News & Resources

Category: Insurance Claims

Keeping you informed is part of our mission.

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 […]

What Does a Vocational Expert Do?

Fri Aug 24th, 2018 on     Insurance Claims,    

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 […]

Adverse Benefit Determinations Under ERISA

Tue Jul 24th, 2018 on     Insurance Claims,    

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 […]

Listed in Best Lawyers
Best Law Firms - Insurance Law
Super Lawyers
Florida Legal Elite
Top Lawyer - South Florida Legal Guide
Association of Corporate Counsel - South Florida Chapter
Back to top