsuit that is filed by an individual or a small group acting on the behalf of a large group. Class actions tend to be much larger suits and are represented by one class representative who represents the entire class. In mass tort, each individual is treated as such–as individuals. In a class actions, the entire class is treated as one individual. Attorney Jeffrey Berniard and the Berniard Law Firm have extensive experience with both class action and mass tort litigation.

    Contact the Berniard Law Firm today at (888) 550 5000 if you feel that your rights have been violated.

  • Happy Mardi Gras!

    As a Louisiana law firm, our practice takes great pride and enjoyment from Fat Tuesday and all of the history that follows. For all of our readers in the New Orleans area, have a safe and happy holiday.

    Postings will resume shortly. In the meantime, laissez les bon temps rouler!

  • Summary Judgment Summarily Dismissed by Third Circuit in Vehicle Accident Case

    A summary judgment is rendered when a trial court decides that there are no genuine issues of material fact that need to be determined. “Manifestly erroneous” is the high standard under which summary judgments are reversed on appeal. Summary judgments are cheaper and less time consuming than full blown trials; they are a means toward the end of judicial expediency, a goal that becomes increasingly important to our judicial system over time. Despite the importance of this procedural device, many cases do not call for summary judgment. Sometimes trial courts grant full or partial summary judgments in error and are reversed. That is what occurred in the case of Jagneux v. Frohn, which you can read here.

    The defendants in this case convinced the trial court that no issues of fact existed that required litigating. Their legal journey was not over though due to the plaintiff’s appeal. The court of appeals applied the standard promulgated by the Louisiana Supreme Court. This Louisiana Supreme Court’s standard initially places the burden of proof on the party that is moving for a summary judgment. The moving party must prove that one or more elements of the adverse party’s claim or defense lacks any factual support on the record so far. The opposing party is then granted an opportunity to prove that there have been facts alleged that support that party’s position. At the time of summary judgment the record is sparse so a granting of summary judgment represents a finding by the court that no facts supporting a particular party’s, in this case the plaintiff’s, position.

    The appellate court reversed the trial court’s decision in this case because it found that the issue of whether Mrs. Kling, a defendant in this case, was the driver of the white SUV at the time that it, at least partially, caused the accident at issue in this case. Because there was conflicting evidence about where Mrs. Kling was and whether or not she was actually in control of the car at the time of the accident, summary judgment was not the right choice in this case. The trial court is not to weigh the merits of the case when addressing summary judgment. Summary judgment is only appropriate in cases where no potentially meritorious case is presented by one of the parties.

    Judicial efficiency is a desirable goal at this point in history. America is an incredibly litigious society and with good reason. Science and technology move faster now than ever before and this leads to more pernicious injuries becoming increasingly common. Society functions better when injured people are compensated. This is even more true when injured people are compensated quickly and at minimal expense to society. However, as important as these goals are, the pursuit of the truth is the most important aim of our justice system. When the truth of a matter is in question, it falls to our trial courts with their judges and juries to put together an authoritative version of events. This version, when properly decided, becomes the truth for all intents and purposes. When there is no need to conduct an exhaustive search for truth, summary judgment becomes necessary and expedient.

    Summary judgments take up less of a court’s time than a trial. Because of this, summary judgments allow a court to hear more cases in less time. This benefits society as a whole. Frequently, American and Louisiana courts have a substantial backlog of cases. This prevents swift access to the justice that many people require. Summary judgment and other procedural and dispute resolution devices that avoid full trials aid in mitigating this abundant caseload. The case of Jagneux v. Frohn was not one in which summary judgment was appropriate but many cases are decided this way every day saving time, money and stress for our judges and juries.

    For help navigating the legal system and potentially winning a summary judgment of your own, call the Berniard Law Firm toll-free at 504-521-6000.

  • Happy Holidays from the Berniard Law Firm

    On behalf of the Berniard Law Firm, we hope that all of our friends and followers have had a relaxing and restful holiday. Posting will resume on Tuesday

  • A Happy Holidays to All Friends of the Berniard Law Firm

    The Berniard Law Firm would like to wish everyone a Happy Holiday.

    Regular posting will resume in 2012! Have a happy, and SAFE, holiday season!

  • Supreme Court of Louisiana Rules on Hurricane Katrina Insurance Policies’ Anti-Assignment Clauses

    In insurance, an assignment is the transfer of legal rights under an insurance policy to another party. The legality of assignments became a major issue in the aftermath of hurricanes Katrina and Rita. During this period, the federal government, in an effort to aid rebuilding efforts, issued money through the Road Home program to homeowners who held underinsured properties. In exchange, these homeowners were required to assign their rights to insurance claims under their policies to the the state of Louisiana. The purpose of this assignment was to prevent homeowners from fraudulently receiving duplicate payments. However, the program incentivized insurance companies to estimate damages too low, which in turn forced homeowners to take the higher amount offered through the Road Home program.

    The shortfall created within the Road Home program forced the state of Louisiana to bring suit against insurance companies through the policy rights assigned to the state by homeowners. In essence, the state sought to recoup actual insurance claim damages that the homeowners were rightfully owed had they not opted into the Road Home program. Though most, if not all, of the homeowner insurance policy contracts contained an anti-assignment clause, the state maintained that it had the right to post-loss assignment. Therefore, it is critical to distinguish between a pre-loss assignment and a post-loss assignment.

    A pre-loss assignment occurs when one transfers a legal right under an insurance policy to another before the injury or loss occurs. An example of a type of pre-loss assignment is found in cases when life insurance is assigned to a bank as collateral for a loan. Here, the assignment has occurred before the loss, in this case the death of the original policy holder, and any benefits that accrue at the time of death are used to repay the bank first. These types of assignments typically require consent from the insurer, but are usually barred by anti-assignment clauses.

    A post-loss assignment, on the other hand, is the transfer of a legal right under an insurance policy to another party after the injury or loss occurs. Post-loss assignments frequently give the third party transferee the ability to file a claim against the insurance company for any loss accrued by the original policy holder. Many insurance companies try to block such assignments through broad anti-assignment clauses found in policy contracts. Such clauses were found in most Katrina and Rita policies, and insurance companies pointed to these sections in an attempt to avoid paying actual damage costs homeowners thought they rightfully assigned to the state.

    While national jurisprudence holds that pre-loss anti-assignment clauses are valid in favor of contract law and public policy, anti-assignment clauses related to post-loss assignments are held to be invalid. The reasoning behind this difference primarily lies with public policy considerations. A pre-loss assignment, for example, may increase the risk beyond the point that the insurance company had originally contracted for and with a party the insurance company had not originally contracted with. A post-loss assignment, on the other hand, simply assigns an accrued right to payment after a loss has already occurred. There is no change in risk as the loss has already occurred, and since payment is to be made it matters none to whom the payment is made.
    The Supreme Court of Louisiana holds that such public policy concerns are better suited for the legislature. However, the Court does state that clauses prohibiting post-loss assignment must be written in clear and unambiguous language. If the language in the policy contract is unclear, then, in accordance with laws regarding contracts of adhesion, the language will be construed against the insurance company and in favor of the insured. If you have entered into a contract with an insurance company and are looking to assign your rights under the policy to a third party, turn to the language in the contract itself. Though there is not specific set of words or test used to determine “clear and unambiguous,” your own judgment is a good starting point in determining whether or not you have the right to assignment.

    Though your own judgment is an excellent place to start, insurance law is very complicated and is best suited for a practicing attorney.

    (more…)

  • Louisiana Residents With Personal Injury Questions

    For those Louisiana residents, whether you live in Lake Charles, Shreveport, Baton Rouge, New Orleans, Kentwood or any other of the great cities across this state, looking for more information on their possible personal injury claim, check out our blog dedicated to these legal matters:

    Louisiana Personal Injury Blog

    This blog discusses the legal issues relating to Admiralty/Maritime law, Animal/Dog Bites, Car Accidents, Chemical/Industrial Spills, the intricacies of Expert Testimony, Insurance Disputes, employee rights under the Jones Act, Legal Duty, Civil Lawsuits, Criminal prosecution, Medical Malpractice, Mesothelioma/Asbestos, Motorcycle Injury, Negligence, Offshore Accidents, Product Defects, Chinese Drywall, Strict Liability, Workers’ Compensation and Wrongful Death. All of these issues are crucial to citizens rights and residents of Louisiana.

    To better understand the complexity of the law, contacting an attorney is crucial. However, to get a better understanding of the general issues, we hope this resource is invaluable. Feel free to browse this legal resource dealing with a variety of harms or damages you may have suffered in order to understand how your issue matches up with the law.

    If you would like to speak with an attorney, check out our contact information. We represent Louisiana residents across the state and would be happy to discuss with you how to move forward with your unfortunate circumstances.

  • FEMA speaks out on importance of flood insurance

    FEMA recently came out to publicly encourage residents of Florida and the Gulf Coast to get flood coverage, regardless of how susceptible to risk they may be. In doing this, the government is bringing more attention to the need for proper insurance policies and to prevent having to help out thousands of people who thought it ‘could never happen to them.’
    Matt Gilmour of the Tallahassee Democrat highlights this important step on the part of FEMA

    With hurricane season under way, the Federal Emergency Management Agency is reminding Florida residents about the importance of flood insurance, even if they don’t live in high-risk areas.

    “It takes 30 days for flood policies to take effect and be active, so today’s a good day to speak to a local insurance agent about what policy would be best for you,” FEMA coordinating officer Jeff Bryant said in a written statement.

    Anyone who lives in a community that participates in the National Flood Insurance Program can purchase flood insurance, and between 20-25 percent of those who file flood-insurance claims do not live in areas at high risk for flooding, according to a news release from FEMA. After Tropical Storm Fay in 2008, nearly 150 flood-insurance policyholders with properties in areas with a low-to-moderate risk for flooding received more than $7 million from the insurance program in settlement payouts.

    “This should be a lesson to us all that everyone needs flood insurance — even those who believe their property won’t flood because their home or business is in an area that normally doesn’t flood,” said Doug Wright, state coordinating officer with the Florida Division of Emergency Management.

    FEMA is helping all eligible applicants who register directly with the agency and urging them to file claims as soon as possible to help speed up their recovery. For more information, visit www.floodsmart.gov or call (888) 275-6347 or (800) 427-5593.

    By being proactive on prevention of home and property owners from having too little of coverage, FEMA and the government are trying to avoid catastrophe while at the same time keep information out and fresh. Both are extremely important and positive actions at a time where money is short and people looking to save a little bit of money might not garner the coverage they need that, in the event of a disaster, could be catastrophic.

  • Four charged with fraud in Katrina relief case

    While catching up on some hurricane news for the Gulf Coast region from June, we came across this story about relief fraud in the wake of Hurricane Katrina

    A federal grand jury in Atlanta has accused four people of fraudulently obtaining tens of thousands of dollars in government assistance for victims of Hurricane Katrina.

    Federal prosecutors said Wednesday that 37-year-old Kristine Clark and 24-year-old Michael Rouzan, both of Decatur, Ga., were charged in one indictment, and 26-year-old Markisha Burks of Dallas and 43-year-old Lucien Danthon of Atlanta were named in separate indictments accusing them of falsely claiming they resided in New Orleans at the time of the 2005 storm.

    Charges include wire fraud, mail fraud and theft of government funds.

    Prosecutors say Clark and Rouzan obtained $32,000 for housing assistance and purported property damage, and a trailer in Hammond, La., where they lived from May 2006 to March 2008.

    It’s extremely frustrating to hear of how people took advantage of the tragedy suffered by the city of New Orleans but even moreso to see how their claims may justify stricter action by the government that can injure those with real needs after the next tragedy. Punishment for such fraud should be handled swiftly and aggressively to send a message so that if such an event occurs, anywhere in the country, opportunists avoid taking assistance from the people who truly need it. In the event there is any debate over eligibility for such assistance, contact an attorney or government official immediately before assuming and opening yourself up for jail time and fines.