FLORIDA INJURY ATTORNEY BLAWG

As the 2012 Florida legislative session is about to begin, Corporate Florida is rolling out its guns to prepare for its annual assault on the civil justice system. Although packaged as an effort to benefit consumers, make no mistake that the true goal is to maximize corporate profits at the expense of people. Profits over People.

PIP is one of the main targets in Corporate Florida’s high powered sights this session.

Associated Industries of Florida is one of Corporate Florida’s most aggressive players in the never ending war between profits and rights. It was in the forefront of the assault on Florida’s workers’ compensation system that has resulted in less support for injured workers today than 10 to 20 years ago. PIP is next.

On November 28, 2011, the Miami Herald published an editorial by a vice president for governmental affairs at Associated Industries, in which various proposals were made for revamping the PIP system. I will respond to each proposal.

Proposal: “Allow insurance companies adequate time to investigate suspicious claims.”
Response: Under current Florida law, PIP insurance companies have at least 65 days to investigate claims before a lawsuit for breach of contract can be filed. This alone is adequate time to investigate a claim, but in reality carriers have much more time to investigate because in everyday practice PIP lawsuits are rarely filed within six months of an accident. During this period of time, carriers have many ways to investigate claims, including examining insureds under oath and having medical exams performed by hand chosen doctors.

Carriers have the right to deny claims that they feel are suspicious. If a claim is denied, an insured may drop the claim or file suit. Through legal proceedings, each side has the chance to fairly present its case to a judge and jury. What’s unfair about that?

Proposal: “Cap attorney fees in no-fault cases to eliminate the incentive for frivolous litigation.”
Response: This is a shell-game proposal. Carrier’s know that fee caps will discourage lawyers from pursuing legitimate claims. It is a ploy the insurance industry has used with great success in gutting the rights of workers’ compensation claimants. Carriers also know that there is no such thing as a frivolous lawsuits crisis, only a successful propaganda campaign to make the public believe there is. As I have blogged here before – Debunking The Myth About Frivolous Lawsuits (Florida) – Installment #1; Debunking The Myth About Frivolous Lawsuits (Florida) – Installment #2 ; South Florida Trial Lawyer – Tort Reform (“Deform) & What It Means – the concept that lawyers can make money pursuing frivolous claims defies logic and reason. As every lay person who has battled with an insurance carrier knows, it is hard enough to succeed with legitimate claims much less bogus claims. The civil justice system has created numerous filters to weed out even weak cases, so the notion that baseless cases somehow make it through the filter system is nothing short of disingenuous. Quite simply, Corporate America does not like being answerable to individuals in courts of law. The frivolous lawsuits fallacy is nothing short of a concerted campaign to bar the courthouse doors against individuals seeking redress. Profits over People.
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(Also read this blog: DCA Limits EUO Abuse)

Most Florida-issued insurance policies allow carriers to examine their insureds and omnibus insureds* (individuals unnamed but covered under a policy) under oath during the claim process. Any failure by the insured to cooperate with this condition of the policy may result in a denial of coverage.

In every EUO, carriers look for ways to deny and limit claims. For example, questions will be asked seeking to uncover substantive misrepresentations in the insurance application. Carriers also try to frighten insureds into dropping claims. One popular tactic is by indicating that the EUO is being conducted by the company’s “Special Investigatve Unit,” an effort to make the procedure look like a law enforcement action.

Other tactics include:

• Scheduling EUOs during work hours on short notice
• Requiring personal attendance at obscure, inconvenient, and far away locations (e.g., Blue Lagoon Drive, in Miami)
• Videotaping the EUO
• Seeking contact information of every possible witness
• Behaving rudely
• Asking endless irrelevant questions that invade privacy and make what should be a 15 minute examination last hours

Thankfully, there are limits on the carrier.

The claimant may have his/her lawyer present during the EUO. Moreover, since the EUO is not controlled by the Florida Rules of Civil Procedure or the Florida Rules of Evidence, like a deposition would be, the claimant and lawyer are far less constrained in their conduct. For example, they may confer during the questioning.
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From our experience, most Florida motor vehicle owners are not familiar with the many different types of coverages that are available, for the asking and at a price, under a standard vehicle insurance policy.

Preliminarily, it should be understood that, in Florida, for a vehicle to be lawfully registered, the only mandatory coverages are PIP (limited medical and lost wages) and Property Damage – Liability (covers damage to the other person’s property caused by the at-fault party). (Florida, a state with, in my opinion, primitive notions of right and wrong, is in the minority with regard to mandatory coverages. Other states, by making Bodily Injury – Liability mandatory, seemingly value life and limb more than property. Not so Florida, whose motor vehicle insurance vehicle laws create an environment the equivalent of the Wild West, where each man is responsible for his own safety and welfare without protection from the authorities.) Since these are the minimum requirements, a policy that covers nothing more is also the least expensive policy that can be purchased.* It is also the policy of choice for a large percentage of Florida motorists.
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Uninsured/Underinsured vehicle insurance, described in Florida Statute 627.727, is first party insurance that covers non-economic damages (e.g., pain & suffering), economic losses (e.g., lost wages) and medical expenses realized by insureds through the negligence of uninsured or underinsured (i.e., losses exceed policy limits) owners and operators of motor vehicles. In Florida, where a high percentage of vehicle owners do not maintain bodily injury (BI) coverage or, if they do, only carry it up to a limit of $10,000, having UM/UIM is the only sure way of providing some degree of economic protection against the catastrophic losses a serious motor vehicle accident can cause.

UM/UIM can be stacked or non-stacked. The most well known function of stacked coverage is to increase policy limits for owners of multiple vehicles insured under the same insurance policy. For example, the owner of three vehicles insured under the same policy, with stacked UM/UIM coverage with limits of $100,000 per vehicle, really has $300,000 worth of coverage for the the types of losses described in the paragraph above.

Stacked coverage serves another valuable function.

It is not unusual for owners of multiple vehicles to have some or all of their vehicles covered under separate policies. This can be problematic because most insurance policies issued in Florida exclude the extension of UM/UIM when the accident happens in a vehicle “owned by an insured but not insured under this policy.” In other words, the UM/UIM on one vehicle does not transfer to another vehicle owned by the same person.

Having stacked UM/UIM on even one of the insured vehicles overcomes the exclusion. In the example above, $100,000 is available to the insured no matter which vehicle the insured was occupying during the accident. Another way of thinking of it is that stacked UM/UIM follows the insured everywhere. Non-stacked coverage does not.

Florida insurance law can be a puzzle. It is best to seek the advice of legal counsel before and after an accident to learn your rights.
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