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How Are ERISA-Covered Plans Different Than Standard Plans?

Fri Jun 29th, 2018 on     Disability Insurance,    

In 1974, the Employee Retirement Income Security Act (ERISA) was enacted, thus creating new standards governing private employee benefit plans — such as employer-sponsored disability, health, and welfare insurance, among other plans.  In Florida and elsewhere, ERISA does not require that employers purchase private insurance coverage for their employees, but it does impose a stricter set of rules on such plans so that employee-policyholders are protected from the potential abuses of plan administrators and others. If you are a private employee in Florida, and you are a participant in an employee-sponsored benefits plan, then in all likelihood your plan is ERISA-covered.  This not only ensures that your plan will be governed by federal law (i.e., ERISA regulation), as opposed to Florida law, but also subjects you to various advantages and disadvantages when it comes to litigating claims against the insurer. Consider the following. Fiduciary Duties Give Rise to Legal Action ERISA establishes a range of fiduciary duties and obligations, which gives policyholders new opportunities to sue and recover damages for fiduciary violations.  For example, suppose that you are a policyholder in an employer-sponsored welfare plan.  You later discover that the funds were mishandled by the fiduciaries (i.e., the plan administrator and their agents), and this will have a substantial impact on your later benefits.  You would be entitled under ERISA to sue the fiduciaries and secure damages as compensation for your various losses. Florida Bad Faith Law is Preempted Under state law, section 624.155 of the Florida Statutes establishes bad […]

Common Liability Insurance Exclusions

Fri Jun 22nd, 2018 on     Insurance Law,    

Most businesses in Florida and elsewhere purchase some form of commercial general liability (CGL) insurance coverage so as to avoid the potentially disruptive effect of a personal injury lawsuit brought against the business. For example, a small retail business with few assets may only have enough funds to cover costs — if a customer slips-and-falls on the premises, and thus severely injures themselves, then the ensuing lawsuit could seriously disrupt (and even bankrupt) the business. CGL insurance coverage is fairly expansive, and covers all damages associated with the policyholder’s negligence (in a business context).  As a CGL policyholder, however, you may find that the insurer denies coverage due to an exclusion of which you were not fully aware. In fact, certain exclusions are rather common in the CGL insurance context, so it’s important to take them into consideration when submitting a claim (and ultimately, when challenging the adverse decision of your insurer). Consider the following. Intentional Acts Generally speaking, intentional acts are not covered by CGL insurance — only negligent acts are covered.  For example, if you have a negative relationship with a particular customer, and in a bout of anger, you shove the customer to the ground and cause them to suffer injuries, then your CGL insurer will likely avoid a payout due to the intentional nature of the act at issue. No Business Pursuit Involved CGL insurance policyholders are not entitled to submit a claim for benefits for liabilities sustained in a situation that is unrelated to their […]

Four Ver Ploeg & Lumpkin Attorneys Named Florida Super Lawyers For 2018 And Five Honored As Rising Stars

Tue Jun 19th, 2018 on     Uncategorized,    

MIAMI, FL —Ver Ploeg & Lumpkin is pleased to announce that four of its attorneys have been selected to the 2018 Florida Super Lawyers list for the Insurance Coverage practice area. They are Brenton N. Ver Ploeg, R. Hugh Lumpkin and Stephen A. Marino, Jr., all shareholders in the Miami office, and Robert P. Major, of counsel in the firm’s Orlando office.  No more than five percent of the attorneys in the state are selected to Super Lawyers.  Five attorneys from the Miami office were named as 2018 Florida Rising Stars for Insurance Coverage: Shareholders Matthew B. Weaver, Benjamin C. Hassebrock and Rochelle N. Wimbush,  and associates Arya Attari Li and Michal Meiler who were named to the list for the first time.  All of the attorneys at Ver Ploeg & Lumpkin focus their practice entirely on insurance litigation and appeals, representing clients in both state and federal courts. Super Lawyers, part of Thomson Reuters, rates lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a comprehensive and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence […]

Are Insurance Benefits Affected by Damages Recovered in a Lawsuit?

Fri Jun 15th, 2018 on     Disability Insurance,    

Oftentimes, insurance policyholders who are already receiving benefits (or who intend to submit an application for benefits) are concerned about how their qualification for such benefits will be influenced by their success in litigation.  This is a reasonable concern, of course — it seems sensible that one’s disability benefits may be affected by their receipt of hundreds of thousands of dollars, or even millions of dollars in damages from the liable defendant in a personal injury lawsuit. In reality, however, the effect of a settlement or verdict on one’s receipt of benefits is not necessarily straightforward.  Whether these concerns are valid is fundamentally dependent on the circumstances. Let’s take a brief look at the situation. Income-Based Benefits May Be Affected In Florida, as in other states, private insurance coverage — such as disability insurance, health insurance, and property insurance, among other policies — is generally not affected by the receipt of damages in a settlement or verdict.  It’s a rather simple calculus, in fact.  Private benefits are typically not awarded based on “financial need” or income, and so by securing substantial financial resources through a lawsuit, you do not influence the provision of benefits under your existing coverage. For example, suppose that you have entered into an agreement for private disability insurance coverage.  You subsequently are involved in a motor vehicle accident where you suffer injuries that give rise to a disabling condition.  In your lawsuit, however, you are awarded $1M in damages. Unless your policy includes some provision that […]

How Are Disability Benefits Calculated?

Fri Jun 8th, 2018 on     Disability Insurance,    

In Florida, and throughout the country, whether you receive disability benefits — and the benefits amount that you are awarded by your insurer — depends largely on the disabling condition at-issue and the provisions of insurance policy.  As policies can vary quite substantially, you and your attorney will have to closely evaluate the language of your insurance agreement in order to determine the benefits to which you’re entitled. Generally speaking, the disability benefits calculation begins with the insurer’s determination of your condition.  Some policies have stricter, more restrictive definitions of “disability,” which require that the policyholder demonstrate that they cannot work any job (not just their current job).  In any case, if you qualify as “disabled” under the plan, then you may receive disability benefits. Benefits are very likely to differ based on the structure of your disability insurance plan, however.  Let’s take a look. Percentage-Based Income Replacement In the private disability insurance context, the benefits you receive are often a critical issue in negotiations when initially signing onto an insurance plan.  Percentage-based benefits are desirable for knowledge workers and other white-collar workers with high monthly wages.  For example, if you are a medical professional earning $20,000 per month, then 50 percent of your monthly wages in benefits will be $10,000 — though it represents a substantial drop in total income, it is likely to be sufficient to cover your immediate financial needs. Benefits Capped Out Bear in mind that in many policies where the benefits are paid out based […]

What is the Procedure for Challenging a Claim Denial in Florida?

Thu May 31st, 2018 on     Insurance Claims,    

In Florida, insurance policyholders are not required to accept the original determination of their insurer — for example, the denial of a submitted disability insurance claim, or an unusually low benefits payout.  Policyholders are entitled to dispute such decisions. Depending on your insurance policy, there may be an internal appeals procedure that you’re required to follow in order to dispute your insurer’s adverse determinations.  Some policies allow for third-party review without having to go through the internal appeals procedure, however.  In any case, certain policyholders will have to exhaust their administrative appeals options before they are entitled to sue and recover damages pursuant to the traditional litigation process. Resubmitting a Claim Before you move through the appeals process, you’ll want to consider the possibility of gathering additional documentary evidence of your various covered losses and resubmitting your claim.  In many cases, the insurer will simply deny an otherwise legitimate claim on the basis of insufficient evidence. Internal Appeals Process If your insurer makes an adverse determination — for example, if they deny your claim for benefits, or significantly undervalue the benefits to which you’re entitled — then you may appeal their determination internally. The procedure for appealing an adverse determination varies considerably depending on the type of insurance involved, the insurance company, and the specific language of your insurance agreement.  For example, your property insurance policy may require that you to meet with a third-party appraisal specialist before moving through the appeals process.  Others may require that you utilize an […]

What Makes Long-Term Disability Insurance Unique?

Fri May 25th, 2018 on     Disability Insurance,    

Generally speaking, in Florida and throughout the country, disability insurers will utilize whatever means necessary — whether you have short-term disability insurance coverage or long-term disability insurance coverage — to undervalue a policyholder’s claim, or to otherwise avoid having to payout the claim altogether.  Insurers rely on the fact that many policyholders are unwilling to challenge their decision, even if their decision is not justified by the evidence. If you’ve had a legitimate disability claim denied by your private insurer, you do not have to standby and accept their decision — if you appeal the decision or pursue traditional litigation thereafter, it may be possible to have it reversed. What is Long-Term Disability Insurance? Long-term disability (LTD) insurance is private disability insurance coverage that acts as an income replacement if you are rendered disabled and therefore incapable of working.  LTD insurance lasts for a year (at minimum), and up to a lifetime (at maximum) — depending on the policy that you have entered.  As such, it can function as a permanent income replacement in some cases. By contrast, short-term disability (STD) insurance is private disability insurance coverage that acts as a temporary income replacement, usually between three months and one year in duration. STD insurance and LTD insurance need not conflict.  In fact, comprehensive insurance coverage generally involves purchasing STD and LTD insurance policies that overlap.  Once the STD insurance benefits period has ended — assuming that you are still disabled — then the LTD benefits will kick in, ensuring […]

Be Careful What You Post to Social Media — Insurers May Be Investigating

Fri May 18th, 2018 on     Disability Insurance,    

In Florida (and throughout the country), disability insurance policyholders must take special care not to post potentially compromising text, photos, and videos to their various social media accounts.  Insurance companies are increasingly making use of evidence that their investigation teams dredge up on social media accounts to undermine policyholder claims and thereby justify a denial. Insurers Have Always Investigated Inconsistencies Disability insurers have a long history of using privacy-invasive tactics in order to investigate potential inconsistencies in policyholder claims.  In decades past, insurance companies would direct their internal investigation team (or hire out a third-party investigation team) to commit to surveillance activities — after some time, they might discover that the policyholder was not suffering from as severe a disability as was originally claimed. How Social Media Has Changed the Investigations Process With the advent of social media, insurance investigations teams have expanded their activities to include digital surveillance.  Posts that you make on social media will almost certainly be monitored by your disability insurer. How does it work? Remember, disability insurers only owe benefits if you are actually disabled — in other words, if you are suffering from a condition that renders you incapable of working, to the degree set out in the policy.  Insurers conduct surveillance so that they can “catch” you doing something that you should not be able to do given your claimed disability. For example, imagine that you suffer a back injury in a motor vehicle accident that causes you to experience severe pains and […]

Can You Make a Property Insurance Claim That Includes Damage for Loss of Use?

Fri May 11th, 2018 on     Property Insurance,    

In Florida, where hurricanes, tropical storms, and other natural disasters are a regular feature of life, property insurance claims frequently involve “loss of use” coverage issues.  Standard property insurance coverage does not necessarily cover all the various losses suffered by a policyholder.  Loss of use coverage — which may be its own separate policy, or simply a provision built into an existing homeowner’s insurance or renter’s insurance policy — helps fill in the gaps, so to speak. What is the Purpose of Loss of Use Coverage, Exactly? Loss of use coverage is rather straightforward in terms of its function — simply put, it is designed to account for losses related to the policyholder’s inability to make normal use of the property.  What constitutes “use” will vary depending on the policy and depending on the particular nature of the loss. Generally speaking, most loss of use coverage makes provisions for benefits in three different and broadly-applicable situations: Heightened cost of living Loss of rental income Legal prohibition on access All this legalese may seem confusing at first glance, so let’s do a brief walk-through of some examples to clarify how it all works. Suppose that you have loss of use coverage through your existing homeowner’s insurance policy.  One day, your primary residence is severely damaged by a hurricane, and as a consequence, you are forced to move out and seek out an alternative residence (at least temporarily). The damage to your residence is significant enough that it will take up to […]

Determining Business Interruption Losses

Fri Apr 27th, 2018 on     Insurance Claims,    

If you are covered by business interruption insurance, then you may find yourself in a particularly vulnerable situation when some event occurs that interrupts the normal flow of business and thus leads to unexpected losses.  A significant enough interruption to business can cause irreparable damage to one’s brand and reputation.  Depending on the nature and extent of the damage, submitting an insurance claim and successfully obtaining benefits may be fundamental to the continuance of the business. Business Interruption Insurance at a Glance Business interruption insurance is essentially a form of disaster-related insurance that covers the losses associated with the interruption of business in the event of a disaster.  Business interruption policies are not merely intended to cover actual damages — they are intended to account for the lost profits, too.  As such, they are a more comprehensive form of insurance than, say, property insurance. Calculating Losses Every business interruption policy is written differently and may have slightly different exclusions and coverage limitations.  Generally speaking, however, business interruption insurance tends to cover damages associated with: Lost profit Expenses for repair Operating expenses that continue to be borne by the business Claim preparation costs Rental expenses (such as a property rental to serve as an alternative until repairs are complete) New equipment expenses Training costs for new equipment Forced business closure And more It’s important to note that business interruption insurance claims — just like other insurance claims — should not serve as a financial windfall.  The claimant is expected to claim […]

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