Articles Posted in Understanding Legal Terms

Was your business closed down or interrupted due to government orders, or from employees or customers being exposed to or diagnosed with Covid-19?

The U.S. department of labor estimates that forty percent of businesses do not reopen after suffering a disaster, and that twenty five percent of the ones that do reopen fail within two years. Most large and approximately forty percent of businesses carry business interruption insurance for times such as this. Business Interruption (BI) insurance is insurance that replaces income lost in the event that business is halted due to a loss or damage. The purpose of business interruption insurance is to do for the business what would have been done for itself. Business Interruption can happen because of multiple reasons such as fire, theft, or other natural disasters which can cause direct physical loss. When these losses occur, most BI policies will cover profits that would have been earned, fixed costs, a new temporary location, commission, training costs, and extra expenses. It would be beneficial to look at the monthly income, tax returns, contracts, leases, bills, and invoices from pre Covid-19 closures, and compare it to after. Your policy may cover most of these costs. Your policy may also cover extra expenses that you didn’t have before, such as extra gloves, masks, and extra cleaning supplies.

The question most business owners are facing now is will their business interruption insurance policy cover losses due to viruses, bacteria, or government ordered closures? The answer here unfortunately is not simple or always clear, it depends on the policy, and how the language of that policy is interpreted. There have already been more than four hundred and fifty lawsuits and dozens of class actions filed since the end of June, 2020. As you can imagine, regardless of the language in each policy, the insurers and the policyholders will be arguing over whether the virus should be covered or not. It is being left up to the interpretation of the courts and the state laws in each state to determine if these businesses will be able to collect on their policies.

For those of you unfamiliar with insurance-related appraisal process, as an alternative method of resolving insurance disputes, you should note that most insurance policies provide that after an insurance company has had the opportunity to adjust a claim, if there is disagreement, either side may request a form of arbitration called “appraisal.” The time to request the appraisal is not limited, in most instances, and has been condoned by the courts even after law suits are filed and discovery has begun. It is common for insurance companies to assign a favorite son as their appraiser and to invite the insured-plaintiff to appoint an appraiser. The two appraisers select an Umpire, who is asked to decide the case if the appraisers are unable to agree on the amount of damages.

One would think that the appraisal process eliminates the need for the law suit, however, most policies provide that even after the appraisal process is completed, the Umpire has ruled, the case may be litigated by the insurance company. It need only refuse coverage, or deny the claim, requiring litigation. Delays by the insurance company appraiser are common place in our experience, driving to the extreme the time and cost of the adjustment process. Further delays without repairs under the first party property and casualty policy work in Texas without the real prospect of penalties for late payment. Where the prospect of penalties was present in the law suit, the delays and abuses of appraisal are seldom considered by Texas courts to justify penalties for arbitrary and capricious refusal to pay, even where the Umpire rules that the damages are due and is evident that the insurance company had no legitimate basis to refuse to pay.

Of course, by its very nature, the appraisal process calls for an expedited alternative dispute resolution process, however, because it is not final, because it leaves to the insurance company the right to accept or reject the findings and there are not any penalties for arbitrary and capricious refusal to pay in Texas, the process operates to frustrate claimants and the lawyers hired to help prosecute claims for the insured. The insurance company right to reject the appraisal process after it is completed is just one of the several obstacles placed in the way of legitimate claims. Another is the assertion without basis by insurance companies in Texas that the appraisal process should be handled like “baseball arbitration,” where the Umpire is limited to accepting either the insurance appraisal or the claimant appraisal. The recent case of Providence Lloyds Ins. Co. v. Crystal City Ind. School Dist., 877 S.W. 872 (Tex App. San Antonio 1994) shows the claim of an insurance company to baseball arbitration. In that case the appellate court reversed the trial court ruling with the following ruling against baseball arbitration:

Potential claimants and business have a deadline of November 1st 2012 in which to opt-out of the BP settlement process. Come in to the Thornhill Law Firm NOW so that our experts can determine if your claim is best suited under the settlement or should opt-out and be excluded from the class action in order to protect your interest.

We recommend that by December 20th,2012, you make presentment of your claim to BP OPA Claims Program in Houston, TX. Presentment MUST be made at least 90 days before a lawsuit is filed and your suit must be filed before April 20th, 2013, i.e., before the three-year statue of limitations.

Valuation of community assets is determined as of time of trial on the merits of partition suit, as those assets can appreciate or depreciate in value. However, valuation of marital debt as of date of filing of divorce petition, and not as of date of trial on the merits of partition suit, was found proper, in Pitre v. Pitre, 501 So.2d 344 (La.App. 3 Cir.,1987).
If you hold an interest in any type of business partnership, the following ruling from the D’Spain case will impact the partitioning of your interests. Indeed, upon dissolution of community of acquets and gains in that case, the partner’s wife did not receive any interest in partnership, but was entitled only to one half of value of partner’s interest in partnership assets. D’Spain v. D’Spain, App. 5 Cir.1988, 527 So.2d 309. Here, proper timing, filings, and, potentially, the inclusion of an accounting expert or CPA will benefit your case. You will need an experienced attorney to ensure your business interests are protected.

Contact Thornhill Law Firm for advice and assistance in this important area of domestic/family law.

In Louisiana, Succession is the transmission of the estate of a deceased person to his successors. La. C.C. art. 871. The successors thus have the right to take possession of the estate of the deceased after complying with applicable provisions of law. Succession occurs at the death of a person. La. C.C. art. 934. There are two kinds of successions: Testate and Intestate. When this transmission is done by operation of law, it is called intestate succession. When it is done through the provisions of a will (also called a testament), it is called testate succession. La. C.C. arts. 873-875. The estate of a deceased person means the property, rights and obligations that a person leaves after his death, whether the property exceeds the charges or the charges exceed the property, or whether he has only left charges without any property. The estate includes not only the rights and obligations of the deceased as they exist at the time of death, but all that has accrued thereto since death and the new charges to which it becomes subject. The estate in Louisiana, however, has no separate legal existence like a corporation or partnership does. In re Succession of Moore, No. 97-1668 (La.App. 4th Cir. 1998), 737 So.2d 749. The successors to a deceased person’s estate are called heirs when there is intestate succession and legatees when there is testate succession. La. C.C. art. 876. The right to take possession of property, whether the person receiving the property is an heir or a legatee, does not arise automatically. In Louisiana, the heirs or legatees must comply with certain provisions of the law. Usufruct is the right to use property during the existence of the usufruct period to the exclusion of the owners of the property. La C.C. arts. 535, 539. In Louisiana, it is actually a limitation on the right of ownership, where the right to use the property is granted to a person different than the owner. The owner of property subject to a usufruct is called the naked owner. Forced heirs are descendants of the first degree who, at the time of the death of the decedent, are twenty-three years of age or younger or descendants of the first degree of any age, who, because of mental incapacity or physical infirmity, are permanently incapable of taking care of their person or administering their estates at the time of the death of the decedent. A person is twenty-three years of age or younger until he/she attains the age of twenty-four years. The existence of forced heirs is irrelevant if there is no testament left by the decedent.

If you have made a loss claim with your insurance company within the past seven years, there may be a file with your name on it, identified as your C.L.U.E. report. C.L.U.E., or Comprehensive Loss Underwriting Exchange, is a claims history database created by ChoicePoint, and it enables insurance companies to access consumer claims when they are underwriting or rating an insurance policy. The report contains not only the consumer’s claim information, including date of loss, type of loss, amounts paid, and a description of the property covered, but also personal information about the consumer such as name, date of birth, and policy number.

C.L.U.E. reports are mainly used when insurers underwrite and rate new policies, and when renewing a policy, insurers usually don’t even have to access C.L.U.E. reports because the information is already stored in their own database. In fact, the C.L.U.E. database is a subscription-based database, which means insurance companies have to subscribe to be able to access the information, so not all insurance companies submit their consumers’ information to be stored in C.L.U.E. reports. Additionally, even if your insurance company does subscribe to C.L.U.E., if you haven’t made a loss claim in the past seven years, you don’t have a C.L.U.E. report at all.

The problem arises when you realize that all the information in your C.L.U.E. report is being submitted by the insurance company, without your consent or knowledge, but the companies are protected to do so under the Fair Credit Reporting Act. So, inaccurate information may be listed in your report without your realization. Each consumer is allowed to request a single copy once every 12 months, and if there are any errors found, consumers can contact ChoicePoint directly to report the discrepancy. ChoicePoint then contacts the insurance company to request clarification; after 20 days without the company’s response, ChoicePoint will contact the company again to follow up. After 28 days without the company’s response, ChoicePoint will again follow up, and if, after 30 days, the company has still not responded, the questioned information will be removed from the consumer’s C.L.U.E. report.

Although you cannot access anyone’s C.L.U.E. account but your own, if you are considering purchasing property and would like to see the claims made on that property, you can ask the current homeowners to make a request for their own report.
Continue Reading

For many of us, we have seen technology bloom at an amazing speed, progressing from radios to televisions, computers that filled rooms to ones that lay on our laps, and now to small and very powerful mobile phones. We rely heavily upon these tiny complex devices that reside in our pockets; they tell us the weather, news, how to get places, and, most importantly, they keep us connected to others around us.

Consequently, since technology has progressed, we now need advanced laws to protect our information from others. The main statutory protection, the Electronic Communications Privacy Act, was written in 1986, well before the invention of the internet. The ECPA was primarily designed to prevent unauthorized government access to private electronic communications, such as writing, images, and data, and as we are all increasingly sharing our lives online, communicating and participating in e-commerce, we drastically need an update to modernize the ECPA. As Americans, we expect our personal and private information to be just that, personal and private. Most of us rely on computers, cell phones, and, largely, the internet to communicate, learn, and receive information, and what we view and discuss reveals a tremendous amount of information about our lives. This information needs to be protected.

At present, 82% of Americans own and use cell phones on a regular basis, and a rapidly increasing 40% of us own smart phones, capable of pinpointing our locations, browsing the internet, sending emails, and utilizing applications like Facebook and Twitter. Recently, Apple and Google appeared before the U.S. Senate to defend their mobile device location tracking policies, while Sen. Al Franken (D., Minn.) addressed the issue that Congress needs to take steps to enforce mobile privacy safeguards since mobile devices are only getting more popular.
Continue Reading

In 1980 The U.S. Supreme Court ruled, under section 101 of the Patent Act, that a live, artificially engineered microorganism is patentable. The patenting of human genes is much like any other patent, but more recently, the commercialization of those patents can be seen as a monopoly. Myriad Genetics was granted a similar patent in 1999, which was seen by many, to limit research and raise the cost of Breast and Ovarian cancer test. In March of 2010, the U.S. District Court for the Southern District of New York issued a summary judgement that invalidates certain of Myriad Genetics’ patents related to the BRCA1 and BRCA2 genes.
Continue Reading

On October 9, 2009, Judge Fallon of the Eastern District of Louisiana issued Pre-Trial Order No. 1(B) – Preservation of Evidence. The Order outlines the requirements for the preservation of all physical evidence, including drywall, HVAC coil material, plumbing components, electrical components and any other personal property items.
Continue Reading

After Hurricane Katrina thousands of people along the Gulf Coast filed claims on their insurance policies. The insurance companies responded by paying some claims in full, some claims partially, and not paying some claims. Policy holders with valid claims were forced to resort to litigation to get fairly reimbursed for their loss of property or damage to their property. Thornhill Law Firm filed many of these claims and were able to help their clients recoup some of their losses, but we were forced to turn away those that called us after the period of prescription or peremption had run. Prescription, which exists in both common and civil law, is the idea that if a claim has not been made within a certain time period, then there no longer exists a remedy at law. Peremption, a civil law concept, actually stops the claimant from bringing the claim. Effectively, peremption extinguishes a claim. Prescription and peremption are commonly referred to as statutes of limitations or statutes of repose.
Continue Reading