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

Many insurers who are providing med pay coverage for automobile accident victims are now seeking reimbursement or subrogation out of the bodily injury settlements.  In many of those cases, no such right of reimbursement exists.  In the remainder of cases, the med pay insurer will be required to take a substantial reduction in what it is seeking. 

One insidious practice I am seeing is where the med pay carrier and the BI carrier are the same carrier, and the BI carrier is simply forwarding the full amount of the med pay lien to itself.  This, and other attempts by the med pay carriers to obtain full reimbursement are not only a breach of contract and a breach of fiduciary duty on behalf of the med pay carrier, but also constitute bad faith on behalf of the BI carrier.  

In my practice, I am filing dec actions against the med pay insurer when they refuse to waive or, when appropriate, significantly reduce their liens.  Fees and costs are payable under Section 627.428. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Zurich insured TotalBank under a Commercial General Liability policy which provided med pay coverage, regardless of fault, for injuries which occurred "[o]n the ways next to premises you own or rent; or [b]ecause of your operations."  TotalBank rents a building in a shopping center located on Quail Roost Drive.  Between the parking lot of the shopping center and Quail Roost Drive there is a swale, a sidewalk and another swale.  Quail Roost Drive does not abut or touch the parking lot or TotalBank's rented premises in the shopping center. 

On September 4, 2002, Ms. Ainsworth and her son were involved in an automobile accident in which her son sustained injuries when her car, while proceeding on Quail Roost Drive, collided with two other vehicles.  One of the cars involved in the accident was exiting the a driveway from a Burger King in the shopping center.  Ms. Ainsworth submitted a claim for med pay to Zurich.  Zurich denied the claim and the County Court as the trial court granted summary judgment in favor of Zurich.  The Circuit Court sitting in its appellate capacity reversed, finding that a genuine issue of material fact remains as to whether the landscaping or design of TotalBank caused the bank to be liable for the accident and whether the Quail Roost Drive location meets the med pay policy coverage provision of "ways next to premises" owned or rented by TotalBank. 

Initially, the appellate court pointed out that "[u]nder a general liability policy, med pay coverage is primarily intended to pay for injuries sustained by members of the general public while on the insured's premises or otherwise exposed to the insured's operations....  Coverage is typically limited by the activity surrounding the area where the accident occurred or to the location where the injury occurred or both." 

Then, the Court noted that the Circuit Court had improperly injected liability notions into its analysis of the med pay issue by questioning whether the landscaping or design of TotalBank contributed to the accident. 

Finally, the Court noted that "we find, as a matter of law, that the meaning of 'ways next to premises' does not afford coverage for this accident" given the fact that the accident occurred on a way which is not contiguous to or touching the insured premises. 

I don't know how the plaintiff's attorney thought to look at the med pay for TotalBank for possible coverage, but I've got to give it to him creativity!

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Pursuant to Florida Statute Section 627.409, an insurer can retroactively rescind a policy if it later finds a material misrepresentation in the application for insurance.  A misrepresentation is "material" if the misrepresentation was material to the acceptance of the risk by the insurer, or, if the insurer in good faith would not have issued the policy under the same terms and premium. 

In United Automobile Insurance Company v. Salgado, _____ So.3d. _____ (Fla. 3rd DCA August 5, 2009), the PIP insurer discovered a material misrepresentation after its insured presented it with a PIP claim.  The PIP insurer then rescinded the policy, pursuant to 627.409.  The County Court held that a PIP insurer was not entitled to retroactively rescind a PIP policy pursuant to 627.409.  In essence, the County Court reasoned that PIP is a statutorily mandated coverage and pursuant to the PIP statute claims can only be denied prospectively, not retroactively.  The Circuit Court, sitting in its appellate capacity, affirmed. 

The 3rd DCA reversed, holding that, pursuant to 627.409, a PIP insurer can retroactively rescind a PIP policy if it meets the requirements of 627.409. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In North Pointe Insurance Company v. Thomas, _____ So.3rd _____ (Fla. 3rd DCA August 26, 2009), the insured homeowners filed a claim with their homeowner's carrier for damage to a tile floor caused when a pot was dropped on the floor.  The insurer denied the claim.  The insureds hired counsel who filed a Petition to Compel Appraisal.  At that point, the insurer withdrew its coverage denial and consented to appraisal.  The appraisal resulted in an award in favor of the insureds in the amount of $115,899.52 (That's some tile floor.  But, when one tile is broken, all contiguous tiles must be replaced by the insurer if they can't be matched with the new tile). 

The insureds then moved to have the appraisal award confirmed, and sought prejudgment interest from the date of the loss.  The insurer claimed that, under its policy, it was only responsible for prejudgment interest if if failed to pay the claim within 60 days of the appraisal award. 

The 3rd DCA recognized that, generally, interest on a loss payable under an insurance policy is recoverable only from the date the payment is due under the terms of the policy.  However, an exception exists where the insurer initially denies coverage and later either acknowledges coverage or coverage is determined by a court.  "Once the insurer denies coverage, it is deemed to have waived its policy provision for deferred payment and, should it pay, becomes responsible for prejudgment interest from the date of loss.  '[I]f the insurer denies liability, interest begins to run from the date of loss, even where the policy provides for payment at a later date.'"  Citing, Independent Fire Insurance Company v. Lugassy, 593 So.2d 570, 572 (Fla. 3rd DCA 1992). 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

My client settled her UM case for the available uninsured motorists limits.  Her HMO had paid for some of the medical care incurred as a result as the motor vehicle accident.  At the time of settlement, the HMO asserted a lien against the recovery for the full amount of all benefits it paid which were related to the crash. 

I advised the HMO that it had no lien at all, and even if it did, it would only be a small percentage of the amount it was seeking.  The HMO refused to budge and I filed a dec action seeking a declaration that the lien did not exist. 

On cross motions for summary judgment, the trial court ruled that an HMO has no right of recovery or lien with regard to UM benefits.  This is because, an HMO's right of reimbursement is a creature of statute, and the applicable statute only allows an HMO to be reimbursed if the victim is reimbursed "by a tortfeasor."  Obviously, (or maybe not so obviously, given the fact that we had to litigate this issue to summary judgment) a UM carrier is not a "tortfeasor."  We are now seeking our attorneys fees from the HMO for all fees incurred in the dec action. 

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.

Although this case was brought on behalf of one of our own personal injury clients, 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.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link