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Author: VPL Law

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Liability Insurers Have a Duty to Defend

Thu Jan 31st, 2019 on     Insurance Law,    

Miami Insurance Law Firm Liability insurance coverage is purchased to avoid the significant risks associated with a lawsuit, but insurance coverage does not always work out in a way that the policyholder might expect.  Insurers maximize their profits by minimizing their time investment and other costs.  It should therefore come as no surprise that liability insurers frequently deny coverage and skirt their plan-based responsibilities.  This can put the policyholder in an incredibly vulnerable position, particularly if they do not have the assets necessary to resolve their liabilities without coverage. Among the insurer’s responsibilities is the “duty to defend.”  Let’s take a closer look. Understanding the Duty to Defend Duty to Defend Requires Coverage Liability insurers are not required to step in and defend policyholders against third-party claims unless coverage would apply in the situation at-hand.  The legal duty only activates in situations where the insurer could be responsible for the damages. For example, suppose that you have purchased a marine liability insurance policy.  The policy precludes coverage in situations where you were intoxicated at the time of accident.  If your insurer is not “on the hook” for damages due to your intoxication, then they have no duty to defend you in litigation against the third-party claimant. Bad Faith Conduct In Florida, insurers may be held liable for their bad faith conduct in relation to the duty to defend.  Insurers may act in bad faith in a number of different ways, including the refusal to step in and defend their policyholder […]

Medical Devices and Health Insurance Denial

Thu Jan 24th, 2019 on     Health Insurance,    

Miami Health Insurance Lawyer Though healthcare insurance denials are common, many policyholders are shocked when they are denied benefits for having received a medical device at the behest of their treating physician.  In truth, healthcare insurers are built to deny as many claims as they can reasonably justify.  They profit and thrive on the expectation that you will not challenge their decision and that they will “get away” with not having to pay out the benefits that you might be owed. We can help. If you’ve had your healthcare insurance claim denied on the basis that your medical device is not covered by your policy, or for any other reason, then you may be entitled to challenge their initial decision and secure benefits.  Contact Ver Ploeg & Lumpkin, P.A. for further assistance with your dispute. Let’s take a brief look at the basis for such denials. Medical Necessity Generally speaking, health insurers deny benefits for medical devices on the basis of medical necessity, which is a rather broad concept.  Every insurance policy is different, of course, and the definition of “medical necessity” can vary considerably from plan-to-plan.  Most share certain commonalities, however. Determining whether a device is medically necessary requires a comprehensive evaluation of factors: whether the use of such device is clinically appropriate, whether it has been provided in accordance with generally accepted standards of practice, and whether it is no more costly than competing devices or therapies that could produce an equivalent result. For example, suppose that you […]

Intentional Misconduct is Not Covered by Commercial General Liability Insurance

Thu Jan 17th, 2019 on     Insurance Law,    

Miami Insurance Law Firm If you’re being sued by a third-party due to them having suffered injuries in an accident that could implicate your commercial general liability (CGL) insurance coverage, then you may find yourself facing new and unexpected challenges. Insurers have a tendency to deny claims when they can just barely justify doing so, even if they are making bold and unsupported assumptions.  In the CGL insurance context, this often happens with regard to intentional misconduct.  If the insurer can paint your behavior as intentional misconduct, and not merely negligence or recklessness, then they can legitimately deny your claim and avoid having to payout. Intentional misconduct is typically not covered by CGL insurance.  As such, the key to recovering your benefits is in clearly establishing that the conduct at-issue does not demonstrate intent. Intent Can Be Difficult to Prove Unless the circumstances clearly indicate an intent to violate the law or otherwise cause harm, then the insurer may find that painting a picture of your conduct as intentional is quite difficult.  For example, suppose that the defendant slips and injures themselves in your retail store.  Your insurer is refusing to payout for the damages, however, because they believe that the injury was caused by your intentional misconduct — that you wanted to hurt the customer, so you spilled water on the floor to cause them to slip and fall.  In order for the insurer to prove that you intentionally caused the injuries, they’d have to find evidence of your […]

Concurrent Causation in Property Insurance Disputes

Thu Jan 10th, 2019 on     Property Insurance,    

Miami Property Insurance Lawyer In Florida, and elsewhere, property insurance policyholders frequently have their claims denied due to the existence of “concurrent causes” of loss.  A concurrent cause is one of multiple causes that contributed to the damages at-issue.  For example, if your house is damaged in a severe tropical storm, some of the losses may be due to water, and some due to wind.  The wind conditions and the water damage might each be reasonably defined as concurrent causes. Property insurance policyholders (i.e., homeowners, real estate developers, condo associations, small and large businesses, and more) may be put into a vulnerable position if their insurer denies a legitimate property insurance claim or pays out only a portion of the claim on the basis that there are concurrent causation issues. So, how might concurrent causation affect your own property insurance claims?  Let’s take a closer look. Florida Applies the Concurrent Causation Doctrine In Florida, the concurrent causation doctrine allows policyholders to recover for both covered and non-covered losses if they happen concurrently.  This prevents insurers from engaging in attempts to define some portion of your losses as non-covered (and therefore denying your claim on that basis), and only paying out the covered loss portion. For example, suppose that your home is damaged in a fire.  As a result, your water lines are damaged, which causes leakage and further losses to your home.  Even if your policy excludes water damage, but covers fire damage, you would be entitled to recover benefits […]

Experimental Treatments and Health Insurance Coverage

Fri Dec 28th, 2018 on     Health Insurance,    

Health insurance policyholders who are suffering from catastrophic or even life-threatening injuries, illness, and other medical conditions may find that their insurance carrier is not necessarily amenable to extending coverage to experimental treatments.  Though the outcome of an experimental treatment may not be certain, and though there may be concerns about efficacy, safety, and long-term health, there are many patients who are left with no other recourse. If your insurer has denied coverage for an experimental treatment that could fundamentally better your quality of life, or even save your life altogether, then you may be entitled to challenge their denial and obtain the benefits you deserve. Let’s explore the basics of medical necessity and health insurance policies. Medical Necessity, Cost-Effectiveness, and Other Concerns Private health insurance plans vary quite a bit.  Most insurance carriers offer health insurance coverage which requires that the policyholder demonstrate the “medical necessity” of their treatment in order to recover benefits.  There may be various exclusions, conditions that automatically qualify for benefits, etc., but medical necessity is often the underlying concept through which all benefits determinations are filtered. There is often no clear agreement about the meaning of medical necessity, however.  Some insurers will argue that “medical necessity” must involve an evaluation of cost-effectiveness as well.  Others will focus on the “need” aspect but may disagree that experimental treatment to improve a patient’s overall quality of life is medically necessary. Experimental Treatments Involve “Sliding Scale” Considerations As a general rule, experimental treatments are not clearly and […]

Common Justifications for Homeowner’s Insurance Claim Denial

Fri Dec 21st, 2018 on     Property Insurance,    

In the homeowner’s insurance context, insurers deny claims for a variety of reasons, some reasonable, some not so reasonable.  Fundamentally, insurers are incentivized to deny claims and minimize their payouts.  For example, if you are entitled to recover $100,000 in a homeowner’s insurance claim, but the insurer’s initial denial convinces you not to bother pursuing the insurance claim, then the insurer will have saved a substantial amount of money by simply acting adversely to your interests. It’s important to understand, however, that if the denial was wrongful, then you may be entitled to challenge their decision and secure the benefits that you’re owed.  Let’s take a closer look at the common justifications underlying a homeowner’s insurance claim denial. Loss Does Not Exceed the Deductible Most homeowner’s insurance policies include a deductible for various claims.  If you are attempting to make a “small” claim, the insurer may deny it on the basis that the loss is not significant enough to exceed the deductible amount. Loss is Not Due to a Sudden Event Losses caused by long-term issues — maintenance-related and otherwise — are generally not covered by homeowner’s insurance.  For example, if your home develops wood rot, the damage caused is often not accounted for by standard homeowner’s insurance coverage.  You may have to obtain supplemental coverage for such issues. There is Third-Party Liability In the event that a third-party is responsible for the damage to your house, your insurer is very likely to deny coverage — it is the third-party […]

Intentional Conduct May Be Excluded from CGL Insurance Coverage

Fri Dec 14th, 2018 on     Insurance Claims,    

Businesses purchase expensive CGL coverage in order to prevent — or at the very least, to minimize — the damaging impact of a lawsuit on their continued commercial operations. For example, a grocery store might purchase CGL insurance so that they are covered if a shelf falls on a customer or if a customer slips-and-falls and injures themselves.  In the event of a lawsuit for such injuries, the store would be defended by their insurer (and the damages would be paid out by the insurer). In reality, however, CGL insurers are always looking for ways to back out of coverage and avoid the hassle and expense required by the insurance policy.  There are a number of circumstances under which a CGL insurer need not extend coverage, including situations that involve intentional misconduct. Disputes surrounding commercial general liability (CGL) insurance coverage can be rather complex, and may confuse first-time claimants.  Let’s take a look at the basics of the intentional misconduct exclusion. Exclusion for Intentional Misconduct CGL insurance coverage typically excludes the intentional misconduct of the insured, and in fact, it is quite rare for such policies to payout for intentional misconduct.  The critical issue in many CGL insurance disputes, then, is whether the conduct of the policyholder qualifies as excluded “intentional misconduct” pursuant to the language of the underlying policy. Generally speaking, whether conduct is deemed “intentional” for the purposes of a CGL insurance claim depends on whether the damaging event was: 1) expected, or 2) intended by the policyholder. […]

Fundamental Unfairness in an Insurance Contract

Fri Dec 7th, 2018 on     Insurance Claims,    

Let a Miami Insurance Litigation Lawyer Help All too often, insurance policyholders find themselves beholden to policies that are fundamentally unfair.  Perhaps the insurance contract includes a mandatory arbitration provision that is not explained properly.  In the alternative, perhaps the insurance contract includes a rather odd and unexpected provision such as indemnity for costs in the event of a challenge. If you’ve had a legitimate claim for insurance benefits denied on the basis of a fundamentally unfair provision in the underlying insurance contract, then you may be entitled — under pervading Florida common law — to bring an action against your insurer and have the provision at issue modified or ignored. In Florida, unconscionable contract provisions cannot be enforced, but it can be quite difficult to show that a provision of your insurance contract is unconscionable.  Let’s take a closer look at the concept. What Qualifies as an Unconscionable Contract Provision Under Florida Law? A contract provision will be deemed unconscionable if it is both procedurally and substantively unconscionable.  Florida applies a sliding scale when determining unconscionability — stated simply, a contract provision may be deemed unconscionable if it is “mostly” procedurally unconscionable or “mostly” substantively unconscionable.  It is not necessary that both procedural and substantive unconscionability be at the same level. So, what are the two forms of unconscionability? Procedural unconscionability involves unfairness relating to the manner in which the contract was entered.  Factors influencing procedural unconscionability include: the lack of a meaningful choice at the time the contract […]

Insurance Agents Do Not Have a Duty to Advise Policyholder With Regard to Coverage

Fri Nov 30th, 2018 on     Insurance Claims,    

If you’re experiencing issues with regard to making an insurance claim, then you might be wondering about the liability of the insurance agent who marketed and brokered the contract in the first place.  In the event that you were misled or otherwise misinformed by your insurance agent, Florida law may entitle you to bring an action against them for damages as compensation for your losses.  Under certain (limited) circumstances, a failure to advise you as to what would be “ideal” or “sufficient” coverage may also give rise to a cause of action for damages. Let’s take a closer look. No General Duty to Advise Insurance agents do not have a general duty to advise prospective policyholders on what coverage they should procure.  Simply put, an insurance agent’s failure to advise you on what sort of policy you should ideally acquire is not actionable — the insurance agent need only explain the details of coverage and exercise care when selecting such coverage (at the direction of the client). Exceptions exist, however. Special Relationship May Be Created Under Limited Circumstances In Florida, if the insurance agent created a special relationship with the prospective policyholder above and beyond that of a normal insurance agent — for example, if they offered insurance advisory services to the policyholder — then there may be a duty to properly advise the prospective policyholder on coverage.  Failure to exercise reasonable care in this regard could expose the insurance agent to significant liability. Confused?  Consider the following. Suppose that […]

What is an Appraisal Clause and How Does it Work?

Fri Nov 23rd, 2018 on     Property Insurance,    

In Florida — as in other states — attempting to recover fully for your property losses can be quite a challenge.  Insurers understand that you may be in a vulnerable position, and they may take advantage by undervaluing your property losses or by otherwise appraising the property at issue in a way that creates an even more lopsided dynamic. If you find yourself disagreeing with your insurer over the value of your property losses, then you may want to explore the insurance appraisal process.  “Appraisal” is an alternative dispute resolution process that is included in many property insurance policies as a voluntary option in the event of a disagreement.  It’s important to note that appraisal is not a panacea — it is problematic in many ways, though (depending on the circumstances) you may want to consider the option. Let’s take a closer look. Understanding the Appraisal Process The appraisal clause in a property insurance policy allows the policyholder to demand an appraisal of the loss when there is a disagreement.  Each party selects a competent and impartial appraiser to separately evaluate the amount of the loss at-issue.  A neutral umpire is also selected — this umpire will determine the correct amount of the loss if the two impartial appraisers cannot come to an agreement. Appraisal is binding, which is to say that the amount determined by the umpire must be accepted by each disputing party (the policyholder and the insurer). Given the high stakes of appraisal, it’s important to work […]

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