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

Spent the day yesterday in beautiful Bartow taking the deposition of the Geotechnical Engineer who performed sinkhole testing on my client's home on behalf of her homeowners insurance company. 

Often homeowners will find cracking in the walls of their home, and/or the foundation.  Or, they will find the foundation separating from the walls.  Contrary to what your homeowners insurance company may tell you, your homeowners insurer is responsible for all this damage unless your insurance company can exclude sinkhole as a potential cause.  The burden of proof is on your insurance company (not you) to prove that sinkhole is not a potential cause of the damage.  If your insurance company can't exclude sinkhole as a cause then your insurer is responsible for the damage. 

In order to exclude sinkhole, the insurance company will frequently hire a geotechnical engineering firm to perform testing at your home.  The insurance company's engineers may then write a report that there is no evidence of sinkhole activity although the test findings actually show that there is sinkhole activity.  If you know what to look for, there are simple things to look at to determine if the testing actually revealed sinkhole activity. 

If your insurance company has denied your sinkhole claim, do not give up.  I will look at any sinkhole denial for free.  In order to determine if you have sustained sinkhole damage I will often retain a geotechnical engineer to inspect your home to determine if there is indeed sinkhole damage. 

I handle sinkhole cases throughout the State of Florida.  In these types of cases my client owes me nothing out-of-pocket. In most of my insurance cases, if I win, the insurance company must typically pay my fees and costs, and if I lose, I'll work for free. 

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I have previously written on what is and is not "flood" damage.  Now, another chapter in that same story.

My client's home was inundated with water when the fire hydrant at the front of his property literally blew off.  The ensuing deluge undermined the foundation of his house, and penetrated his frame walls, and soaked his garage.

He submitted the claim to his homeowners insurer which promptly denied the claim based on exclusions for "flood," and/or water which "backs up from a sewer, drain or sump."  Absurd.  Neither of these exclusions apply.

"Flood" damage is not synonymous with water damage.  Flood damage when read in the context of most homeowners policies means rising water from a pond, lake, river or ocean, or tidal surge from any of these.  These cannot be extrapolated to include a defective fire hydrant.  Nor, is this loss caused by a "back up" from a sewer, drain or sump.  This isn't a "back-up," and a fire hydrant is not a sewer, drain or sump. 

Most homeowners policies are "all-risk" policies, which means that they cover all losses - however caused - unless they are specifically excluded.  Because this loss is not specifically excluded, it is covered.

As with most of my insurance cases, my client owes me nothing out-of-pocket.  If I win, the insurance company must typically pay my fees and costs, and if I lose, I'll work for free. 

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My client notice water staining on his first floor ceiling.  His home was a two story house.  He is a building contractor and opened up the ceiling and found significant damage to the wood member and floor joists supporting the second story.  All of this wood damage was hidden from sight before he opened up the ceiling. 

He reported the claim to his homeowners carrier.  The insurance carrier paid only $10,000 under a "mold and fungi" limitation endorsement.  The amount of the damage is significantly more than $10,000.  I believe that the damage is so significant that it should qualify under another coverage - collapse.  Collapse is an often overlooked coverage that can often trump limitations such as we have in this case. 

As with almost all of my insurance cases, my client doesn't pay me anything.  If I win, the insurance company has to pay my fees and costs, and if I lose, I'll work for free. 

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My client was injured at work.  Her employer totally controverted the claim.  Because the claim was denied, she sought medical care under her employer sponsored HMO policy. 

Eventually, she and her workers compensation lawyer settled the work comp case as a totally controverted claim.  The HMO sought reimbursement of its alleged lien out of the work comp settlement.  Her work comp lawyer asked the carrier to waive its lien, and the HMO carrier refused.

I filed a declaratory judgment action seeking a declaration that there is no lien based on two grounds: 1) work comp proceeds are statutorily exempt from all claims of creditors; and 2) HMO reimbursements are a creature of statute, and the applicable statute only allows HMO's to be reimbursed out of recoveries from "tortfeasors." 

Even though this was an employer sponsored plan, this is not controlled by ERISA.  Even if it were controlled by ERISA, the HMO reimbursement statute is "saved" from ERISA preemption. 

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My client was injured in an automobile accident.  My client was an HMO member through his employer.  The HMO was issued by Blue Cross and Blue Shield of Florida.  After the accident, Blue Cross and Blue Shield provided some medical services to my client that were accident related, and also provided some services that were not related to the accident. 

When the personal injury case was resolved, Blue Cross and Blue Shield requested reimbursement of the entire amount expended on behalf of my client since the date of accident - even for care that was not related to the accident. 

My client's personal injury lawyer requested that the HMO provide him with a copy of the applicable HMO policy.  Although the medical services were rendered in 2007 and 2008, Blue Cross would only give a copy of the 2010 HMO policy. 

The personal injury victim hired me to sue to have the lien eliminated and/or significantly reduced.  Suit has been filed.  I believe that, pursuant to Florida Statute Section 768.76(7), by failing to provide the applicable HMO policy, the insurer has waived any right to request reimbursement.  Further, even if the insurance company is entitled to any reimbursement, it cannot seek reimbursement for non-accident related expenses.  Finally, to the extent that any right of reimbursement exists, the reimbursement must be significantly reduced pursuant to the formula set forth in Section 768.76.

Repeatedly, I have seen cases where good attorneys pay back liens that do not even exist, or they pay back way too much. Paying back liens that don't exist, or paying back too much is a disservice to our clients, and can be considered malpractice. The law on health insurance liens is complicated and one should not dabble in it unless experienced.

Frequently, personal injury attorneys will recommend their clients to hire The Nation Law Firm to negotiate those liens. This referral removes any potential liability from the personal injury attorney, and provides a much needed service to their clients.

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My client's rental condo was for sale.  He and his wife did not live in the condo, but lived nearby.  One day their realtor called and advised that he went to show the condo, and found water on the floor in several rooms. 

My client reported the loss to his condo insurer, Citizens Insurance.  Citizens denied the claim, based on two exclusions: 1) continuous leekage or seepage for a period over 14 days; and 2) water loss in a home that had been unoccupied for a period over 30 days. 

Neither of these exclusions apply.  The continuous leekage or seepage exclusion only applies to exclude coverage for damage that occurs after the expiration of 14 days of exposure to water.  This exclusion does not apply in this case for two reasons: 1) we will be able to show that the leekage/seepage did not occur for more than 14 days; and 2) regardless of how long the leekage/seepage occurred, there was no increased damage as a result of long term exposure to water.  In other words, the items that were damaged by water in this case (cabinets, drywall, and carpeting) had to be removed and replaced whether they were exposed to water for 1 day, or 13 days, or 20 days.  This exclusion only excludes water damage that would not have occurred, but for the fact that the item was exposed to water for more than 14 days. 

Citizens' adjuster advised my client that the "unoccupied for 30 days" exclusion applies if the condo was "ever" unoccupied for a period of more than 30 days, even if the loss takes place years after it was unoccupied.  In other words, say a homeowner leaves for a 6 week vacation in 2005.  Years later while the home is occupied there is a fire loss.  According to Citizens, this loss is not covered because the home was unoccupied back in 2005.  This is ridiculous, and I do not expect that this interpretation of the policy will be advanced by Citizens' attorneys.

The "unoccupied for 30 days" exclusion also doesn't apply for two other reasons: 1) the condo was not "unoccupied" for a period of 30 days before the loss; and 2) even if it was unoccupied for more than 30 days before the loss, there is an exception to the exclusion which states that the exclusion does not apply if the insured takes reasonable steps to shut off the water prior to leaving the condo.  My client turned off all the water prior to leaving on vacation, and therefore the exclusion does not apply.  

As with almost all of my insurance cases, I will take no fees and costs from my client. 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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You are much more likely to become disabled during your work life than to die during your work life. Thus, disability insurance is very important to protect you and your family from financial ruin in the event of a disability. But, what happens when you insurance company denies your disability claim?

Short-term disability (STD) policies usually pay you for a short period of time, say six months, to help you during short-term illnesses or accidents. Long-term disability (LTD) policies provide coverage for longer periods. Policies vary, but a typical LTD will pay you for the entire period of disability or until a particular age, say 62 or 65.

There are two types of disability policies – “own-occupation” and “any-occupation.” Own-occupation policies generally define disability as the inability to perform the material duties of your own occupation at the time you become disabled. Any-occupation policies generally define disability as the inability to perform any occupation.

Florida law requires a disability policy to be an own-occupation policy for at least the first 12 months of disability. After 12 months, if it was designed to be an any-occupation policy, it will become so.

Many insurance companies have tried to equate the term “totally disabled” with “totally helpless.” In effect, they will argue that you are not totally disabled unless you are totally helpless. In Florida, you will be considered totally disabled under an own-occupation policy if you are unable to perform the material and substantial duties of your regular occupation. Under an any-occupation policy, you will be considered totally disabled if you are unable to perform any work or occupation for which you are reasonably qualified or trained. These are minimum standards in Florida. An insurance company can write a policy that is more favorable to the insured, but not less favorable.

Suppose an insurance company denied a disability claim by asserting that there is some menial job you can do. Courts have determined this is not sufficient grounds for the insurance company to deny your claim. The court will take into consideration the wages you earned before your disability in comparison with the wages of the job the insurance company is proposing that you can now do. Courts have said that even if you can perform some job, you should be entitled to recover disability benefits if you cannot earn a wage that approaches “the dignity of a livelihood.”

One court has recognized that: “Common knowledge of the occupations in the lives of men and women teach us that there is scarcely any kind of disability that prevents them from following some vocation or other, except in cases of complete mental incapacity. Although the achievements of disabled persons have been remarkable, we will not adopt a strict, literal construction of such a provision which would deny benefits to the disabled if he should engage in some minimal occupation, such as selling peanuts or pencils, which would yield only a pittance. The insured is not to be deemed “able” merely because it is shown that he could perform some task.”

If your insurance company denies your claim or terminates your benefits, you immediately should contact an attorney who handles disability claims. Such an attorney should agree to review your case for free. Most importantly, a Florida statute requires the insurance company to pay your fees and costs if you are successful against your insurance company. This statute is a powerful tool in leveling the playing field between you and the insurance industry.
 

At The Nation Law Firm I will look at any disability claim denial for free.  If I file a lawsuit, it will be on a contingency fee basis, and in many cases, I am able to force the insurance company to pay our hourly fees and costs.  The insured never has to pay our fees and costs out of pocket. 

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Recently, we prevailed in federal court on a contract interpretation issue under an ERISA short term disability insurance policy. 

Due to an illness, our client could not perform some of the essential duties of her job. She could perform some of her duties, she just couldn’t perform them all. Our client filed a claim for STD benefits under her ERISA plan. The insurance company denied the claim, asserting that she could still perform some of the material duties of her job, and therefore she did not meet the definition of “disabled” under the insurance policy.

We filed suit in federal court. On summary judgment, the Court found agreed that an insured could be entitled to disability benefits if she could show that she was disabled from only one of the essential duties of her occupation. Plaintiff cited Lain v. UNUM Life Insurance Company of America, 279 F.3d 337 (5th Cir. 2002), abrogation recognized on other grounds, Holland v. International Paper Co. Retirement Plan, 576 F.3d 240 (5th Cir. 2009) in support of her position.

The AT&T Plan at issue defined disability as follows:

“Total Disability” or “Totally Disabled” for short-term disability means that because of Illness or Injury, you are unable to perform all of the essential functions of your job or another available job assigned by your Participating Company with the same full-time or part-time classification for which you are qualified.

The Court found the phrase “all of the essential functions” ambiguous. The Court rejected the Defendants’ argument that if plaintiff could do one of the essential duties of her job, then she was not disabled. Instead, the Court found that if, for example, there were 10 material duties of her occupation, if she was unable to do even one of those duties, then she would be disabled as defined by the Plan.

Litigation continues.  In cases like this we, represent the policy holder on a contingency fee basis.  There are no fees or costs unless we win, and if we do win we will attempt to force the insurance company or plan administrator to pay our fees and costs under 29 U.S.C. Section 1132(g). 

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My client's brother was riding his motorcycle when another driver turned left in front of him.  The motorcyclist struck the front right corner of the car.  The motorcyclist died at the scene. 

The driver of the car received a ticket for violation of right of way.  The motorcyclist was not speeding, and was not found to be engaging in any improper driving.  However, the motorcyclist's blood alcohol content was .09% - slightly over Florida's legal limit of .08. 

My client's brother was insured under an ERISA Accidental Death and Dismemberment insurance policy issued by Humana.  My client submitted the claim, but Humana denied the claim based on the following exclusion:

Accidental Death or Bodily Injury benefits do not cover loss resulting from:

º The voluntary taking of any sedative, drug, alcohol, poison or inhalation of any gas unless taken or inhaled as prescribed or administered by a Qualified Practitioner.

º Driving or operating a motorized vehicle while legally intoxicated or under the influence of illegal substance. Intoxication means that blood alcohol content or the results of other means of testing blood alcohol level meet or exceeds the legal presumption of intoxication under the law of the state where the accident took place;

Humana simply concluded without explanation that the claim was not covered because the motorcyclist had a BAC of .09.  However, the exclusion requires that Humana prove that the accident resulted from driving while intoxicated.  From the facts of the crash it was obvious that there was nothing the motorcyclist could have done to avoid this collision.  Out of an abundance of caution, I retained an accident reconstruction engineer to reconstruct the crash.  The engineer concluded that

The cause of the MVC was that [the driver of the car] improperly made a left turn in front of [the motorcyclist], leaving insufficient time and distance for a normal alert driver to avoid the crash.

Consequently, Humana cannot carry its burden of proving that the loss "resulted from" the motorcyclist impairment.  

Because this accidental death insurance policy is governed by ERISA I must file an administrative appeal with the insurance company.  The appeal in ERISA is extremely important as the administrative record developed during the appeal will likely be the only evidence a federal judge will review if this case is ever litigated.  Under ERISA, the insured is typically required to show that the insurance company's decision was arbitrary and capricious based on the evidence which it had before it at the time it makes its decision.  Thus, the appeal must be thorough and complete, as there will likely be no more evidence allowed even if a lawsuit is filed. 

This case is proceeding on a contingency fee basis.  If I am forced to litigate I will seek fees from Humana or the ERISA plan administrator under 29 U.S.C. Section 1132(g). 

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