Tag: Florida insurance claims

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Weekly Review for Florida Insurance Law for Wednesday, March 19, 2014

Weekly Review for Florida Insurance Law

Weekly Review for Florida Insurance LawHere are some recent articles of interest that I found this week for the insurance industry, Florida insurance law, Florida insurance claims, and Florida insurance trends:

CFO Jeff Atwater Focused on Ensuring Consumer Rights and Protections, Reducing Regulatory Burdens and Fighting Fraud During 2014 Legislative Session. Read more here…

There are two components for evaluating a lawyer and law firm:
First, how did the lawyer and law firm go about its business and treat its clients? Second, what results did the lawyer and law firm achieve for its clients? Read more here…

Enjoy and stay tuned for next week’s Weekly Review for Florida Insurance Law!

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Weekly Review for Florida Insurance Law for Wednesday, March 12, 2014

Weekly Florida Insurance Law Updates

Weekly Florida Insurance Law UpdatesHere are some recent articles of interest that I found this week for the insurance industry, Florida insurance law, Florida insurance claims, and Florida insurance trends:

 

Enjoy and stay tuned for next week’s Weekly Review for Florida Insurance Law!

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Claims File Not To Be Produced Until Coverage Is Decided

Florida Claims File Work Product Privilege

Florida Claims File Work Product Privilege

 

 

In Castle Key Insurance Company v. Benitez, 3D13-1758 (Fla. 3DCA 2013), the Florida Third District Court of Appeal ruled that an insurance company does not have to produce its claims file prior to resolving whether coverage exists for a Florida insurance claim.

Claims File Work Product Privilege

The homeowners sued their insurance company for breach of contract for failing to pay their insurance claim.  The trial court entered an order requiring the insurance company to provide better answers to interrogatories.  The insurance company appealed that order arguing the order improperly required it provide information from its claims file.

The Third District Court of Appeal struck down the trial court order.  The test constructed by the Court was whether the claim was for bad faith or breach of contract.  The appellate court held that if the homeowner is pursuing a breach of contract claim, the claims file need not be produced until the coverage issue for the dispute has been decided.

What is at issue: The Insured’s Right to Know versus the Claims File

A homeowner has a right to know the basis for the denial of his or her insurance claim.  A denial letter from the insurance company provides conclusions but no supporting documentation.  Without the supporting documentation, there is no way to challenge the rationale for denying the insurance claim.  Since insurance companies assert everything is part of the “claims file”, the result is that insurance companies will not give the homeowner anything other than a denial letter during the lawsuit for breach of contract.  Only under a trial order must the insurance company disclose all proof it will rely upon for the denial.  As a consequence, the only way a homeowner can challenge the specific reasons for the denial of an insurance claim is in final preparation for trial and during the trial.  Florida insurance lawyers are therefore encouraged to notice all their cases for trial when possible to obtain all proof that the insurance company relies upon for the denial of the claim. 

Related Topics: Florida insurance claim; Florida insurance law; Claims File Work Product Privilege; Miami insurance lawyer

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Experienced Lawyer Joins Russell Law for Florida Insurance Claims

Florida Insurance Law

Florida Insurance Law

 

Russell Law is pleased to announce that Jonathan J. Coto, Esq., has joined the firm to help Florida homeowners with their Florida insurance claims.  Typical insurance claims include windstorms, water leaks, falling objects, fire, vandalism, and theft.  Mr. Coto will be actively involved in litigating the wrongful denial of insurance claims or the failure of insurance companies to make full and proper payment.  Jonathan Coto will handle all aspects of the insurance claim file including depositions, discovery disputes, motion practice and trial work.

Mr. Coto was admitted to practice law in the State of Florida in 2008.  Jonathan Coto is an experienced real estate lawyer and continues to represent domestic and international clients in Florida real estate matters, focusing predominantly on the sale, purchase, lease and financing of commercial and residential properties.  Mr. Coto is fluent in Spanish and is a member of the Real Property, Trust and Probate Section of the Florida Bar as well as a member of the Attorney’s Title Fund Services and a title agent.

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Offer of Judgment Sanction Avoidable Only By Lack of Good Faith

Florida Offer of Judgment

Florida Offer of Judgment

 

 

The Second District Court of Appeal, in Braaksma v. Pratt, 37 Fla. L. Weekly D2577a (Fla. 2DCA 2012), had to consider the issue of whether attorney’s fees could be awarded against a Defendant who had not accepted an Offer of Judgment on the basis that the failure to accept the Offer of Judgment did not result in additional delay or costs because the Plaintiff still needed to proceed with a trial regardless if the Offer was accepted or not. 

Florida Offer of Judgment

Florida Statute 768.79(1), provides for attorney’s fees when a Plaintiff files an Offer of Judgment that is not accepted and the Plaintiff obtains a judgment that is at least 25 percent greater than the offer.  The award of attorney’s fees in this instance is considered a sanction against the party who rejects the offer for unnecessarily prolonging the litigation.  The intent of the Offer of Judgment is to promote the resolution of cases that normally should be resolved so as to avoid unnecessary delay and expense.  If a Defendant forces a Plaintiff to go all the way in a case to obtain their judgment when the case could have been settled much sooner, the Defendant will be forced to pay all the legal expenses from the time the Offer of Judgment was made.

Lack of Good Faith is the Only Consideration

In this case, the Defendant did not contest that the Plaintiff was entitled to attorney’s fees under the Florida Offer of Judgment statute.  Rather, the Defendant argued that the reasonable fees should be $0.00 since the Plaintiff still had to go to a trial for the case regardless if the offer was accepted and thus no additional legal fees or costs were actually incurred.  The Plaintiff was required to go to trial because a trial would be needed for an additional Defendant that was not made a similar Offer of Judgment.  The trial court agreed with this argument and found that the reasonable attorney’s fees were $0.00 on these grounds.  The Second District Court of Appeal reversed the trial court and held that the only discretion for not awarding attorney’s fees under the Florida Offer of Judgment Statute was if there was a finding that the offer was not made in good faith.  Factors as to reasonableness have no basis to deny an attorney fee claim that was based on an otherwise valid Offer of Judgment.  Since the Offer of Judgment is a creature of statute, the terms of that statute must be strictly construed and enforced.  Compliance with the technical requirements of the Florida Offer of Judgment Statute creates a mandatory right to attorney’s fees.

Application to Florida Insurance Claims

Increasingly, Florida insurance companies are being aggressive with their litigation tactics by filing an early Offer of Judgment in the case.  This is nothing more than an attempt to intimidate homeowners to give up on their insurance claims.  By filing an Offer of Judgment in the insurance claim case, the insurance company is making an implicit and real threat to go after the homeowner for attorney’s fees and costs.  Since the Offer of Judgment requires the mandatory award of attorney’s fees. the main analysis must be to determine if the Offer was in good technical form and therafter if it was made in good faith under the circumstances it was made.

 

Related Topics: Florida Civil Litigation; Florida Homeowner Insurance Claim

 

 

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When You Need a Lawyer

It’s Not Like Pulling Teeth

Hiring a lawyer need not be the same as going to the dentist office.  Think of a lawyer as a proactive tooth fairy rather than as an impaler.  If used properly, a lawyer can solve a problem before it becomes a problem much like anti-cavity rinse.  Even better yet, given a chance, a lawyer could put some money under your pillow without you having to forfeit any ivory.    

When it comes to Florida insurance claims, you need a lawyer when you first realize that you have a claim.  This is the same rule that applies to any other area of the law.  For instance, if you are involved in a traffic accident, you normally obtain a lawyer after getting medical attention.  No one files their own personal injury claim and then calls a lawyer.  Same applies to Florida insurance claims.  Don’t start dealing with your insurance company without first consulting with a Florida insurance lawyer.  Florida insurance claims and insurance contracts in general can be very complex.  You do not want to tarnish your otherwise good insurance claim from the start because you do not know what you are doing.  Speaking of not knowing what you are doing, do not convince yourself that you can handle your own insurance claim if you have no previous insurance experience.  Just like it would be unwise to operate on yourself, it is equally unwise to act as your own legal counsel.

Assuming for the sake of argument that you made the call and claim on your own and you are now dealing with the insurance claim.  You definitely need a lawyer if the insurance company sends you a “Reservation of Rights” letter.  This ominous letter is a clear red flag and sign from your insurance company that they intend to deny your claim.  At this point it would be wise to have a Florida insurance attorney review your claim early on to see what can be done to maximize your claim and the chances for recovery.

You need an insurance lawyer when your insurance lawyer requests that you sit for an examination under oath (EUO).  An examination under oath is a procedure whereby the insurance company’s lawyer asks you questions under oath in front of a Court Reporter.  Insurance companies use an examination under oath to probe your case and to often look for or find ways to deny your claim.  The insurance company will have a lawyer helping it during the examination under oath and so should you.

You need a Florida insurance lawyer when the insurance company offers to pay you something on your claim but not the full amount you feel you are owed.  No matter what amount the insurance company is going to pay you they will require that you sign release documents in exchange for the payment.  If you are not careful, you could unintentionally sign away all your rights to make any other demand or supplemental claim for unpaid damages due to the loss.  A Florida lawyer is needed to review the release and to ensure that it is limited in nature and that your interests are protected.

Finally, you need a Florida insurance lawyer if the insurance company denies your claim.  The insurance company has a financial incentive to deny your claim and therefore not all denials are valid.  Do not accept the insurance company’s word that your claim is not covered, seek the advice of an experienced Florida insurance lawyer to review your claim.  If the insurance company denies your claim it is not going to change its position just because you send letters or make more calls.  The only thing at this point that is going to change the status of your claim is a lawyer that takes your case and files a lawsuit against the insurance company on your behalf.  A Florida insurance lawyer can put a smile on your face and the wait is not as long as it is at the dentist’s office.

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