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A Look at Commercial General Liability Insurance and Bad Faith Issues

Wed Feb 28th, 2018 on     Bad Faith Insurance,    

As a business owner, CGL insurance coverage is fundamental to effectively running your business in a highly-litigious society.  When a improperly mopped floor can result in hundreds of thousands of dollars, or even millions, in potential liability to injured third-parties, the value of CGL insurance skyrockets — CGL insurance provides the “peace of mind” necessary for a business to successfully operate. This reliance on CGL insurance can lead to challenging situations when the insurer wrongfully denies a legitimate insurance claim, or otherwise fails to step in and adhere to their duties under the contract.  Businesses facing millions in potential liability are put in an exceedingly vulnerable position, and insurers often take advantage of this power dynamic to undervalue claims and deny coverage.  Fortunately, Florida law entitles CGL policyholders to sue and recover damages on the basis of bad faith. Consider the following. Wrongful Denial In Florida, bad faith requires that insurers conduct a reasonable investigation of the facts surrounding the insurance claim at-issue, that the insurer not misrepresent the extent and nature of coverage, and that the insurer not wrongfully deny a legitimate insurance claim (i.e., without reasonable justification for such denial).  If your CGL insurance claim has been wrongfully denied, and you can prove that the defendant-insurer did not have reasonable justification for the denial, you could potentially recover damages for bad faith. Failure to Defend CGL insurance requires that the insurer step in and defend you in the event that an injured third-party makes a claim against you […]

Short-Term Disability Insurance in Florida — The Basics

Wed Feb 21st, 2018 on     Disability Insurance,    

Short term disability insurance benefits serve as a form of temporary wage replacement for those who are suffering from a serious disability (though it’s worth noting that not all plans require employment, or a history of employment, to qualify for disability benefits).  If you have been seriously injured in a car accident, for example, to such and extent that you can no longer work for a period of time following the accident, then your short term disability insurance will kick in and you will be entitled to receive benefits. Many people unfamiliar with disability insurance do not understand what short term disability insurance is, and whether they can actually receive benefits pursuant to their policy.  There is a real and unfortunate “knowledge gap” when it comes to short term disability, particularly in scenarios where the policyholder may be automatically covered under an employer-based group plan. In reality, short term disability insurance is fairly straightforward to understand.  Consider the basics. Short Term Disability Benefits Short term disability benefits payout when you have been injured, or are suffering from an illness or condition that is severe enough to disable you — in other words, enough to prevent you from fully and adequately handling your job/career duties for a specified time period (up to one year, usually).  Benefits vary depending on the insurance plan, and sometimes, on the nature of the work that you are involved in.  Some plans pay a percentage of your wages, while other plans pay a set amount of […]

Property Insurance Provisions Must Be Construed in Favor of Coverage

Wed Feb 14th, 2018 on     Property Insurance,    

If you are challenging the wrongful denial of your property insurance claim, the insurer is likely to assert that the language in the insurance contract is rather ambiguous, and that it should be interpreted in a manner that favors them. For example, suppose that your property insurance contract includes various provisions that exclude lightning damage from coverage.  A tree near your house is hit by lightning, which results in a fire.  The fire then spreads to your house, causing it to burn down.  Would you be entitled to make a property insurance claim, given the exclusionary provision at-issue?  The insurer is likely to argue no.  On the other hand, the provision is rather ambiguous with regard to the chain of causation.  It could be argued that the damage was not directly caused by the lightning, but instead by fire, which is covered. Ambiguity has often been used by insurers to entice policyholders into signing, only later to be construed in a manner that retracts coverage, thus minimizing the potential liabilities for the insurer.  Fortunately, Florida case law favors policyholders in the interpretation of ambiguous policy language.  Let’s take a quick look. Ambiguous Property Insurance Provisions Must Be Construed in Favor of Coverage In Florida, ambiguous provisions — where true ambiguity exists — of an insurance policy must be liberally construed in favor of the policyholder (coverage), and strictly construed against the insurer.  As the policyholder, this is highly protective and is likely to benefit you when it comes to litigation […]

Common Justifications for the Denial of a Health Insurance Claim

Wed Feb 7th, 2018 on     Health Insurance,    

Insurers — whether in the health insurance context, or some other context — will look for any possible justification to support their denial of a policyholder’s substantial claims, however legitimate those claims may be.  Recent scandals plaguing health insurers have shaken the industry to its core and revealed that many health insurers do not enforce their guidelines or properly supervise their assessors, which can lead to systemic wrongdoing. If you have a legitimate health insurance claim that has been denied by your insurer, you may be entitled to damages on the basis of their wrongful denial.  With the assistance of a qualified health insurance attorney, you can gather additional evidence and repackage your health insurance claim, appeal the denial, or — ultimately — pursue trial litigation against the insurer to recover the compensation to which you are entitled. Understanding the reasoning that insurers use to rationalize their claim denial is fundamentally important, as it highlights those issues that must be circumvented or challenged.  Consider the following. Common Justifications for Claim Denial Treatment Not Medically Necessary Whether treatment is deemed medically necessary depends on a number of factors, from the language and provisions of the insurance policy, to the circumstances of your injury (and potential treatment thereof).  Each plan may differ in terms of its definition of medically necessary treatment, with some plans executing a broader construction, and some plans executing a stricter construction.  For example, your plan may require that only certain type of medical devices be use to treat […]

You Have a Duty to Mitigate Losses

Fri Jan 26th, 2018 on     Property Insurance,    

Property insurance policyholders have an obligation to mitigate their losses whether they’re in Florida or any other jurisdiction.  Failure to mitigate such losses can have a myriad negative consequences for the would-be claimant, up to and including a relinquishment of reimbursement rights under the insurance contract.  As such, if you have suffered various property losses for which you are entitled to be paid out, it’s important to consult with an experienced property insurance attorney as soon as is practicable — your attorney will help you identify the steps you can take to ensure that you have expended reasonable mitigation efforts, and that you remain qualified to make a claim for such property losses (pursuant to your coverage plan). Mitigation Basics All property insurance policyholders have a duty to mitigate their losses in the wake of some adverse event that causes covered losses.  Though the specific obligations imposed upon the policyholder may differ from plan to plan, as a general rule, policyholders are expected to make reasonable efforts to mitigate losses to the extent possible. Reasonable mitigation efforts do not require that you exert unlimited efforts in order to prevent further losses.  What is deemed “reasonable” will depend largely on the circumstances.  Exposing yourself to significant harm is not required, nor is the exertion of effort that may confound your abilities. For example, suppose that a tree has fallen onto your house during hurricane-force winds.  Substantial damage has been caused to your house.  When the tree fell, however, an additional nearby […]

Medically-Necessary Treatment and Health Insurance Denials

Fri Jan 19th, 2018 on     Health Insurance,    

In Florida — and in other jurisdictions throughout the country — many health insurance claims are denied on the basis of the insurer evaluating the treatment that their policyholder received as “medically unnecessary” or “medically inappropriate” given the circumstances of the injury or condition.  Despite the fact that most insurers view the claims filed by their policyholders as little more than a nuisance, the gritty reality is that a denial can be life-changing.  Denial of one’s legitimate health insurance claims can lead to significant financial stresses, and even bankruptcy. If you have been subjected to a wrongful denial of your health insurance claim, then it’s important that you get in contact with an experienced Florida health insurance attorney as soon as possible.  You have the right to appeal the denial of your claims, and — potentially — to sue and recover damages pursuant to litigation, if the denial was wrongful.  Contact Ver Ploeg & Lumpkin, P.A. to connect with a skilled health insurance attorney today. What is Medically Necessary? If your claim has been denied on the basis of it not being medically necessary, then you are likely wondering what constitutes “necessity” in the health insurance context.  There is no universal definition of medical necessity.  Generally speaking, each health insurance coverage plan defines “medically necessary” differently. For example, suppose that you suffer serious injuries in a motor vehicle accident and you have to get your leg partially re-constructed using metal scaffolding.  There are a variety of different brands, types, and […]

Insurers Must Process Claims Within a Reasonable Timeframe

Fri Jan 12th, 2018 on     Insurance Claims,    

Florida insurers owe a duty of good faith to their policyholders.  Essentially, Florida law (as is the case in various other jurisdictions throughout the country) requires that insurers avoid acting purely out of self-interest in handling the claims filed by their policyholders.  In processing the claims filed by their policyholders, insurers must act with a degree of care and diligence akin to that a reasonably prudent person who is managing the affairs of their own business.  Failure to act in good faith can expose the insurer to substantial liability, thus giving the policyholder a remedy at law. Importantly, timely processing of claims is among the many violations that legitimate bad faith insurance litigation.  Timeliness is inextricably tied to “bad faith,” as policyholders may be exposed to significant financial distress when there has been a delay. In contexts besides the processing of claims, for example, Florida law ties issues of timeliness to bad faith liability.  Specifically, section 624.155(b) of the Florida Statutes gives policyholders a civil remedy in the event that their insurer has failed to settle their claims in a timely manner. A Florida court will assess whether the insurer has violated their duty of good faith by assessing the “totality of the circumstances.”  For example, if the processing delay is justified by a lack of clarity on relevant facts pertaining to the claim at-issue, and if the insurer has notified the policyholder about the need for further delay (perhaps to perform an additional investigation into the facts), then in […]

Exclusionary Clauses in Property Insurance Policies

Fri Jan 5th, 2018 on     Property Insurance,    

In Florida, as is the case in other jurisdictions, almost all property insurance coverage includes exclusionary clauses that are meant to constrict the ability of policyholders to claim a covered loss.  Depending on the language of the insurance contract at-issue, your claim may be clearly excluded from coverage, or the exclusionary clause may be ambiguous enough that a skilled attorney can convince a court of law to find on your behalf. Fortunately for Florida policyholders, ambiguities in the language of the exclusionary clause are more favorably interpreted for the policyholders, as opposed to the insurer.  Let’s take a look at how it all works. Ambiguities and Exclusionary Clauses in Florida According to the Florida Supreme Court in Swire Pacific Holdings, Inc. v. Zurich Insurance Company, an established principle of insurance law is that — where the insurance contract may be construed either as providing or limiting coverage — the particularities of coverage must be strictly construed against the insurer.  More specifically, exclusionary clauses are construed even more strictly against the insurer than coverage clauses.  As such, ambiguities in the language of your exclusionary clause are much more likely to be construed in your favor.  An insurer cannot therefore benefit from ambiguous exclusionary clauses in the insurance contract that are intended to induce you into entering the contract, only to later interpret them in ways that circumscribe coverage and prevent you from claiming a loss. The Concurrent Cause Doctrine In Florida, the concurrent cause doctrine is applied when there are independent […]

When is an Injury Deemed a Disability for the Purpose of Insurance?

Fri Dec 29th, 2017 on     Disability Insurance,    

In Florida, as in other states, there are a variety of private insurance plans for disability coverage, each with their own respective terms and provisions relating to such disability coverage.  If you are suffering from an injury or other health condition that has rendered you disabled (partial or full), however, then you may find that your insurer — despite having provided you “comprehensive” coverage — has wrongfully denied benefits to you on the basis that your injuries/condition do not qualify as a disability under the plan. You have a number of different options: a) you can resubmit your original application if your documentation was inadequate, or if there was some other procedural issue; b) you can challenge the denial of your original claim through the appeal process; or c) after you have exhausted administrative remedies, you can bring a lawsuit against the insurer for wrongful denial of benefits (and perhaps for bad faith conduct). So, what counts as a disability, and what is defined as a non-disabling condition?  Let’s take a look. Each Plan Has Its Own Rules Your disability policy may differ from others, so it’s important that you have a qualified attorney assess the language of the contract.  Whereas one disability coverage plan may have a broader definition of “disability,” another may have a narrow definition — it’s critical that you understand the range of conditions that your plan covers. Typical Disability Factors Generally speaking, you will be entitled to receive disability benefits if you can show that […]

Understanding the Duty to Defend

Fri Dec 22nd, 2017 on     Insurance Claims,    

As an insured defendant, the fact that the insurer will step in to provide a defense in claims (that fall within the applicable coverage) brought against the defendant is critical to effective litigation in many cases, particularly those where the defendant lacks personal financial assets necessary to pay for the expense of litigation.  Insurers owe a duty to their policyholders to step in and provide a defense in covered claims brought against their insured — this is known as the “duty to defend.” For example, suppose that you are being sued for negligently operating your vehicle and thus causing an accident (and subsequent injuries).  Your liability insurance coverage is $500,000 and requires that the insurer step in to defend claims brought against you for injuries that you caused as a result of negligent driving conduct. If an insurer fails to step in and satisfy their duty to defend, then the defendant-policyholder could be left with the responsibility of securing an attorney on your own and paying for the significant expense of litigation.  Even if the claims are illegitimate or otherwise unlikely to result in an award of damages to the plaintiff, the insurer is required to step in on their policyholder’s behalf in the defense. Failure to Defend Florida law requires that insurers provide a defense in claims brought against their policyholders so long as the claims are covered pursuant to the terms of the policy.  For example, if you have a liability insurance policy that handles motorcycle accidents, but […]

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