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

On August 31, 2009, I posted on a 3rd DCA case where the DCA allowed prejudgment interest from the date of loss.  In that case, the insurer had denied coverage.  In Sunshine State Insurance Company v. Davide, ___ So.3d. ___ (Fla. 3rd DCA July 15, 2009), the 3rd DCA ruled that the insured was not entitled to prejudgment interest from the date of loss where there was simply a dispute concerning the amount of the loss. 

Where there is simply a dispute as to the amount of the loss - as opposed to a denial of coverage - the 3rd holds that prejudgment interest is calculated pursuant to the terms of the insurance policy.  The loss settlement provision in the policy in Davide stated that the sums were not due until 60 days after the filing of an appraisal award; and thus, prejudgment interest could only begin running at that 60 day mark.    (If the policy does not specifically state when payment from the insurer then presumably prejudgment interest will be due from the date of loss or more likely the date of breach by the insurer). 

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My client lost a valuable diamond tennis bracelet, and reported the loss to State Farm.  State Farm's homeowners policy required it to "replace" the bracelet.  Instead of offering a suitable replacement, State Farm offered my client a check, and advised her that it had contacted a vendor who stated it could replace the bracelet for the amount of the check.  The problem with this (besides the fact that it violated the terms of the policy) was that if the bracelet was not a suitable replacement my client would then be embroiled in a dispute with the vendor while State Farm would be off the hook.

I filed suit and sought to force State Farm to physically replace the bracelet.  State Farm argued that its tender of the check was sufficient.  The court ruled today that State Farm's policy required it to provide my client with a suitable replacement bracelet - not a check. 

The central question in the case was one of policy interpretation.  But, a side issue was who should bear the risk of non-performance by the vendor.  State Farm's position left the insured to bear the risk in the event of non-performance by the vendor.  My position was that the insurer should bear that risk - and assumed that risk under the terms of the policy.   

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In United Automobile Insurance Company v. Metro Injury & Rehab Center, ___ So.3d ___ (Fla. 3rd DCA July 29, 2009), the PIP insurer withdrew PIP benefits based on a peer review of the treating doctor's records.  Those records contained information concerning physical examination(s) which the treating physician performed on the insured.  The county court granted summary judgment against the PIP insurer, and the circuit court, sitting in its appellate capacity, affirmed, holding that "[a] report based only upon a review of the records of the insured's treating physician is not a valid report within the meaning of section 627.736(7)(a)."  The court reasoned that the statute required the reviewing physician to perform a physical examination of the insured.   

The 3rd agreed that a physical examination of the patient was a necessary ingredient of "valid report," but held that

the physician preparing the report does not have to personally examine the insured.  He or she may base the report on another physician's examination whether an IME or an examination conducted by the treating physician.

It is unclear whether other DCA's will follow this reasoning.  Other DCA's may require that the examiantion be performed by the CME physician, or someone at his direction.  We shall see. 

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On June 25, 2009, I wrote that I had been referred a client by a local personal injury firm in order to litigate an ERISA lien.  At the time I received the case, ACS Recoveries was refusing to reduce at all. 

I am happy to announce that today, as a result of our Federal Court Dec Action, the lien holder has agreed to waive its lien in its entirety.   

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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In a decision which the 2nd DCA calls "self-evident," a third-party administrator ("TPA") for an HMO was sued by one of its salesman where the salesman alleged the TPA "embarked upon a deliberate plan to interfere in the relationship between Thomas [the salesman] and its customers, designed to drive those customers away."  The TPA submitted the defense and indemnification of the lawsuit to its professional errors and omissions carrier.  The carrier denied the claim, and this coverage action ensued. 

The 2nd DCA held that the professional E & O policy provided no coverage for the lawsuit.  According to the court

A professional errors and omissions policy is not designed to provide coverage to the insured for its own systematic, deliberate, wrongful conduct: 'Errors and omissions policies form the equivalent to malpractice insurance for occupations other than those in the legal and medical fields.  Such policies are designed to insure members of a particular professional group from liability arising out of special risks such as negligence, omissions, mistakes and errors inherent in the practice of their professions.'

Wellcare of Florida, Inc. v. American International Specialty Lines Insurance Co., ___ So.3d. ___ (Fla. 2nd DCA July 31, 2009), citing, 94 Lee R. Russ & Thomas F. Segalla, Couch on Insurance, Section 131.38 (3d ed. 2009). 

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