Outer Banks Rental Agreements and the Power Outage: Your Rights as a Vacation Renter

The Outer Banks power outage has disrupted vacation plans for thousands of renters

The recent electrical outage affecting Hatteras and Ocracoke Islands, resulting in a mandatory evacuation of all non-residents has raised some interesting legal issues. What are the rights of the vacation renters who were in the middle of their stay when they were forced to leave? What are the rights of the renters whose vacation stay was supposed to start on the following Saturday or Sunday, or even next week, given an estimate of two weeks to repair the severed electrical cable? These issues are not quite as clear as one might imagine they should be given the long history of storms along the Outer Banks. This is especially true in light of some renters reporting that landlords are refusing to refund monies for nights missed, even for those whose stay was supposed to begin long after the initial evacuation orders were issued.

Vacation rental agreements in North Carolina are governed by the provisions of the North Carolina Vacation Rental Act (N.C.G.S. §§ 42A-1 thru 36). That act, in effect since 2000, requires that all vacation rental agreements be in writing, signed by both the landlord and the renter, and that the rental agreement is subject to the provisions of the North Carolina Vacation Rental Act (“the Act”). Among the provisions in the Act, landlords may collect fees, taxes, and rent in advance, and can disburse the fees to themselves right away, but must place rent for future rentals in a trust account until the day the rental is to begin. At that point, the landlord can release the rent to themselves. As to refunding the advance rent, most rental agreements provide for a cancellation policy and refund if done more than 30-90 days in advance of the rental start date. After that deadline passes, there is generally no refund allowed. The exception is the one contained in G.S. §42A-17(b), which provides that “except as provided in G.S. §42A-36, if, at the time the tenant is to begin occupancy of the property, the landlord … cannot provide the property in a fit and habitable condition or substitute a reasonably comparable property in such condition, the landlord … shall refund to the tenant all payments made by the tenant.” In North Carolina, a lack of electricity (and by extension, water, since pumps don’t work without power) is deemed to render a property in an unfit and uninhabitable condition. So it would seem simple enough, but the refund statute is expressly subject to G.S. §42A-36, which deals with “mandatory evacuations” ordered by State or local authorities.

Under G.S. §42A-36, if an emergency evacuation is ordered by the authorities, renters are obligated to comply. The statute then goes on to say that in the event of such an evacuation, renters are entitled to a refund of their rent, fees and taxes from the landlord based on a prorated formula using the nights actually spent on the property, and the nights missed due to the evacuation. That seems pretty straight forward, but the General Assembly did not stop there. They added an exception to the required payment of prorated rent refunds from the landlord based on the renter’s purchase or non-purchase of evacuation insurance offered by the landlord (or their rental agent). What the statute says is that: “The tenant (renter) shall not be entitled to a refund if: (i) prior to the tenant taking possession of the property, the tenant refused insurance offered by the landlord or real estate broker that would have compensated the tenant for losses or damages resulting from loss of use of the property due to a mandatory evacuation order; or (ii) the tenant purchased insurance offered by the landlord or real estate broker.” So, the landlord doesn’t have to pay the refund if the renter buys, or if the renter doesn’t buy, the evacuation insurance. Confused? Well, look at it this way; if the renter is offered evacuation insurance and doesn’t buy it, then that is a choice they made, and the risk of there being an evacuation scenario should fall on them, not the landlord (at least in the minds of the General Assembly). If on the other hand, the renter does buy the insurance, then the insurance company pays the prorated rent, so the landlord gets to keep the entire rent. That’s a win-win for everyone but the insurance company (which still makes a large profit off of the policies even if it has to occasionally pay out when an evacuation occurs). The problem is that these policies typically do not cover “man-made” catastrophes like the one that occurred when the contractor building the new Bonner Bridge severed the main trunk line carrying electricity to Hatteras and Ocracoke Islands. The policies were originally designed to cover weather events, like huge storms or hurricanes. Many policies thus exclude man-made (or human) caused problems. 

So, it seems that what many vacationers are now experiencing is a Catch-22 whereby the landlords are using the evacuation order to place the renters (and the landlord’s) rights under the language of §42A-36 (rather than §42A-17), and are then saying that they (the landlords) do not have to pay any refunds (so long as they offered the evacuation insurance to the renter) because the renter either did buy insurance or didn’t, but either way the landlord doesn’t have to pay. Worse still, some landlords are denying refunds to those renters whose stays were to begin this week (long after the “evacuation” took place), and who weren’t part of the group actually evacuated pursuant to the order, relying on that part of the statute which says that the evacuation order applies to a renter, “whether in possession of the property or not,…”. 

Assuming that the landlord’s position that §42A-17 is subservient to §42A-36 even for those renters who were not even there when the evacuation order was issued (since there is still an order in place preventing non-residents from entering the islands) what can the renters do to receive a refund for the missed days? First, each renter must answer the question of whether or not they were offered evacuation insurance in advance of their stay by either the landlord or their rental agent. If not, then the landlord owes the refund. If the landlord or real estate agent handling rentals did offer it, then did the renter buy it? If yes, then read the policy carefully to see if the policy might provide coverage in this case. If it does, then make the claim on the policy. If the policy does not cover this event (because it is man-made, and not a natural event), or if the renter chose not to buy a policy that would not have covered this event, then a valid legal argument can be made that the landlord owes the refund. Why? Because of the language of the exception in §42A-36 that says with regard to not purchasing the insurance, that it must be, “insurance offered by the landlord or real estate broker that would have compensated the tenant for losses or damages resulting from loss of use of the property due to a mandatory evacuation order;…”. Clearly the exception is meant to apply only to policies that would provide coverage, not to policies that would not. This makes sense, and is also the fair and just allocation of risk between the landlord and tenant. So if the policies issued by the landlord’s insurance company exclude payments for an event like this one, then the statutory requirement that the policy “would have compensated” is not met. By extension, the argument can be made that the same logic applies to those who did purchase policies that don’t compensate the renter for that same loss of use due to the evacuation order; they don’t meet the statutory requirement to trigger the exception, and the landlord owes the refund. It would be a difficult legal argument to win, that the statute having defined the policy to be sold as requiring that it would have compensated the loss if purchased, to then say that policies actually purchased that don’t provide such compensation should still give the landlord the statutory protection.

Charles F. Carpenter is a partner with Crabtree, Carpenter & Connolly, PLLC, in Durham, NC.

You Should Know: Beware the Insurance Company Three D’s

When you buy insurance, you’re buying security. In exchange for your hard-earned dollars, you trust the insurance company to be there when disaster strikes, to shoulder a potentially devastating financial burden. But too many insurance companies care more about profits than policyholders. They employ shady tactics to keep from paying legitimate claims, a practice we call The Three D’s.

If you’ve ever had to file an insurance claim, you know the frustration that seems baked right into the maze of endless forms and confusing small print. Companies that once lived up to their promise to “be on your side” when disaster strikes dramatically shifted business practices in the 1990s to meet Wall Street demands for short-term profits. The result is chronicled in the book Delay, Deny, Defend: Why Insurance Companies Don’t Pay Claims and What You Can Do About It by distinguished Rutgers law professor Jay Feinman. Not surprisingly, insurance companies are recording astronomical profits. Here’s how it works:

Trick #1: Deny, Deny, Deny Claims

Insurance companies will outright deny that an accident occurred or that the policyholder was seriously injured. Some companies even offer gifts and bonuses to employees who deny claims and keep payments to a minimum. Arbitrary rules will crop up, often referencing provisions that do not exist or that contradict a previous statement. The hope is that denial after denial will defeat and deflate claimants, making them feel they have no choice but to throw in the towel.

Trick #2: Delay Paying as Long as Possible...
Even Until Death

Endless forms, arbitrary rules and a sea of fine print discourage claims.

You’ve jumped through all the hoops and the insurance company has agreed to pay the claim, so you can rest easy, right? Think again. Delaying payment is another common tactic to boost profits. Insurance companies have been known to send out incorrect forms and then blame claimants for the error, or set very short time limits on when a claim can be made after an accident, injury or illness. In cases involving elderly or gravely ill claimants, some insurance companies have even delayed payments in hopes that the customer dies before they have to pay.

Trick #3: Defend in Court

Following a denied claim or a delayed payment, insurance companies know they can further delay writing a check by defending their questionable tactics in court. Billions of dollars in profits and thousands of high-priced lawyers on the payroll means they are always ready for a trial. Insurance companies know that many of their customers may be afraid or unwilling to hire a lawyer, and they use that fear to convince claimants that a court battle would only end in an insurance company victory.

Getting Paid What You Deserve

Forcing a claimant to sue for benefits owed is one way insurance companies fail their customers.

What can a David do against these insurance company Goliaths? Here are some tips on what to do before, during and after making a claim to an insurance company:

• Pick a reputable company: It pays to do a little homework before you sign on the dotted line. Start with this list of best/worst insurers ranked on claim denials and bad-faith practices.
• Read your policy carefully: You should know exactly what is covered and what you need for an appeal in case your claim is denied.
• Double- and triple- check forms: An incorrectly filled-out form can be used by an insurance company to deny or delay claims. Past forms can even be used as a way to retroactively deny coverage. Be thorough and honest on every piece of paper you fill out.
• Do not cash the check right away: Insurance companies will send checks with very low offers, or pay premium refunds if they rescind your coverage. Cashing these checks can be legally interpreted as accepting their offers.
• Get everything in writing: If you need to fight your insurance company, you must be able to produce every bill, form and piece of correspondence.
• Reach out for help: An experienced plaintiff’s lawyer can guide you through your claims process and provide the firepower necessary to challenge the insurance company in court if necessary.

This article appeared in our July 2017 "You Should Know" e-newsletter.

You Should Know: Motorcycle Injuries, Insurance and Prevention

Americans love motorcycles: the wide-open road, the sense of freedom, the “Born to Be Wild” spirit of rebellion. Perhaps you are thinking about a biking adventure as well this summer? You wouldn’t be alone. According to numerous government and industry sources, motorcycle ridership in the United States is at an all-time high, especially among older riders.

Fatalities Continue to Rise Among Older Riders

Common sense tells us that motorcycling is simply more dangerous than driving a car. Aside from four wheels over two, cars are equipped with numerous safety features, including seat belts, air bags and a surrounding structure that protects occupants in a crash. Motorcycles are also less visible to other drivers, and require more mental and physical skill to operate safely. Finally, motorcyclists are more vulnerable to bad weather and hazardous road conditions.

While the overall number of motorcycle injuries and deaths declined slightly in 2013 and 2014, fatal accidents among older riders continue to rise. Riders 50 and older accounted for 3 percent of motorcycle fatalities in 1982, 13 percent in 1997 and 36 percent in 2014, according to the Insurance Institute for Highway Safety. Aside from the inherent dangers of motorcycling, riding without a helmet, while intoxicated or speeding are often cited as contributing factors as well.

Insurance May Not Cover Personal Injury

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Click to expand this Fool's Gear, Cool Gear infographic.

After strapping on your helmet, the next best protection you can have in case of a motorcycle accident is insurance. While all 50 states require minimum insurance coverage to operate a motorcycle, be aware that the minimums may not adequately protect you in a serious accident. Like any type of insurance, how much you'll need will depend on many different factors, including the type of bike you own, how often you ride, your marital status, your personal assets and your budget.

Liability covers bodily injury and property damage that you may cause to others involved in an accident. Other coverages include uninsured or underinsured motorist, which covers personal injury and damages caused by the driver of another vehicle who either does not have insurance or does not have sufficient coverage; collision, which covers physical damage to the motorcycle involved in a crash with an object, tree or another vehicle; comprehensive, which covers a loss from non-collision sources, such as theft, vandalism, fire or hail; and in states where applicable, medical payments or personal injury protection (PIP), which covers physical injuries to the rider and passenger.

Beyond liability, your first priority should be the coverages that pay you – and your passenger – for medical treatment, lost wages and other damages. These include uninsured/underinsured and PIP. Note, however, that the risks associated with motorcycling often make it very expensive to increase these coverages. In some cases, for example, PIP may not even be available, or may be so expensive that it is out of reach for most individuals. As when purchasing any type of insurance, seek the advice of a qualified advisor and carefully review policies from several different insurers.

Preventing Motorcycle Accidents – Tips for Riders and Drivers

To help combat the growing safety issues with motorcycles, the Motorcycle Safety Foundation has set out to improve safety through education, training and licensing. Since 1974, over 7.5 million motorcyclists have taken MSF training courses. 

The Foundation offers the following tips for riders and drivers (download) to help prevent motorcycle accidents.

For Riders:

• Be Properly Trained and Licensed – Half of all riders have never taken a proper safety class. If you take the Motorcycle Safety Foundation’s Basic Rider Course, some states will waive the written portion of the motorcycle endorsement test.
• Wear a Helmet – The facts are irrefutable: Helmets prevent fatalities an estimated 37 percent of the time for motorcycle drivers, and 41 percent of the time for passengers in motorcycle accidents, according to the NHTSA. And aside from being smart, wearing a helmet the law in 19 states and the District of Columbia.
• Fool's Gear, Cool Gear – What you wear can make it easier for drivers to see you and better protect you in a crash. 
• Never Drink and Drive – In 2013, 28 percent of cycling fatalities involved riders who were legally intoxicated.
• Ride Within Your Skill Limits and Obey Traffic Laws – Don’t ride faster or farther than your abilities will allow.
• Be a Lifelong Learner – Take advanced courses to brush up on the basics and keep improving your skills.

For Drivers:

• Watch for Motorcyclists – Motorcycles are smaller than other vehicles and often harder to see. In 42 percent of the fatal motorcycle accidents reported in 2013, a vehicle made a left turn in front of an oncoming motorcycle.
• Focus on Driving – Motorcyclists are easy to miss even when you are paying attention. Studies show that distracted drivers simply don't see certain objects like signs, motorcyclists and pedestrians. Hang up the cell phone or mobile device.
• Give Motorcyclists Enough Room – Maintain a safe distance between your car and a motorcycle and don’t change lanes too close. What would be a minor fender bender between two cars could easily be fatal to a motorcyclist.
• Use Your Turn Signals – For everyone’s safety, use your turn signals. It is also the law.
• Keep Trash in the Car – Road debris can kill a rider. And don't throw cigarette butts out of your car, either.

 This article appeared in our July 2016 "You Should Know" e-newsletter. 

You Should Know: Will Your Auto Insurance Be There When It Matters Most?

Serious Accidents Can Quickly Exceed Your Policy Limits

Greg is married and the father of three small children. He is driving home from work when a distracted driver blows through a stop sign and slams into his car. After a long hospitalization, two surgeries, extensive physical therapy and two months away from work, Greg contacts a lawyer to help him and his wife sort through a mountain of bills and insurance red tape.

“Greg,” says his lawyer a week later after a short investigation. “I have bad news: The distracted driver was uninsured and has no appreciable assets. Here’s worse news: We can only recover part of the damages for the injuries you suffered because you purchased the minimum amount of uninsured/underinsured coverage available in your auto insurance policy. I’m afraid you and your wife will have to cover the difference.”

This scenario is all too familiar to those of us who help good people hurt in bad car accidents. They often think they have “full coverage” if they have met the insurance requirements to drive a car in their state. If you already have auto insurance or are thinking about buying coverage, consider these tips:

Tips for Analyzing Your Policy or Buying New Insurance

1. Check your liability limits

If you are at fault in an accident and the other driver’s damages exceed available benefits, you can be held personally liable. In other words, you could lose your savings or your house. And while the minimums in your policy might seem like a lot of money, it can quickly vanish. Many insurance experts suggest beefing up liability limits to at least $100,000 for injuries caused to one person, $300,000 to two or more and $50,000 for damage to the other car. Even more might be required if you own a home or have appreciable assets. Also consider adding relatively inexpensive “umbrella” coverage to your existing liability and uninsured/underinsured benefits for more protection.

2. Review Personal Injury Protection (PIP)

If you live in a “no-fault” state, you will turn first to your Personal Injury Protection (PIP) for payment of wage loss, medical bills and other expenses from an injury crash for yourself or others in your car. If these benefits run out, you can make a claim on the negligent driver’s liability coverage. PIP benefits can be increased, or you can “stack” them if you have more than one car on your policy. PIP benefits or something similar might also be available in states without no-fault insurance requirements, but you should discuss this coverage with your insurance agent.

3. Look Hard at Uninsured/ Underinsured Benefits

One in eight drivers across America is driving uninsured, according to the Insurance Research Council. Many more drivers carry minimum liability protection. If you are in an accident with a uninsured/underinsured driver, you may need much more coverage than the minimums available in your insurance policy.

4. Review the “Extras”: Comprehensive and Collision

Your first priority should be protecting yourself and your family with adequate levels of liability, PIP (where applicable) and underinsured/uninsured benefits. If you’ve achieved that goal, then decide if the annual cost of comprehensive or collision makes sense given the value of your car.

5. Research Your Insurance Company

If you get into an accident and have to file a claim, will your insurance company be prompt and helpful? What is their financial rating? Do some research on any insurance company you are considering. Check with your state department of insurance to access financial ratings, and use websites like Consumer Reports or the Better Business Bureau to investigate a company’s customer service record.

6. Get It in Writing

Before you sign any policy, read it through completely. Request a detailed breakdown of all charges and make sure you are paying exactly what the insurance company has quoted. This glossary of insurance terms can help make the lingo a bit less confusing.

7. Finance Your Premium

More often than not, financing your premium will be less expensive. Paying your entire coverage for six months or a year instead of paying monthly will most likely lower your rate.

8. Get Accident Forgiveness

Ask the insurance company if they offer accident forgiveness. Under a plan that includes this coverage, your rates won’t go up after your first accident.

9. Receive All Possible Discounts

There are many different discounts you may qualify for, including some that you may not even know exist. Ask the insurance company for a complete overview of every possible discount to see what you may qualify for. Some examples of discounts include:

• Multi-Vehicle: Insuring more than one vehicle at a time.
• Anti-Theft: This discount applies to those who own a car with a theft-deterrent device.
• Good Student: Full-time high school and college students who maintain good grades.
• Low Mileage: The average American driver travels 12,000 miles a year. You may be eligible for a discount if you travel below this average.
• Good Driver: Given to those who do not receive speeding tickets or other types of driving violations.
• Preferred Parking: Having covered or secured parking can keep your car from being hit in a general parking lot or on the street. 

10. Finally, Shop Often

The insurance company you purchased from 10 years ago may not still be your best bet. David Marlett, Chair of the Department of Finance, Banking and Insurance at Walker College of Business encourages policy holders to shop around every three years. He also suggests that shopping after a major life change – marriage, a child turning 16 or a move to a new city – is a good plan.

This is a simplified overview of auto insurance coverage. If you’ve been in an accident, call us as soon as possible to discuss the specifics of your particular situation.

 This article appeared in our March 2016 "You Should Know" e-newsletter. 

The Importance of Un- and Underinsured Motorist Coverage

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Ryan Connolly

So, what happens if you are in a serious wreck and the at-fault party has no or little insurance coverage? If you are smart you would have planned for that unfortunate occurrence when you renewed your automobile insurance.

For example, I try to spend as much time riding my bike as possible.  Unfortunately, more time on the road also means greater risks of an accident. In my line of work, I’ve seen enough incidents involving cyclists being hit by cars to make me more than a little nervous when I strap on my shoes for a ride. Sure, there are certain precautions you can take to prevent an accident from occurring (wear visible clothing, stay near the shoulder, don’t ride during high traffic), but there is not much you can do to prevent a careless or distracted motorist from hitting you. You can do everything right and still be the victim of a negligent driver. 

I have seen many individuals who have been seriously injured due to the negligence of others. This is especially true in bike-car collisions. Best-case scenario, you’d be out for the season; however, more likely than not, your life and that of your family may be forever changed. 

If you are hurt in a bike wreck and it is someone else’s fault, your expenses could be substantial. Many drivers only carry minimal liability coverage ($30,000.00 in North Carolina), meaning that if you were seriously hurt in a collision, you could be personally responsible for medical bills, lost earnings, rehabilitation expenses, and you’d receive no recovery for your pain and suffering or your long-term damages. Do not count on the average driver to have adequate insurance coverage to fully compensate you for the expenses you would incur in a serious wreck. In North Carolina, about one in four drivers are either uninsured or underinsured. To protect yourself from their negligence, it is important to purchase something called uninsured and underinsured motorists’ coverage. You can easily add this coverage to your own automobile insurance policy. This insurance will kick in and pay your damages when the careless driver has no or inadequate insurance. The cost of this coverage is minimal. For instance, I pay about $15.00 a month extra to get $1,000,000.00 in uninsured and underinsured coverage. Uninsured and underinsured insurance will protect you from financially irresponsible drivers and provide you with peace of mind as you are pedaling down the road.  Call your insurance agent today.

For more information on uninsured and underinsured motorist coverage click on the video in the “Bookmarks/Favorite” section of this month’s newsletter. 

Ryan Connolly is a partner with Crabtree, Carpenter & Connolly, PLLC, in Durham, NC. The firm helps injured parties from all over the nation recover from injuries caused by the negligence of others. Ryan is an avid runner, cyclist, and swimmer and competes in triathlons around the state each year.

You Should Know: Your Responsibilities as a Party Host

Protect Yourself and Your Guests When Hosting a Holiday Party

Hosting a party this holiday season? Before stamping that last invitation, learn how you can protect yourself and your guests. The legal principles at work here are called premises and social host liability. Here are tips and suggestions for preventing injuries and protecting your interests before guests arrive:

Let’s Start with Alcohol

“Holiday cheer” is often synonymous with alcoholic beverages in many people’s minds. There is nothing wrong with that thinking, but homeowners should be aware that they may be held liable in some states if intoxicated guests leave the party and cause injury or property damage to others. So...

• Encourage guests to pick a designated driver.
• Stock plenty of non-alcoholic beverages and serve food.
• Don't pressure guests to drink too much and cut off anyone who has already had enough.
• Call a cab for intoxicated guests, give them a ride (if you are sober), or offer a place to sleep at your house.
• Never allow minors to drink.
• As the host, stay in control by not drinking too much yourself.

Click to view a Drinking & DUIs During the Holidays infographic

Now, Look Around Your House

As the property owner, you are responsible for protecting your guests from unsafe conditions on your property. So...

• Fix any tripping hazards like broken stairs or loose handrails, double-stick tape throw rugs and secure extension cords.
• Remove any dangerous items that might injure children like an old freezer, a broken swing or poison hazards.
• In colder climates, keep sidewalks and steps free of ice and snow.
• If you have a pool, keep gates locked or make sure kids are supervised by an adult if using the pool.
• Consider restraining pets as you may be liable if a guest is bitten or scratched.

Review Your Homeowner’s Insurance

The liability coverage in your homeowner’s insurance may be your final line of defense if someone is hurt during a party at your home. So...

• Make sure it is in force and that your policy limits are high enough to cover an injury. Standard minimums of $100,000 to $300,000 may not be enough to cover all the costs associated with a serious injury.
• If you have significant assets in addition to your home, consider an umbrella policy for added liability protection.
• Check for exclusions and contact your agent if you have any questions.

This article appeared in our November 2015 "You Should Know" e-newsletter.