Florida Insurance Law Blog : Florida Insurance Lawyer & Attorney : Mark Nation Law Firm : Orlando, Longwood, Gainesville

Allstate subsidiary, Castle Key Insurance Company, has request that the Florida Office of Insurance Regulation allow it to increase its homeowners insurance premiums by 33%.  Florida's Insurance Consumer Advocate, Sean Michael Shaw, has stated that Castle Key only needs a 14.4% increase. 

The rate request is now in the hands of the Florida OIR which has gone head-to-head with Allstate before. Two years ago the OIR and Allstate reached an agreement to settle a long dispute over regulators’ requests for more documents related to a rate request. At one point the OIR suspended Allstate’s license to do business in Florida.

Allstate paid $5 million to resolve legal issues from the argument and agreed to lower homeowners insurance rates by 5.6 percent. The insurer also agreed to write 100,000 new policies by November 2011.

Allstate then renamed its Florida subsidiaries to Castle Key in order to make it clear they were separately capitalized from Allstate Insurance Co.

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We were recently retained to seek accidental death and dismemberment benefits from The Prudential Insurance Company of America (“Prudential”). The insured was involved in a motorcycle accident suffering severe injuries. The policy requires that a death occur within 365 days of the accident in order to claim life insurance benefits. Although the insured died as a result of the accident, his death occurred more than 365 days after the accident. However, the policy also provides for the payment of benefits if the insured suffered other losses – including the loss of speech, vision, hearing or the loss of use of one or more limbs during the 365 day window. In this case, the claimant suffered the loss of speech and paraplegia –- losing his ability to walk -- within 365 days of the accident. In spite of these covered losses Prudential refused to pay any benefits under the insurance policy.

As with many policies, the Prudential policy requires that we file an administrative appeal prior to filing a lawsuit. An appeal has been filed seeking these benefits.
 

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Life Insurance Company of North America (“LINA”) was recently ordered to continue paying disability benefits under an ERISA governed Plan. In that case, the our client was employed by UBS as a senior sales brokerage assistant earning over $100,000.00 a year. She left work as a result of a heart condition and fibromyalgia which caused severe pain, fatigue and shortness of breath. LINA approved her claim in 2005 and began paying benefits. Benefits were terminated in 2007 based on LINA’s finding that our client was not disabled from performing her own sedentary occupation.

In its denial, LINA demanded that its insured provide it with “objective” medical evidence of disability.

Under the applicable ERISA standard of Review, the Court found that it was unreasonable for LINA to require “objective” medical evidence. The Court found that LINA was required to engage in a meaningful dialogue with the claimant to advise precisely what evidence was necessary in order to support the claim. With respect to fibromyalgia, a condition characterized primarily by subjective complaints, it was noted that were no objective tests to measure plaintiff’s inability to function due to pain. In fact, the Court found that LINA’s request for objective medical evidence was a request for evidence that was not available.

The Court also criticized LINA’s attempt to terminate benefits when there had been no change in the our client’s condition. It noted that her cardiac condition had remained essentially static during the time benefits were paid and that LINA could not explain why benefits should be terminated in 2007 when there had been no change in her condition.
 

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Our client was insured under a self-funded long term disability plan which was administered by Aetna Life Insurance Company. Our client filed an LTD claim based on his anxiety, panic disorder and agoraphobia. Aetna initially approved the claim, but later terminated benefits and denied the claim.

We filed suit in Federal Court and the judge found that Aetna’s decision denying the LTD benefits was “arbitrary and capricious.” In its decision, the Court noted that our client had been approved for Social Security Disability benefits. Yet, Aetna did not consider the Administrative Law Judge’s findings when it terminated LTD benefits. This is in spite of the fact that the Plan requires its insureds to file for Social Security Disability, and also allows the Plan to take an offset for Social Security Disability benefits.

Further, the Court also found that Aetna had failed to advise the claimant that he should submit the Social Security records as evidence in support of his disability claim.

Finally, the Court found that Aetna acted arbitrarily because of its failure to have its own medical reviewers physically examine Mr. Roush as opposed to simply reviewing medical records. The Plan specifically allowed Aetna to require a physical examination.

As a result, the Court awarded benefits and remanded the matter to Aetna to continue paying long term disability benefits.

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My client's home was built about 20 years ago in Central Florida.  Less than a year ago, cracks began to show up in various places throughout the home.  My client reported the damage to her homeowners insurer.  The homeowners insurer hired an engineering firm to inspect the home and to determine the cause of the cracking.  The engineering firm (a firm I have have seen helping insurers on many other claims) says that the damage was due to settlement, and thermal expansion, and was not due to sinkhole activity .  Settlement and thermal expansion are not covered under the homeowners policy, but sinkhole damage is a covered cause of loss.

Based on the engineering report, the insurer denied the claim.  My client requested a "neutral evaluator" to review the engineering firm's findings.  Unfortunately, the neutral evaluator agreed with the original engineers findings.  This is not uncommon.  I frequently see the neutral evaluators simply rubber stamp the original engineering report. 

Upon reviewing the engineering firm's testing and boring records, it appears that the damage is indeed due to sinkhole activity.  As a result, I've filed a breach of contract lawsuit against the homeowners insurer.

Additionally, I've filed a Civil Remedy Notice of Insurer Bad Faith.  If the insurance company doesn't "cure" its violation within 60 days of the CRN, then the insurer may ultimately be held responsible for full damages - even if those damages are in excess of its policy limits.   

As with most of my insurance cases, if I win, the insurance company must pay all of my hourly fees and costs, and if I lose, I'll work for free. 

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My client insures multiple vehicles on his auto policy with Cornerstone National Insurance Company. The auto insurance policy provides liability coverage for bodily injury liability, property damage liability for damage to other vehicles, and collision coverage for damage to his vehicles. My client’s friend, while driving one of his vehicles (with his consent), is alleged to have caused a multiple car accident. Two people were injured in the crash. Claims were submitted to Cornerstone for the collision damage to my client’s vehicle, as well as the personal injury claims.

Cornerstone filed a declaratory judgment action asking the court to void the insurance policy for what it believes were “material misrepresentations” in the application process. According to Cornerstone, my client failed to properly disclose on the application that his friend was a regular user of the vehicle, and the location where the vehicle involved in the crash would be garaged.

However, a close review of the questions and answers on the application shows that there was no misrepresentation at all. We have filed a counterclaim seeking a declaration that the policy provides coverage for all of the claims arising from the crash.

As with most of my insurance cases, if we win, the insurance company must pay all my fees and costs, and if we lose, I’ll work for free.
 

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I have written several times concerning Florida Rule of Civil Procedure 1.525, and the absolute necessity to file a Motion for Attorneys Fees: 1) within 30 days after the filing of the judgment, or 2) within 30 days after becoming entitled to fees if no judgment is filed.  In Jackson v. Betty Holmes Anthony, ____ So.3d ____ (Fla. 1st DCA July 23, 2010), the Court held:

1.  A Motion for Rehearing does not toll the 30-day time limit in rule 1.525.

2.  A post-trial Motion to Admit and Consider Newly Discovered Evidence, does not toll the 30-day time limit. 

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My client's parents own a home near Orlando.  The parents moved to a new home at the beach, and left their grown son to live in their Orlando area home.  There was a fire at the Orlando area home which destroyed the home, and the son's personal property. 

The property insurer agreed to pay for the damage to the home itself, but denied the claim for the son's personal property.  The insurance company claims that the son is not entitled to any coverage under the policy because he is not an "insured' under the policy.

The policy defines "Insured" as follows:  

You [meaning the named insured - parents] and residents of your household who are: (1) Your relatives....

According to the insurance company, because the parents moved out of the Orlando area home, that house is no longer their "household."  However, elsewhere in the policy, the insurer defines "residence premises" as the one family dwelling where the named insureds reside.  Thus, household and "residence premises" are not the same thing.  Also, case law holds that while a named insured may only have one "residence premises," the named insured may have multiple "households." 

As with most of my insurance cases, if I win, the insurance company will pay my hourly fees and costs, and if I lose, I'll work for free.  There are no out-of-pocket fees or costs for my client. 

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My client had a back up of raw sewage into his home from a blockage in a plumbing line.  He insures his home with American Traditions.  The insurance company denied the claim based on an exclusion for "water damage" that results from a "back up of water through a sewer or drain."

Today, I filed a declaratory judgment action against the insurance company for wrongfully denying the claim.  There are numerous reasons why I believe that the claim is covered. 

First, there is a significant difference between "water damage" and damage from raw sewage.  Case law indicates that those two things are two completely different types of loss.  Thus, while water damage may be excluded, damage from raw untreated sewage is not excluded under the insurance policy.

Second, this was not a back up "through a sewer or drain."  Sewers and drains are outbound lines which begin at the property line and take sewage from the property.  The lines that travel from the plumbing fixtures in the house to the property line are not considered "sewers and drains" for purposes of homeowners policies. 

In this case, and in most of my insurance cases, if I win, the insurance company must pay my fees and costs, and if I lose, I'll work for free. 

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