Tag Archives: firefighter

Surviving the Loss of Your Home

I lost my home in the 1991 firestorm in Oakland, CA. With wildfires now destroying others’ homes in California, my heart goes out to the homeowners whose homes are damaged or destroyed by fire or other disasters, to the firefighters and to others who have risked and are risking their lives. I also feel for the communities that will experience the devastating aftermath.

While I am an attorney who specializes in handling insurance claims for policyholders, the loss of my home showed me the stresses and challenges of handling my claim with my insurer, as well as those facing many other Oakland firestorm survivors whom I assisted with their claims.

Those whose homes are damaged or destroyed will face many challenges in the coming days and months — temporary shelter, replacement of necessary items, disruption of their lives caused by having to relocate, and the repair and rebuilding of their lives and homes.  I would like to offer some professional as well as personal advice in the hope I can be of some assistance.

Likely, none of you have read your homeowners insurance policies previously.  I am embarrassed to say that I had not read mine prior to the Oakland firestorm, and I am, as they say, in the business.  Do not be surprised when you attempt to read your policies if you have difficulty understanding them, despite their claims of being written in “plain English” or “easy to read” format.  Even professionals do not agree on every policy interpretation, and no one is born with an innate understanding of insurance or how to pursue their personal insurance claim.

Your homeowners policies provide a few basic coverages for your home, other structures, additional living expenses, and personal property.  Initially, you will want to focus on obtaining an advance from your insurer to cover immediate necessities, including food and lodging.  Most insurers involved in a catastrophic loss will readily issue advances from your contents and additional living expense coverages, usually in the $5,000-$15,000 range.  In fact, many insurers will set up local catastrophic loss command centers to handle requests in your community.  The easiest way to communicate or locate your insurer is to contact your insurance agent or broker.

Additional living expense coverage covers your expenses when you are dislocated from your residence as a result of its being destroyed or rendered uninhabitable.  This coverage is usually limited by a dollar limit or a maximum time. Such coverage typically covers either your actual out-of-pocket expenses, such as increased meal costs, increased cost of commuting from a different location, cost of temporary residence, etc., or the reasonable rental value of your former residence.  Most insureds opt for the latter method of determining their additional expense coverage as it is simpler, less time consuming to document and usually yields a greater dollar recovery.

You will need to immediately replace certain essential items, such as toiletries and clothes.  Most insurers will give you an advance on your contents claim with no specific proof of loss other than proof that your home was damaged or destroyed.  As time progresses, you will be required to document your loss on an itemized basis.  Most of you will have replacement cost coverage, which means you will, upon proof of replacement, be entitled to the cost of replacing lost items up to the limits shown in your policy.  For items that you do not immediately replace, the insurer usually will pay you “actual cash” value for those items.

This means that the insurer will determine the replacement cost of the item and then depreciate it for use, age or obsolescence.  If you subsequently replace the item, you can then send the insurer a copy of the receipt and receive the difference between what you were paid by the insurer shortly after the loss and what you spent to replace it.

A frequently asked question is:  What is the replacement cost of an item that is no longer made?  You are entitled to replace such items, subject to your contents limits, with items of like kind and quality.

Eventually, you will be dealing with the cost of repairing or replacing your home.  The first item you will likely have to deal with is removal of debris.  Almost all policies provide coverage for debris removal as either a percentage of the limits for the house or in addition to the limits for replacement of your house.

Next, the insurer and you will be working on determining the cost of rebuilding your former home.  Many of you will have a form of replacement cost coverage that will give you the replacement cost of your home up to some percentage in excess of your stated policy limits.  Such an increase in coverage is typically 125% of stated limits.  Additionally, most of you will have coverage for other structures, such as detached garages, decks and fences, with an additional coverage limit, usually referred to as “other structures” coverage.  Many of you will also have coverage for code upgrades, although such coverages will also have limits.  You will likely have coverage for landscaping.  Even if you had native or natural landscaping, you are entitled to have it replaced subject to the terms of your policy.

An issue that many of us dealt with in the Oakland firestorm is that policies that provide replacement cost coverage usually require you to replace the structure before you are fully compensated, although you are provided some monies on an actual cash value basis in the interim. This posed a significant challenge for those who were less affluent, because they were financially incapable of fronting the monies necessary to complete their homes.  After some negotiations and with considerable help from the then Insurance Commissioner, now U.S. Congressman, John Garamendi, the insurers agreed to either finance reconstruction costs as building progressed or advanced funds.  Most insurers will reach similar agreements in response to the current situation.

Some of you may not wish to rebuild, but may wish to relocate.  There are many considerations that go into such a decision, and it can only be made by you in the best interests of you and your family.  At the time of the Oakland firestorm, most insurance policies required that you rebuild your homes at their current sites.  However, most insurers waived this requirement, and now most policies no longer have these requirements.  If you wish to relocate, let your insurer know as soon as possible.  Even if the policy requires building on your lot, most insurers will waive that requirement as you will be in temporary quarters for a shorter time, which decreases the amount they have to pay in additional living expenses.  Most insurers are ecstatic if the insured wishes to relocate, as it decreases the amount they ultimately have to pay.  If you choose such an option, the insurer still pays you the cost of rebuilding/replacing your former home.  You will also retain title to your lot and can sell it later.

I was asked by many homeowners in the Oakland firestorm and in subsequent disasters whether they need to hire an attorney.  This is my response:  1) most homeowners insurance claims are resolved over a period of time through negotiation and with assistance from claims adjusters and contractors; and 2) most insurers are helpful and sympathetic to their insureds and will make every effort to guide insureds through the process.  However, for most homeowners, their home and its contents are their largest and most important investments.  Consequently, it is advisable to consult with an attorney who specializes in handling insurance matters to make sure that you avail yourself of all benefits you are entitled to under your policy.  Additionally, if you feel at any time you are not being fairly treated by your insurer you should either consult with an insurance coverage attorney or seek assistance from your state's Department of Insurance.

When the Oakland firestorm destroyed my home, I had two daughters: Katy, then 6, and Noelle, who was just shy of her 3rd birthday.  My now-former husband and I were lawyers, and, heck, we were insurance coverage lawyers.  We knew we could handle our claim and the situation.  We relocated our family within a week into temporary housing and shortly thereafter went into contract to purchase a new home.  We had no idea what lay ahead.

Replacing even the bare necessities was a huge project.  We were shopping both days of every weekend and almost every evening.  I wanted to keep my oldest in her school and my youngest in her preschool, so I drove a long commute from our temporary housing every morning and evening.  When I wasn’t driving, I was working on the claim or shopping to replace basic necessities.  My youngest cried every night and begged to go home.  Even though we knew how to handle an insurance claim, it was physically and emotionally exhausting.

About a month after the fire, my older daughter came home with a flyer inviting all firestorm survivors to a special day at Marine World hosted by the Oakland, Berkeley and Piedmont fire departments.  I indicated that we probably wouldn’t be able to go because we needed to go shopping for “stuff” for our soon-to-be new home.  Within an hour, Katy had organized Noelle into a joint protest.  They let their father and me have it.  They told us we had become the “no fun” family.  They were tired of not doing anything.  They missed their friends, who now lived away from them, and they missed us.

They were right!  From that day forward, we made sure that we had family day every weekend.  We went to the event at Marine World and reconnected with other relocated friends.  Katy and Noelle got to play with their friends.  We learned to be nicer to each other.  We also learned that not everything had to get done on a certain schedule, and sometimes it was better if it didn’t get done at all.  We learned that we had gotten the most important things out of the fire: ourselves.  We also learned that only those things that had memories attached were truly important, for anything else could be replaced.  None of us has ever placed the same importance on possessions.  For a long time, I resisted replacing many items, as I simply did not want as many things, and frankly still don’t.  Most importantly, we learned the importance of family and community and that we could survive a major loss in our lives and be the better for it.

A Tale Of Two Broken Hearts

Imagine, if you will, twin boys born on some sunny day not too long ago. Neither one of the boys, nor their parents, nor even the delivering doctors knew that both boys were born with a heart condition. This congenital heart anomaly, a patent foramen ovale, left a small hole open in the walls of each brother’s heart, exposing them to higher risks of stroke.

These twin brothers, let’s call them Keven and Kenny, seemed to be joined at the hip. They enjoyed all the same activities, all the same food, went to the same school, and, when they decided it was time to purchase homes of their own, bought two adjacent houses. Being as close as they were, they tore down the fence between their properties and right in the middle built a small gazebo where they could enjoy breakfast with their families every weekend morning.

In choosing a profession, Keven wanted a job that would keep him physically fit while allowing him to serve the community and even save the lives of his fellow citizens. So he became a firefighter. The job kept him physically fit and allowed him to maintain a clean bill of health … except for that congenital heart anomaly, which no one knew about.

Kenny, on the other hand, decided to pursue the absolute highest calling — the profession which the bravest and noblest aspire to. He didn’t want to become a physician, or an engineer, or even a scientist. He decided to become a workers’ compensation defense attorney (not unlike your humble author).

Still, the two twin brothers were in every other respect exactly alike, and spent every Sunday morning having breakfast together in that shared gazebo, along with their wives and children.

Then, tragedy struck! One morning, as Kenny and Keven sat next to each other, enjoying the morning air, each with a newspaper in the left hand and a piece of toast in the right, they suddenly sat straight up, looked into each other’s eyes, and both collapsed to the ground with strokes.

Their families rushed them to seek medical treatment and, fortunately, each of the two brothers recovered. Before long, they were sitting next to each other in their shared gazebo, when Kenny had an idea. Why not file workers’ compensation claims for the strokes — surely, the stress of being a firefighter caused Keven’s stroke. And, if being a firefighter is stressful enough to cause a stroke, then being a workers’ compensation defense attorney is even more so!

As the cases progressed, each of the two brothers agreed to use an Agreed Medical Evaluator, and each AME came to the same conclusion: the AMEs both found that, in their respective cases, the “stroke … occurred in an individual whose only major risk factor for stroke in terms of this industrial analysis appears to be his congenital heart defect … all of his conditions apportion 100% to non-industrial causation.”

Kenny was crushed — his case was effectively at an end as the workers’ compensation Judge ordered him to take nothing. After all, the Agreed Medical Evaluator had found that there was only one cause for his stroke — a non-industrial condition acquired at birth. How could any legal system, short of denying a defendant-employer due process, require workers’ compensation payment for something so patently and obviously unrelated to any work causes? Keven’s case, on the other hand, was just warming up.

Keven’s attorney argued that, under Labor Code section 3212, “any heart trouble that develops or manifests itself during a period while [the firefighter] is in the service of the office, staff, department, or unit … shall be presumed to arise out of and in the course of the employment.”

Now, isn’t that presumption rebutted? After all, as in both the case of Kenny and Keven, the Agreed Medical Evaluators have found that the sole reason for both strokes was the congenital heart condition — exactly 0% of the causation had anything to do with work as a firefighter or as a workers’ compensation defense attorney.

Well, as Kenny feels once again misused and ignored by the system he so gallantly serves, Keven has another line of defense: “The … heart trouble … so developing or manifesting itself … shall in no case be attributed to any disease existing prior to that development or manifestation.”

Keven’s attorney would have to prove that Keven is a firefighter — something he could establish without much difficulty (showing up at the Board with a fire axe is not recommended, even if you believe you’ve got “an axe to grind”). Then, he would have to prove that Keven’s injury could be considered “heart trouble.” This should be no problem, considering the fact that case-law has established that there are very few non-orthopedic injuries that might be considered not heart trouble (Muznik v. Workers’ Comp. Appeals Bd. (1975)).

But what about that pesky requirement of “in the service of the office …” as required by Labor Code Section 3212? If the firefighter is sitting in his and his brother’s gazebo, drinking coffee on a beautiful Sunday morning and indulging in that antique of an information-delivery device that people so often read, is he really in the service of the fire department?

For example, the Court of Appeal in Geoghegan v. Retirement Board (1990) upheld a retirement board’s denial of benefits for a firefighter who sustained a heart attack while skiing.

Now, before the applicants’ attorneys out there start mumbling something about a ski-lodge burning and a San Francisco firefighter being called in to ski down the slopes and shovel ice onto the flames, your humble author assures you, this was a vacation. The treating physician found that the heart attack was caused by the altitude and Mr. Geoghegan had recently passed the fire department’s physical exams with skiing flying colors.

The Board of Retirement had rejected Geoghegan’s application for retirement benefits, and he appealed. There, the Court of Appeal rejected Geoghegan’s argument that Labor Code section 3212 applied and that he should be, at that very moment, counting his money instead of appealing his case, because the trial court had found that “the conclusion is inescapable that plaintiff’s disability was due to the myocardial infarction caused by the cold and altitude encountered while skiing.”

Previous decisions, as cited by the Geoghegan Court, included Turner v. Workmen’s Comp. App. Bd. (1968) and Bussa v. Workmen’s Comp. App. Bd. (1968). In Turner, a police officer’s heart attack sustained while on duty after a day off spent abalone fishing was found non-industrial, and the presumption of Labor Code Section 3212.5 was rebutted. In Bussa, a firefighter’s exertions on a second job were used to rebut the presumption of industrial causation for his heart attack.

Well, Keven’s attorney could easily fire back that those three cases can be distinguished because they don’t touch on the anti-attribution clause (“[t]he … heart trouble … so developing or manifesting itself … shall in no case be attributed to any disease existing prior to that development or manifestation.”) And, as the Agreed Medical Evaluator in Keven’s case had found that 100% of the disability was caused by a congenital heart defect, that leaves (let me get my calculator here …) 0% available for causes not “attributed to any disease existing prior to that development or manifestation.”

Geoghegan was already a firefighter when he sustained his heart attack; Turner was already a police officer when he sustained his heart attack; and Bussa was already a firefighter when he had his heart attack. On the other hand, each of these cases showed an injury attributed to something other than a condition in existence prior to the start of the applicant’s career with the fire or police department.

Keven, on the other hand, was not exerting himself at all — he was having coffee with his twin brother and their respective families over a relaxing Sunday breakfast.

But doesn’t something seem strange about sticking the fire department with the bill for a condition which existed at birth? After all, we’re talking about medical care and temporary disability and permanent disability and maybe even a pension. That’s not to mention the litigation costs. The city in which Keven is a firefighter could be deprived of a firetruck or several firefighters’ salaries if it is liable for Keven’s stroke.

Your humble author directs you to the recent case of Kevin Kennedy v. City of Oakland. Mr. Kennedy, a firefighter, had sustained a stroke while he was off work and filed a workers’ compensation claim against the City of Oakland, reasonably arguing that the stroke was “heart trouble” as contemplated by Labor Code section 3212. After an Agreed Medical Evaluator found that Mr. Kennedy’s stroke was entirely caused by a congenital heart anomaly, and had nothing to do at all with any work-related activities or trauma, the workers’ compensation judge found that the City of Oakland was not liable for the injury.

Mr. Kennedy’s attorney made a fairly logical argument: Labor Code Section 3212 prohibits the attribution of heart trouble to “any disease existing prior to that development or manifestation” of heart trouble. Additionally, the same Labor Code section requires heart trouble in firefighters to be presumed industrial, although this presumption may be rebutted by other evidence. Here, there is no evidence available with which to rebut this presumption, because the AME found that 100% of the causation should be attributed to the congenital heart condition.

The workers’ compensation Judge, however, found that Mr. Kennedy could not recover — based on the opinions of the AME, the stroke had absolutely nothing to do with Mr. Kennedy’s employment.

Applicant petitioned for reconsideration, and the Workers’ Compensation Appeals Board granted reconsideration, reasoning that Mr. Kennedy’s patent foramen ovule was a condition existing prior to the development or manifestation of the stroke, and that Labor Code Section 3212 necessitated a finding of compensability. The Court of Appeal denied defendant’s petition for a writ of review.

In issuing its opinion, the Workers’ Compensation Appeals Board was consistent, echoing a similar decision in the matter of Karges v. Siskiyou County Sheriff, finding a deputy sheriff’s congenital heart condition compensable under Labor Code section 3212.5.

So … what’s to be done? Common sense and a basic inclination for fairness militate against this outcome. We’re not talking about a weak heart being aggravated by work conditions, but rather a firefighter at peak physical fitness succumbing to a condition with which he was born and an illness in which his work played no part. It’s entirely possible that if Mr. Kennedy had spent his life behind a desk, much like his imaginary twin brother Kenny, his heart would have been strained by office junk food and a sedentary lifestyle, much like your humble author’s.

As promised, here are a few crackpot arguments to be used only by the most desperate in such cases. Your humble author doesn’t know if these will work, but if they are the only alternative to writing a big check, perhaps they are worth exploring.

  1. As with the Karges decision, the argument should be raised that Labor Code Section 4663 is the more recent law, and therefore reflects the more current legislative intent. In litigated matters, judicial authority should be used to further this Legislative intent and not find impairment caused entirely by non-industrial factors to be compensable.
  2. In the writ denied case of Michael Yubeta v. Workers’ Compensation Appeals Board, a corrections officer’s claim for heart disease was ruled non-compensable when the Agreed Medical Evaluator found cardiovascular disease manifested prior to the start of his tenure with the Department of Corrections. In the Kennedy, matter, the defense might argue that the patent foramen ovule is the “heart trouble” contemplated by section 3212, and it manifested itself at birth, before the term of service with the fire department. Mr. Kennedy’s stroke, being directly and exclusively caused by this manifestation, should not be presumed compensable.

    After all, the poor guy had a hole in his heart — not in the sense that he couldn’t love or open up to other people, but the wall to his heart had an actual hole. Studies had shown that this practically guaranteed that he would sustain a stroke at some point in his life. (Understandably, this one is a stretch).

  3. Webster’s dictionary defines “attribute” as “to regard as resulting from a specified cause.” However, as the Labor Code does not use the words “apportionment” and “attributed” interchangeably, we can only suppose that they mean two different things. So, while section 3212 prohibits us from attributing heart trouble for purposes of AOE/COE (Arising Out Of Employment/In The Course Of Employment), perhaps we are still permitted to “apportion” the heart trouble to non-industrial causes. If such is the case, the Kennedy matter should have found the stroke compensable, and yet apportioned 100% to non-industrial causes.

    In other words, Mr. Kennedy should get the medical treatment but not the permanent disability indemnity.