Florida Injury Attorney Blawg

Insurance companies make money by paying out less in claims than they receive in premiums. As long as premium rates are fairly regulated, healthy competition exists within the industry to keep rates in check, and carriers operate in good faith with regard to the claim process, there is nothing wrong with carriers making respectable profits.

Insurance premiums are regulated by the state government. Arguably, the carriers' rate requests are given too much deference by the governing authorities. Considering the carriers' financial resources and the pro-business/anti-consumer climate in Tallahassee, with a Governor Scott and the House and Senate in Republican hands, this is not a surprise.

Competition among carriers is brisk, although it is curious how similar their rates are and how the premiums are always at or near the maximum levels allowed by law.

All carriers try to pay as little as possible on all claims. The carriers that seek this outcome through fair and honest dealings should not be faulted. There is nothing wrong with thorough and expeditious fact gathering and inquiry.

Unfortunately, not all carriers handle claims in good faith.

An insurance policy is a contract been the insured and the insurer/carrier. Certain obligations are imposed on each party to the insurance contract. The insured must pay the premium and cooperate in the claims process, while the carrier must process claims in good faith and pay the proper amount on legitimate claims.

One of the tools at the disposal of carriers to gather information about claims is the Examination Under Oath, or EUO. An EUO is an oral examination conducted under oath by an insurance company of an insured making a claim under a policy. A carrier's right to conduct the EUO is a matter of agreement between the insurer and the insured. Its terms will be set forth in the insurance policy.

Continue reading "Examination Under Oath (EUO) Limited by Florida's 3d District Court of Appeal" »

As the 2012 Florida legislative session is about to begin, Corporate Florida is rolling out its guns to prepare for its annual assault on the civil justice system. Although packaged as an effort to benefit consumers, make no mistake that the true goal is to maximize corporate profits at the expense of people. Profits over People.

PIP is one of the main targets in Corporate Florida's high powered sights this session.

Associated Industries of Florida is one of Corporate Florida's most aggressive players in the never ending war between profits and rights. It was in the forefront of the assault on Florida's workers' compensation system that has resulted in less support for injured workers today than 10 to 20 years ago. PIP is next.

On November 28, 2011, the Miami Herald published an editorial by a vice president for governmental affairs at Associated Industries, in which various proposals were made for revamping the PIP system. I will respond to each proposal.

Proposal: "Allow insurance companies adequate time to investigate suspicious claims."
Response: Under current Florida law, PIP insurance companies have at least 65 days to investigate claims before a lawsuit for breach of contract can be filed. This alone is adequate time to investigate a claim, but in reality carriers have much more time to investigate because in everyday practice PIP lawsuits are rarely filed within six months of an accident. During this period of time, carriers have many ways to investigate claims, including examining insureds under oath and having medical exams performed by hand chosen doctors.

Carriers have the right to deny claims that they feel are suspicious. If a claim is denied, an insured may drop the claim or file suit. Through legal proceedings, each side has the chance to fairly present its case to a judge and jury. What's unfair about that?

Proposal: "Cap attorney fees in no-fault cases to eliminate the incentive for frivolous litigation."
Response: This is a shell-game proposal. Carrier's know that fee caps will discourage lawyers from pursuing legitimate claims. It is a ploy the insurance industry has used with great success in gutting the rights of workers' compensation claimants. Carriers also know that there is no such thing as a frivolous lawsuits crisis, only a successful propaganda campaign to make the public believe there is. As I have blogged here before - Debunking The Myth About Frivolous Lawsuits (Florida) - Installment #1; Debunking The Myth About Frivolous Lawsuits (Florida) - Installment #2 ; South Florida Trial Lawyer - Tort Reform ("Deform) & What It Means - the concept that lawyers can make money pursuing frivolous claims defies logic and reason. As every lay person who has battled with an insurance carrier knows, it is hard enough to succeed with legitimate claims much less bogus claims. The civil justice system has created numerous filters to weed out even weak cases, so the notion that baseless cases somehow make it through the filter system is nothing short of disingenuous. Quite simply, Corporate America does not like being answerable to individuals in courts of law. The frivolous lawsuits fallacy is nothing short of a concerted campaign to bar the courthouse doors against individuals seeking redress. Profits over People.

Continue reading "Response to Editorial by Insurance Industry Executive Regarding Florida PIP Insurance" »

(Also read this blog: DCA Limits EUO Abuse)

Most Florida-issued insurance policies allow carriers to examine their insureds and omnibus insureds* (individuals unnamed but covered under a policy) under oath during the claim process. Any failure by the insured to cooperate with this condition of the policy may result in a denial of coverage.

In every EUO, carriers look for ways to deny and limit claims. For example, questions will be asked seeking to uncover substantive misrepresentations in the insurance application. Carriers also try to frighten insureds into dropping claims. One popular tactic is by indicating that the EUO is being conducted by the company's "Special Investigatve Unit," an effort to make the procedure look like a law enforcement action.

Other tactics include:

• Scheduling EUOs during work hours on short notice


• Requiring personal attendance at obscure, inconvenient, and far away locations (e.g., Blue Lagoon Drive, in Miami)


• Videotaping the EUO


• Seeking contact information of every possible witness


• Behaving rudely


• Asking endless irrelevant questions that invade privacy and make what should be a 15 minute examination last hours

The claimant may have his/her lawyer present during the EUO. Moreover, since the EUO is not controlled by the Florida Rules of Civil Procedure or the Florida Rules of Evidence, like a deposition would be, the claimant and lawyer are far less constrained in their conduct. For example, they may confer during the questioning.

Continue reading "EUO (Examination Under Oath) Abuse by Florida Insurance Companies" »

From our experience, most Florida motor vehicle owners are not familiar with the many different types of coverages that are available, for the asking and at a price, under a standard vehicle insurance policy.

Preliminarily, it should be understood that, in Florida, for a vehicle to be lawfully registered, the only mandatory coverages are PIP (limited medical and lost wages) and Property Damage - Liability (covers damage to the other person's property caused by the at-fault party). (Florida, a state with, in my opinion, primitive notions of right and wrong, is in the minority with regard to mandatory coverages. Other states, by making Bodily Injury - Liability mandatory, seemingly value life and limb more than property. Not so Florida, whose motor vehicle insurance vehicle laws create an environment the equivalent of the Wild West, where each man is responsible for his own safety and welfare without protection from the authorities.) Since these are the minimum requirements, a policy that covers nothing more is also the least expensive policy that can be purchased.* It is also the policy of choice for a large percentage of Florida motorists.

Continue reading "Checklist of Standard Florida Motor Vehicle Insurance Coverages" »

Uninsured/Underinsured vehicle insurance, described in Florida Statute 627.727, is first party insurance that covers non-economic damages (e.g., pain & suffering), economic losses (e.g., lost wages) and medical expenses realized by insureds through the negligence of uninsured or underinsured (i.e., losses exceed policy limits) owners and operators of motor vehicles. In Florida, where a high percentage of vehicle owners do not maintain bodily injury (BI) coverage or, if they do, only carry it up to a limit of $10,000, having UM/UIM is the only sure way of providing some degree of economic protection against the catastrophic losses a serious motor vehicle accident can cause.

UM/UIM can be stacked or non-stacked. The most well known function of stacked coverage is to increase policy limits for owners of multiple vehicles insured under the same insurance policy. For example, the owner of three vehicles insured under the same policy, with stacked UM/UIM coverage with limits of $100,000 per vehicle, really has $300,000 worth of coverage for the the types of losses described in the paragraph above.

Stacked coverage serves another valuable function.

It is not unusual for owners of multiple vehicles to have some or all of their vehicles covered under separate policies. This can be problematic because most insurance policies issued in Florida exclude the extension of UM/UIM when the accident happens in a vehicle "owned by an insured but not insured under this policy." In other words, the UM/UIM on one vehicle does not transfer to another vehicle owned by the same person.

Having stacked UM/UIM on even one of the insured vehicles overcomes the exclusion. In the example above, $100,000 is available to the insured no matter which vehicle the insured was occupying during the accident. Another way of thinking of it is that stacked UM/UIM follows the insured everywhere. Non-stacked coverage does not.

Florida insurance law can be a puzzle. It is best to seek the advice of legal counsel before and after an accident to learn your rights.

Continue reading "Understanding the Importance of Uninsured/Underinsured (UM/UIM) Coverage in Florida" »

As a Plaintiffs' personal injury law firm, we deal with insurance companies every day. Thanks to current Florida law, insurance companies are duty bound to act in the best interests of their insureds, the individuals and companies who pay for insurance coverage. Acting in the best interests of an insured sometimes means that an insurance company should tender its insured's policy limits to the injured party. If done timely, the tender will keep the insured from being exposed to a court judgment in excess of his/her or its policy limits.

With Governor Scott and a solid majority of right-wing Republicans, in the Florida House and Senate, in control of lawmaking in Florida, during the upcoming legislative session, scheduled to begin in January, 2012, the insurance industry will be proposing legislation to end their duty to act in good faith. In fact, one bill, HB 427 has already been proposed, by Rep. Kathleen Passidomo (R-Naples).

This is a serious topic, about which I have and will continue to blog at length, with far reaching ramifications. Ironically, those who are the most at risk by the proposed legislation are the very same constitutents who generally support right-wing policies, wealthy individuals and corporations.

Reproduced here is a well written article on the subject by Steven Marino, a prominent South Florida "bad faith" attorney, which was published in the Sunday (10/23/11) Miami Herald.
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By Stephen A. Marino Jr.
Special to The Miami Herald

You're in good hands. Your insurer is on your side, because it's like a good neighbor. Some companies live up to their slogans, but some use promises to induce Floridians to entrust their livelihoods and businesses to companies offering liability insurance.

When the paperwork is signed and the premiums are paid, it's all smiles and handshakes. But if the small business owner is a few days late on a premium payment, or makes a mistake on the policy application, coverage is terminated. But what happens if the insurance company makes a mistake?

Florida law has long recognized an insurance company's fiduciary obligation to protect its policyholder from a judgment exceeding the limits of the policy. Since at least 1938, Florida courts have clearly expressed that an insurer must act honestly and in good faith toward the insured. The reasoning is simple: An insurance company writes a contract that gives it complete control over the defense and settlement of a claim against the policyholder, and must therefore use "the same degree of diligence as a person of ordinary care and prudence should exercise in the management of his own business."

The insurance company insists that it make the decisions, so Florida law requires that it do so while acting in the best interest of its insured. If the insurance company makes a mistake, and the result is a liability judgment against the policyholder, the law places the responsibility for the judgment on the insurance company, not the small business.

Continue reading "You're (Not) in Good Hands - Florida Business Owners Beware!" »

Florida's motor vehicle insurance laws can be hard to comprehend.

A case in point: Personal Injury Protection (PIP) and Property Damage - Liability are the only required coverages for an owner to lawfully operate a vehicle on Florida's streets and highways. (PIP pays 80% of medical bills and 60% of lost wages for the insured up to $10,000, while Property Damage - Liability pays to repair or replace the other owner's motor vehicle.) With these coverages, the owner is able to register a vehicle and purchase a license plate.

Surprisingly, however, in the event of a motor vehicle accident involving injury or death, having the minimum mandatory coverages will not prevent the at-fault party from having her drivers license and all vehicle registrations suspended. Sections 316.066(3)(a)1 and 324.051(2)(a) Florida Statutes.

The only type of coverage that will prevent these suspensions is Bodily Injury liability (a/k/a BI). Section 324.021 (7) Florida Statutes.

Continue reading "Florida Insurance Blog: Maintain Bodily Injury Liability Coverage to Avoid License Suspension " »

One thing is certain, "full coverage" is not what most people think it is.

The only types of insurance coverage required by law of every owner of a motor vehicle registered in Florida are Personal Injury Protection ("PIP") and Property Damage - Liability. Period.

There are numerous other types of coverages available under a standard Florida motor vehicle insurance policy, but none of them are mandatory like PIP and PD - Liability. Each of the coverages cost extra money, meaning that an additional premium will be charged for each. Consequently, many people forego the non-mandatory coverages.

PIP (Florida Statute 627.736) covers a combination of 80% of allowable medical charges and 60% of lost wages up to the standard policy limit of $10,000 subject to deductibles (usually $500, $1000, and $2,000), while Property Damage Liability covers vehicle damage caused by the at-fault insured. (The minimum mandatory PD - Liability policy limit is $10,000.) Neither PIP nor PD - Liability provides compensation to anyone for pain and suffering.

Only Bodily Injury - Liability ("BI") and Uninsured/Underinsured Motorist ("UM/UIM") (Florida Statute 627.727) compensate for pain and suffering. Neither coverage is mandatory. (Many other states make BI mandatory. For years, consumer advocates have tried to make BI mandatory in Florida, but the insurance industry has fought off the efforts. The members of our law firm believe that if any coverage should be mandatory, it should be BI.)

Continue reading "What is "Full Coverage" Motor Vehicle Insurance in Florida?" »

Typically, Florida automobile insurance policies recognize two classes of insureds. Mullis v. State Farm Mut. Auto. Ins. Co., 252 So. 2d 229, 238. (Fla. 1971). Class I insureds are named insureds, usually the owner of the vehicle, and their resident relatives. Travelers Ins. Co. v. Warren, 678 So. 2d 324, 326 n.2 (Fla. 1996) (citing Mullis, 252 So. 2d at 238; Quirk v. Anthony, 563 So. 2d 710, 713 n.2 (Fla. 2d DCA 1990), approved, 583 So. 2d 1026 (Fla. 1991); Florida Statute 627.732(4). Class II insureds are lawful occupants of an insured vehicle who are not named insureds or resident relatives of named insureds; essentially, they are "third-party beneficiaries to the named insureds' policy. Id. Class II insureds "are insured only because they are drivers or passengers in an insured vehicle with the consent of the named insured." Florida Farm Bureau Cas. Co. v. Hurtado, 587 So. 2d 1314, 1317 (Fla. 1991) (citations omitted).

Continue reading "Florida Automobile Insurance Policies - Classes & Terms" »

Owners of motor vehicles registered and operated in Florida are vicariously liable for damages caused by their vehicles while operated by a consensual driver. Car rental companies are exempt from this rule.

This form of strict liability is derived from Florida's Dangerous Instrumentality Doctrine, adopted in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920), which is based on the proposition that motor vehicles operated on public highways are dangerous instruments and the owners who entrust them to others should be liable for injury to others caused by negligence of the persons to whom the instrumentalities are entrusted.

Until 2005, when the Bush Administration and the Republican Congress carved out an exemption, through the Graves Amendment (49 U.S.C. Sec. 30106), the doctrine applied to the car rental industry. To this writer, the exemption is dangerous because it removes nearly every motivation the industry might have to know who is driving its vehicles. (See this blog for an example of what I mean: Profits Over People - The Willful Ignorance of Florida Car Rental Companies.)

Continue reading "Vehicle Owners - Other Than Rental Agencies - Vicariously Liable Under Florida Law" »

Florida Statutes section 627.733, entitled Required Security, requires all motor vehicle owners to maintain "no-fault" automobile insurance covering, among other items, 80% of the insured's own medical expenses. See §§ 627.733(1), (3)(a), 627.736(1)(a). The typical Florida PIP policy has a $10,000 coverage limit with deductibles of up to $2,000.

From a fair reading of the statutes it seems that every vehicle owner who procures the mandatory no-fault coverage is exempted from tort liability for 80% of medical expenses and 60% of lost wages up to the PIP policy limit (typically $10,000).

However, what happens when the fault-free party fails to maintain the required PIP coverage? In other words, the non-negligent party is in violation of the law by failing to maintain PIP.

Until the Florida Supreme Court rules on the issue, the answer depends on where in Florida the accident happens.

Florida's civil court system is divided into county courts, circuit courts, district courts of appeal, and the Florida Supreme Court. The county and circuit courts are the only trial courts within the system, while the DCAs and the Florida Supreme Court are dedicated appellate courts.

Continue reading "Florida Vehicle Insurance Law: PIP Setoff Not Applied Uniformly" »

Florida Statute 627.409 (2010) allows an insurance company to rescind an insurance policy on the grounds of misrepresentation if it can prove:

a) The misrepresentation, omission, concealment, or statement is fraudulent or is material either to the acceptance of the risk or to the hazard assumed by the insurer.

(b) If the true facts had been known to the insurer pursuant to a policy requirement or other requirement, the insurer in good faith would not have issued the policy or contract, would not have issued it at the same premium rate, would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss.

However, in Casamassina v. US Life Ins. Co., 958 So. 2d 1093 (4th DCA 2007), the insurance carrier was prevented from using the statute to rescind the policy by language in its own insurance application.

United States Life Insurance Company issued a $500,000 life insurance policy to John Casamassina on November 6, 1997. Less than two weeks later, Casamassina was diagnosed with a brain tumor; he died on December 4, 1997. After U.S. Life denied the policy claim, the trust beneficiary of the policy and the widow filed suit.

Continue reading "Rescinding Insurance Policy - Florida Statute 627.409 vs. "Knowledge and Belief"" »

Job one of lawyers who represent individuals who have suffered personal injuries and/or property damage losses is to maximize the client's recovery. The conventional thinking is that the recovery in every case is limited by the measure of actual damages, in other words, the recovery cannot exceed the loss.

Surprisingly, this is a rule that can be broken ... with a proviso.

In Despointes v. Florida Power Corporation, 2 So.3d 360 (2nd DCA 2008), a person who was paid $224,567.66 by her own insurance company, CIGNA, for fire damage, was able to pursue a claim for damages, through her estate, against a third party for the amount already recovered from the insurance company.

The device used for this opportunity was an assignment from CIGNA of its subrogation/reimbursement right.

The CIGNA policy provided for the right of subrogation against any third party recovery. This right authorized CIGNA to pursue a claim against the third party responsible for causing the house fire for the amount it paid to its insured. Instead of pursuing the claim, it assigned the right to its insured.

Thereafter, the insured sued the third party, Intermatic, alleging that the fire had been caused by a defective surge protector. The Defendant argued that the insured was not allowed to recover the money she had already received.

The trial court agreed. The Second District Court of Appeal did not.

Continue reading "Florida Law: Maximize Recovery by Obtaining Assignment of Subrogation Rights" »

Uninsured Motorist (UM) coverage is 1st party insurance maintained for the benefit of individuals injured by uninsured motorists.

See these blogs:

• Florida 4th in the Nation in Number of Uninsured Vehicles


• Florida Motor Vehicle Insurance Law: What is Stacked Coverage?


• "Full Coverage" Vehicle Accident Insurance in Florida

A common policy requirement is for the insured to submit to what is called a Compulsory Medical Examination (CME). A CME is where the insured, who is seeking compensation under the policy for an injury or injuries, is examined by a doctor selected by the insurance company. When requested by the insurer, submitting to the CME is a condition precedent to receiving benefits under the policy, meaning that the insurance company can deny benefits to the insured for failing to attend the CME.

Disputes have arisen between insurer and insured over what is allowed by the CME provision. How frequently may the insurer force the insured to attend CMEs? How far can the carrier make the insured travel to attend the CME? Is there limit on the type of doctor who may perform the CME?

Continue reading "Compulsory Medical Exam - Florida Uninsured Motorist (UM) Insureds Beware!" »

Florida lawyers who represent individuals injured in accidents must be aware that some of the proceeds recovered in a case may have to be reimbursed to entities who have paid for accident-related medical care. If benefits were paid through an individual health insurance plan, whether and to what extent the carrier has a right of subrogation is a matter of contract (the insurance policy) and state law, Florida Statute 768.76. With regard to group policies provided in connection with employment, it was long believed that subrogation rights were exclusively a matter of contract, the Plan Summary, and federal law, the Employment Retirement Income Security Act (ERISA). It was felt that Florida Statute 768.76 played no role in determining group insurance subrogation rights.

Coleman v. Blue Cross and Blue Shield of Alabama, Inc. So.3d , 35 FLW D2718 (Fla. 1st. DCA 12-8-2010) may have changed the landscape.

After successfully settling a personal injury action in federal court, Coleman (the plaintiff and a member of a group plan) filed a complaint in state court requesting a declaratory judgment prohibiting the insurer from seeking subrogation against the settlement proceeds. The plaintiff's complaint alleged that the insurer had not met the pre-subrogation requirements of Florida's Collateral Source Statute Section 768.76(7). Therefore, according to the plaintiff, Blue Cross Blue Shield had waived its right to subrogation.

Continue reading "Dealing With Federal ERISA Under Florida Law in Personal Injury & Workers' Compensation Cases" »