News & Resources

If you are involved in a dispute with your insurer over benefits owed in the event that your property has diminished in value (following an accident), then you may be entitled to bring an action against the insurer to secure the desired benefits.  Effectively bringing a diminished value claim can be quite a challenge, however, given that Florida law does not allow such benefits recovery by default unless the insurance policy specifically empowers the claimant to recover benefits for diminution in value. What is diminution in value? Generally speaking, property — such as a motor vehicle — tends to lose value after an accident.  If it has not been adequately repaired, then the loss of value is quite obvious.  On the other hand, even if it has been repaired perfectly and returned to a condition that is otherwise impossible to differentiate from “new,” the property will lose at least some of its original value.  Purchasers who become aware of the fact that a motor vehicle has an accident history are less likely to pay as much for the vehicle than if it had not been involved in accident.  This is a fairly well-studied trend in purchasing. Given the likelihood that your property has diminished in value, adequate compensation must account for such loss.  If you are submitting a benefits claim with your insurer, then you may be wondering whether you are entitled to recover benefits that cover the diminished value of your property. Let’s take a look. Availability of First-Party […]

In some insurance disputes — disability insurance disputes included — policyholders may be surprised to find that their coverage is actually inadequate to pay for their losses.  Insurance agents are not always scrupulous or comprehensive in explaining the terms of the policy that you purchased.  In an effort to make the sale, the insurance agent may be hesitant to explain the contours of such coverage and what benefits you are likely to obtain, and in fact, the insurance agent may recommend a policy that is fundamentally inadequate for your needs and preferences. Fortunately, Florida law gives policyholders the right to sue and recover damages when the insurance company and/or their representatives have misrepresented aspects of the policy. Let’s explore some of the basics. Insurance Agents Have a Duty to Accurately Represent Coverage In Florida, insurance companies and their various representatives — including insurance agents, of course — must clearly and accurately explain the terms of the policy that they’re selling.  They may not misrepresent any relevant aspect of the policy, such as the amount of coverage.  Whether the company representative misrepresented information to you depends on the circumstances of the case. For example, if a simple statement made by the insurance agent would not have misled the average, reasonably prudent policyholder, then in all likelihood, the agent has not violated their duty and misrepresented information.  On the other hand, if the representative knew that your reasonable expectations of the policy were different than the actual terms of the policy, then […]

Though Florida employers are well aware of the standard discrimination and retaliation prohibitions that restrict their ability to discharge and otherwise punish employees for their actions — such as reporting discrimination in the workplace — there continues to be something of a blind spot when it comes to the exercise of ERISA-related rights. Those who exercise their ERISA-related rights may therefore find themselves subject to unexpected retaliatory action, despite the fact that it is prohibited by law.  Fortunately, ERISA offers such employees the opportunity to bring an action against their employer for various damages, an injunction, and a reinstatement of benefits. Consider the basics. Employment Retaliation is Prohibited Under ERISA Section 510 of the Employee Retirement Income Security Act (ERISA) clearly prohibits retaliation against any ERISA plan participant (i.e., covered employees) who exercise their ERISA-related rights, such as pursuing the benefits to which they’re entitled under their applicable plan. Retaliation is rather common, particularly in situations where the exercise of ERISA-related rights could expose the employer to additional costs, or where it could reveal that the employer has acted in bad faith, perhaps by violating their fiduciary duties to plan participants.  For example, if you are injured and are making a significant disability benefits claim under your ERISA-governed plan, then your employer may attempt to terminate you from your position or otherwise “force you out” in an effort to prevent you from exercising your rights and receiving the benefits at-issue. What Qualifies as Retaliation? If you bring a claim against […]

As a disability insurance policyholder, whether you are entitled to secure benefits for your disabling illness, injury, or other condition will depend primarily on your ability to demonstrate that your circumstances qualify you as “disabled” pursuant to the language of your insurance plan.  Insurers are incentivized to interpret plan definitions (and the severity and extent of your condition) in a manner that is unfavorable to your interests — if the insurer can plausibly deny your disability benefits claim, then they can save substantially on costs that would have otherwise been paid out to you. Given the importance of the “disability” definition for your benefits claim, and the likelihood that your insurer will attempt to muddy the waters by interpreting it — and your condition — in a way that is opposed to your interests, it’s worth understanding just how disability is defined in your plan so that you can effectively counter the arguments made by the insurer. Let’s take a look. Variable Definitions of Disability Disability insurance plans either have an own-occupation or an any-occupation definition of what constitutes a “disabling” condition.  The definition described in your plan can have a significant impact on your ability to recover benefits. Own Occupation When a disability insurance policy includes an own-occupation definition of a “disabling” condition, claimants may be awarded benefits so long as they can show that their illness, injury, or other condition has caused them to be unable to perform the major duties of their current occupation. For example, if […]

The Employee Retirement Income Security Act (ERISA) was enacted in 1974, creating a new set of standards and protections for certain covered plans (i.e., private benefit plans granted or sponsored by an employer).  Since its enactment, ERISA has further expanded those standards and protections, which include rules surrounding the Summary Plan Description (SPD). The SPD is a critical document that details the rights and obligations of the policyholder and beneficiaries pursuant to the insurance plan, as well as identifying information about the plan sponsor, administrator, and other relevant concerns.  Under ERISA, the plan administrator must by default furnish the SPD to the policyholders, and must furnish the SPD to beneficiaries upon request. When pursuing a claim against your insurer in a dispute involving an ERISA-covered plan, it’s important that you request and obtain an SPD.  Your attorney will evaluate the SPD and help determine your rights and obligations under the plan, and whether those rights have been violated by the insurer or plan administrator. What Makes an SPD Inadequate? All employee benefit plans must have an SPD, which details the benefits at-issue, eligibility for such benefits, the timeline for benefits, the procedure for claiming benefits, and the various other rights and obligations of policyholders and beneficiaries under the plan.  An adequate SPD must accurately reflect the contents of the ERISA-covered plan — failure to provide an accurate summation of the plan (with the necessary information), or to legally furnish an updated plan to the policyholder or beneficiary, could expose the […]

Though vocational experts are perhaps more well-known for their role in Social Security disputes, they also play a critical role in private disability benefits disputes — as such, it is important to understand how to use vocational experts to your advantage (and how to undermine the testimony of opposing vocational experts) for the purpose of strengthening your benefits claim. Vocational Experts and Disability Insurance Disputes Vocational experts have a very specific role in the disability insurance dispute context — they provide an opinion on career-related issues, which (in conjunction with the medical issues) lie at the very center of a disability benefits dispute.  More specifically, a vocational expert will consider your unique talents, training, education, and physical/mental limitations, and will give testimony as to your capabilities and prospects in the job market.  Vocational experts may also testify as to salary expectations, industry growth, opportunities for advancement in a given career path, and more. For example, if a vocational expert testifies as to the possibility of an alternative career, then they will also have to provide relevant information concerning the salary and opportunities for advancement in that alternative career, given your training/education/abilities.  If opportunities are more limited than your existing career, this difference must be accounted for. Countering Vocational Expert Testimony Vocational experts brought in by opposing counsel may give testimony that clearly conflicts with your interests.  Testimony is not dispositive, however.  It is absolutely possible to weaken and otherwise challenge the testimony of the vocational expert by calling into question […]

In Florida, and throughout the country, mediation of complex insurance disputes (whether a disability insurance dispute, health insurance dispute, or otherwise) is a common strategic option employed to resolve the conflict before litigation.  Through the mediation process, the involved parties — insurer and policyholder — can negotiate a favorable settlement that satisfies their expectations while avoiding the hassles and difficulties typically associated with insurance litigation. Litigation May Be Fraught With Difficulties Litigation can be somewhat risky for many plaintiffs, whether in the insurance context or otherwise.  Going through with trial litigation can be time-consuming, expensive, emotionally frustrating, and uncertain.  For example, if you have suffered a disabling injury and are unable to return to work, then the prospect of litigation — and the possibility of a long and demanding trial process — may be undesirable. Generally speaking, insurance policyholders hope to secure benefits within a reasonable timeframe.  Litigation not only extends that period, but may expose the policyholder (and their insurance dispute) to public criticism, thus damaging other aspects of their life.  Thus, where possible, a negotiated settlement is usually preferred. How Mediation Can Lead to a Favorable Settlement Litigation is fundamentally hostile — each side is arrayed against the other, constantly seeking an advantage.  By contrast, mediation is a voluntary process where the disputing parties attempt to negotiate a settlement compromise in a more collaborative environment.  During a mediation, a neutral third-party mediator is selected.  The mediator will hear out the arguments presented by each party (in a less […]

Residual disability benefits are common, in Florida and throughout the country — whether in the form of an insurance rider on a total coverage plan, or as a standalone income replacement policy — as a means with which to ensure that the claimant can secure at least some benefits after suffering a disabling event that is not necessarily catastrophic. For example, if you are injured in a car accident, then you may suffer a disability in the form of back spasms, but this disability may not be “total” in the sense that you might be capable of performing your existing job.  Residual benefits open up insurance coverage, to an extent, by allowing you to recover for disabilities that effect certain job duties, but that do not necessarily prevent you from working altogether. Despite the fact that residual benefits are intended to fill the coverage gaps typical of total disability insurance policies, many insurers will challenge residual benefits claims and make it difficult for claimants to secure the benefits to which they’re entitled. Qualifying for Benefits Whether you actually qualify for residual benefits depends on the particularities of your insurance plan — there is no universal, consistent baseline for residual benefits, as plans can vary quite substantially.  Residual benefits are a form of partial income replacement, and as such, many plans involve a showing of income loss of a sufficiently significant degree.  For example, your plan may require that you demonstrate — post-disability — that your income has fallen at least […]

Disability insurance coverage can surprise many policyholders who put too much trust in their insurer to “do right” by them.  All too often, disability insurance policyholders believe that they are well-protected by their private policy, only to find that their insurer is taking steps to avoid or minimize the payout altogether. In many cases, the insurance contract itself includes language that could expose the policyholder to a dispute down the line, when they have actually been disabled.  It is increasingly common for insurers to include a limitation on benefits for disability claims that are premised on psychiatric conditions (i.e., mental disorders) — this limitation is commonly referred to as the “mental and nervous” provision. Let’s briefly consider the fundamentals. How the Mental and Nervous Provision Works Claimants may be initially confused by the application of the “mental and nervous” provision in their insurance policy, but it’s rather simple in effect.  The provision essentially limits the duration of benefits payments for disability claims where the cause of the disability at-issue is based exclusively on a psychiatric condition. Generally speaking, only the length of payments are limited, not the amount.  For example, if you have been suffering from a substance abuse condition (say, alcoholism), and the addiction is so serious that it has effectively rendered you disabled and unable to work, then you may be entitled to benefits, but only for a limited period of time — perhaps a two-year period. Insurance policies can vary quite a bit, but as a general […]

The Employee Retirement Income Security Act (ERISA) established certain standards for qualifying plans — more specifically, for private employee benefit plans — that are intended to protect employee-claimants from abuse, mismanagement, and various other concerns commonly encountered in the insurance dispute context.  Over the years, ERISA has been expanded quite substantially.  If your insurance plan is governed by ERISA regulation, you may be entitled to notification and the opportunity to appeal an adverse decision relating to your benefits. What is an Adverse Benefit Determination? Pursuant to existing ERISA regulation, an “adverse benefit determination” is any decision by the insurer that involves the denial, reduction, or termination of an insurance benefit. For example, if your insurer chooses to reduce your benefits on the basis of improvements in your disabling condition, then that would almost certainly constitute an adverse benefit determination. Adverse benefit determinations afford the claimant certain rights necessary to protect their interests.  When an insurer (plan covered by ERISA) makes an adverse benefit determination, they must provide adequate notice of the decision.  Further, the claimant must be given the opportunity to appeal within 180 days of the adverse benefit determination at-issue.  This 180-day rule gives the claimant a significant time period with which to secure qualified legal assistance and challenge the insurer’s decision. Insurance Plan Administrator Must Give a Reasonable Basis for the Determination Discretionary authority of insurers in ERISA-covered plans is limited.  Any and all adverse benefit determinations must be accompanied by an explanation that gives a reasonable basis […]