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The Cat In Your Hat

holding your own

Those who hold high places left you holding a near-empty toolbox ...
or as luck would have it!

Upfront & Personal from in The Thick Of It
Compiled By Antone P. Braga

You can't blindly entrust Your assets and well-being to insurance AND be prepared for disaster

Fiduciary (Webster's Dictionary): 1. Law. a person to whom property or power is entrusted for the benefit of another.
Fiduciary Relation (Black's Law Dictionary): One founded on trust or confidence reposed by one person in the integrity and fidelity of another...

Because the insurance company hired an independent adjuster (private insurance company adjuster) to adjust the policyholder's fire loss claim did not create a fiduciary relationship between the policyholder and that adjuster. Where there is a dispute as to coverage of the policyholder's claim, retention of an independent adjuster by the insurance company is not for the benefit of the policyholder. The court held that the adjuster had a fiduciary duty to the insurance company, not to the policyholder:
Thompson v. Cannon, 274 Cal. Rptr. 608, 224 C.A. 3d 1413, Cal. App. 4 Dist., 1990. - Thompson v. Cannon 224 CA Ap3 1413 274 CaR 608, 1990.

The company adjuster could not be held liable to the policyholder for breach of covenant of good faith and fair dealing or for breach of contract because there is not a direct contractual relationship between the policyholder and the company adjuster. The court ruled that the policyholder could not be the beneficiary of the contract that is between the insurance company and the company adjuster:
Henry v. Associated Indemnity Corp., 266 Cal. Rptr. 578, 217 C.A. 3d 1405.

The policyholder sued the insurance company for breach of unfair trade practices and emotional distress because the insurance company would not pay the claim. The judgment was in favor of the policyholder, but the insurance company appealed and the court reversed the decision. The court found that no private cause of action (lawsuit) afforded under the Unfair Trade Practices Act (only for repeated offenses). The policyholder had claimed a breach of fiduciary duty by the insurance company. The court found that the relationship between the insurance company and the policyholder is not fiduciary in nature:
Crossley v. Allstate Insurance Co., 400 N.W. 2d 625 Mich., 1986.

Fiduciary relationship does not exist between the insurance company and the policyholder:
Overbey v. Illinois Farmers Insurance Co., 121 Ill. Dec. 769, 525 N.E. 2d 1076, 170 Ill.

Allstate contended that the trial court erred in allowing the jury to determine whether Allstate owed a fiduciary duty to the policyholder...the court fiduciary duty between Allstate and the policyholder:
Bailey v. Allstate Ins. Co. No. 91CA0533.844 P.2d 1336 (1992) Colorado Court of Appeals, Div. III. December 31, 1992.

The company adjuster allegedly pressured the policyholder to have damages repaired by a particular construction company that later defaulted on the repairs. The court found that the policyholder could not recover from the company adjuster because there was no contract between that adjuster and the policyholder. The court also found that the policyholder had endorsed the insurance draft (type of check) that had been made payable to the policyholder, mortgagee and the construction company. The draft contained release language that became enacted once it was endorsed. The policyholder claimed $10,500 in damage that was not repaired by the construction company, $25,000 for loss of use of the property and $8,000 legal fees--all without remedy for the policyholder:
Larkin v. First of Georgia Underwriters, 466 So. 2d 655, 1985.

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© 1991-2017 APB

Help on the way: this content is local to your area in that it affects virtually everyone in your area, indirectly or directly: property insurance policyholders. When the next news stories run having to do with a local disaster such as a hurricane, earthquake, flood, tornado, fire, etc., perhaps think of those disaster survivors and to what extent you may have helped in their preparedness and recovery. Thank you for any help you give.


What is your philosophy: drive or be driven? I happen to think we are wise to keep our drive alive.

© 1991-2017 APB