Insurance Law

October 11, 2024

Jeffrey P. Gale, P.A. // Prohibited Florida Workers’ Compensation Balance Billing

A medical provider authorized by an employer or workers’ compensation insurance carrier to furnish care to an injured worker is paid based on a fee schedule. (Section 440.13(b), Florida Statutes allows for deviations by agreement.)

Fee schedule payment amounts are always below the provider’s usual and customary charge. However, balance billing by the provider, i.e., an effort to collect from the employee an amount in excess of the fee schedule, is prohibited under Chapter 440 and section 559.72(9), Florida Statutes. In fact, 559.77 creates a civil remedy against medical providers who engage in such balance billing.

In Sun Bank/South Florida, N.A. v Baker, 632 So.2d 669 (Fla. 4th DCA 1994) and Freshwater v Baker, 707 So.2d 937 (Fla. rd DCA 1998), workers’ compensation authorized medical providers brought suit against injured workers to recover amounts above what they accepted in payment from the workers’ compensation carriers. In each case, the injured worker had made a separate recovery from a third party responsible for causing the accident. (It is not uncommon for an employee hurt in the course and scope of his or her employment to also have a cause of action against a third-party, i.e., an entity other than the employer.) In Sun Bank, the injured worker even signed an agreement with the doctor promising to pay any part of the bill not paid by an insurer and containing an acknowledgment that the agreement “constitutes a lien against any recovery for any liability from any source whatsoever.”

April 29, 2024

Jeffrey P. Gale, P.A. // Florida Fails Again at Mandating Bodily Injury Insurance Coverage

by Jeffrey P. Gale, P.A.

For the eighth year in a row, the Florida Legislature has considered but failed to make bodily injury (BI) insurance coverage mandatory for every owner or operator of a motor vehicle required to be registered in this state. The two bills proposed for this reason during the recently concluded legislative session failed to receive a committee hearing.

Florida and New Hampshire are the only two states in the Union that do not require all drivers to carry BI coverage.

What Florida does require is personal injury protection or PIP and property damage (PD) liability coverage in the amount of $10,000 because of damage or destruction to the property of others in a crash.

Three years ago, Florida’s Legislature passed a bipartisan bill that would have required BI coverage. Pressured by the insurance industry, Gov. Ron DeSantis vetoed the bill. This year’s proposed bills addressed some of the concerns expressed by Gov. DeSantis when he vetoed the bill. Nevertheless, the insurance industry kept the bills from gaining traction.

July 22, 2022

Jeffrey P. Gale, P.A. // Florida Motor Vehicle Insurance Protections Gutted by The Graves Amendment

by Jeffrey P. Gale, P.A.

Companies make billions of dollars leasing and renting their motor vehicles. You’d think they’d have some corresponding corporate responsibility to compensate individuals injured through no fault of their own by the negligent operation of their vehicles. They don’t.

The Florida Legislature once believed they did. They may still feel this way, but its will has been overridden by Federal law.

While section 324.021(9), Florida Statutes requires rental and leasing companies to maintain a substantial minimum amount of liability insurance on their vehicles operated in the state, it has been superseded by 49 U.S. Code Sec. 30106, also known as the Graves Amendment, which was enacted into law in 2005.

July 19, 2022

Jeffrey P. Gale, P.A. // Florida Liability Insurance Carriers Not Obligated by Duty of Good Faith to Settle Claims of All Insureds

by Jeffrey P. Gale, P.A.

Florida liability insurance policies often provide coverage to many individuals, including those not named in the policy. For example, the standard Florida motor vehicle policy will insure vehicle owners and unlisted permissive users. This was the scenario in Contreras v. U.S. Sec. Ins. Co., 927 So.2d 16 (Fla. 4th DCA 2006).

Insurance companies are obligated under Florida law to act in good faith and with due regard for every insured’s interests. Boston Old Colony Insurance Company v. Gutierrez, 386 So.2d 783 (Fla. 1980). Under this duty, carriers must give fair consideration of any settlement opportunity and settle the claim when it can and should do so. Powell v. Prudential Property & Casualty Ins. Co., 584 So. 2d 12, 13 (Fla. 3rd DCA 1991).

In Contreras, a permissive user struck and killed a pedestrian while driving at a high rate of speed after consuming alcohol. Both the owner of the vehicle and the permissive user were covered under a U.S. Security motor vehicle liability insurance policy. Coverage under the policy for wrongful death was limited to $10,000.

April 30, 2022

Jeffrey P. Gale, P.A. // Florida Tortfeasors Do Not Benefit From Negotiated Subrogation Waivers

by Jeffrey P. Gale, P.A.

Liability insurance carriers pursue every avenue to limit the amounts they must pay in damages to harmed parties. One avenue at their disposal is Florida Statute 768.76(1):

In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists.

768.76(2)(a) defines “Collateral sources” as follows:

(a) “Collateral sources” means any payments made to the claimant, or made on the claimant’s behalf, by or pursuant to:

1. The United States Social Security Act, except Title XVIII and Title XIX; any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits, except those prohibited by federal law and those expressly excluded by law as collateral sources.

2. Any health, sickness, or income disability insurance; automobile accident insurance that provides health benefits or income disability coverage; and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by her or him or provided by others.

3. Any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services.

4. Any contractual or voluntary wage continuation plan provided by employers or by any other system intended to provide wages during a period of disability.

Interestingly, under 768.76(2)(b), “Medicare, or any other federal program providing for a Federal Government lien on or right of reimbursement from the plaintiff’s recovery, the Workers’ Compensation Law, the Medicaid program of Title XIX of the Social Security Act or from any medical services program administered by the Department of Health shall not be considered a collateral source.”

Subpart (2)(b) is there to make it clear that the enumerated programs have a right of subrogation or reimbursement. However, as suggested by the second clause of subpart (1), there can be other entities that have paid compensation to the benefit of the claimant with the right of subrogation or reimbursement. The most common of these are health and disability insurance carriers.

April 29, 2022

Jeffrey P. Gale, P.A. // UM Carrier Not Entitled to Setoff for Benefits Paid by Private Health Insurance

by Jeffrey P. Gale, P.A.

The law disfavors windfall recoveries and insurance carriers are always seeking to be the beneficiaries of this public policy. One way carriers seek to benefit from this policy is by reducing jury verdicts by amounts recovered in damages from other sources. This is known as “Setoff.”

Uninsured and underinsured motor vehicle coverage is an optional form of insurance provided in motor vehicle insurance policies “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.” Section 627.727(1), Florida Statutes.

The statutory section contains the following setoff language:

March 24, 2022

Jeffrey P. Gale, P.A. // $2 Million Settlement Achieved by Avoiding Florida’s Workers’ Compensation Immunity Law

by Jeffrey P. Gale, P.A.

What began as a product liability investigation, ended in a $2,000,000 personal injury settlement against the owner of an altered riding lawnmower (pictured).

Our client lost his right leg when run over by the lawnmower he was operating for his employer. Initially thinking that the mower was owned by the employer, which would give the employer workers’ compensation immunity, we set our sights on a product liability case as the only way to secure a civil remedy for our client.

We quickly discovered that any products liability case was barred by Florida’s Statute of Repose. We also learned that our accident was caused by a post-manufacture alteration to a safety feature.

December 21, 2021

Jeffrey P. Gale, P.A. // Where the Insurance Policy is Delivered Can Matter

by Jeffrey P. Gale, P.A.

We recently resolved a case involving a reimbursement dispute under an Occupational Health & Disability Insurance Policy. Our client, an independent trucker, had sustained catastrophic injuries from being struck by a motor vehicle as he was changing a tire while parked in a gore on I-95 in Florida. He was hospitalized in intensive care and was unable to return to work for nearly two years. Thankfully, he was covered under the insurance policy, which paid his medical bills and lost wages.

The insurance policy contained language entitling the carrier to be reimbursed in full from any money our client was paid as a result of the accident.

We sued two individuals and a company seeking damage compensation for our client. After litigating the case for more than three years, we secured a reasonable settlement. We held the money in trust pending resolution of the Occupational Health & Disability Insurance carrier’s reimbursement claim. Unable to work out the claim amicably, we filed a petition to resolve the claim with the court that handled the underlying personal injury case. (Anticipating problems in resolving the reimbursement claim amicably, we asked the court to retain jurisdiction for that eventuality. Doing so allowed us to keep a smart judge and avoid a new filing fee.)

The policy contained the following language: “The Policy is governed by the laws of the jurisdiction in which it is delivered.”

The insurance carrier was home based in another state and the policy was made available to large companies throughout the United States who used independent drivers like our client, through a trust company based in Washington, DC. The carrier argued that Washington, DC law applied to the reimbursement claim since the policy was delivered to the trust in DC. Under DC law, the terms of the policy would control. This would effectively enable the carrier to recover 100% of the underlying settlement without our client netting anything. (The underlying case had exceedingly difficult liability issues. The most at-fault person, who was intoxicated, had no insurance and died penniless before we got the case. We ended up suing a separate company, which was responsible for highway assistance, for failing to have proper warning lights on its vehicle. We received a sizeable settlement, but the amount paid by the OH&D carrier was more sizeable.)

We argued that Florida law, in particular, Florida Statute 768.76(4), applied to the reimbursement dispute. Under this statute, the court would be allowed to reduce the reimbursement amount owed by taking various equitable factors into consideration including procurement costs and comparing the settlement amount to the full value of the case. See Jeffrey P. Gale, P.A. // Resolving Health and Disability Insurance Liens in Personal Injury Cases Under Florida Statute 768.76.

October 7, 2021

Jeffrey P. Gale, P.A. // Florida Uber and Lyft Riders and Drivers Beware!

by Jeffrey P. Gale, P.A.

Riders and operators of Uber and Lyft rides will be surprised to learn that they are barely covered by insurance or not covered at all for economic losses and personal injuries resulting from crashes caused by uninsured and underinsured motorists.

Florida Statute 627.748 outlines the insurance requirements for Transportation Network Companies (“TNC”) such as Uber and Lyft. When the TNC driver is logged on to the digital network but is not engaged in a prearranged ride, the insurance coverage requirements are:

$50,000 for death and bodily injury per person,
$100,000 for death and bodily injury per incident,
$25,000 for property damage,
Personal injury protection benefits, and
Uninsured and underinsured vehicle coverage (“UM/UIM”).

When the TNC driver is engaged in a prearranged ride, defined in 627.748(1)(b) as “when a TNC driver accepts a ride requested by a rider through a digital network controlled by a transportation network company, continuing while the TNC driver transports the rider, and ending when the last rider exits from and is no longer occupying the TNC vehicle,” the coverage limits above are bumped up to “at least $1 million for death, bodily injury, and property damage.”

Of the five varieties of coverage required by the statute, only the first four in the list above are mandatory. Uninsured and underinsured vehicle coverage, which is for the protection of persons insured under bodily injury policies who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, can be rejected by the “insured named in the policy” on behalf of all insureds under the policy. Section 627.727(1), Florida Statutes.

While the TNC statute, 627.748, leaves it up to the companies or the drivers to secure the required coverage, the reality is that the companies secure the coverage. This makes the companies “the insured named in the policy” authorized to reject the UM/UIM. Since UM/UIM adds to the cost of the insurance policy, TNC companies typically reject the coverage (Lyft) or select limits lower than the required BI limits (Uber). (627.727(1) allows insureds to reject altogether or select limits lower than the BI limits. Hence, Uber is able to select $10,000 in UM/UIM coverage even though its BI is $50,000/$100,000 or $1,000,000.)

September 1, 2021

Jeffrey P. Gale, P.A. // Avoid Getting Burned by “Non-Owned Vehicle” Language in Motor Vehicle Insurance Policy

by Jeffrey P. Gale, P.A.

Motor vehicle insurance companies are expert at finding ways of denying coverage under policies. The successful denial of coverage can leave the insured with significant burdens.

The successful denial of coverage in Geico Indemnity Co. v. Walker, Case No. 4D20-764 (Fla. 4th DCA May 12, 2021), is a cautionary tale for Floridians, as the circumstances underlying the denial are exceedingly common.

In Walker, the Geico insured was the driver in a single-vehicle crash that killed him and his passenger. The passenger’s estate filed a wrongful death action against the insured. Geico denied coverage under the driver’s policy because the subject vehicle was not a listed vehicle on its policy. With respect to the incident, Geico asserted that the subject vehicle did not meet the definition of an owned, non-owned, or temporary substitute vehicle.

Following Geico’s denial, the two estates entered into a settlement agreement whereby damages would be determined by arbitration and the driver’s estate would assign its right to sue Geico for breach of duty to defend and to indemnify. The arbitration resulted in an arbitration award of $7,722,150 in total damages for the passenger’s wrongful death claim against the driver.

The case we are discussing is the appeal from the passenger’s lawsuit against Geico facilitated by the assignment. At the trial court level, it was established that the vehicle operated by the Geico insured was a 1992 Porsche, made available to the driver by the owner, his stepfather, to use and take care of for ten years without specific restrictions. The Porsche was not listed under the Geico policy as an insured vehicle. Instead, the vehicle was listed in the stepfather’s automobile insurance policy with Allstate, which also listed the driver as an insured driver on that policy.