Ocracoke and Hatteras Blackout FAQs

Blackout Claims

What do NC government officials say about our recovery options?
What types of damages could I potentially be reimbursed for?
Are there damages I may not have thought of?
A Guide for Handling Outer Banks Blackout Claims. Get the Book How would you show losses my business suffered?
How have other similar situations played out?
How long do I have to file a claim?
If I am entitled to damages, when will PCL reimburse me?
Will PCL pay me or will their insurance companies?
It seems like Governor Cooper was putting pressure on PCL to pay, shouldn’t that help?

PCL Claim Form

What is the PCL claim form?
Why shouldn’t I fill out the claim form?
Why are you suspicious of the PCL claim form?
Hasn’t PCL promised to pay claims?
What are my risks?
Will PCL pay me for damages incurred as a result of the blackout?
I submitted a PCL claim form, what should I do?

PCL Claim Annotated form. Get it Now

Recovery Options

Complete the PCL claim form
Stay in a potential class action claim
Pursue an individual claim

Why Hire an Attorney for Your OBX Blackout Claims

Why would I need an attorney? Isn’t PCL going to pay?
Reduced Fees for OBX Blackout Claims.
I don’t want to be part of an ambulance chaser mentality.
I’m going to wait and see what PCL pays before I consider a lawyer.
Won’t hiring an attorney just cut into how much money I get?
Under what circumstances might I not want an attorney?

Blackout Claims

What do NC government officials say about our recovery options?

In a letter to Dare County Board of Commissioners and Robert Outten, dated August 16, 2017, The NC Attorney General’s Office advised those who are seeking recovery for damages to carefully consider all options. The letter stated:

“The Attorney General’s Office is not taking a position as to whether or not affected individuals should hire their own attorney or participate in the PCL insurer’s claim process. We believe all impacted citizens and businesses should carefully consider all options available to them during this time.”

What types of damages could I potentially be reimbursed for?

We have seen no public statement from PCL Construction agreeing to pay for any damages.

No one to our knowledge has reported on what PCL is willing to pay. Has PCL come out and stated publicly that they are paying any damages? Many people apparently hope a claim form on PCL’s website is an admission of liability.

We have seen no public statement from PCL Construction agreeing to pay for any damages.

Let’s assume they do pay some damages. The damages may be limited to what PCL and their insurance companies decide you lost during the blackout. The claim form omits many damages you may have incurred after the power was restored to the islands. It also does not ask about the following categories of damages:

  • Lost profits.
  • Loss of repeat business and goodwill.
  • Personal expenses incurred during evacuation (gas, hotel, food, etc.).
  • Utility costs. For example, if you needed to re-cool a hotel or building after the power had been off for a week, it could take even more power to cool it down again.
  • Closing and re-opening costs.
  • Staffing issues. Did you have to pay your employees overtime to re-open? Did you pay staff for the week they were forced to evacuate? Or did you have to fill staffing voids of absent staff after the evacuation?
  • Customer attrition during the following weeks.
  • Bartering arrangements for which there is no actual monetary exchange.

Are there damages I may not have thought of?

Island blackout damages are a matter of economic loss due to simple negligence. Economic loss is more than just your actual losses. Economic loss includes your future loss. You may not have even considered the extent to which you can be reimbursed. Your loss here would be your lost profits, not just the lost property.

Let’s say, for example, you ordered $3,000 worth of fish, and you had to throw it out because it spoiled. You expected that $3,000 worth of fish to bring you $10,000 in revenues over the week. The following week you expected the same scenario, but it turns out that fewer vacationers visited the islands – let’s say half for simplicity. Yet you had already ordered the $3,000 worth of fish. You didn’t want all that fish because there weren’t enough customers to sell it to, but you still had to pay $3,000. If you sold half the fish to customers, you would have brought in only $5,000 in revenues instead of the $10,000 you expected.

Or let’s say a family planned a vacation here the week after the blackout. They learned that the power was out on both islands and the news had been speculating it could take “weeks” to restore. So they changed their vacation plans and took their vacation dollars to Ocean Isle. They now may return to Ocean Isle the next year and maybe the next. These are real revenue losses to you and your business, but where on the PCL claim form does it ask for these types of losses?

How would you show losses my business suffered?

First, we would not limit you to PCL’s narrowly defined claim form that limits your losses. Our approach is to define all your losses.

We would discuss with you all the various things you could be reimbursed for but may not have even thought about. Some may apply to you, some may not. We know experts who are trained in analyzing tourism in North Carolina. We would certainly call on them if needed to offer evidence on how PCL’s negligence caused you financial damage not only during the week of the blackout, but after the fact – if that is the case.

These experts should be able to show, for example, revenues you had been generating the summer of 2017 as well as over the last three years. They can compare dates, times, look at other variables, such as weather, vacation patterns, and spending habits. We could then issue a statement on your behalf justifying these types of losses and present the information as admissible evidence.

How have other similar situations played out?

There are hundreds of examples of individuals and businesses harmed due to a variety of factors – the BP Gulf Oil spill, Hurricane Katrina, and the Duke Coal Ash disaster right in our backyard. There are even cases where PCL Construction ended up in litigation with their own insurer to pay damages the insurer claimed it did not have to pay. These things can become extremely complicated, and they often end up in litigation. Litigation does not always mean a trial, but it is a process to show proof of all your damages. Often lengthy litigation is due to a company either refusing to pay or refusing to pay the amount of losses claimants actually incurred.

With the BP Gulf Oil spill, not only did they entangle their claimants in years of litigation, but the government had to get involved, and the situation became more convoluted and slowed the process even more.

In the book, Delay Deny Defend, distinguished Professor of Law at Rutgers School of Law and author of the book, explains what happened to thousands of Hurricane Katrina victims:

“After Hurricane Katrina struck in 2005 policyholders who believed they were treated unfairly by their insurance companies complained to the Louisiana Department of Insurance at the rate of twenty thousand a month during the first six months after the storm. Thousands of policyholders sued their insurance companies; more than 6,600 suits were filed in federal court in New Orleans alone, and many cases are still pending.”

How long do I have to file a claim?

Generally a claim must be filed within three years from the negligent act. Since the blackout occurred on July 26, 2017, you should consider July 26, 2020 as the last date to file. However there are some exceptions and there can be agreements to extend this date. Because of other legal issues, you should never get near the statute of limitations date. It is a hard line that if you cross, you may never be able to bring your claim.

If I am entitled to damages, when will PCL reimburse me?

That’s a good question. And no one can answer that except PCL Construction. Based on our 20 years of experience handling negligence cases, anything can happen.

Best case scenario: The best case scenario, of course, would be that PCL pays you all the money you are potentially owed (not just what they asked you to claim on their so-called claim form) and pays it without a fight. If that happens, it will be the first time we’ve known of anything like this happening. At any rate these types of cases tend to move at the speed of molasses and can take anywhere from six months to three years or even much longer under certain circumstances.

Worst case scenario: Unfortunately history is rife with worst case scenarios of innocent people getting caught in corporate legal entanglements that do nothing but run out the clock. Think Bernie Madoff. Hurricane Katrina. The BP Gulf Oil disaster. These are some of the most recent and notable.

Bernie Madoff pled guilty to operating the largest Ponzi scheme in history and was ordered to pay back tens of billions of dollars to the victims of his negligence. Nearly 10 years later those victims have not seen a dime of their money. While Madoff’s conduct was intentional and the electrical blackout was an accident, the point is, reimbursement for damages can often drag on.

Hurricane Katrina hit the Gulf Coast in 2005. To this day, thousands are still trying to recoup the insurance damages owed them. The BP Oil spill occurred in 2010. Two years later close to 40% of those claims had been denied. BP had to be ordered by the government to pay some of those claims, and that order came just last year.

A better question might be will you get reimbursed at all, and if so, how much of your damages will you actually get? Even though PCL has a claim form on their website, have they accepted liability for damages? It could be that they call upon their insurance companies to pay all the claims they receive. The insurance companies could very well deny the claims based on any carefully crafted fine print in PCL’s insurance policy.

If and when you get paid can depend on three factors:

  1. If you file a PCL claim form on your own
  2. If a class action suit is certified and you are in it
  3. If you choose to file for individual damages through an attorney

If you file a PCL claim form

If you are not overly concerned about your losses and how much you may or may not receive for your damages, and you think you will be content with any offer PCL Construction might submit to you whenever they decide, this might be the right fit for you.

In this scenario, you are essentially representing yourself. People do this all the time. But not necessarily effectively or to their satisfaction. Many “do-it-yourselfers” come to us for help after they have damaged their claim. Some we have been able to help, others were damaged to the point that even a lawyer could not help them.

As far as a timeframe for reimbursement, we cannot speak for PCL. However, experience tells us you could wait up to three years or longer for payment (if it comes at all). On the other hand they might pay some claims sooner. Without knowing more from PCL Construction and what their plans are and where the money is coming from, it would be imprudent to try to speculate beyond a best guesstimate.

If a class action suit is certified and you are in it

A class action does not exist just because someone filed a complaint. A class action does not exist until a judge “certifies” the class. If your case falls into what is known as the “class” and you are comfortable being paid by a one-size-fits-all formula determined by the class representative, and you are further willing to wait for the class certification process, this might be the right fit for you.

Class actions are not designed for quick resolution and often pay pennies on the dollar.

Two risks you run with a class action are waiting a long time to find out that your damages are different from everyone else’s and realizing too late that you will not be paid the actual damages you incurred. Class actions can sometimes take many months to be certified and there may be appeals and other legal obstacles, which also take time.

In a class action, at least one individual agrees to represent the “class” and serve as the class representative. This means that all others in the class do not have to appear in court or consult with lawyers. But they don’t get to make their own decisions about what they should be paid either. It also means that they do not get paid for their individual damages but rather their portion of the damages, which is based on a one-size-fits-all calculation.

Because of the nature and structure of class action lawsuits, claimants generally come away with less money than they potentially could have had if they’d filed an individual claim.

Although potential class actions have been filed for blackout claims, the lawsuits still must be certified as a class action by the court, and upheld if appealed. As we stated before, this can often take months (sometimes years).

Once this is done, the individual (or individuals) representing the class, proceeds on behalf of the other members of the class action.

There are procedures to follow to file a class action suit. The court must find:

  • The class action claim is the best way to pursue the claim.
  • The claim or claims brought by the class representative are typical of the class as a whole.
  • A large number of plaintiffs make it difficult to have individual actions. The lawyers and the class representative are deemed to best represent the interests of the entire class.
  • The damages must be able to be calculated in a formulaic way that relates to the entire class as a whole.

The biggest risks here are waiting a long time to find out that your damages are different from everyone else’s and that you can’t be paid those damages. You are only paid as determined by the class.

If you pursue an individual claim through an attorney

Filing an individual claim allows you and your legal team to take full control of your case and seek complete damages relevant to your unique and specific circumstances.

No two businesses are the same, so the damages are not going to be the same – how you conduct your business, whether you lost business, whether you had to shut down. What were the consequences to you in the aftermath of the blackout?

Filing an individual claim also means you are involved in the details of your case. That can mean a few phone calls and other communication efforts as you and your legal team strategize together.

Moreover, once you file an individual lawsuit “pre-judgment” interest (currently 8%) on any recovered damages starts to accrue. So if you file for $100,000 in damages and it takes a year for you to get paid, you would receive $108,000, presumably.

We would file for all damages you may have suffered, which may include:

  • Lost profits.
  • Loss of repeat business and goodwill.
  • Personal expenses incurred during evacuation (gas, hotel, food, etc.).
  • Utility costs. For example, if you needed to re-cool a hotel or building after the power had been off for a week, it could take even more power to cool it down again.
  • Closing and re-opening costs.
  • Staffing issues. Did you have to pay your employees overtime to re-open? Did you pay staff for the week they were forced to evacuate? Or did you have to fill staffing voids of absent staff after the evacuation?
  • Customer attrition during the following weeks.
  • Bartering arrangements for which there is no actual monetary exchange.

If you want to be in charge of your own recovery efforts and want to pursue a result that’s close to your damages, this is likely the route for you.

We see the OBX blackout case as a case of clear negligence. Not too much different than an auto accident in which someone rear-ended you. They didn’t do it on purpose, but you still have a car to fix and medical bills to pay if you were injured, and possibly time off work and other things.

We believe that from the time we file the complaint on your behalf to final resolution, a normal timeframe to resolve your case if we had to go to trial could be roughly 18 months. And we believe most of these cases would generally be resolved before we got to trial.

We do caution, however, that these timelines are based on what we and the public know as of September 2017 when this Q&A was developed. Anything can change.

Will PCL pay me or will their insurance companies?

If PCL Construction pays what everyone presents to them as damages, that’ll be the first time we know of where claims are paid without any adversarial proceeding. But there’s a first time for everything.

There were one or two life insurance companies after the 9/11 attacks that claim to have started paying some of their life insurance benefits within a week of the attacks. If that was indeed the case, it would be the only time we have known an insurance company to pay without a fight.

If PCL Construction steps forward, accepts responsibility, and says, “We’re taking these claim forms because we’re going to calculate what your losses are, and we’re going to pay you in full,” then that would be fantastic. But has that happened? Or is this just wishful thinking?

It seems like Governor Cooper was putting pressure on PCL to pay, shouldn’t that help?

While we have seen reports that Governor Roy Cooper had visited the islands and stated that the businesses need to “be made whole,” that doesn’t necessarily put pressure on PCL Construction to pay. They can do whatever they want when they want – unless someone holds them legally accountable.

Moreover, a letter dated August 16, 2017 from the North Carolina Attorney General’s office seemed noncommittal at best. The letter cautions that those harmed should consider all options – not just that of filling out the claim form.

PCL Claim Form

PCL Claim Annotated form. Get it Now

What is the PCL claim form?

What this claim form is not is an admission of responsibility in an effort to pay you fully and immediately. Responsibility is a two-part equation: apology and accountability. As of September 2017 (the date these Q&A’s were developed for you), we’ve seen neither.

We strongly urge you to think twice about completing the PCL claim form before speaking with an attorney. Do not give up your personal and confidential information to a company who makes no promise that they won’t use this information against you. (On the contrary, the signature box on page 6 of the form clearly states that the information you give them could be used against you.)

Why shouldn’t I fill out the claim form?

What we have seen is a claim form which some people believe implies PCL is going to pay. The problem we have with this claim form is that you’re providing information to them without getting any information from them and without any promises to you about what they plan to do with your information.

Is part of the form’s purpose to make the company look like they are establishing a process to pay you – to lull you into thinking you have taken all the appropriate steps you need to in order to get reimbursed? When viewed with our law firm’s critical eye, this claim form is very narrowly defined.

It appears that the order of the form has been carefully established to get you to record only minimal damages. Whatever you record is there forever. If you think of additional damages later and attempt to try to add more, they could very likely contest your damages in court and use this claim form as evidence that you have perjured yourself.

From our perspective, this form has been designed to try to limit your damages now and in the future.

Look at “PART III LOSS INFORMATION. Property Damages.” What property damages did any Ocracoke or Hatteras Island businesses incur from this blackout? Property damage is likely the least of the damages businesses suffered from the blackout. Why do they lead with this? It appears to us that this section is meant to put you in the mindset of perceiving your damages as minimal.

Further, it is ambiguous. Could property damage mean the spoiled fish a restaurant had to throw out? Is that considered property? Or are they referring to actual damages to a building, parking lot, boats, or restaurant equipment? Most people would think this refers to actual property damages such as to a building or land. So they might not fully complete this section.

Consider the sections entitled “Business Interruption” and “Total amount of days or hours your business was without power?” These questions do not take into consideration future loss of business you incurred because vacationers decided to go elsewhere when they didn’t know how long the power would be off. Or the fact that this was one of the last weeks of the busy season – the sweet spot – just before schools start again. Or that the islands were near capacity when the blackout occurred.

Substantial risk to you. Zero risk to PCL.
There is no binding commitment to you or your damaged business interests. There is no promise to pay. There is no agreement not to use your information against you. In fact, when you sign that form you are signing under a threat of penalty of perjury.

To us, this looks like information gathering in an effort to try to pay you as little in damages as possible and have all your personal and confidential information on file in case they need to use it in their defense later.

Who is examining your information?
It appears your personal and private information is going to GCG in Dublin, Ohio, a subsidiary of Crawford and Company. GCG (Garden City Group) handles class action lawsuits serving “law firms, corporate legal departments, government agencies, and other legal professionals,” according to Bloomberg.com.

Law firms? Corporate legal? Legal professionals? If PCL is simply gathering information to pay you back (due to their negligence), why are they sending your personal information to a company that “serves” law firms, corporate legal departments and other legal professionals?

We’ve seen this scenario before and it makes us question PCL’s motives. The answer may be found in the company that owns GCG – Crawford and Company.

Look at the email address you are requested to send your personal and confidential information to – PCL.OuterBanks@us.crawco.com. That email goes to Crawford and Company, the world’s largest independent providers of claims management to the risk management and insurance industry.

What does a claims management company do?
The goal of a claims management company is to pay out as little in claims as possible. We believe PCL is establishing an insurance reserve for OBX blackout claims and collecting information about you and your business transactions to limit and delay reimbursement for your losses.

History is littered with similar situations involving corporate negligence.

Remember when BP Oil Company’s negligence all but wiped out businesses dependent on the pristine waters of the Gulf of Mexico? How about the tens of thousands of Hurricane Katrina victims who were forced to take their complaints for non-payment of insurance claims to the Louisiana Department of Insurance? And the tens of thousands of other Katrina victims who had to sue their insurance companies just to try to get their claims paid (some are still waiting for their money seven years later).

A Mississippi attorney who represented Katrina victims told Reuters.com, “Homeowners just need to realize that they are operating in an adversarial situation and Katrina proved it is naive to think the insurance company is going to pay what it should.”

No doubt business owners and homeowners on Ocracoke and Hatteras Islands have had their own tussles with insurance companies in the aftermath of hurricanes.

Our firm sees these unfortunate circumstances every day. That is why we are in the business of fighting big companies (particularly insurance companies) to try to help individuals recover the full extent of the damages potentially due them by law.

Why are you suspicious of the PCL claim form?

We do not propose to speak for PCL Construction nor do we assert that we know their strategies. We base our doubts on our 20 years of history attempting to recover damages for our clients from corporations like PCL and their insurance companies. (Click here for some of the horror stories about just how low some insurance companies have stooped to try to minimize, delay, or deny payments to our clients.)

It is with that in mind that we suspect this claim form may better serve PCL Construction rather than you, the business owner requesting reimbursement for damages.

The personal information they ask you to provide on the claim form gives us pause and it should you too. Your information is not protected by any attorney client privilege or settlement conference. They are asking for tax returns, revenue reports, and other confidential information.

And they are asking you to sign a statement which states:

“…suspicious claims will be forwarded to federal, state, and local law enforcement agencies for possible investigation and prosecution.”

What do they consider suspicious? What about bartering arrangements? Would they be considered suspicious?

What business owner would hand over information to a company who was negligent and who may very likely in the future become adversarial to them, just because they requested it? Who’s to say their information won’t wind up in the wrong hands?

PCL has all the leverage. Where is your leverage?

We offer a word of caution and prudence. Take a step back and reconsider that what you are giving away carries a lot of risk to you but zero risk to PCL.

It is widely assumed that PCL and/or their insurance companies will pay for blackout claims. What we are seeing at present is nothing more than information gathering. Based on 20 years of fighting with insurance companies to pay for damages, here is why we believe you are being asked to hand over your personal and confidential information.

Why PCL wants your monetary claim now
We have seen this type of information gathering many times with other companies. Our educated guess is that by getting you to disclose your financial damages now they are gauging a value of what their claims payout may be so they can do what is known as “setting the reserves” for their insurance companies.

Setting the reserves. Insurance company reserves are what they reasonably believe they will have to pay out on a claim. Generally accepted accounting principles in the United States allow an insurance company to claim the money they have set aside for claims as an Asset on the balance sheet. Companies pay taxes on assets. So if PCL has a $100 million policy set aside for claims, their insurance companies are paying taxes on that $100 million.

But as soon they can determine what their reserves are (in their case, the money all the businesses and others claim for damages due to the blackout), they can legally move that money from the Assets column to the Liabilities column, and they do not have to pay taxes on the interest earned or investments on that money. They still have the money and they are still earning interest on it and investing it. But part of the tax burden is lifted. So the earlier they know what those reserves are, the sooner they can move that amount to the Liabilities column for the potential for added financial benefits.

Making money off “the float.” Further, they can take as long as they want to pay you. The longer the money remains in the Liabilities column on their balance sheet, the better for their bottom line. This is known as “the float.” Insurance companies can use “the float” as a means to achieve massive financial gains. And it’s a perfectly legal and widely used financial strategy.

We have to ask the question. Is PCL attempting to determine as much of their financial damages as possible as soon as possible to help their insurance companies set their reserves?

Why does PCL want your personal and private information?
PCL Construction is gathering your information without even having to hire an attorney. Where is the attorney-client privilege protecting you? Your private information and business documents, tax returns, and so forth are not being obtained during discovery or through a lawsuit. They are collecting information from you that they can (and will, if necessary) use against you. Even worse, what is to stop them from using your information against neighboring business owners on the islands in any potential lawsuits? Or stop them from using other island businesses’ information similar to yours against you?

This type of situation can arise. We've seen it. Here’s a hypothetical example.

Let’s say you own a local bar. You fill out the claim form which says you lost $20,000. PCL wants to settle for much less than what you believe is owed you or what you claimed on their form. So you are forced to do what you wanted to avoid in the first place. You file a lawsuit and wind up on the witness stand in court.

Next thing you know, when you’re on the witness stand they say, “The bar next door is similar to yours and they only asked for $5,000. Why do you think you should get $20,000?”

Meanwhile the bar next door learns that you were able to calculate additional damages owed – damages they incurred, but did not realize they could potentially be reimbursed for. So they revise their damage claim from $5,000 up to $20,000. Each of you will likely be cross examined as trying to milk the system.

You are all in this together. The less one business recovers, the less other similar businesses may likely be able to recover. Conversely, the more one business is able to recover the more similar businesses may likely be able to recover.

Like the adage says, a rising tide lifts all boats.

PCL can leverage your information to try to minimize their class action damages
Not only could your information be leveraged to pit islander against islander (in their effort to pay everyone minimal damages), they could use your information as a means to try to minimize the damages owed on any class actions.

Let’s say several years from now the class action lawsuits against PCL Construction get to a settlement stage or there’s a mass settlement. And let’s further assume that through this claim form, PCL was able to settle with business owners for 40 cents on the dollar. Here is an example.

Assume several people who filled out the claim form submitted $10,000 in damages. PCL offers those people $4,000 and they accept. When the class action settlement is negotiated, the settlement may reflect the discounted value paid to people in the claims process. Under these circumstances, it would likely be very difficult for you to get all the damages you asked for.

It is our belief that PCL is trying to control the value of the claims so that if they do have to go to litigation they can point to the reduced settlements other business owners took. It begs the question:

Are island business owners being used as pawns by PCL through their claim forms to minimize everyone’s damages?

That is just one more reason we believe you may want to consider hiring a lawyer to file an individual claim for damages unique to your business losses. It takes this burden off you personally having to prove why you should be paid the full and complete damages you incurred during the blackout. And theoretically, it could potentially help your neighbor recoup their own full recovery.

Hasn’t PCL promised to pay claims?

Not that we know of. Consider this statement PCL Construction submitted to be read at a Community Meeting in Buxton. Note the lack of promise to pay or guarantee of confidentiality – or even admission of fault.

“First and foremost, PCL Construction would like to apologize for the inconvenience the power outage caused to tourists, residents, and local businesses. We have established a claims intake website which can be found at outerbanks.pcl.com. The website has recently been updated with new claim forms for tourists, and businesses affected by the power outage. In order to address claims quickly and efficiently, please make sure to submit the correct form for your situation. Upon receipt of a claim, PCL’s claims administrator will contact you and begin the claim evaluation process. If you have questions about the claim process, a phone number is listed on the website. We believe this process is the most efficient and timely way to resolve matters.

PCL would like to thank Cape Hatteras Electric Cooperative, North Carolina Department of Transportation, community members, elected officials, and local business owners for their patience and continued support of the men and women of PCL who have worked to restore power to the islands. PCL is committed to bettering the Outer Banks communities with the successful replacement of the Bonner Bridge, which will bring further tourism to Hatteras Island, and is dedicated to remaining a member of North Carolina communities for many years to come.”

Stephanie McCay Manager, US Communications PCL Construction Enterprises, Inc.

Where is a statement from PCL’s project manager on the Bonner Bridge project? Or the perhaps the CEO? This blackout caused tens of millions in damages to hundreds of island businesses. It is significant to you and your community. Why is the Manager of US Communications sending a thank you letter? Where is the actual apology for what they did?

Read between the lines
The letter offers an apology for “the inconvenience” but it does not say they caused the inconvenience. Then they get right to the real point of the letter, and that is to get you to fill out the claim form “in order to address claims quickly and efficiently.” They do not say they will pay your claim. They do not define quickly or efficiently. They say they will address it. That could mean they are examining your claim to see where they can find holes or any other information that would give them a reason to minimize or deny your claim.

However, what is truly revealing is hidden in this statement: “Upon receipt of a claim, PCL’s claims administrator will contact you and begin the claim evaluation process.” To the untrained eye, or to anyone who has never had to give a recorded statement to an insurance adjuster after a car accident or homeowner’s claim, this seems like a very nice thing to do on behalf of the claimants. Give you a personal call.

Beware. This is no courtesy call. This call is often known as a “recorded statement” and it is a powerful tool every insurance company claims department employs. Everything you say is recorded, and if you do eventually have to go to court to try to get what you are potentially owed, this recorded statement can be a powerful weapon used against you.

And finally, “We believe this process is the most efficient and timely way to resolve matters.” Do they say this is the most efficient and timely way to “pay you what you are owed”? No. They are “resolving matters.” For whom?

What are my risks?

From our perspective you have risks to deflect from four sides.

Risk #1
You have no guarantee your information will not be used against you

Do you have a written guarantee that the personal and confidential information you are sending to an unknown party will not be used for any purpose other than to reimburse you your full damages?

To the contrary. Signing their claim form states clearly that your information may:

“…result in fines, imprisonment, and/or any other remedy available by law, and that suspicious claims will be forwarded to federal, state, and local law enforcement agencies for possible investigation and prosecution.”

Do you have a promise or guarantee that your information will be destroyed after your claim has been paid (assuming it is paid)?

Giving out your personal information without any sort of protection or information about how it may be used is not in your best interest. However, it very well may be in the best interest of PCL Construction and that of their insurance companies. Any of these companies could potentially use this information as leverage to try to pay you less and also to potentially pay neighboring businesses similar to yours less.

If you don’t settle on the amount they offer, who is to stop them from forwarding your tax returns to the IRS, citing any number of reasons. Remember the “suspicious claims” clause you signed?

Risk #2
You are giving PCL all the leverage and leaving yourself none

PCL may be able to do whatever it wants with your information, including use it against you in court to pay you less than what you may deserve. Here’s a hypothetical example of what we mean:

In your haste to fill out the form in an effort to get your money back faster, you accidentally enter an incorrect number. Maybe you understated revenues by 25%. Later if you go to court because PCL offered you a lower amount than what you claimed, and in litigation you claim the correct amount of your damages was really 25% more, you are probably going to be cross examined and cast before a jury as someone who is trying to take advantage of the system.

Risk #3
The risk of delaying your claim

This risk means more than simply waiting for your payment. It is multifaceted and potentially detrimental to your claim.

Loss of interest and investment opportunity. First, you do not know when or how much you may be paid – if anything ever. You are losing interest and investment opportunities, while PCL Construction and/or their insurance companies gain these benefits for as long as they keep your money. It is in their best interests to do everything possible to keep as much or all of your money as possible for as long as possible.

Loss of pre-judgment interest of 8%. When you file a lawsuit “pre-judgment” interest (currently 8%) on any recovered damages starts to accrue. So if you file for $100,000 in damages, for example, and it takes a year for you to get paid, you would receive $108,000, presumably.

More damaging evidence. The longer you wait, the more information PCL can gather about you and potentially against you – information which could damage your case (and your neighbors’ cases too). The statute of limitations is only three years. If you wait until PCL makes you an offer, no one knows how long that might be. Then you will have to start all over once you hire an attorney. If you try to get help after the statute of limitations runs out, even a lawyer cannot help you. It’s game over.

Risk #4
Your real risk? PCL’s insurance companies

Insurance companies don’t make their money by paying claims quickly and for the full amount.

In our estimation, the biggest risk you face in attempting to recover damages is trusting PCL’s insurance companies. If you have not read the book Delay Deny Defend by Rutgers School of Law Professor, Jay M. Feinman, it describes many of their devious tactics and truly bad behavior most people don’t know about.

We have seen so much bad behavior from insurance companies, we produced our own booklet entitled Insurance Companies (and others) Behaving Badly. These accounts are shocking – even to us.

Will PCL pay me for damages incurred as a result of the blackout?

We don’t know if they will pay you for damages incurred or not. As of September 2017 we have seen nothing that says they plan to. It is simply assumed by many that they will. What are these assumptions based on? A claim form on their website? Where is the actual promise to pay?

Damages PCL’s claim form doesn’t account for

Many folks feel time is of the essence, and they want their money, so they may rush to get the paperwork completed. In their haste they may have overlooked important damages that they could potentially be reimbursed for. Damages you incurred can extend far beyond what the PCL claim form asks you to submit, and can include:

  • Lost profits.
  • Loss of repeat business and goodwill.
  • Personal expenses incurred during evacuation (gas, hotel, food, etc.).
  • Utility costs. For example, if you needed to re-cool a hotel or building after the power had been off for a week, it could take even more power to cool it down again.
  • Closing and re-opening costs.
  • Staffing issues. Did you have to pay your employees overtime to re-open? Did you pay staff for the week they were forced to evacuate? Or did you have to fill staffing voids of absent staff after the evacuation?
  • Customer attrition during the following weeks.
  • Bartering arrangements for which there is no actual monetary exchange.

I submitted a PCL claim form, what should I do?

Contact us or call 1-866-900-7078 for a free case evaluation. Pending new facts, if you have filled out the PCL claim form we may still be willing to take your case, and will attempt to retrieve the claim form and your confidential information.

Even if you filled out PCL’s claim form, if we believe you have a case for an individual claim we will take your case.

Otherwise, if you have submitted your information to PCL Construction on their claim form and do not hire an attorney, there’s little you can do except wait and see and hope.

Unless you have a lawyer for an individual claim, they have all the leverage and you are at their mercy because you have none.

Recovery Options

Option 1
Complete the PCL claim form

While we do not recommend completing a PCL claim form for many reasons (confidentiality and full disclosure among them), some business owners may find this to be suitable for them. The claims form process may make sense if you are not overly concerned with how much you are likely to recover for damages or when you’ll get it. If you don’t want to take the time to discuss your case with an attorney, and you’d be happy with any amount offered you by PCL just as long as you might get something, then using the PCL claim form might be the right approach for you.

A Guide for Handling Outer Banks Blackout Claims. Get the Book

But you must also be aware that you are giving out highly personal information to a company that has no allegiance to you and may be able to do whatever it wants with the information you provide. That might include using that information against you or any neighboring business. Or to threaten that “suspicious claims will be forwarded to federal, state, and local law enforcement agencies for possible investigation and prosecution,” as stated in the claim form right above your signature.

Option 2
Stay in a potential class action claim

If your claim falls into what is known as the “class” and you are comfortable being paid by a one-size-fits-all formula determined by the class representative, and you are further willing to wait for the class certification process to play out, this might be a consideration for you.

Class actions are not designed for quick resolution and often pay pennies on the dollar.

Two risks you run with a class action are waiting a long time to find out that your damages are different from everyone else’s and realizing too late that you will not be paid the actual damages you incurred. Class actions can sometimes take many months to be certified and there may be appeals and legal obstacles, which also take time.

In a class action, at least one individual agrees to represent the “class” and serve as the class representative. This means that all others in the class do not have to appear in court or consult with lawyers. But they don’t get to make their own decisions about what they should be paid either. It also means that they do not get paid for their individual damages but rather the damages based on a formulaic calculation.

Because of the nature and structure of class action lawsuits, claimants sometimes come away with less money than they potentially could have had if they’d filed an individual claim.

Although potential class actions have been filed for blackout claims, the lawsuits still must be certified as a class action by the court and upheld if appealed. This can often take months (sometimes years). Once this is done, the individual representing the class proceeds on behalf of the other members of the class action.

There are procedures to follow to file a class action suit. The court must find that:

  • The class action claim is the best way to pursue the claim.
  • The claim or claims brought by the class representative are typical of the class as a whole.
  • A large number of plaintiffs make it difficult to have individual actions. The lawyers and the class representative are deemed to best represent the interests of the entire class.
  • The damages must be able to be calculated in a way that is consistent to the entire class as a whole.

The biggest risks here are waiting a long time to find out that your damages are different from everyone else’s and that you can’t be paid those damages – only those of the class.

Option 3
Pursue an individual claim

Pursuing an individual claim allows you and your legal team to take full control of your case and seek complete damages relevant to your unique and specific circumstances.

No two businesses are the same, so the damages are not going to be the same – how you conduct your business, whether you lost business, whether you had to shut down. What were the consequences to you in the aftermath of the blackout?

Pursuing an individual claim also means you are involved in the details of your case. That can mean a few phone calls and other communication efforts as you and your legal team strategize together.

Moreover, once you file a lawsuit, “pre-judgment” interest (currently 8%) on any recovered damages starts to accrue. So if you file for $100,000 in damages and it takes a year for you to get paid, you would receive $108,000, presumably.

If you like the idea of being in control of your own financial recovery, then pursuing an individual claim might be ideal for you. We would file a claim for all of the unique damages you may have suffered, which may include:

  • Lost profits.
  • Loss of repeat business and goodwill.
  • Personal expenses incurred during evacuation (gas, hotel, food, etc.).
  • Utility costs. For example, if you needed to re-cool a hotel or building after the power had been off for a week, it could take even more power to cool it down again.
  • Closing and re-opening costs.
  • Staffing issues. Did you have to pay your employees overtime to re-open? Did you pay staff for the week they were forced to evacuate? Or did you have to fill staffing voids of absent staff after the evacuation?
  • Customer attrition during the following weeks.
  • Bartering arrangements for which there is no actual monetary exchange.

If we take your case, an experienced James Scott Farrin attorney will handle the claims process for you. Furthermore, we will try to ensure that PCL does not to use your information for anything other than reimbursing you for damages.

You pay us nothing up front or by the hour. And you pay us no fees unless we recover damages for you. (We are offering a reduced contingency fee of 20% if your blackout claim is non-adversarial.)

Why Hire an Attorney for Your OBX Blackout Claims

Why would I need an attorney? Isn’t PCL going to pay?

Is PCL Construction going to pay? Who knows? As far as we know PCL Construction has not made a public statement of fault or committed publicly to pay for damages. We are not aware of PCL paying any claims or partial claims yet. If they are going to pay and take responsibility for their actions, that includes accountability.

The sad truth is you often have to hire an attorney to fight for you to get that accountability.

Studies have shown that, on average, accident victims who hired a personal injury lawyer received 3.5 times more* compensation for their loss than they would have on their own.

* Insurance Research Council 1999

Reduced Fees for OBX Blackout Claims.

We have reduced our fees for Ocracoke and Hatteras Island businesses who suffered financial hardship due to the blackout.

20% contingency fee
If we are able to settle your claim with PCL or their insurance companies without an adversarial process, our contingency fee is only 20%.

Customary one-third contingency fee
If your case becomes adversarial (in other words, if PCL contests the terms), our fee will be the customary one-third (plus costs incurred, if any). We are thoroughly prepared to fight for you in the courtroom, but generally negligence cases do not go all the way to trial. Usually we are able to settle with the insurance companies or in mediation before trial.

You pay us nothing up front or by the hour. And you pay us no fees unless we are able to recover for you.

I don’t want to be part of an ambulance chaser mentality.

We understand that the idea of hiring an attorney may be distasteful to you. Most of our clients don’t make plans to hire a lawyer before they need one. But the situation can look different when you realize that an insurance company is not going to protect your best interests.

Our clients consistently report that they are happy they hired us to protect their interests and help recover damages* for them.

* Each case is unique and must be evaluated on its own merits. Prior results do not guarantee a similar outcome.

I’m going to wait and see what PCL pays before I consider a lawyer.

Waiting too long can cost you big time.

Loss of interest and investment opportunity
First, you do not know when or how much you may be paid – if anything ever. You are losing interest and investment opportunities, while PCL Construction and/or their insurance companies gain these benefits for as long as they keep your money. It is in their best interest to do everything possible to keep as much or all of your money as possible for as long as possible.

Loss of pre-judgment interest of 8%
When you file a lawsuit, “pre-judgment” interest (currently 8%) on any recovered damages starts to accrue. So if you file for $100,000 in damages, for example, and it takes a year for you to get paid, you would receive $108,000, presumably.

More damaging evidence
The longer you wait, the more information PCL can gather about you and potentially use against you – information which could damage your case (and your neighbors’ cases too).

The statute of limitations is only three years. If you wait until PCL makes you an offer, no one knows how long that might take. Then you will have to start all over once you hire an attorney. If you try to get help after the statute of limitations runs out, even a lawyer cannot help you. It’s game over.

The sooner you contact us the better. A phone call costs you nothing. We will listen to what the unique circumstances of your business damages are and give you a free case evaluation over the phone.

Won’t hiring an attorney just cut into how much money I get?

Having legal representation gives you leverage.

With an attorney you bring the threat of litigation and the option of having a jury determine your damages. That threat tends to even the playing field and potentially gives us access to decision-makers on the other side who are willing to pay more. Without an attorney to represent your individual interests, you have almost no leverage. You may be at the mercy of PCL and their insurance companies.

One way to fight for more money in your pocket is by using an attorney’s leverage to fight for more from PCL and its insurers. That’s why on average, accident victims who hired a personal injury lawyer received 3.5 times more* compensation for their loss than they would have on their own, studies have shown.

We will not take your case unless we think you have a valid claim. And at no time will our payment be larger than yours.

* Insurance Research Council 1999

Under what circumstances might I not want an attorney?

Different business owners have suffered varying degrees of damages, and their needs and desires to recover can span a broad spectrum. Some people do not want to fight for what they deserve, while others may not have much at stake.

If you have minimal damages
Some people may be happy with pennies on the dollar. This may be prudent when there isn’t much at stake. We will give you a free case evaluation no matter how much in damages you suffered.

If you are not concerned about protecting your confidential information
If you fill out the PCL claim form and do not have an attorney represent you, beware that you are giving out highly personal information to a company that has no allegiance to you with regard to what they plan to do with that information.

That might include using that information against you or any neighboring business. Or threaten that “suspicious claims will be forwarded to federal, state, and local law enforcement agencies for possible investigation and prosecution,” as stated in the claim form above your signature.

Case Results & Settlements