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drunk.jpgPIP (Personal Injury Protection) and health insurance will cover most motor vehicle-related medical expenses. However, these insurance policies are subject to deductibles and copays, leaving insureds with out-of-pocket medical expenses even under the best circumstances. An exception applies when the insured is a victim of a DUI crash.

The exception is contained in Florida Statute Section 624.128:

Crime victims exemption.–Any other provision of the Florida Statutes to the contrary notwithstanding, the deductible or copayment provision of any insurance policy shall not be applicable to a person determined eligible pursuant to the Florida Crimes Compensation Act, excluding s. 960.28.

The DUI crash victim must apply for crime compensation with and be found eligible by the Office of the Attorney General, Division of Victim Services. (Here is a link to the Victim Compensation Claim Form.) A victim found eligible will be notified by the Office of the Attorney General. The victim should then present the notice of eligibility to the appropriate insurance companies to obtain the waiver.
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greed.jpgIn March, I blogged about Florida’s new PIP law that had been approved by the Florida Legislature on March 9, 2012. (New Florida PIP Law (Effective 1/1/13) Hammers Consumers.) I believe that many aspects of the law are anti-consumer, however, I limited my blog conversation to an issue concerning medical benefits.

Another aspect of which I disapprove concerns the award of attorney fees to insureds’ attorneys when carriers wrongly deny benefits, in other words, breach the insurance contract. The new law sharply limits the fees.

One of the most powerful tools insureds have to force carriers to honor contracts is the threat of having to pay sizable attorney’s fees. Accordingly, limiting the fees reduces the leverage consumers have against their insurance companies. This is an important subject.

From time to time, I will reproduce in my blog letters and articles written by other people. I am reproducing here a letter on the subject of fees written by my good friend and superb South Florida lawyer Cris Evan Boyar. The letter was published in the April 1, 2012 issue of The Florida Bar News:

Don’t Cap Fees
For 100 years our Legislature recognized that unless something was done to level the playing field between the insurer and their policyholders, the insurers could deny claim after claim with impunity. Recognizing the unfairness of the system that forces Floridians to buy PIP coverage and the financial disparity between the insurer and its policyholders, the Legislature enacted a law that sanctions the insurer by forcing the insurer to pay their policyholders’ attorneys’ fees if the policyholder prevails. These legal fees are paid only if there is a determination the insurance company wrongfully denied the claim.
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scales.jpgSome 80 years ago in Florida, workers’ compensation was substituted for the personal injury system as the nearly exclusive remedy for employees seeking compensation from employers for workplace accidents. The idea was that workers should not have to establish fault, a basic element of every personal injury case, in order to be compensated. In exchange for this valuable concession, employers were relieved from having to pay non-economic damages, broadly referred to as pain and suffering. In its original form, this quid pro quo was fair.

The quid pro quo is fair no longer. Through years of Republican rule – beginning with Governor Jeb Bush, in concert with right-wing dominated legislatures – the once equal quid pro quo balance has given way to a one-sided workers’ compensation system strongly favoring employers and their insurance carriers over injured workers.

See these blogs to understand the imbalance:

Due to the gross imbalance, accident lawyers must always consider ways to overcome the workers’ compensation immunity granted to employers. Unfortunately, the option is rarely available.

The known ways of overcoming the immunity have been:

  1. If an employer fails to have workers’ compensation coverage in place. See Florida Statute Section 440.11(a)
  2. An employer commits an intentional tort that causes the injury or death. See Section 440.11(b)
  3. Estoppel. The employer denies that the accident occurred in the course and scope of employment. See Byerley v. Citrus Publ’g, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999)

As of March 21, 2012, there may be a fourth way.
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calculator.jpgObviously, medical records are important for many reasons. They do not come without a price.

Florida Statute Section 456.057 is titled “Ownership and Control of Patient Records; Report or Copies of Records to be Furnished,” and it defines the owner of medical records as the health care practitioner who generates a medical record after essentially performing an examination of a patient. The owners sell copies of their records to those who request them.

The cost of copies is controlled by 456.057 and Rule 64B8-10.003 of the Florida Administrative Code. A plain reading of Rule 64B8-10.003 makes it clear that the cost of medical records is determined by the status of the person making the request.
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dollars.jpgThe Huns are at it again.

Not satisfied with controlling the Governor’s Office (Tea Party darling Rick Scott) and the Florida Legislature (both chambers have large Republican majorities), the US Chamber of Commerce and its right-wing allies are mounting a campaign to unseat three moderate Florida Supreme Court Justices. If the Justices are unseated and Rick Scott chooses their replacements, any hope that the poor, the injured, the forgotten, the voiceless, the defenseless and the damned have of receiving a fair shake will be vanquished. The three seats of our state government – Executive, Legislative, and the Courts – will be in the hands of the Huns. Shudder the thought!

Every six years, Florida’s Supreme Court Justices are subject to a “yes” or “no” merit retention vote by the general electorate. No Supreme Court Justice has ever been voted out of office. However, no Justice has faced what Justices R. Fred Lewis, Barbara J. Pariente, and Peggy A. Quince will be facing in the coming months in the lead up to their merit retention votes in November, 2012.
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worker.jpgPeople harmed in accidents by the negligence of others often have available to them other sources, such as private insurance and governmental programs, to provide lost wages and medical benefits while they wait to be compensated by the tortfeasors (at-fault parties) for their losses. Florida Statute 768.76 calls these other sources collateral sources.

768.76(1) permits a tortfeasor an offset in the amount of any collateral source of indemnity and medical benefit unless the source of indemnity has a right of subrogation. In other words, if the recipient of the collateral source benefits does not have to repay the providers, the tortfeasor does not have to pay for them.

The reasoning behind this principle, known as the Collateral Source Rule, is to prevent victims from receiving a windfall.
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surgery.jpgWith all of the talk in the country about right-wing legislation mandating transvaginal ultrasounds for woman seeking abortions, another transvaginal issue is coming to light as placing woman at risk of injury and death.

In recent years,Johnson & Johnson, C.R. Bard, Caldera and numerous other manufacturers have encouraged doctors to use the placement of surgical mesh through the vagina to treat pelvic organ prolapse (POP) and stress urinary incontinence (SUI). Unfortunately, the mesh, once considered an advancement in medical care, appears to be fraught with problems.
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maze.jpg“Chinese Overtime” is allowed under the Fair Labor Standards Act (FLSA). See Overnight Motor Transp. Co. v. Missel, 316 U.S. 572 (1942) and 29 C.F.R. Section 778.114 (2010). It only comes into play for employees paid in accordance with the fluctuating workweek method.

Fluctuating workweek pay is a salary as opposed to being paid by the hour. It is a set weekly sum regardless of hours worked, no matter more or less than 40. Overtime pay is available.

The FLSA provides that employees paid on an hourly basis must be compensated at the rate of one and one-half their regular rate of pay for each hour over 40 worked in a week. For example, an employee paid $10/hr, which is the “regular rate of pay,” must be paid $15 for each overtime hour.

In contrast, employees paid by the fluctuating workweek method receive only 1/2 their regular rate of pay for overtime hours.
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dollars.jpgFor those who think that all politicians are alike, that it doesn’t matter who is elected, think again. One need only look at what happened in the Florida legislature on Friday, March 9, 2012, to debunk the notion.

Tea-party darling Florida Governor Rick Scott and his right-wing Republican cohorts rammed through an anti-consumer, pro-insurance industry motor vehicle insurance law to rival any in the nation. It is so anti-consumer that even 8 Republican senators voted against it. Unfortunately, the bill passed in the Florida Senate by one vote.

The new law, effective January 1, 2013, deals with PIP (Personal Injury Protection) insurance. (Here’s a link to the law, House Bill 119.)

PIP is a form of insurance that covers medical and lost wages arising out of motor vehicle accidents. The current PIP law covers a total of $10,000 in medical expenses and lost wages subject to a deductible, if any, chosen by the policy holder. Whether and how much is paid in medical expenses is based on the reasonableness and necessity of the medical care.

The new law adds more hurdles to obtaining the full $10,000 in medical coverage.

  • If an insured fails to seek medical treatment within 14 days of the accident, PIP will not pay any medical expenses. None. It is not unusual for injuries to manifest themselves worthy of medical care more than 14 days after an accident. It is also not unusual for people with real injuries but busy schedules to need more than 14 days to obtain medical care. Factor in the difficulty of obtaining an appointment with a doctor and we anticipate that this provision will eliminate coverage for many policy holders.
  • Unless the medical treatment is for an “Emergency Medical Condition,” PIP payments will be limited to $2,500. (EMC is defined in the new legislation as: (a) Serious jeopardy to patient health; (b) Serious impairment to bodily function; (c) Serious dysfunction of any bodily organ or part.) This provision will likely spawn significant litigation from medical providers, especially for hospital emergency room services. Nonetheless, it is clearly a high standard that will reduce PIP payments in most cases.

Undoubtedly, the overall impact of the legislation will be to reduce PIP medical payments. Ironically, the legislation does not impose a mandatory reduction in insurance premiums.

Profits over people. And the beat goes on….
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crushed vehicle.jpgNow you have it, now you don’t.

This is a disappointment every plaintiff’s personal injury lawyer experiences when learning that a wrongdoer’s bodily injury insurance coverage is negated by a “Named Driver Exclusion.” Hope is crushed like the vehicle in this blog.

The declarations page of a motor vehicle insurance policy will list the primary insured and other named insureds, usually family members with drivers licenses.

Bodily injury, or BI, coverage under the policy is protection, to the extent of the coverage limit, for personal injuries and economic losses sustained by third parties through an insured’s negligence. Coverage information will also be listed in the declarations page. Since BI is not mandatory, a first glance at the dec page with BI coverage provides some consolation to those harmed by a wrongdoer insured’s negligence.
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