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Category: Insurance Claims

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Guide to Bad Faith Insurance Claims in Florida

Fri Mar 22nd, 2019 on     Bad Faith Insurance,    

If your insurance company has denied your claim or resolved it unsatisfactorily, you may be able to bring a bad faith claim against them in court.  Of course, not every denial constitutes bad faith. As Miami insurance claim lawyers, we are experienced in determining whether an insurer has handled a claim appropriately and in recognizing bad faith insurance practices.  For a policyholder, the first step is to educate yourself as to what your insurance company is obligated to do.  The law requires insurers to act in good faith and to engage in fair deals.  Specifically, they are obligated to: Recognize your claim; Investigate in a prompt manner; Respond quickly to your communications; Not slow down the progression with unnecessary forms; and Offer actual reasons for denial of your claim or delays in the process. There are Two Types of Bad Faith Claims A “first-party” bad faith claim arises when an insurance company unreasonably refuses to pay a claim or to properly investigate a claim.  A “third-party” bad faith claim is when an insurance company unreasonably fails to defend, indemnify or settle a claim within policy limits or to investigate a claim for a different-party, such as when the insured (the first party, you) buys insurance from the insurance company to protect against claims from another (the third party).  Florida Law on Bad Faith Claims The good news for bad faith claimants in Florida is that the law is quite clear.  The statute provides that “any person may bring a civil […]

Federal Court Decision Clarifies Timing for Bringing Bad Faith Claims

Thu Feb 7th, 2019 on     Insurance Claims,    

The Eleventh Circuit Court of Appeals, which includes Florida, Georgia, and Alabama, has made clear that a five-year statute of limitations applies to bad faith claims in Florida. The case involved a policyholder’s bad faith claim against his automobile liability insurance provider for failing to settle a personal injury lawsuit. The insured had timely notified his carrier of a personal injury lawsuit brought against him involving an incident in which a passenger in his car suffered serious injuries after being ejected from the car. The insurer failed to settle the dispute and a jury returned a verdict well in excess of the insured’s coverage.  Insured Brings Bad Faith Claim Approximately four years and seven months after the $2.6 million judgment was entered against him, the insured filed a federal court claim against his insurer for failing to negotiate and settle the case in good faith. He also argued that the insurance company failed to advise him of settlement opportunities, warn him of the possibility of an excess judgment, adopt and implement standards for the proper investigation and handling of claims, and properly train its adjusters and claims personnel. Trial Court Dismisses Action as Time Barred The Florida trial court dismissed the case as time barred by the four-year statute of limitations for intentional torts (a category that includes assault, false imprisonment, slander). The court characterized the action as one for the breach of fiduciary duties, which is considered a tort. The insured appealed.     Bad Faith Claim Against Insurance Company […]

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 […]

ERISA Claimants Must Exhaust Their Administrative Remedies

Fri Oct 19th, 2018 on     Insurance Claims,    

If you have had your insurance benefits claim denied or otherwise mishandled by your insurance company, then you’re entitled to challenge the adverse determination made by your insurer under Florida (and federal) law.  It’s important to note, however, that the procedures and limitations applicable to your case will be somewhat different than the “standard” if your insurance benefits policy is ERISA-governed. The Employment Retirement Income Security Act (ERISA) is a federal regulatory scheme that establishes a unique set of standards, protections, and limitations that are applicable to qualified plans (e.g. all private insurance benefits plans that are provided or sponsored by one’s employer, so long as it is a non-religious organization). Among the unique requirements imposed by ERISA is that of “administrative remedy exhaustion.”  Those looking to claim benefits under an ERISA-governed plan are likely to encounter this limitation. Let’s take a look at some of the basics. ERISA Remedy Exhaustion Basics If your claim has been denied — or if you have been subject to some other serious and adverse determination (i.e., undervalued claim, award of partial benefits as opposed to full benefits, etc.) — then you may challenge the insurer’s decision, but ERISA requires that you go through an internal process known as the “administrative appeals” process. More specifically, ERISA requires that claimants first exhaust their administrative remedies available under their plan — the internal appeals process — before bringing a lawsuit in civil court.  In fact, claimants are not legally entitled to bring a lawsuit until they […]

How Ambiguous Insurance Provisions Are Resolved

Fri Oct 12th, 2018 on     Insurance Claims,    

Whether you’re a policyholder in a health, disability, or property insurance plan, it’s possible that you will encounter — or have already encountered — some blowback when it comes time to submit a claim for benefits.  Insurers are fundamentally incentivized to deny, undervalue, or otherwise mishandle claims so that they can minimize their own costs.  This is particularly true in situations where an important coverage-related provision of the contract is ambiguous and therefore open to interpretation. In many cases involving an adverse determination by the insurer, the policyholder-claimant is taken by surprise — after all, the policyholder may have interpreted an ambiguous provision quite differently than the insurer. Let’s take a look at how benefits disputes associated with such ambiguities are resolved. Interpreting Ambiguity in an Insurance Policy If you believe that your insurance policy contains an ambiguous provision that is being misinterpreted by the insurer in an effort to deny your rightful benefits, then it’s important that you don’t despair — it’s not necessary that you resign yourself to insurer’s decision.  Florida law imposes beneficial rules that protect you in circumstances where ambiguous insurance provisions are being misinterpreted or misused. Favoring the Claimant In Florida, ambiguous insurance provisions are strictly interpreted in favor of the insurance claimant — the courts must interpret any genuine ambiguities against the interests of the insurance provider. Suppose, for example, that you are a property insurance policyholder, and your plan contains an exclusion clause that is somewhat ambiguous.  Perhaps the clause prevents you from […]

Reasons to Avoid the Internal Appeals Process

Fri Oct 5th, 2018 on     Insurance Claims,    

If you have had your insurance benefits claim — disability, health, property, etc. — denied or otherwise subject to an adverse determination, then you are entitled by law to challenge the insurer’s determination.  Generally speaking, your plan will determine many of the protections and limitations relevant to your benefits claim (and any subsequent challenge). Policies that are ERISA-governed, for example, require that the claimant first exhaust their administrative remedies — by going through an internal appeals process — before bringing a civil action against the insurer for benefits and other damages. In situations where the policy is not ERISA-governed, by contrast, claimants are not bound to go through the internal appeals process.  They may choose whether to bring a civil action against the insurer, and in fact, many claimants choose to do just that instead of dealing with the additional hassle of the internal appeals process.  Pursuing a lawsuit puts immediate pressure on the insurer to reconsider their earlier decision and payout the benefits that you’re owed. Consider the following. Review Not Conducted by a Neutral Third-Party In many cases, those policyholders who have had their benefits claim denied (or otherwise been subject to adverse determination) choose to go through the internal appeals process with the intention of minimizing the time, cost, and complication they associated with litigation.  The policyholder may also not be comfortable with approaching an attorney for assistance until they have navigated the internal appeals process first. In truth, however, the internal appeals process can be something […]

Employers Cannot Punish Employees for Exercising ERISA Rights

Fri Sep 14th, 2018 on     Insurance Claims,    

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 […]

ERISA Summary Plan Descriptions Must Be Clear

Fri Aug 31st, 2018 on     Insurance Claims,    

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 […]

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