March 2011 Archives

March 29, 2011

Florida Workers' Compensation - Use of False Social Security Card to Obtain Employment

Florida Statute Section 440.09(4)(a) provides that an employee shall not be entitled to workers' compensation benefits if the employee has intentionally or knowingly engaged in any of the acts described in s. 440.15 for the purpose of securing workers' compensation benefits.

Knowingly presenting false ID to obtain employment is an act described in s. 440.15 as being prohibited. Will performing such an act prevent an employee injured on the job from receiving workers' compensation benefits?

In Matrix Employee Leasing and FCIC/First Commercial v. Hernandez, 975 So.2d 1217 (Fla. 1st DCA 2008), Mr. Hernandez obtained employment by presenting an invalid social security card. The employer did not learn that the card was invalid until the day Mr. Hernandez was hurt on the job.

Relying on 440.15 and 440.09, the Employer/Carrier denied benefits. The claimant countered that because the invalid ID was used to obtain employment rather than secure workers' compensation benefits, benefits should not be denied. The JCC [Judge of Compensation Claims] agreed, ordering the E/C to pay workers' compensation benefits. The E/C appealed the JCC's order.

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March 27, 2011

To Plead or Not to Plead to Florida Traffic Ticket/Citation - Florida Personal Injury Law

Fault (or negligence) is always an issue in Florida motor vehicle accident personal injury cases. For an individual to be successful in claiming damages against another party, the claimant has the burden of proving that the other party caused the accident.

In some cases, proving fault is an easy matter. In others, the issue will be hotly contested. In those cases, the plaintiff - the party seeking damages - needs evidence to prove her or his case. One place to look (for evidence) is in the traffic court records.

In most Florida motor vehicle accidents, an investigating law enforcement officer will issue a traffic infraction/ticket to one or more of the involved parties. The ticket can be an expression of the investigating officer's opinion with regard to fault. For example, a driver may be ticketed for following too closely or for failing to yield the right of way.

Although the traffic infraction itself is not admissable as evidence of guilt in a civil case arising out of the accident, the defendant's response to the traffic charge may be.

With a few exceptions, Florida Statute Section 318.14(4)(a) allows any person charged with a noncriminal traffic infraction to pay the civil penalty by mail or in person without the effective admission of guilt being used as evidence in any other proceedings. "[O]ther proceedings" includes a civil action arising out of a traffic accident.

For purposes of motor vehicle accidents, the most important exceptions to 318.14(4)(a) are contained in Florida Statute 318.19, which contains a list of traffic infractions requiring a mandatory hearing. Those infractions are:

  1. Any infraction which results in a crash that causes the death of another;

  2. Any infraction which results in a crash that causes "serious bodily injury" of another as defined in s. 316.1933(1);

  3. Any infraction of s. 316.172(1)(b);

  4. Any infraction of s. 316.520(1) or (2); or

  5. Any infraction of s. 316.183(2), s. 316.187, or s. 316.189 of exceeding the speed limit by 30 m.p.h. or more.

Unlike the allowance contained in 318.14, a guilty plea in one of the 318.19 exceptions can be used as evidence in any other proceedings, including a civil case for damages. (The record of the plea is admitted, not as establishing the fact [of fault], but as a deliberate declaration or admission of the party himself that the fact is true. Boshnack v. World Wide Rent-A-Car, Inc., 195 So.2d 216, 218 (Fla., 1967).)

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March 25, 2011

Maritime Accident/Personal Injury Law: Maintenance and Unearned Wages

Many people mistakenly believe that maintenance and unearned wages for injured seamen are the same benefit. They are not.

Seamen injured while working on the high seas are entitled to no-fault benefits, in other words, benefits regardless of why the accident happened. Among those benefits are Maintenance & Cure, and unearned wages.

Maintenance is to compensate the seaman for the value of quarters and meals furnished aboard the vessel. The benefit commences on the date the seaman leaves the ship, not the date of the injury, and ends in most instances when the seaman has reached maximum medical cure.

In contrast, unearned wages are the equivalent of wages and are due just as a normal paycheck comes due. The benefit is payable to the end of the mutually-agreed period of the voyage or until the seaman becomes fit for duty. The big issue often is what defines the voyage. The amount can include bonuses, tips, accumulated shore leave, "comp time," and similar employment benefits.

The issues involved in maritime personal injury cases are complex. Injured seamen should consult with experienced lawyers to learn their rights.

Contact our office today to arrange a free, confidential consultation to discuss your case.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals - the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

March 23, 2011

Florida 1st DCA Approves Tilted Playing Field in Workers' Compensation Cases

Not surprisingly, in Jennifer Kauffman v. Community Inclusions, Inc./Guarantee Insurance Company, filed on March 23, 2011, the Florida First District Court of Appeal issued an opinion finding constitutional a Florida law, Statute 440.34, that is designed to limit the ability of injured workers to obtain workers' compensation benefits.

The Jennifer Kauffman appeal arose out of a lower court order awarding Ms. Kauffman's attorney a fee in the amount of $648.41. The employer/carrier were ordered to pay the fee because they had lost at the trial level in their effort to deny workers' compensation benefits to Ms. Kauffman, who was injured on the job. Her attorney spent 100.3 hours in the successful prosecution of the claim, meaning that he was awarded $6.48 per hour. (Although JCC E. Douglas Spangler, Jr. concluded in his appealed court order that the fee was patently unreasonable, he felt constrained by the statute to award the amount he did. In his opinion, based on evidence presented at the fee hearing, a reasonable fee would have been $25,075. Judge Spangler was also dismayed that the employer/carrier were able to pay their own defense attorney $14,720 in a losing effort.)

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March 21, 2011

Exception to the Major Contributing Cause (MCC) Doctrine - Florida Workers' Compensation

Since the establishment of a workers' compensation system in Florida more than 80 years ago, business and insurance interests have steadily tried to whittle away workers' rights with varying degrees of success. The high water mark for them arrived in the late 1990s with the election of Jeb Bush as Florida's Governor. For the next eight years, injured workers absorbed one crippling body blow after the other from Bush and his merry band of right-wing zealots in the Florida Legislature anxious to maximize the profits of the business community at the expense of individual rights. (Jeb adopted for Florida many of the measures that his brother George before him had imposed in Texas during his reign as that state's Governor. Get the picture?)

One of the more onerous examples of rights-limiting workers' compensation imposed in Florida is set forth at Section 440.09(1)(b) of the Florida Statutes. This section, known as the Major Contributing Cause (MCC) Doctrine, places the burden on injured workers to prove that the industrial accident is more than 50% responsible for causing the injury. An injured worker who fails to meet this burden will be denied ALL medical care and lost wage benefits from the employer. (In contrast, the personal injury system does not summarily deny compensation to persons with pre-existing conditions whose injuries were activated, i.e., made to become symptomatic, or aggravated (permanently worsened) by an accident. Instead, the finder of fact carves out the pre-existing element from the recovery and awards the difference. Not so under Bush's MCC system.)

The MCC is used as a defense in many cases. The E/C try to blame 50% or more of a claimant's injury on a pre-existing condition. For older workers and those with similar prior complaints, the defense can be difficult to overcome. Sadly, many an injured worker has been denied workers' compensation benefits because of the MCC.

Fortunately, the First District Court of Appeal has carved out an important exception to the MCC doctrine. In Pearson v. Paradise Ford, 951 So.2d 12 (Fla. 1st DCA 2007), the court held that an employee need not meet the rigorous MCC requirements when her or his pre-existing condition is occupationally related.

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March 15, 2011

Compensation to Seamen (Jones Act & Admiralty) for Personal Injuries

The U.S. Congress has not adopted a workers' compensation statute applicable to seamen. This contrasts with federal workers' compensation statutes created for federal workers (FECA) and longshore and harbor workers (LHWCA).

The differences between the remedies available under the federal statutes and those available to injured seamen are many and substantial. This blog briefly summarizes the remedies available to seamen who become sick or injured during their employment aboard vessels engaged in navigation on navigable waters.

Injured seamen have the potential for remedies under three different systems. The first is maintenance and cure. In terms of available remedies, this system most closely resembles state and federal workers' compensation systems. Maintenance is lost wages and cure is medical care. The benefits are supposed to be provided without regard to fault and last until the injured seaman has reached maximum medical cure or maximum medical improvement. Maintenance and cure benefits are paid by the employer.

The second system provides for compensation against the vessel owner under general maritime law. This is a negligence-based system. Vessel owners owe seamen a duty of providing a seaworthy vessel. To be compensated under this system, seamen must prove that an unseaworthy condition played a substantial part in bringing about or actually causing the injury, and that the injury was either a direct result or a reasonable probable consequence of the unseaworthiness.

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March 11, 2011

Comparisons Between FELA (Railroad Workers)/Jones Act (Seamen) and Florida Workers' Compensation

Neither railway workers nor seamen injured on the job are covered by any state workers' compensation system. However, they are not left unprotected. Both are covered by systems that in many respects surpass anything available under any state workers' compensation system.

Railway workers are covered by the Federal Employees' Liabilities Act (FELA), while seamen accidents are governed by the Jones Act. The two bodies of law are nearly identical in substance and form.

In contrast, there are significant differences between FELA/Jones Act and state workers' compensation systems.

State workers' compensation systems are no-fault systems, meaning that injured employees need not show that their injuries were caused through some fault of the employer. As long as the accident happened in the course and scope of the employment, the injured worker should be covered. Railway workers and seamen must prove negligence on the part of the employer.

Negligence can sometimes be difficult to prove. However, because of the inherent dangers involved in railway and maritime work, the common law (case derived law) has evolved to make the standard of proof lower than it is in other types of negligence cases. In other words, it is somewhat less difficult to prove negligence in railway and seamen accidents than it is in other types of cases.

There is also a difference in the type and quality of benefits available between the two systems.

Most, if not all, state workers' compensation systems bar compensation for pain and suffering. Lawmakers have decided that this is a fair tradeoff for not having to prove negligence. FELA and the Jones Act do not bar compensation for pain and suffering.

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March 10, 2011

Florida Doctors Vulnerable to Excess Judgments in Medical Malpractice Cases

Florida law imposes a duty on insurers to act reasonably in the discharge of the fiduciary duty they owe their policy holders. In the case of an injury claim against a policy holder (insured), the insurance company is duty bound to settle within the policy limits when it can and should do so. When the insurer fails and a final judgment is then entered against the insured in excess of the policy limits, the insurer will be responsible for satisfying the entire judgment if it is shown that it failed to act fairly and honestly towards its insured with due regard for her or his interest.

The law encourages insurance companies to settle claims that could and should be settled. The law reduces the number of cases that are forced to trial. The law protects policy holders from bearing the burden of excess judgments.

The law is important.

The law works.

The law does little to protect medical providers from excess judgments!

Florida Statute 766.1185 (2003) affords insurance carriers a safe harbor from excess judgments in medical malpractice cases. It provides that an insurer shall not be held in bad faith for failure to pay its policy limits if it tenders its policy limits by the 210th day after service of the complaint in the medical negligence action upon the insured.

The statute does not require the injured party to accept the tender. So long as the carrier tenders the limits, it is immune from any liability for an excess judgment.

Not so the medical provider.

Unless the insurance company's tender is accepted, the medical provider remains personally liable for the excess judgment.

In essence, the insurer has relatively little to lose by having its tender declined. If the case proceeds to trial and an excess judgment is obtained, the excess is the responsibility of the medical provider rather than the insurance company. Good deal for the insurer, bad deal for the insured. When the most the insurer will ever have to pay is the policy limits, why not roll the dice? Who would not want to roll the dice with nothing on the table to lose?

Because of this, 766.1185 leaves medical providers far more vulnerable to excess judgments than insureds in non-medical malpractice cases.

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March 9, 2011

Fair Labor Standards Act (FLSA) Exemptions

The Fair Labor Standards Act (FLSA) establishes standards for minimum wages, overtime pay, recordkeeping, and child labor. Although the Act affects more than 130 million workers, some employers and employees are exempt.

The Act applies to enterprises with employees who engage in interstate commerce, produce goods for interstate commerce, or handle, sell, or work on goods or materials that have been moved in or produced for interstate commerce. Case law has created a liberal interpretation of these elements in order to protect employees. In addition, for the Act to apply, the enterprise must have not less than $500,000 in annual dollar volume business.

Some employees who work for covered employers, may nevertheless be exempt from both the minimum wage and overtime provisions of the Act based on the work they perform. At the top of the list is the exemption for executive, administrative, and professional employees. These individuals are typically paid a set salary without regard to the number of hours spent on the job in any given workweek. (This "exemption" has resulted in a tremendous amount of court litigation. Employers often seek to avoid the Act's overtime requirements by classifying employees as executives (e.g., "manager"), without matching the pay and job responsibilities with the title. To avoid inequity, the courts look to substance rather than rely on mere words.)

Examples of other employees exempt from both the minimum wage and overtime requirements include:

  • Casual babysitters

  • Companions for the elderly

  • Employees engaged in newspaper delivery

  • Federal criminal investigators

  • Seamen employed on foreign vessels

  • Switchboard operators

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March 5, 2011

Florida Workers' Compensation Lien and PIP Benefits

It is common practice to seek PIP benefits for an insured who has paid money out-of-pocket to satisfy a workers' compensation lien. Is the PIP carrier let off the hook for payments when the workers' compensation lien is waived? According to the holding in Cannino v. Progressive Insurance Co., Fla: Dist. Court of Appeals, 2nd Dist. 2010, the answer is No.

When a person is injured in a motor vehicle accident while in the course of his employment, he may be entitled to medical and lost wage benefits from workers' compensation and PIP (personal injury protection) insurance.

The Florida Motor Vehicle No-Fault Law, sections 627.730-.7405, Florida Statutes, requires motorists to maintain a minimum of $10,000 in insurance for PIP benefits to cover loss sustained as a result of bodily injury, sickness, or death related to motor vehicles. § 627.736(1). The insurance generally covers eighty percent of medical and related expenses and sixty percent of wage loss. Id. PIP benefits are primary, except that workers' compensation benefits "shall be credited against" PIP benefits. § 627.736(4).

The injured person may also be able to recover money from the bodily injury coverage of the at-fault party's insurance policy for damages such as pain and suffering.

When a workers' compensation carrier provides benefits to an injured worker, it retains a lien (i.e., right to be reimbursed) up to the value of those benefits on any money received by the workers' compensation claimant from the bodily injury coverage of the at-fault party's insurance policy. (Typically, the reibursement rate is not dollar-for-dollar. See the Manfredo formula for how to calculate the rate of reimbursement.) The workers' compensation carrier is allowed to waive the lien.

In 2004, Cannino was injured in an automobile accident while in the course of his employment by West Coast Fence of Tampa. He received workers' compensation benefits from West Coast Fence's carrier, Pinnacle Benefits, Inc. Cannino had a personal motor vehicle insurance policy issued by Progressive, but he did not seek immediate payment of his personal injury protection (PIP) benefits under that policy.

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March 2, 2011

Florida Bad Faith Insurance Law - Public Beware

In our firm's continuing effort to inform the public of important legal issues, from time to time we will reproduce in our blog letters, articles, and papers written by other people. Today's entry, published in the March, 2011 edition of The Florida Bar Journal, was written by Rutledge R. Liles, one of the most esteemed and accomplished lawyers in Florida, regarding, perhaps, the most important legal issue being debated in Florida today. Mr. Liles knows of what he speaks.

Florida Insurance Bad Faith Law: Protecting Businesses and You
by Rutledge R. Liles

This article is offered as a response to a troubling presentation on insurance bad faith by authors Young and Clark that appeared in the February Florida Bar Journal ("The Good Faith, Bad Faith, and Ugly Set-up of Insurance Claims Settlement"). (Footnote 1.) It is intended to address various misunderstandings that may have been created by that earlier discussion, and to provide a more balanced discussion of this most topical subject. To accomplish this goal, this article explains what insurance bad faith is, how it protects insureds, and why the statutory amendment suggested in that article is unfair, unworkable, and unwise.

Eight years ago, my article, "Insurance Bad Faith: The Set Up Myth" was published in The Florida Bar Journal. (Footnote 2.) The premise of the article was that "generally companies set themselves up for the fall in a fashion that could easily be avoided or remedied." That statement remains as true today as it was eight years ago. Florida law remains consistently and appropriately focused upon the conduct of insurers when determining whether they have acted reasonably in the discharge of the fiduciary duty they owe their policy holders. If insurers acted reasonably in the discharge of the fiduciary duty they owe their policy holders, we would not be spilling ink over a contrived notion that claimants and insureds can somehow control the conduct of insurers in adjusting losses, thereby "setting up" bad faith claims. This contrivance is advanced as a justification for the passage of legislation to protect the insurance industry from its own failures at the cost of Florida's insured businesses and individuals.

Initially, it should be noted that the February article never mentions the common law duty of good faith, which the authors' proposed statutory amendment would largely eliminate. Moreover, the article ignores the well-established principle, recognized by both the courts and the legislature, that insurers owe a fiduciary duty to their insureds. These long-established tenets of insurance law are the cornerstones that ensure that businesses and individuals receive the benefit of the protection for which they bargained and paid in their insurance contract. Otherwise, insurance companies are without accountability and Florida's businesses, professionals, homeowners, and other insureds are left to pay the cost of careless and improper claims practices by insurers. The article makes absolutely no showing that the remedies crafted by the courts (common law) and by the legislature in F.S. §624.155 (statutory law) require the drastic revisions proposed.

The Florida Supreme Court recognized a common law action for third-party bad faith as early as 1938. (Footnote 3). Its decision to do so grew out of the realization that insurance contracts had come to "occupy a unique institutional role" in modern society, as they became an economic necessity for businesses and individuals. (Footnote 4.) Additionally, as liability policies replaced indemnity policies, the insurer's power over the insured's situation became greater, requiring a remedy for when that power was abused.

Under a liability policy, the insured's role is essentially limited to selecting the type and desired level of coverage and paying the corresponding premium. Insurance coverage, theoretically, offers security and peace of mind against unforeseeable losses. As part of the contract, the insured surrenders to the insurer all control over the negotiations and decisionmaking as to claims. The insured's role is relegated to the obligation to cooperate with the insurer's efforts to adjust the loss. The insurer makes all the decisions with regard to claims handling and thereby has the power to settle and foreclose an insured's exposure to liability, or to refuse to settle and leave the insured exposed to liability in excess of the policy limits. (Footnote 5.) As a result, "the relationship between the parties arising from the bodily injury liability provisions of the policy is fiduciary in nature, much akin to that of attorney and client," because the insurer owes a duty to refrain from acting solely on the basis of its own interests in the settlement of claims. (Footnote 6.) Accordingly, and because of this relationship, the insurer owes a duty to the insured to "exercise the utmost good faith and reasonable discretion in evaluating the claim" and negotiating for a settlement within the policy limits. (Footnote 7.) When the insurer fails to act in the best interests of the insured in settling a claim, an injured insured is entitled to hold the insurer accountable for its "bad faith."

Although Florida courts recognized a bad faith cause of action in the context of liability policies, they did not impose the same obligation in the context of first-party insurance contracts, when the injured party was also the insured under the insurance policy. At common law, first-party insurance policies were enforced solely through traditional contract remedies. However, in 1982, the legislature recognized that due to the same disparity in power between the insurer and the insured in first-party contracts, there was a need for a bad faith remedy in that context as well. (Footnote 8.) As a result, the legislature enacted F.S. §624.155, which established, inter alia, a first-party bad faith cause of action. It should be noted, however, that in F.S. §624.155(8), the legislature made it abundantly clear that the statute did not preempt the common law remedy. The standard for bad faith in settlement was the same as the common law standard: "Bad faith on the part of an insurance company is failing to settle a claim when, under all the circumstances, it could and should have done so, had it acted fairly and honestly towards its insured and with due regard for the insured's interest." (Footnote 9.)

The measure of whether an insurer has acted in good faith is, necessarily, determined by an assessment of the lengths to which the carrier went in an effort to provide the insured with the protection afforded by the insurance policy. It is for this reason that the focus in a bad faith case is upon the conduct of the insurer and not the person making the claims or presenting any opportunity for settlement. If the liability insurer undertakes a prompt investigation of the loss, timely evaluation of the legal liability of the insured, communicates to the insured the material events of the adjustment process, and acts reasonably with regard to opportunities to settle the loss and protect the assets of the insured, then it has no fear from Florida's bad faith laws.

It is within this framework that common law bad faith actions have been allowed in Florida for over 70 years without substantial change in the governing principles, with statutory bad faith claims being allowed for almost 30 years. The previous Journal article proposes a dramatic and unwarranted change to bad faith law for which no empirical justification is offered, and its anecdotal reliance on cases it cites actually undermines its basic premise. That is, an analysis of the relevant case law demonstrates that the courts have properly and consistently defeated attempts to allow "set-up" bad faith claims which were premised on the two tactics the article identifies: 1) arbitrary and unrealistic time deadlines for acceptance imposed by claimants, and 2) settlement offers containing unreasonable terms that cannot be complied with (and will not be negotiated).

With respect to the arbitrary and unrealistic time deadlines, the authors look for support in DeLaune v. Liberty Mutual Insurance Co., 314 So. 2d 601 (Fla. 4th DCA 1975), where no support is to be found. There, the claimant made a demand for policy limits, but required payment in 10 days. Neither the court nor the jury was impressed by that unreasonable time limit, and the bad faith claim was lost at trial and affirmed on appeal. In affirming, the Fourth District specifically noted that the 10-day time limit was "totally unreasonable under these circumstances," and that it was a charade designed to "set-up" a bad faith suit. (Footnote 10.) Subsequent cases have expanded on that and even determined that attempts to limit insurers to 30 days to verify a claim and pay limits cannot establish bad faith, as a matter of law, resulting in summary judgments against the claimants on their bad faith claims. (Footnote 11.) Thus, it is clear that the legal system has properly responded to unreasonable time demands to establish bad faith, and clearly determined it to be an ineffective tactic. Thus, established case law again completely undermines the article's premise that any amendment to Florida's bad faith law is needed to address a contrived concern, much less the dramatic and unwarranted amendment proposed by the authors.

The second set-up tactic that the authors rely upon involves settlement demands incapable of an insurer's reasonable acceptance. Examples advanced include demands that contain confusing or ambiguous terms that the claimant's attorney refuses to clarify or to otherwise cooperate with the insurer's efforts to negotiate a settlement. Again, existing Florida law completely undermines the authors' assertion that any amendment in bad faith law is needed to address the ability of an insurer to defend its conduct by showing that it did not have a reasonable opportunity to settle the claims. The authors suggest that insurers are hamstrung by being prevented from even presenting evidence that such offers were not made in good faith.

The article states: "Imposing the duty of good faith during settlement on only the insurer, as some courts appear to have done in light of the narrow language of the bad faith statute, is inconsistent with Florida's strong public policy encouraging settlement of claims." However, the authors do not cite a single case for the proposition that any court has suggested that the totality of the circumstances bearing on the ability of the insurer to settle the claims are irrelevant in a failure to settle setting. In fact, the only cases cited in the footnote to that passage relate to public policy encouraging settlement of claims. Therefore, the authors have no support for the contention that any court has precluded an insurer from showing that despite its reasonable efforts, it could not settle the claims. In fact, the courts have consistently applied existing Florida law to allow for consideration of the facts surrounding the settlement negotiations that bear on whether the insurer "could" settle.

In Barry v. Geico General Insurance Co., 938 So. 2d 613 (Fla. 4th DCA 2006), the jury ruled in favor of the insurance company on a third-party bad faith claim. On appeal, the claimant argued, inter alia, that the insurance company was improperly permitted to present evidence as to the claimant's motives and her attorney's conduct in declining to settle. That argument was rejected, with the court clearly holding that such evidence was relevant and admissible, even though the focus of an insurance bad faith case is primarily on whether the insurer fulfilled its duty to the insured. (Footnote 12.) The court stated that inquiries into the prior conduct and motives of the claimant were relevant and admissible because the insurer can defend on the ground that there was no realistic possibility of settlement within the policy limits, based on the claimant's intransigence. The Barry court stated:

The jury could have concluded that the failure of [the claimant's] attorney to notify GEICO of his representation coupled with her refusal to meet with Stone on the settlement, among other incidents, showed that she did not want to settle with GEICO for the policy limits. Thus, GEICO did not inject irrelevant information into the case. (Footnote 13.)

Additionally, in a published federal decision, it was specifically noted that a claimant's unwillingness to settle was "not completely ignored under Florida law," but was a relevant factor when the insurer is attempting to prove the defense that the claimant was actually unwilling to settle for the policy limits. (Footnote 14.)

In accordance with those cases, decisions have consistently addressed the likelihood that intransigence or a failure to cooperate by a claimant in settlement negotiations will fatally undermine a bad faith claim. When a claimant failed to provide medical information to the insurer regarding his injuries, a court has ruled that there was no bad faith, as a matter of law, arising from the insurer's failure to settle. (Footnote 15.) Additionally, when claimants have failed to respond to insurer's attempts to settle claims within the policy limits, courts have determined that there was no bad faith claim, as a matter of law. (Footnote 16.)

Thus, the courts have properly, effectively, and firmly rejected attempts to justify bad faith claims based on either arbitrary or unrealistic time deadlines, or in response to settlement offers, with which compliance is impossible, or which were not made in a good faith attempt to reach a resolution of the claim.

The article does not cite a single case in which the tactics of unreasonable deadlines or intransigence in negotiations has resulted in a successful bad faith recovery. Instead, the authors rely on statements contained in the dissenting opinions in Berges v. Infinity Insurance Co., 896 So. 2d 665 (Fla. 2004), but the facts of that case do not support its contention that the decision encourages or allows insureds or claimants to set up bad faith claims.

In Berges, James Taylor's wife was killed and his daughter seriously injured by a drunk driver. The insurance policy providing coverage to the drunk driver had limits of $10,000 per claimant. Mr. Taylor did not impose unreasonable deadlines in his offer and, in fact, did not even make an offer to settle until more than two months after the accident, when he hand-delivered an offer to settle for the $20,000 policy limits. At that time, the insurer had already conducted an investigation and issued a report concluding that its insured was completely at fault, and confirmed that Mrs. Taylor had died and that the daughter's medical bills already exceeded $30,000. Although initially there was a coverage issue, six days after Mr. Taylor's offer, the insurer concluded its coverage investigation and decided to extend coverage.

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