Appeals Court holds insurer is full of hot air

John Hanratty and Mary Blake Newman owned adjacent condominium units. Hanratty's air conditioner projected through the wall and into a yard area over which Newman held an exclusive easement. After her complaints were repeatedly ignored, Newman duct taped the air conditioner to make it unusable. Hanratty filed suit against her, seeking to restrain her from interfering with his air conditioner and to require her to stay ten yards away from him and his family. Newman counterclaimed for nuisance, trespass, and defamation, and sought an order that the air conditioner be removed.



Hanratty forwarded the counterclaim to his homeowner's insurer, Citation, which defended him under a reservation of rights. Hanratty exercised his option to select his own attorney, Michael Fee, but Citation was unwilling to agree his $260 per hour rate. Eventually the parties agreed that Fee would bill at $260 an hour, Citation would pay $130 an hour, and Hanratty would retain the right to seek the difference from Citation.



Citation filed a motion for declaratory judgment, seeking a determination that its policy did not provide coverage for the counterclaims. Hanratty counterclaimed, asserting that Citation breached the policy and its duty of good faith and fair dealing by refusing to pay Fee's full rate.



Hanratty and Newman settled the underlying case when Hanratty installed central air conditioning. (Was that so hard?) Hanratty assigned to Newman his counterclaim against Citation.



A Superior Court judge granted summary judgment to Citation on its declaratory judgment action, and a second judge dismissed the counterclaim against Citation. Newman appealed.



In Citation Insurance Co. v. Newman, 80 Mass. App. Ct. 143 (2011), the Appeals Court reversed the summary judgment decision. It held that the incursion of the air conditioner into Newman's yard constituted loss of use of tangible property. It also held that an easement is "tangible property."

Need health insurance for your children?

Open enrollment for individual health plans starts Sept. 15 and runs through Oct. 31. If you need health insurance for your child, make sure you enroll early. If you miss this open enrollment period, you'll have to wait until March 15, 2012, unless you meet certain qualifications.

And if you wait until even the beginning of October, your coverage may not kick in until Nov. 1.

Federal health reform prevents health insurers from denying coverage to children because of a pre-existing health condition. However, just like employer-sponsored health plans, insurers can create open enrollment periods. During these times, children under age 19 do not have to complete a health questionnaire and cannot be denied health insurance.

These open enrollment periods apply to all individual health plans. People buying this type of coverage do not get health insurance from their employer or their employer doesn't cover dependents.

Exceptions where you can apply for coverage for your child anytime include after the birth or adoption of a child, or the parent:

Is no longer eligible for a state program such as Medicaid.
Loses coverage due to a divorce.
Loses employer-sponsored coverage (including COBRA coverage).
Moves and their plan is not available where they live.

Need more help understanding the open enrollment periods or think you're not being treated fairly? Send us an e-mail or file a complaint with us.

Are you rich?

YOU MIGHT BE RICH!

What is rich?

For most people, it is about 40-50% more than whatever you make.

So, if you work full time in fast food at $8.00 an hour, you make about $16,000.00 a year. Therefore, if your friend lands a job making $25,000.00 a year, he might seem rich by comparison. Oddly though, this trend continues even among very high earners. So some someone make $150,000.00 a year is still likely to look with envy upon his neighbor who earns $215,000.00.

Oddly, the lesser earner often tends to believe that the higher earner should be able to live on the lesser salary and give the rest away. This creates class warfare and fights about tax fairness.

However, United States residents, even relatively poor ones, are wealthy beyond what most others dream of.

Until you spend time in India or Africa, I would argue you may not have seen real poverty. There, millions each day only seek two items: potable water and food. In some areas, they also seek firewood. Not much else, and certainly not cable and a cell phone.

Three billion (3,000,000,000.) people live on less than $2 per day.

About 1.3 billion (1,300,000,000.) get by on less than $1 per day (mostly women).

Microsoft CEO Bill Gates has more wealth than the bottom 45 percent of American households combined.

Wealth vs. poverty is relative. In the United States, the poverty level is $22,050 for a family of four and the average is just over $40,000.

In Haiti, Honduras or Uganda, you could move there and live like a king with either salary.

You may not have a nice car, but even having a car is not actually required. I know, I like them too, but it is true. In many cities, adults never learn to drive and ride a bus or a bicycle. Most countries know nothing of our car culture. I think it should become a normal, mandatory requirement for students to go to a place like Haiti to graduate high school.

In the United States almost everyone has: Food, clean water and shelter and enough clothing to wear for weeks.

We should help others and be grateful for our ability to do so. You will find it is impossible to be both grateful and greedy at the same moment.

Then He said to them, "Watch out! Be on your guard against all kinds of greed; a man's life does not consist in the abundance of his possessions." Luke 12:15 NIV

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David B. Peel, an injury attorney, earns his living locally, where he often speaks to churches, clubs and groups without costs. He may be reached at www.PeelLawFirm.com.

Elena Mabry

emabry@bigriver.net

www.PeelLawFirm.com

September is National Preparedness Month

We know, we know. National designations like these often fade into the ether. But why not pay attention this time? Recent earthquakes - even if on the other coast - and hurricanes ripping up the eastern seaboard should make us pay attention. Let this be the call to see how prepared you are.



Do you have flood insurance? Should you have it? How about earthquake insurance? We can help you learn more about these types of coverage at www.insurance.wa.gov.



Why not take an part of an evening this month to look at your homeowner policy. And talk to your family about your emergency plan. Don't have one? Well, now's the time. What are you waiting for?



Here's some more help to get you started.