Winter Fires and Insurance Headaches
Every winter we hear about tragic fires in residences, apartment buildings or other locations set by careless adults or children who were playing with lighters or matches left by parents. Some of these fires are the result of Christmas lights that got too hot or from a heater left next to flammable material. But many are set by children who were too young to appreciate the seriousness of what they were doing.
Recently, a fire in a Bronx apartment building was started by a 3-year old who was playing with the burners on the stove. When the blaze became uncontrollable, the child’s mother was able to grab the child and sibling and escape. Unfortunately, the mother left the door to her apartment open and the fire was able to spread throughout the building. 12 tenants were unable to escape and suffered fatal injuries.
Fires are a common occurrence. In 2016, there were a reported 1,342,000 fires in the US, which led to 3,390 deaths and over 14,500 injuries. Property damage was well over $10 billion.
Not all fires are the fault of the tenants or their children. Landlords bear responsibility for some of these and are also responsible for providing fire protection. Fire that causes damage to the building’s structure and fixtures are the responsibility of the landlord or property owner while tenants are responsible for their personal property damage unless the landlord’s own negligence caused the fire.
Many fires are caused by faulty electrical systems. If an investigation reveals this as the cause, then the landlord or its insurer will be responsible for all damages. This includes damages for the tenant’s personal possessions, lost wages, the expenses incurred for having to find alternative living arrangements, and any other related expenses. The burden of proving that the fire was caused by the tenant is on the landlord. If it cannot be proved, then the landlord is responsible for repairing the structure since he or she is obligated to provide a rental unit in a habitable condition.
Landlords can be held civilly liable for not maintaining a safe unit for rent where a fire was foreseeable because he or she left flammable materials in the unit or near it, failed to repair a faulty electrical or heating system, or provided an oven or stove that caught fire despite normal use by the tenant. In this latter case, a fire liability lawyer may be able to also hold the stove or oven manufacturer at fault. For landlord, they have a duty to warn of hidden dangers that they are or should have been aware of and are obligated to inspect the premises before renting it.
If a fire does occur and the tenant was not alerted because a smoke alarm was not in place or operational, then the landlord will likely bear responsibility for any injuries.
Tips in Handling a Fire Claim
First, be sure you have homeowner’s or rental insurance for your home or rental unit that covers fire. If you cannot afford it, then the landlord’s policy should cover damages so long as you were not responsible for starting it.
Here are some suggestions for homeowners and renters:
- Replacement vs. Actual Cash Value
If you lose clothing and other possession, your policy may only cover its actual cash value rather than the replacement value. There is a difference in how much you will receive since your clothing’s market or actual cash value will be much less than replacement value. This covers repairs to your home as well. Review your policy to be sure you have replacement value for your home and its contents. There is a fixed limit in the policy if you have such coverage.
- Duty to Mitigate
There is a principal in the law whereby claimants are required to mitigate or lessen their damages. This means not running up costs by failing to work when you were able to do so, seeking unreasonable medical care, or by obtaining items to replace damaged possessions that are much more expensive like buying a Porsche when your damaged car was a Jetta. It also requires you to protect what you have by preventing vandalism or theft by boarding up the damaged home, removing what undamaged possessions you have, and ensuring the fire is no longer smoldering and likely to re-ignite.
- Contact Your Insurer and Promptly File a Claim
Do not hesitate to contact your insurer. Also, ask about an advance so that you can buy new clothes or other necessary items to use at your temporary residence. Keep all receipts of whatever you buy. Also, by promptly filing a claim, the insurer can immediately investigate the cause of the fire and your damages. An insurance company has 30-days to accept or reject your claim in writing and with a stated reason if rejected. If it fails to do so, follow up with a phone call and a letter to the insurer and a copy to the Department of Insurance.
- Loss of Use
Your policy has a “loss of use” provision allowing you to be reimbursed for living expenses while living elsewhere until your home is repaired. This is the difference between what your regular living expenses were before the fire and what they are currently. A motel or hotel bill will be paid by the insurer. If you must eat out for all meals, then you are reimbursed only for the difference in what you normally paid for groceries to eat at home and what you are now paying. If you are staying with relatives or friends, you should be able to have them reimbursed for their additional expenses in feeding and housing you including the value of having you live in one of the bedrooms.
For replacement coverage, you can either rebuild at your present location or move somewhere else and do it. Also, the insurer will use their own estimates but you are no obligation to accept it and may retain your own independent estimator, at your cost, to do the estimate. Your estimator should be a licensed and reputable contractor who has experience with insurers regarding competing estimates and is aware of the scope of work that needs to be done.
If your policy only covers actual cash value, then be sure your own estimator agrees it is the fair market value of the home or what it was valued at before the fire.
- Maintain Your Premium Payments
Do not let your insurance lapse since you will often have continuing expenses, even if your home was destroyed and you see no need for the insurance coverage. Homeowner’s insurance covers you regardless of where you are living including any damage you or a pet may inadvertently cause. You may be able to get a discount on your premium since your structure is no longer in existence. Also, keep your claim open for a few months after all other expenses are seemingly paid for since unforeseen or unexpected expenses related to the fire can occur. If you get a check from the insurer that has language such as “ acceptance constitutes full release of all claims,” cross it out, initial it, and send a letter to the insurer stating that you accept the check but that you are not agreeing that is a full release of your claim in this matter.
In addition, your premiums should not increase because you filed a valid claim. This only happens if you have filed multiple insurance claims in the past or have made a false claim.
- Retain a Fire Liability Lawyer
If you are encountering problems with your insurer, or the landlord’s insurer, then consider hiring a fire liability lawyer. Your attorney can review the investigation of the fire and possibly hire an expert who may find fault with it and conduct an independent investigation. An insurer that drags its feet, fails to return calls, does not fully reimburse you for expenses, or unreasonably rejects or denies your claim may be guilty of unfair insurance practices.
Follow Safe Practices
Preventing fires in the first place is always a sound practice. Follow these suggestions:
- Ensure your family has an escape route and knows it
- Keep fire extinguishers in the unit or house and know how to use them
- Be sure your smoke alarms are operational
- If a fire breaks out, be sure it is contained by closing the door to where it is burning and closing the door to your unit so it does not spread
- Keep lighters and matches locked up and out of the reach of children
Damages in a Fire
Damages in a fire can be extensive and include property damage as well as more personal damages. These include:
- Past and future medical expenses
- Past and future wage loss
- Disfigurement and permanent injuries
- Expenses for daily living if forced to live outside the home that are over and above your normal living expenses
- Expenses for loss of personal property such as clothing, furniture, and other possessions
- Emotional trauma
- Diminished quality of life
- Pain and suffering
- Spousal claim for loss of consortium
Contact the Law Offices of Burns and Jain if you were injured in a fire caused by someone else’s negligence or the insurance company obligated to pay your damages unreasonably denies your claim. As fire liability lawyers, we can investigate the circumstances of the fire, prove liability by the landlord or other party, and ensure that all documentation and other evidence supports your claim for damages. Call us today for an evaluation of your claim: 617-227-7423.