First-Party Property Damage Demand Letter - West Virginia

FIRST-PARTY PROPERTY DAMAGE DEMAND LETTER

State of West Virginia

[LAW FIRM LETTERHEAD]

SETTLEMENT COMMUNICATION — FOR RESOLUTION PURPOSES ONLY
ADMISSIBILITY SUBJECT TO W. VA. R. EVID. 408 AND F.R.E. 408, WHERE APPLICABLE

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
Article No.: [________________________________]
AND VIA EMAIL TO: [________________________________]

Date: [__/__/____]

[INSURANCE COMPANY FULL LEGAL NAME]
Attn: Property Claims Department
[________________________________]
[________________________________], [____] [________]

Attention: [________________________________], [________________________________]
Re: FORMAL DEMAND FOR FULL PAYMENT — FIRST-PARTY PROPERTY DAMAGE CLAIM
Insured: [________________________________]
Property Address: [________________________________], West Virginia [________]
Policy Number: [________________________________]
Claim Number: [________________________________]
Date of Loss: [__/__/____]
Type of Loss: [________________________________]
Dwelling Coverage Limit (Coverage A): $[________________________________]
Response Deadline: [__/__/____] at 5:00 p.m. Eastern Time

Dear [________________________________]:

I. INTRODUCTION AND NATURE OF DEMAND

This firm represents [________________________________] ("our client") in connection with the above-referenced first-party property damage insurance claim under a policy issued by [________________________________] ("[________________________________]" or "the Company"). This letter constitutes a formal demand for payment of all policy benefits owed for covered property damage at [________________________________], West Virginia.

Our client suffered a [________________________________] loss on [__/__/____]. The cause of loss is covered, the policy was in force, our client has cooperated fully in the adjustment process, and [________________________________] has nevertheless [☐ denied the claim / ☐ grossly undervalued the loss / ☐ unreasonably delayed payment] without lawful justification.

This demand expires at 5:00 p.m. Eastern Time on [__/__/____]. Failure to tender full payment by that deadline will result in immediate litigation seeking all policy benefits plus attorney's fees, consequential damages, punitive damages, and all remedies available to first-party insureds under West Virginia law.

II. WEST VIRGINIA PROPERTY INSURANCE LAW — CONTROLLING FRAMEWORK

A. West Virginia Standard Fire Policy — W. Va. Code § 33-17-2

W. Va. Code § 33-17-2 generally requires fire policies covering West Virginia property to conform to the West Virginia Standard Fire Policy. A commissioner-approved multiline policy may use fire-coverage language at least as favorable to the insured as the applicable standard-policy provisions. Compare the issued policy and any endorsement with the statutory standard before challenging a term.

The standard fire policy covers direct loss by fire, lightning, and removal of property endangered by fire. Additional perils (wind, hail, water, etc.) are covered as specifically endorsed in the policy at issue.

B. Flood Coverage Disclosure Requirement — W. Va. Code § 33-17-6a

Every insurer issuing or renewing a fire insurance policy in West Virginia that does not cover flood damage must provide the policyholder with a written notice stating:

"THIS POLICY DOES NOT COVER DAMAGE FROM FLOOD. FOR INFORMATION ABOUT FLOOD INSURANCE, CONTACT THE NATIONAL FLOOD INSURANCE PROGRAM OR YOUR INSURANCE AGENT."

West Virginia Flood Context: Flood coverage may come from the federal NFIP or a separate private flood policy issued under W. Va. Code § 33-49-3. Review the policy and any endorsements to determine whether this loss has flood coverage.

☐ FLOOD CLAIM NOTE: If any portion of this loss involves flooding, our client maintains a separate flood policy under: [________________________________]. A demand related to that policy [☐ is / ☐ is not] included herein.

C. Unfair Claims Settlement Practices — W. Va. Code § 33-11-4(9)

The West Virginia Unfair Trade Practices Act (UTPA), W. Va. Code § 33-11-4, prohibits insurers from engaging in the following unfair or deceptive claims settlement practices:

• Misrepresenting pertinent facts or policy provisions relating to coverages at issue
• Failing to acknowledge and act reasonably promptly upon communications
• Failing to adopt and implement reasonable standards for the prompt investigation of claims
• Refusing to pay claims without conducting a reasonable investigation based upon all available information
• Not attempting in good faith to effectuate prompt, fair, and equitable settlements of claims where liability has become reasonably clear
• Compelling insureds to institute litigation to recover amounts due by offering substantially less than the amounts ultimately recovered
• Attempting to settle a claim below an amount reasonably expected from written or printed advertising material accompanying or included with the application
• Failing to promptly provide a reasonable explanation for a denial or an offer of compromise settlement

An implied claim under § 33-11-4(9) requires listed conduct occurring with such frequency as to indicate a general business practice. A single documented incident alone does not establish that statutory predicate.

D. Coverage Relief and Separate Unfair-Practice Claim

Hayseeds permits specified contract-based relief when a policyholder substantially prevails on a property-damage claim. McCormick distinguishes that route from the implied § 33-11-4(9) unfair-practice claim, which requires a general business practice and resolution of underlying liability and damages. Section 33-11-4a eliminates the third-party private unfair-practice action; it does not create a first-party claim.

The relevant authorities are:

• Hayseeds, Inc. v. State Farm Fire & Cas., 177 W. Va. 323, 352 S.E.2d 73 (1986) — contract-based attorney's fees and consequential damages when an insured substantially prevails on a property-damage claim, regardless of the insurer's good or bad faith; and
• McCormick v. Allstate Ins. Co., 197 W. Va. 415, 475 S.E.2d 507 (1996) — distinguishing the contract claim from a separate implied § 33-11-4(9) claim and explaining the latter's predicates.

W. Va. Code § 33-11-4(9) lists unfair settlement practices. Its implied private cause of action requires a general business practice; it is distinct from the underlying policy claim and Hayseeds relief.

As the named insured, our client may recover:

• Actual damages (all policy benefits wrongfully denied or delayed)
• Consequential damages (losses flowing from the insurer's breach — Hayseeds)
• Aggravation and inconvenience damages (Hayseeds)
• Attorney's fees (presumptively one-third of the policy face amount upon substantial prevailment — Hayseeds)
• Punitive damages, only if supported by a separately established claim and the applicable insurance and statutory standards — W. Va. Code § 55-7-29

E. The Hayseeds Doctrine — Relief on a Proven Property Claim

Under Hayseeds, Inc. v. State Farm Fire & Cas., 177 W. Va. 323, 352 S.E.2d 73 (1986), a policyholder who substantially prevails in a property-damage suit may recover:

1. Reasonable attorney's fees — presumptively one-third of the face amount of the policy
2. Net economic loss caused by the delay in settlement (loss of use, carrying costs, rental expenses, etc.)
3. Damages for aggravation and inconvenience

The insurer's good faith or bad faith is not the test for this contract-based relief. Fees must be reasonable and for services necessary to obtain payment; economic loss, aggravation, and inconvenience must be proved.

Hayseeds Exposure in This Case:

• Presumptive attorney's fees (1/3 of policy): $[________]
• Net economic loss from delay (rent, loss of use, carrying costs): $[________]
• Aggravation and inconvenience: $[________]

F. Statute of Limitations

• Written-policy claim: W. Va. Code § 55-2-6 provides a ten-year period for a qualifying signed written-contract action, but an applicable policy suit-limitation clause may require earlier filing. Section 33-6-14 generally voids a non-marine policy limit shorter than two years and expressly excludes the standard fire policy. Check the actual policy and the governing fire-policy provisions before setting a deadline.
• Separate unfair-settlement and common-law bad-faith claims: The one-year period in W. Va. Code § 55-2-12(c) applies under Wilt and Noland. Do not use an underlying appeal period as an automatic accrual trigger. Identify when each claim accrued under the particular facts and controlling authority; Noland addresses discovery of a refusal to defend, not every property-payment dispute.

III. POLICY INFORMATION AND COVERAGE

A. Policy Details

B. Applicable Coverages and Limits

C. Coverage Analysis — The Loss Is Covered

The loss qualifies for coverage under the policy because:

1. ☐ The cause of loss — [________________________________] — is a covered peril under this policy
2. ☐ The damage occurred during the policy period ([__/__/____] to [__/__/____])
3. ☐ The damaged property is covered property under the policy

4. ☐ No valid exclusion bars coverage — specifically:

   • ☐ This is not a flood loss (or a separate flood policy covers the flood component)
   • ☐ The loss was not caused by wear and tear, deterioration, or faulty construction
   • ☐ No intentional acts exclusion applies
   • ☐ The "earth movement" exclusion does not apply

5. ☐ All policy conditions have been satisfied: timely notice, cooperation, sworn statement in proof of loss

6. ☐ [________________________________]

The issued policy and applicable West Virginia insurance law determine the disputed coverage terms; identify the specific provision and facts supporting the demand.

IV. THE LOSS EVENT

A. Description of Loss

On [__/__/____], the insured property at [________________________________], [________________________________] County, West Virginia, sustained substantial damage due to:

☐ Fire (accidental / electrical / HVAC / lightning-caused)
☐ Windstorm or hail
☐ Water damage — burst pipe / appliance failure / roof leak / ice dam
☐ Flooding (NFIP or private flood policy claim)
☐ Tornado
☐ Lightning strike
☐ Explosion
☐ Vandalism or malicious mischief
☐ Theft
☐ [________________________________]

Detailed Narrative:
[Describe the loss event fully — date, time, how the damage occurred, what was affected, sequence of events, emergency response, fire marshal involvement if applicable, WV State Police report if applicable]

[________________________________]
[________________________________]
[________________________________]

B. WV-Specific Risk Context

Flood Exposure Note: If any portion of this claim involves water intrusion resulting from external flooding, rising waters, or storm surge, confirm the applicable flood notice under W. Va. Code § 33-17-6a and whether a separate NFIP or private flood policy covers that component of the loss.

Coal / Mine Subsidence: W. Va. Code § 33-30-6 generally includes mine-subsidence coverage on a directly insured structure unless the insured waived it. In the fifteen counties listed in subsection (a), coverage is provided only if requested. Check the property's county, policy, waiver or request, effective date, and cause of loss before deciding whether this program applies.

C. Mitigation Efforts

Our client took immediate and reasonable steps to mitigate further damage as required by the policy and West Virginia law:

We request reimbursement of the documented, reasonable costs above to the extent covered by the policy, subject to its terms, limits, and deductible.

V. CLAIM HISTORY AND INSURER'S CONDUCT

A. Claim Chronology

B. Insurer's Position and Why It Is Wrong

[________________________________] has [☐ denied / ☐ undervalued / ☐ delayed payment of] this claim on the following stated basis: [________________________________].

This position is legally and factually unjustifiable because:

1. [________________________________]
2. [________________________________]
3. [________________________________]

Specifically, the following items have been improperly omitted from the insurer's estimate or incorrectly valued:

VI. DAMAGES AND AMOUNTS CLAIMED

A. Dwelling / Structure Damage (Coverage A)

B. Other Structures (Coverage B)

C. Personal Property / Contents (Coverage C)

D. Additional Living Expenses / Loss of Use (Coverage D)

Our client was displaced from the insured property from [__/__/____] through [__/__/____] ([____] days / [____] months):

E. Mitigation and Emergency Remediation Costs

Total Mitigation / Emergency Services: $[________]

(Detail provided in Section IV.C above)

F. Claim Summary and Balance Due

VII. OVERHEAD AND PROFIT

We request contractor overhead and profit only to the extent supported by the issued policy, the attached contractor estimate, and the documented repair plan. The estimate lists overhead of $[OVERHEAD_AMOUNT] and profit of $[PROFIT_AMOUNT] for [PROJECT-SPECIFIC SCOPE]. Please identify the policy term or estimate item disputed.

VIII. REPLACEMENT COST VALUE vs. ACTUAL CASH VALUE

☐ This is a replacement cost value (RCV) policy. [________________________________] is obligated to pay the full cost to repair or replace damaged property without deduction for depreciation, subject only to the policy limits and deductible. Any improper depreciation applied by [________________________________] totaling $[________________________________] must be released and paid.

☐ Withheld Recoverable Depreciation: [________________________________] withheld $[________________________________] in recoverable depreciation. This amount is now due because repairs have been completed / are underway as evidenced by: [________________________________].

IX. POLICY APPRAISAL DEMAND (IF APPLICABLE)

A. Invoking the Appraisal Remedy

West Virginia does not have a mandatory statutory appraisal process for property insurance disputes — the right to appraisal is governed by the policy's appraisal clause. Note to practitioner: review the specific policy language. The policy provides:

"[________________________________]"

Pursuant to this provision, we hereby formally invoke the appraisal process to resolve the dispute over the amount of loss.

Our client's appraiser: [________________________________], [________________________________]
Contact: [________________________________]

Please designate [________________________________]'s appraiser within [____] days.

Items submitted to appraisal:
☐ Amount of loss — dwelling (Coverage A)
☐ Amount of loss — other structures (Coverage B)
☐ Amount of loss — personal property (Coverage C)
☐ Overhead and profit amounts
☐ [________________________________]

Note: Questions of coverage (as opposed to amount of loss) are not subject to appraisal and are reserved for litigation.

X. STATUTORY VIOLATIONS AND BAD FAITH NOTICE

A. Violations of W. Va. Code § 33-11-4(9) — Unfair Claims Settlement Practices

[________________________________] has committed the following unfair claims settlement practices in violation of W. Va. Code § 33-11-4(9):

☐ Misrepresentation of policy provisions: [________________________________] incorrectly represented that [________________________________] is excluded under the policy when in fact [________________________________].

☐ Failure to promptly investigate: [________________________________] failed to complete its investigation within a reasonable time after receiving our client's claim on [__/__/____]. [____] days / months have elapsed without adequate response.

☐ Inadequate investigation: The Company failed to [________________________________], resulting in an unreasonably low estimate.

☐ Compelled litigation: [________________________________] offered only $[________________________________] — which is substantially less than the $[________________________________] our client is owed — forcing our client to retain counsel and pursue this demand.

☐ Failure to explain denial: [________________________________] denied [coverage for / payment of] $[________________________________] without providing a reasonable, policy-based explanation.

☐ Improper depreciation: [________________________________] applied excessive and improper depreciation to functional items in the amount of $[________________________________].

☐ Refusal to pay O&P: [________________________________] refused to include general contractor overhead and profit without justification.

☐ [________________________________]

B. The Hayseeds Doctrine — Mandatory Exposure Upon Substantial Prevailment

Under Hayseeds, Inc. v. State Farm Fire & Cas., 177 W. Va. 323, 352 S.E.2d 73 (1986), if our client substantially prevails in litigation or this dispute, [________________________________] will be required to pay:

• Attorney's fees: Presumptively one-third of the policy face amount — approximately $[________] (based on $[________________________________] Coverage A limit)
• Net economic loss from delay: Including rental costs, storage, carrying costs, interest — estimated at $[________]
• Aggravation and inconvenience damages: $[________]

The Company's good faith or bad faith is irrelevant under Hayseeds. Even if [________________________________] reasonably believed its position was correct, it remains liable for these damages upon our client's substantial prevailment.

C. Separate Unfair-Practice Claim — McCormick

If evidence establishes a general business practice under W. Va. Code § 33-11-4(9), and underlying liability and damages have been resolved, our client will assess a separate implied unfair-practice claim under McCormick. Section 33-11-4a does not create that right. Any request for punitive damages requires an established cause of action and the applicable insurance and statutory proof standards.

XI. DEMAND FOR PAYMENT

A. Monetary Demand

We hereby demand payment of the following amounts within the deadline stated herein:

B. Additional Non-Monetary Demands

☐ Provide a written explanation for each item [________________________________] has denied or depreciated, identifying the specific policy provision on which [________________________________] relies
☐ Immediately release withheld recoverable depreciation of $[________________________________]
☐ Accept appraisal demand and designate an appraiser within [____] days
☐ Confirm coverage in writing for the cause of loss

XII. RESPONSE DEADLINE AND CONSEQUENCES OF NON-COMPLIANCE

THIS DEMAND EXPIRES AT 5:00 P.M. EASTERN TIME ON [__/__/____].

If [________________________________] fails to tender the full amount demanded by this deadline:

1. Litigation will be filed in [________________________________] County Circuit Court, West Virginia, seeking:

   • All policy benefits
   • Net economic loss from delay (Hayseeds)
   • Damages for aggravation and inconvenience (Hayseeds)
   • Attorney's fees — presumptively one-third of the policy face amount (Hayseeds)
   • Any relief on a separately established § 33-11-4(9) claim, subject to its general-business-practice and underlying-resolution requirements
   • Pre- and post-judgment interest

2. Regulatory complaints will be filed with:

   • West Virginia Offices of the Insurance Commissioner
     P.O. Box 50540, Charleston, WV 25305-0540
     P&C consumer services: (304) 558-3386 | Toll-free: (888) 879-9842
     Complaint route: https://www.wvinsurance.gov/Consumer-Services-P-C

3. Appraisal will be formally demanded under the policy (if not already invoked herein)

XIII. DOCUMENT PRESERVATION DEMAND

This letter constitutes formal legal notice that [________________________________] must immediately preserve all documents and electronically stored information (ESI) relating to this claim, including without limitation:

☐ The complete claim file, all drafts, notes, activity logs, and diary entries
☐ All internal communications (email, chat, written) regarding this claim and coverage decision
☐ Adjuster reports, field notes, photographs, and inspection materials
☐ All estimates, Xactimate files, and scope of loss documents
☐ Reserve setting history and all reserve change documentation
☐ Supervisor and management approvals or instructions
☐ Claims-handling guidelines, manuals, and training materials in effect at the time of adjustment
☐ Any algorithmic, computer-assisted, or automated valuation outputs (e.g., Xactimate parameters, pricing overrides)
☐ Expert reports, engineer reports, cause-and-origin reports
☐ All documents received from or sent to the insured, contractors, or public adjusters
☐ Quality assurance and audit records for this claim

Failure to preserve these materials after receipt of this notice may result in adverse inference instructions and spoliation sanctions in subsequent litigation.

XIV. CONCLUSION

[________________________________] issued our client a homeowners / property insurance policy promising financial protection against property losses precisely like the one that occurred here. The loss is real. The coverage is clear. The only thing missing is payment in the full amount owed.

Hayseeds supports additional relief if our client substantially prevails on the covered property claim. A separate § 33-11-4(9) unfair-practice claim depends on proof of its own predicates. Section 33-11-4a eliminates the third-party private unfair-practice action and does not create a first-party claim.

We urge [________________________________] to use this final opportunity to resolve this matter fairly. Tender $[________________________________] in full payment on or before [__/__/____].

Respectfully submitted,

[________________________________]

By: [________________________________]
[________________________________], Esq.
WV Bar No. [________]
[________________________________]
[________________________________], WV [________]
Tel: [________________________________]
Fax: [________________________________]
Email: [________________________________]

Counsel for [________________________________]

ENCLOSURES:

☐ Policy declarations page and relevant policy provisions
☐ Sworn Statement in Proof of Loss, dated [__/__/____]
☐ Public adjuster / contractor estimate — [________________________________], total: $[________________________________]
☐ Insurer's estimate — $[________________________________] (for comparison)
☐ Photographs of all damaged areas (attached on USB / cloud link)
☐ Personal property inventory and documentation
☐ Receipts / invoices for emergency mitigation: $[________________________________]
☐ Loss of use / ALE documentation and receipts
☐ Fire marshal / cause-and-origin report (if applicable)
☐ WV State Police report (if applicable)
☐ Engineer / structural report — [________________________________]
☐ [________________________________]

CC:

• [________________________________] (Client)
• [________________________________] (Mortgagee / Loss Payee, if applicable)
• West Virginia Offices of the Insurance Commissioner (if regulatory complaint filed concurrently)
• File

WEST VIRGINIA PROPERTY INSURANCE — QUICK REFERENCE

SOURCES AND REFERENCES

• W. Va. Code § 33-17-2 (Standard Fire Policy): https://code.wvlegislature.gov/pdf/33-17-2/
• W. Va. Code § 33-17-6a (Flood Notice): https://code.wvlegislature.gov/pdf/33-17-6a/
• W. Va. Code §§ 33-6-14 and 33-30-6 (Policy suit clauses; mine subsidence): https://code.wvlegislature.gov/pdf/33-6-14/ · https://code.wvlegislature.gov/pdf/33-30-6/
• W. Va. Code § 55-2-12 (Separate tort limitation): https://code.wvlegislature.gov/pdf/55-2-12/
• Wilt v. State Automobile Mutual Insurance Co. (1998) and Noland v. Virginia Insurance Reciprocal (2009): https://www.courtswv.gov/sites/default/pubfilesmnt/2023-11/24579.pdf · https://www.courtswv.gov/sites/default/pubfilesmnt/2023-12/34702.pdf
• W. Va. Code § 33-49-3 (private flood coverage): https://code.wvlegislature.gov/33-49-3/
• W. Va. Code § 33-11-4 (UTPA): https://code.wvlegislature.gov/33-11-4/
• W. Va. Code § 33-11-4a (eliminates third-party private unfair-practice action): https://code.wvlegislature.gov/pdf/33-11-4A/
• McCormick v. Allstate Ins. Co., 197 W. Va. 415, 475 S.E.2d 507 (1996): https://www.courtswv.gov/sites/default/pubfilesmnt/2023-11/23261.pdf
• W. Va. Code § 55-7-29 (Punitive Damages Cap): https://code.wvlegislature.gov/55-7-29/
• Hayseeds, Inc. v. State Farm Fire & Cas., 177 W. Va. 323, 352 S.E.2d 73 (1986): https://law.justia.com/cases/west-virginia/supreme-court/1986/16782-5.html
• Bordas & Bordas — Hayseeds Damages Explained: https://www.bordaslaw.com/blog-posts/the-cost-of-a-wrongly-denied-insurance-claim-hayseeds-damages/
• WV Office of the Insurance Commissioner: https://www.wvinsurance.gov
• WV OIC Homeowners Checklist: https://www.wvinsurance.gov/Portals/0/pdf/rates/Homeowners%20Checklist.pdf
• West Virginia Young Lawyers Section — Insurance Law: https://wvyounglawyers.com/practice-handbook/insurance-law/