Positive Thinking

A Good Outlook

Is the glass half empty or is it half full? Doesn’t it surprise you when you hear the answer from people you think you know? What is it that makes people take a positive approach to life? Is it possible to bottle the secret and share it with your loved ones?

While preparing to comment on the need for all of us who work with the public to remain positive about our often "embattled" positions, I came across a poem written by Walter D. Wintle. It’s entitled, "The Man Who Thinks He Can." It’s helped me to remain positive and enabled me to prepare for every business and personal day. I hope it can provide a positive outlook to fall back on when things don’t always go your way.

The Man Who Thinks He Can

If you think you are beaten, you are; If you think you dare not, you don’t. If you’d like to win, but think you can’t It’s almost a cinch you won’t If you think you’ll lose, you’re lost, For out in the world we find Success begins with a fellow’s will; It’s all in the state of mind.

If you think you’re outclassed, you are. You’ve got to think high to rise. You’ve got to be sure of yourself before You can ever win a prize. Life’s battles don’t always go to the stronger or faster man; But sooner or later the man who wins Is the one who thinks he can.

Walter D. Wintle, "The Man Who Thinks He Can." - Poems That Live Forever, comp. Hazel Feldman 1965

Storm Front

One day while investigating a loss not too far from home, I started down a stairway to a dark deep and what appeared to be very moist cellar. After descending to the third stair, I smelled the unmistakable odor of dog. I told the insured that I couldn't help them with this as damage caused by domestic animals were not covered by the policy.

A short time later I drove by one of my favorite agencies, and thought that I would stop to say hello. After exchanging pleasantries, I turned to go. In turning, my eye caught what appeared to be coffee grounds on my pant leg. As I brushed them away, I was horrified to find that they were moving!

To my disbelief, they were fleas picked up at the basement foray. I set a speed record driving to the nearby store, and threw a $20.00 bill to the cashier as I cut to the front of the line. I covered myself with the killing spray, and headed for the safety of my car. As I opened the door I saw more of the fleas jumping over the car floor. I sped to the car wash to vacuum up the mess. I threw my pants, shirt, shoes and socks into the trash. I drove home shivering, thinking this can't be happening to me! As I drove through town, I thought, 'No one is going to believe me' and took extra care to stay within the speed limits, naturally thinking of the consequences.

Unfortunately, as I entered the safety of my driveway, my wife while watering the lawn was there to greet me. As I exited the car in my skivvies she asked, "Well where have you been?" I looked at her and said, "Whoever said that this job was easy?" I then added as I ran to shower,"This was just another boring day in the life of a property adjuster."   --L.J.C.

Legal Corner

Property Law by David Crowley, Esq.

Scannell & Crowley LLP
5 High St. Suite 201, Medford, MA
Email: dmcrowley@scannellandcrowleylaw.com
Phone: 617-241-0701
Fax: 617-241-9136

Non-Waiver Agreement and Reservations of Rights Letters

Under Massachusetts statutory and case law an insurer may be held to have waived a contract provision orally or by behavior, despite the existence of a nonwaiver clause in the policy. In addition, by applying the doctrine known as estoppel, a court may prevent an insurer from relying on certain defenses because its own conduct was "contrary to general principles of fair dealing."

Simple acts such as an adjuster going out to inspect a loss, denying liability without specifying that damages are not agreed, or negotiating and promising settlement shortly before expiration of the statute of limitations may be enough to waive a company's rights or estop it to raise and rely on certain defenses. Waiver is a question of fact and estoppels are not favored in the law, but why risk and adverse fact finding or forfeiture of rights in the courthouse when problems can be avoided by timely agreement or notice?

A non-waiver agreement, like any agreement, must be voluntary and must be supported by consideration. The policies don't mandate them and insured's can decline your request for them to sign such documents. On the other hand, Reservation of Rights letters are unilateral (one-sided); don't require the Insured's assent;and, if properly drafted, should accomplish the same purpose by putting the isured on notice that the insurer's response and investigation don't mean that it is accepting liability or agreeing to the amount of claim.

My advice to adjusters when insured's refuse to sign Non-waivers is: "Don't press the point; report it and immediately issue a Reservation of Rights letter to the Insured." While it is important to investigate and get statements as early as possible after a loss and it is true that the insurer has the right to inspect the damage, a few extra moments spent sending a well-drafted reservation of rights letter often pay dividends later in avoiding or minimizing disputes that Coverage was accepted, Reference waived or the Statute of Limitations extended by some conduct of the adjuster.

As soon a possible after receipt of Notice of Claim, tell the insured, in writing that your investigation is being undertaken under a full reservation of all your rights under the policy and applicable law including (but not limited to) any specific rights you have reason to believe apply to the case at hand. (e.g. late notice, incendiary fire, coverage question, exclusion, etc.). For years I have joked with claims people that sending a Reservation letter after requesting a Non waiver is like wearing both suspenders and a belt. The first time you leave home without the belt, your suspenders will surely break. Don't doubt that the first time you omit sending the Reservation letter, the insured will delay and then refuse to sign the Non-Waiver.

Reservation letters and Non-Waiver agreement are strictly construed against the party who drew them (the insured), so get it right the first time; do it early and do it in writing. Oral reservation agreements aren't worth the paper they're written on.

Your questions and suggestions are welcome for future Notes from the Legal Corner!