Following the Florida Supreme Court’s April, 2016 decision in Castellanos v. Next Door Company, Florida’s workers’ compensation insurance industry quickly mobilized in an effort to obtain approval of a rate increase from the Florida Office of Insurance Regulation. It claimed that a substantial premium rate hike was needed to handle the expected increase in claim costs — in particular, fees paid to claimants’ attorneys — resulting from the decision.
Insurance industry representatives hired National Council on Compensation Insurance (NCCI), a private company authorized to request rate changes, to present its case to the Florida Office of Insurance Regulation (OIR), the regulatory agency responsible for setting insurance rates. OIR ultimately approved a 14.5% rate hike. Problem is, opponents were prevented from fully engaging in the regulatory process.
The Florida Government in the Sunshine Law requires rate setting activities to be conducted in public view. James F. Fee, Jr., a workers’ compensation lawyer and business owner whose law firm maintains workers’ compensation insurance for its employees, contended in a lawsuit that NCCI and OIR violated provisions of the Florida Government in the Sunshine Law and the Florida Public Records Laws [Article 1, section 24 of the Florida Constitution and section 119.07(1) Florida Statutes]. The lawsuit sought to void approval of the rate increase and obtain various public records.
Since the rate increase was scheduled to take effect on December 1, 2016, the case proceeded rapidly to trial. Extensive amounts of documentary evidence and testimony were presented to the court. On November 23, 2016, Circuit Judge Karen Gievers issued a 73 page Order and Final Judgment in favor of Plaintiff Fee.
If the decision stands, NCCI and OIR will be required to conduct future rate increase proceedings in the sunshine. Opponents will be armed with evidence undercutting industry’s dishonest theory for the increase.
The theory is dishonest because it fails to acknowledge that the Castellanos case fully empowers insurance companies to control whether or not carrier-paid attorney’s fees are ever incurred. All it takes is proper claims handling, which requires adequate staffing and properly trained and well-intentioned insurance adjusters. Unfortunately, instead of instituting these measures, which may see a nominal, short-term increase in operating expenses, carriers have opted instead to pass along the costs of poor claims handling to business owners in the form of increased premiums. Seeking the increase is also a good way for the insurance industry to push the Florida Legislature to legislate around the Castellanos decision, an outcome sure to result in substantial harm to injured workers.
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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.
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