The National Trial Lawyers has chosen Partners Elizabeth Thornsbury and Bartley Hagerman to the “Top 40 Under 40” National Trial Lawyers for 2025!

Elizabeth’s National Trial Lawyers profile can be viewed here. Bartley’s National Trial Lawyers profile can be viewed here.

Partner Philip Fairbanks is also a Top 100 National Trial Lawyer!

Philip’s National Trial Lawyers profile can be viewed here.

The National Trial Lawyers is a professional organization composed of the premier trial lawyers from across the country who exemplify superior qualifications as civil plaintiff or criminal defense trial lawyers.

If you have an insurance claim or questions regarding a potential legal claim, call us today for a free consultation: (859) 225-3731. Any of our Partners are happy to speak with you!

If you have had property damage at your home and received an insurance claim payment from your insurance company, you may be wondering why this payment is significantly less than the cost to repair your property.

Insurers will often refer to the initial payment to you as “actual cash value” or a payment that has “depreciation” deducted. The term “actual cash value” simply means the cost to replace your roof minus the depreciation of your roof. This is often calculated by the insurance company using a computer estimating software called Xactimate.

Even if you have purchased a replacement cost insurance policy, most homeowners’ insurance policies contain payment provisions that allow the insurance company first to pay this lesser “actual cash value.” Then, after you complete the repairs, you can make an additional claim to recover the depreciation that is being held from you.

It is important to remember that after your repairs are done, you need to actively reach out to your insurance company to let them know the repairs are complete and that you are requesting to be paid the amount of recoverable depreciation. The full amount may only be available after this two-step process.

Think of it this way: let’s say you have damage to a roof that is 10 years old. If the damage requires the replacement of the entire roof, the insurance company will first make an “actual cash value” payment to you. This payment deducts depreciation so that the insurance company is paying you for the value of a 10-year-old roof. Once you complete the repairs, you can make an additional claim for the replacement cost, which is the cost of a new roof. The difference is the depreciation.

This issue was analyzed in Hicks v. State Farm Fire & Cas. Co., 965 F.3d 452 (6th Cir. 2020). The insurance policy in that case, like many others, contained language allowing the insurer to first pay “actual cash value,” and then after repairs were completed, the insured could seek to be paid the recoverable depreciation. The insurer:

produced an ACV calculation (RCV minus material and labor cost depreciation), subtracted the insured’s deductible, and then [the insurer] paid that Xactimate estimate to the insured.

Insureds did not have to spend this ACV payment or make repairs on their property; if they made no repairs or made repairs for less than the ACV payment, they did not have to return any of the ACV payment to [the insurer]. If an insured made repairs and incurred costs exceeding the ACV payment, however, the individual could seek further payment from [the insurer]. In this second stage, the insured could seek repayment of replacement cost benefits based on documentation showing the repairs made and the costs incurred.

Hicks, 65 F.3d at 455.

When you buy a replacement cost insurance policy, you are entitled to these additional benefits once your repairs are complete. Don’t forget to follow up with your insurance company to recover these funds. There may be a limited amount of time for you to make a claim for replacement cost benefits, so it’s always a good idea to complete the repairs in a timely fashion and then report the completed repairs to your insurer.

If you have had a property damage claim to your home and have questions, contact us at Mehr Fairbanks Trial Lawyers.

*The information contained within this post should not be considered legal advice or legal representation.

Elizabeth is listed as a top rated Employee Benefits attorney in Lexington, Kentucky. Selections are determined on 12 indicators of peer recognition and professional achievement on an annual, state-by-state basis. Being named to the Rising Stars list is a prestigious distinction that only the top 2.5% of attorneys receive.

Why is there such a disparity in how physical and mental conditions are treated by disability insurance carriers? There shouldn’t be – and other types of coverage (such as health insurance) do not have this disparity. However, action is now being taken to try and make this change for disability policies. The 2023 ERISA Advisory Council has taken a focus on this very issue this year. Their goal has been to “study the scope and impact of employee benefit plans’ limitations on disability benefits for mental health and substance use conditions.”

The ERISA Advisory Council has now urged Congress to pass legislation for mental health parity in disability policies. And, since this news, a large disability insurance carrier – Sun Life – has vocalized support for mental health parity. Sun Life, in a press release, stated:

There is a mental health crisis in America. Benefits designed 75 years ago and continued as a market tradition do not reflect today’s reality. We encourage others to join us in supporting efforts to evolve disability coverage to meet the current needs of American workers. We must do the right thing and ensure we are covering the conditions that need to be covered, so that workers can get the support and assistance they need. Getting people back to health and back to work whenever possible remains the goal, and providing good mental health benefits to bridge people through times when they can’t work is a good investment.

Support such as this is significant and cannot be emphasized enough. Mental health conditions should be given the same priority and review that physical conditions are given under ERISA disability policies. A known long-term disability insurance carrier supporting this legislation makes us hopeful there will be a shift in the future. All conditions and disabilities deserve the same recognition and protection – and disability insurance carriers should join the ERISA Advisory Council and Sun Life by recognizing that mental health matters and a change is needed to protect the American citizens that are provided this coverage with the belief that they will be protected long term in the event of any disability.

You can read the 2023 ERISA Advisory Council notice, as well as the Sun Life press release statement by clicking the links above.

If you have an employee benefit plan and questions regarding your coverage, call us today for a free consultation: (859) 225-3731. Any of our Partners are happy to speak with you!

Call us today at (859) 225-3731 or visit us here to request a free consultation with one of Mehr Fairbanks’ attorneys.

*The information contained within this post should not be considered legal advice or legal representation.

Mehr Fairbanks partner Bartley Hagerman wrote the briefs and argued the case before the Court of Appeals.

An experienced Kentucky ERISA disability lawyer can explain why disability insurance and other forms of insurance that are provided through your employer or union fall under a federal law known as The Employee Retirement Income Security Act of 1974, or “ERISA.”

Like many other employee benefits, ERISA disability law is designed to protect employees who have paid for or been promised these benefits through their employer. These benefits include:

• Long term disability insurance
• Life insurance
• Health insurance
• Accidental death, dismemberment or disability insurance
• Vision and dental insurance
• Long-term care insurance

Call us, or request a free claim evaluation today. We are here to help.

Frequently Asked Questions on ERISA Disability

1. What Should I Do Before I File an ERISA Disability Claim?
2. What Should I Expect After Filing an ERISA Disability Appeal?
3. What Happens if My ERISA Disability Appeal Is Denied?

What Should I Do Before I File an ERISA Disability Claim? If you are considering filing an ERISA disability claim or if you have already applied but your ERISA disability claim has been denied, the best thing to do is speak to our experienced Kentucky ERISA disability lawyers. Our experienced ERISA disability attorneys can help you with your case and ensure that the insurance company does not play games with you. It is a good idea to get an experienced ERISA disability lawyer involved early in your case. Our ERISA disability lawyers will not charge you anything upfront to help you, so there is no reason to delay seeking their advice.

If you have been denied ERISA benefits, it’s important to understand that ERISA rules are different from regular insurance and court rules. One of the special rules about ERISA cases is that the person applying for benefits must get all the information in to support his or her case before the insurance company of the plan makes a final decision. Otherwise, that information will not be considered by a court later, if the claim is denied. Also, the rules in ERISA cases usually give the insurance company or decision-maker the benefit of the doubt in court, so that knowing what information to submit is crucial to successfully obtaining ERISA benefits.

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What Should I Expect After Filing an ERISA Disability Appeal? Insurance companies are required by ERISA regulations to establish and maintain a procedure for appealing a claim after it has been denied. Your plan should tell you how many appeals must be filed before you may file a lawsuit, but the insurance company cannot require more than two. Each appeal should be handled by a different person from the insurance company to ensure a full and fair review of your appeal. It is extremely important to submit the complete documentation supporting your case during the ERISA disability appeal process. Only the documentation submitted during the appeal becomes part of what is known as the “administrative record”.

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What Happens if My ERISA Disability Appeal Is Denied? If your ERISA disability appeal is denied, then a lawsuit may be filed. ERISA trials are decided only by a judge. There are no jury trials for ERISA claim denial cases. The judge, in most cases will only review the administrative record, and no witness testimony is heard at the trial. That is why it is so important to get everything necessary to prove your case in during the ERISA appeal process.

Our experienced ERISA disability lawyers can help you during every phase of the ERISA claim and appeal process. We can ensure that all vital information is submitted and that all of the filing deadlines are met on time. We will fight to protect your rights, and we will work hard to get you the benefits you deserve.

Call us, or request a free claim evaluation today. We are here to help.