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

In a New Orleans case a trial judge entered an order on March 26, holding the pollution exclusion in a homeowners insurance policy does not apply to damage done by Chinese drywall.  In holding that the exclusion does not apply the court noted

The POL [pollution and contamination] exclusion does not and was never intended, to apply to residential homeowners claims for damages caused by substandard building materials.  The Louisiana Department of Insurance determined that a 'pollution incident' under a pollution exclusion in homeowners' policies only refers to an incident which causes 'environmental damage,' or 'injurious [to the environment, not the claimant] presence in and upon the land, the atmosphere, or any watercourse or body of water of solid, liquid, gaseous or thermal contaminants, irritants or pollutants.'  [citation omitted].

The fact that Chinese drywall releases various gases into the home is not sufficient to qualify as a 'pollutant' under the pollution exclusion....

A copy of the Court's ruling can be downloaded by clicking here. 

I believe that the case - Finger v. Audubon Insurance Company - is the first ruling in the country by a court on this important issue. 

The court also found that the "Gradual or Sudden Loss" and "Faulty, Inadequate of Defective Planning" exclusions did not apply to preclude coverage.  In rejecting these exclusions, the Court noted that that "rust or other corrosion" as well as the "inherent vice" or "latent defect" language of the exclusions did not bar recovery.  I previously blogged on the applicability of the deterioration and corrosion exclusions which can be accessed by clicking here.

As an attorney, representing homeowners and business owners in cases involving damage to their homes caused by Chinese Drywall, this case is a welcome piece of good news.  The lawyers for the Fingers is to be commended for an outstanding job.    

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My client pays cash for his automobile insurance.  He makes his payments to his insurance agent.  After being involved in a very serious multi-vehicle accident, his car insurance company told him that it had canceled his insurance for non-payment of premium before the accident. 

My client has records showing that his payments were in fact made.  Further, the insurance company has been unable to produce a copy of the a cancellation notice.  Pursuant to Florida Statute Section 627.728, an insurer must provide its insured with a 10 day cancellation notice prior to canceling insurance for non-payment of premium.  My client insists he did not receive a cancellation notice, and, as noted, the insurance company cannot provide one.  Pur. 627.728, the insurance company must also produce a United States Postal Proof of Mailing form in order to prove it properly canceled the insurance.  In this case, the insurance company cannot produce the proof of mailing either.   

I filed suit today against the insurance company for breach of contract.  I included a counts for

• declaratory relief, 
• failing to pay the damages caused in the accident, 
• loss of use of his vehicle, and 
• increased expenses in the future for the increased costs of having to buy insurance after a cancellation.  (After a cancellation, future insurance companies will charge a higher premium because of the prior cancellation). 

As a lawyer representing car owners, I have handled many cases against automobile insurers for improper cancellations.  In almost all of those cases, if I win, the insurance company will be responsible for my attorneys fees and costs, and if I lose, I'll work for free. Initial consultations are always free.

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My client insured her home with a standard Florida homeowners insurance policy.  The roof of her home did not leak until hit by strong winds during Tropical Storm Fay in August of 2008.  Shortly after the storm she submitted a claim to her insurance company to evaluate her roof damage.  The insurance company adjuster inspected the roof and found missing and torn shingles, but he advised her that any problem with her roof was due to wear and tear, and not wind damage. 

An inspection by her roofer revealed that the roof had wind damage in every slope of the roof.  Suit was filed today against the homeowners insurance company for breach of contract. 

As a lawyer representing homeowners, I have handled many cases against homeowners insurers for failing to pay for roof damage.  In almost all of those cases, if I win, the insurance company will be responsible for my attorneys fees and costs, and if I lose, I'll work for free.  Initial consultations are always free. 

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In GEICO Indemnity Company v. Kutasha, ____ So.3d ____ (Fla. 1st DCA March 10, 2010), Shazier rented a car from Avis.  Shazier then loaned the car to Jordan.  Jordan crashed the Avis rental car.  Multiple parties sued Shazier, Jordan and Avis for injuries and death. 

Shazier had rented the car when her vehicle was down for repairs.  She was insured with GEICO.  The GEICO policy provided coverage for a "temporary substitute auto" which was defined as

a private passenger, farm, or utility auto or trailer, not owned by you, temporarily used with the permission of the owner.  This vehicle must be used as a substitute for the owned auto or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.

The Avis rental agreement contained a provision that stated that Shazier was the only authorized driver, and that allowing anyone else to drive "will automatically terminate your rental."

The 1st DCA made short work of this case holding that the rental car was not a "temporary substitute auto" because at the time of the accident it was not being "used with the permission of the owner."  Indeed, according to the Court, "Jordan's use of the rental car automatically revoked the permission granted to Shazier by Avis." 

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In Chicago Title Insurance Company v. Northland Insurance Company, ____ So.3d ____ (Fla. 4th DCA March 3, 2010), an attorney acting on behalf of a title company misappropriated funds that were intended to be used to satisfy a mortgage.  As a result, Chicago Title had to pay to satisfy the mortgage.  Chicago Title then sued the attorney and the title company. 

Northland, the title company's Errors and Omissions insurance carrier denied coverage and refused to defend.  Chicago Title and the title company eventually entered into a consent judgment, and Chicago Title sued Northland for payment of the consent judgment.  The trial court found that exclusions in the Northland policy precluded coverage.  This appeal followed.

On appeal, Chicago Title argued that the underlying lawsuit contained a negligence count and that negligence was covered under the Northland policy.  However, the 4th DCA held that:

We agree with the trial court that semantics cannot avoid the obvious.  Where the application of one or more policy exclusions applies to the face of the complaint, no duty to defend exists, even if the complaint alleges facts that would otherwise give rise to a covered claim....

Any liability based on negligence stems from and is depended on the misappropriation of funds by the attorney.

Typically, if one of the counts in a complaint fall within coverage, then the defendant's insurer must provide a defense, and it must defend all counts.  However, what the 4th DCA is holding here is that when the underlying complaint clearly sets forth facts that render the entire claim excluded (i.e. an intentional misappropriate of funds), the insurer is not required to defend simply because the complaint attempts to plead the case back into coverage by sticking in a "negligence" count.  The fact that the underlying complaint pled a negligence count (which is a covered cause of loss), does not create coverage where the facts of the claim as set forth in the complaint clearly demonstrate an excluded cause of loss (theft by the attorney). 

It seems that the E & O policy would cover negligent acts that resulted in a funds shortage, such as an accounting error that resulted in a shortfall to pay the mortgage.  However, the policy did contain an "Additional Exclusion Endorsement" which may even preclude coverage in this context. 

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In Liberty Surplus Insurance Corporation v. First Indemnity Insurance Services, Inc., ____ So.3d ____ (Fla. 4th DCA March 10, 2010) a proposed insured provided its insurance broker with an application for insurance which contained 14 different supplement pages describing 14 prior claims during the past 5 years.  The broker then submitted the application to Liberty, however the broker only included 3 of the 14 claims with the application.  Liberty issued the policy.  Later, when the insured was sued, Liberty defended and ultimately paid to settle that case.  However, during the course of the case Liberty learned about the prior claims. 

Liberty sued the insurance broker alleging that it would not have issued the policy had it known of the prior claims.  Liberty's complaint alleged three basic causes of action:  

First, that First Indemnity intentionally failed to disclose all the claims supplements; second, that it negligently failed to disclose all the claims supplements; and third that Liberty is entitled to common law indemnity from First Indemnity. 

The broker moved to dismiss the complaint claiming, among a myriad of various defenses, that Liberty could not sue it because of the general rule that an insurance broker is the agent of the insured, and as the agent of the insured it owed no duty to Liberty.  The trial court granted the motion to dismiss. 

The 4th DCA ruled first that "the fact that First Indemnity, as a broker, was the agent of the insured, does not preclude its liability for negligent or fraudulent conduct."  In support of its position, the Court noted the Section 522 of the Restatement (Second) of Torts has been adopted in Florida by the Florida Supreme Court in Gilchrist Timber Co. ITT Rayonier, Inc., 696 So.2d 334 (Fla. 1997).  The 4th then held that Section 552 was applicable to insurance brokers.  Section 552 states:

(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. 

The Court then held that:

By our application of section 552 to the facts of this case, we hold that an insurance broker is liable for its own negligence in supplying false information on which an insurer justifiable relies in issuing a policy and suffers pecuniary loss.

The Court thus allowed the negligence and fraud counts to proceed against the broker.  However, the Court found that the common law indemnity claim failed to state a cause of action because "Liberty was obligated to pay based on a contractual liability not a vicarious liability for the acts of First Indemnity." 

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My client is a veterinarian who became disabled due to cancer and the subsequent grueling treatments.  Her disability insurance carrier is New York Life. 

Although New York Life has not technically denied the claim they might as well have.  Instead of quickly processing the claim, their claims administrator has repeatedly requested the same information time and again.  Once they finally acknowledge that they have the information they then ask for information that that they should have requested at the beginning of the claim if it was important.  They have also repeatedly asked for information that simply does not exist.  When my client explains that the information does not exist, they ask for it again.  In the meantime, my client suffers not only with her ongoing medical conditions, but she is in desperate need of her disability benefits. 

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

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As an insurance attorney, I have helped many homeowners with water damage claims against their homeowners insurers.  That includes damage from broken ice maker lines, broken washing machine water lines, overflowing and broken toilets, sewer back-ups, and broken or cracked plumbing lines. 

This blog entry concerns losses or water damage as a result of a cracked or broken plumbing line.  Most Florida homeowners insurance policies cover "water damage," but some contain limitations on damage caused by "repeated or continuous seepage or leakage" from a plumbing system.  However, even if your insurance company denies a claim based on the "repeated or continuous seepage or leakage" exclusion all is not lost.  Many of those claims can still be won by a lawyer skilled in insurance claims.  For instance, many of these exclusions say that the exclusion applies to the repeated seepage must occur over a period of 14 days or a "number of weeks."  By implication, then, all of the damage which occurs in the first 13 days, or before the expiration of a "number of weeks" is by necessity covered.  Further, there is a huge question in my mind about what constitutes a "day" of leaking.  If a shower line leaks only when the shower is in use, and it is only in use for a total of 1 hour per day, then it is my position that the shower did not leak for 1 day, but only for 1/24th of a day. 

Further, many policies will cover the consequences of the water damage, i.e. maybe a policy excludes the water damage in and around a shower, but it will cover the water damage when if caves in the upstairs ceiling.  As you can see, there are many, many ways to evaluate and overcome some common exclusion in homeowners policies.  As with any specialized area, do not try to go it alone.  Contact a lawyer with experience in insurance claims before you give up.  You owe it to yourself and your family. 

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Is termite damage covered under your insurance policy?  It depends on who you ask.  Many insurance companies and insurance agents routinely tell the insured that termite damage is not covered by their homeowners insurance policy, or their business property insurance policy.  In fact, a simple internet search reveals many sites that say it is not covered.  You should not base you decision on what your insurance company or agent tells you; and you certainly shouldn't base your decision on your own internet research. 

However, contrary to popular opinion, termite damage is covered under the terms of some homeowners policies and business property policies.  It takes an experienced lawyer who handles these types of claims to carefully read your insurance policy and determine if damage is covered. 

Let me be clear, you should not make the decision on whether your termite damage is covered or excluded even if there is an explicit exclusion in your insurance policy which seems to unequivocally exclude damage by termites.  For example, an insurance policy may specifically exclude termite damage, but that same policy provides coverage for "collapse."  In that case, termite damage that results in collapse may be covered.  (Also, you should not try to determine what is or is not "collapse."  What is or is not "collapse" is about as complicated as whether termite damage is or is not covered.)

Bottom line, if you have termite damage to your home, you should have a lawyer who is experienced in insurance claims and termite claims evaluate your case.  Not all lawyers are familiar with the interplay between termite claims and insurance policies.  You wouldn't ask a foot doctor to evaluate your brain injury; so don't ask a lawyer unfamiliar with insurance and termite claims to evaluate your case. 

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Florida Rule of Civil Procedure 1.525 requires that any party seeking to tax attorney’s fees and costs “shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.”

In Ramle International Corporation v. The Greens Condominium Association, ____ So.3d ____ (Fla. 3rd DCA February 10, 2010), final summary judgment was entered in favor of Ramle and against The Greens.  The summary judgment found that Ramle was entitled to attorneys fees and costs, and reserved jurisdiction to determine the amount of those fees and costs.  Some 11 months later, Ramle filed its motion to determine attorney's fees and costs.  The Greens opposed the motions for fees and costs citing Rule 1.525. 

The 3rd DCA, quoting the Supreme Court's decision of Amerus Life Ins. Co. v. Lait, 2 So.3d 203 (Fla. 2009), held

Once the trial court determines that the prevailing party is entitled to attorneys' fees and costs, the losing party is aware that it is required to pay the fees and costs. At that point, the concerns of prejudice and unfair surprise to the losing party are eliminated, thus eliminating the need to apply the thirty-day time requirement under rule 1.525.

I previously blogged on the Lait decision here

http://www.floridainsuranceblog.com/2009/02/articles/attorneys-fees/florida-supreme-court-clarifies-when-motion-for-attorneys-fees-and-costs-must-be-filed/

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You buy short term disability and long term disability insurance in order to protect yourself and your family.  In many cases, the insurance company denies the disability claim from the beginning.  Other times, the disability insurer approves a claim only to terminate benefits later.  As a lawyer for the disabled, I help people with claims that are denied at the outset as well as claims where the insurance company initially approves the insurance benefits and later terminates the benefits.

What do you do if you have been approved for short term disability or long term disability benefits only to later have the insurance company terminate those benefits? 

Once an insurance company approves disability benefits it can only terminate those benefits if it can show that there has been a "substantial change in condition."  The burden of proof is on the insurer to demonstrate that change in condition.  Often, however, the insurance company will write letters to the insured advising that it is terminating benefits because the insured has failed to demonstrate that he or she continues to be disabled.  The insurance company wants the insured to feel like the burden of proof is on them to demonstrate that the are disabled.  While the insured must cooperate with the insurance company's investigation, the insured does not have to prove continued disability.  To the contrary, the insurance company must prove a substantial change in condition which warrants termination of benefits. 

Sometimes, the disability policy's definition of "disabled" changes after a certain amount of time.  For instances, some disability insurance policies state that they will pay disability benefits during the first two years if the insured is disabled from their "own occupation."  After two years, the insurance policy requires that the insured be disabled from "any occupation."  In many of those cases, the insurance company terminates benefits once the own occupation period expires.  In this instance, the burden of proof remains with the insured, but there are still many ways to prove that the termination of insurance benefits was improper. 

The bottom line, is if your short term disability carrier, or long term disability carrier denies or terminates your disability insurance you have options.  Frankly, every disability insurance case I've ever won has one thing in common - every one of them started with a denial. 

In all of the disability insurance cases I handle, the initial consultation is always free.  And, in most of the disability insurance cases I take, the insurance company has to pay my fees and costs if I win, and if I lose, I'll work for free. 

I also help with appeals if your insurance company has denied your disability claim. 

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I represent many homeowners and business owners who are suing their insurance company for roof damage from wind or hail.  Many times, the leaking in the house gets so bad that the roof must be replaced during the course of litigation.  My clients frequently ask whether it is ok to replace their roofs during the litigation.  The short answer is "yes."  But, there are some caveats. 

Prior to replacing the roof, you must notify me and give me enough time to make sure that I have inspected the roof one last time.  I must also give your insurance company an opportunity to make one last inspection of the home prior to the tear off beginning.  

During replacement, I may also want to be present in order to document damage to the underlayment and decking.  We should also give the insurance company an opportunity to be present during the tear off.  Also, I (and possibly your insurance company) may want to keep some of the items from the roof as evidence. 

With those caveats it is perfectly fine for you to replace your storm damaged roof before and during litigation. 

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In Lloyds Underwriters v. Keystone Equipment Finance Corp., 25 So3d 89 (Fla. 4th DCA 2009), the insured obtained an insurance policy from Lloyds providing liability coverage on a commercial tractor-trailer.  The policy's effective date was November 30, 2004.  The tractor-trailer was stolen December 18, 2004.  The policy provided coverage for loss due to theft, but Lloyds denied the claim, relying on a "Garaging or Secured Yard Warranty" contained in the policy.  This garaging warranty required the insured to "warrant" that the vehicle would be kept in a closed garage, in an enclosed 24-hour guarded lot, or parked adjacent to the insured's residence.  A breach of this warranty "shall result in denial of claim or any rights of recovery hereunder." 

The insured sued Lloyds for breach of contract alleging that Lloyds was estopped from relying, or waived its right to rely, upon the garaging warranty because Lloyds had failed to comply with the notice and delivery requirements of Florida Statutes Section 627.421 and 626.922, and the insured had not otherwise been provided notice of the garaging warranty.  Section 627.421 requires delivery of the insurance policy not more than sixty days after effectuation of coverage.  Section 626.922 requires the surplus lines agent to "promptly issue and deliver to the insured" either the policy or, if the policy is not "then available, a certificate, cover note, or other confirmation of insurance" showing, amount other things, "coverage, conditions, and term of insurance."  Section 626.922(1).  Section 626.922(4) provides that "[a] copy of the policy or cover note or confirmation of insurance shall be delivered to the insured within 60 days after the effectuation of coverage." 

The insured provided an affidavit wherein he swore that the loss occurred on December 18, 2004, that he had not received a copy of the binder or policy prior to the loss, and that he had not otherwise received written or verbal notice of the garaging warranty.  The insured did file a copy of the binder issued by the insurance agent, bearing a date of January 2, 2005, and the Lloyds' policy, listing February 9, 2005, as the date printed on the schedules of equipment and drivers. 

Lloyds did not dispute these facts, but merely argued that Florida law expressly provides that the doctrines of estoppel and waiver may not be applied to create coverage that does not otherwise exist. 

The trial court granted summary judgment in favor of the insured.  On appeal, the 4th DCA affirmed.

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Today, I filed suit against American National Life Insurance Company of Texas which is asserting a lien on a portion of my client's settlement proceeds.  My client lives in Florida, but was injured in New Mexico in an automobile accident.  American National paid for a portion of the medical care related to the accident, and believes that it is entitled to reimbursement for the amounts it paid.  Based on the language of the insurance policy, I do not believe that American National has any lien on the settlement proceeds.  The court will have to decide.   

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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I filed suit today against Auto Gap Insurance Company for failing to pay benefits under a gap insurance policy.  My client purchased gap insurance when she purchased her car.  (Gap insurance is intended to pay a borrower for the "gap" between what is owed on a vehicle and the market value of the vehicle in the event the vehicle is totaled.) 

My client's vehicle was totaled in a crash.  Her auto insurer paid what was due under her collision coverage which left a substantial "gap" for her to pay.  She submitted her this loss to Auto Gap Insurance Company which stated that it had never issued a policy to her.  Contrary to Auto Gap's assertion, my client has an actual original policy issued by Auto Gap Insurance Company.  She also has her original "deal file" from the car dealer that sold her her vehicle.  The Retail Installment Sales Contract and her Bill of Sale both document that she paid for the gap insurance.  

The lawsuit also includes a count against the car dealer which sold the policy to my client.  The allegations against the car dealer result from the fact that it appears that the actual gap insurance company is not an authorized insurer in Florida.  Florida Statute Section 626.901 makes anyone who aids an unauthorized insurer in selling insurance liable for all losses that would be otherwise covered under the policy issued by the unauthorized insurer.  Pursuant to section 626.911, anyone who aids an unauthorized insurer in selling insurance in Florida is liable for attorneys fees and costs if I am successful. 

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In Clifton v. United Casualty Insurance Company of America, ____ So.3d ____ (Fla. 2nd DCA February 12, 2010), Clifton sustained damage to his home due to Hurricane Charlie. Clifton notified United, his homeowners insurer, of the loss and United inspected the home. United made a payment for what it considered the compensable damage.

Clifton states that he them complained numerous times to United and to his insurance agent that the payment was inadequate. After his complaints were ignored, Clifton filed suit against United for breach of contract.

United then moved for appraisal which the trial court ordered. The appraisal resulted in an award for $18,744.24. United paid this amount and Clifton then moved for attorneys fees. United moved for summary judgment and filed a response to the motion for attorneys fees. United argued that it was not responsible for those fees because it had not wrongfully withheld any insurance benefits. United claimed – with no record evidence to support it – that it was unaware that Clifton was dissatisfied with its prior payments. In response to the motion for summary judgment Clifton filed an affidavit outlining his repeated attempts to notify both United and his agent that the prior payment was insufficient. The trial court granted United’s summary judgment and denied Clifton’s motion for attorneys fees.

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The Nation Law Firm recently filed an administrative appeal for certain disability benefits under the terms of the Harris Corporation Disability Plan. Plaintiff was successful in this appeal and benefits were reinstated.

The Nation Law Firm recently handled an administrative appeal under an ERISA plan against Principal Life Insurance Company. Plaintiff prevailed in the appeal and benefits were reinstated.

The Nation Law Firm recently handled an administrative appeal on behalf of a claimant. Benefits were sought from the Life Insurance Company of North America. Plaintiff prevailed and benefits were reinstated.

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We recently filed a lawsuit seeking certain short term disability benefits under the terms of the Federal Express Short Term Disability Plan. Litigation continues.

 We also recently filed suit seeking short term disability benefits under the terms of the Blue Cross and Blue Shield of Florida Short Term Disability Plan. Plaintiff was an employee of Blue Cross and Blue Shield of Florida. Litigation continues.

 In another case, we filed suit seeking long term disability benefits under an ERISA governed plan. Suit was filed against Connecticut General Life Insurance Company.

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We recently filed suit on behalf of our client who owns a barbecue restaurant.  After a fire in the kitchen, our client submitted the claim for fire damage to her business insurer.  The insurance company denied the claim, asserting that she had the wrong kind of fire extinguishing system in place at the restaurant.  The insurance company states that under the policy she was required to have one particular type of extinguishing system.  However, the plain reading of the policy endorsement at issue allows for multiple types of fire extinguishing systems, and she had one of those systems in place at the time.  The first thing I will be asking for in discovery is the underwriting file to see if the insurer ever inspected the property while underwriting the policy.  If so, this will certainly buttress our argument that the extinguishment system in place was contemplated under the policy. 

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The Nation Law Firm recently filed suit against CUNA Mutual Insurance Society for certain credit disability insurance benefits. (Often borrowers will take out credit disability insurance to pay their loan payments in the event of disability). In this case, our client became disabled and applied for disability benefits. The insurer, CUNA, denied the claim, arguing that her condition was an excluded "pre-existing condition." Florida statutes have significantly narrowed those situations where an insurer can deny a claim based on an alleged preexisting condition. Litigation continues.
 

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We filed suit against Metropolitan Life Insurance Company for life insurance benefits. Our client, a pastor, became disabled and continued his life insurance coverage under a waiver of premium provision in the life insurance policy. He was advised by the policy holder that coverage would be provided both for him and his spouse. Following his disability, MetLife terminated his spousal coverage and did not notify him that the coverage had terminated. Several years later, his wife died and he filed a claim for benefits. It was only then that he learned that coverage had previously been terminated on his wife. Litigation continues.

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The Nation Law Firm recently filed a complaint seeking disability benefits on behalf of a pastor who became disabled. Suit was filed against Unum Life Insurance Company of America. Although the matter was not governed by ERISA, the case was removed to federal court allegedly based on diversity. Plaintiff is seeking to remand the case arguing that the court does not have jurisdiction based on the amount in controversy at the time the complaint was filed.

In another case, we filed suit on behalf of a plaintiff seeking benefits under the National Rural Electric Cooperative Association Group Benefits Program. Plaintiff is seeking long term disability benefits pursuant to the terms of the plan. Litigation continues.

We also recently filed suit for disability benefits payable under the terms of an individual disability policy. Plaintiff became disabled and MetLife, the insurer, argues that benefits are not payable based on plaintiff’s medical condition. Plaintiff suffered from rheumatoid arthritis and other conditions.

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I have handled many cases where the roof on a business or home has been damaged by wind or hail. 

Storm damage to your roof is covered under your homeowners and business owners property insurance policy. 

Many times, the insurance company will do the right thing.  Some times they don't.  Common strategies to deny claims that I have seen include:

• Sending out an engineer who writes a report that says there is no or little damage.
• Agreeing to pay for only a portion of the roof.  Florida law requires that if 25% or more of the roof is damaged, then the insurance company must pay to replace the entire roof.
• Saying that the roof has deteriorated because of age when, in fact, the roof never leaked until a severe wind or hail storm.  Most shingle roofs in Florida should last at least 20 years.
• Saying that the problems are due to installation, design or construction errors.

I have litigated each of these issues many, many times against some of the world's largest insurance companies. 

In most cases, 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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Typically, water damage from frozen pipes is covered under your homeowners policy.  Some policies require that one of two conditions be met: The insured has to either maintain heat in the building, or shut off the water supply and drain all systems and appliances of water.  (There is an exception to the exclusion if the building has a fire sprinkler system). 

But, what if the heat malfunctions or the power goes out?  In those circumstances the loss should still be covered.  Also, there is typically no exclusion in your homeowners policy for losses from frozen pipes when the home is vacant or unattended. 

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Baker County Medical Services operates a rural, not-for-profit hospital, and provides emergency medical services to patients.  Aetna Health Management and Humana Medical Plan are HMOs which provide health benefits to some of BCMS's emergency room patients.  BCMS does not have a contract with Aetna or Humana.  As a result, when Aetna and Humana's subscribers receive emergency medical services from BCMS, Aetna and Humana are billed full freight for all emergency charges.  The HMO's then reduce those charges to what they believe are reasonable, and pay based on that reduced rate.

With regard to emergency services, Florida Statute Section 641.513(5) provides that:

Reimbursement for services pursuant to this section by a provider who does not have a contract with the health maintenance organization shall be the lesser of:

(a) The provider's charges; (b) The usual and customary provider charges for similar services in the community where the services were provided; or (c) The charge mutually agreed to by the health maintenance organization and the provider within 60 days of the submittal of the claim.

BCMS sued Aetna and Humana claiming that they were violating Section 641.513(5) by improperly reducing the charges.  The 1st DCA addressed two questions on appeal:  1) whether the term "provider" as used in the statute is limited to only hospitals, or should the term "provider" include looking at all providers of similar services; and 2) whether the term "usual and customary charges" includes only the amounts billed by BCMS and similar providers, or should the term also include reference to amounts accepted by BCMS and similar providers.   

As to the first question, the 1st DCA held that the term "provider" includes "all providers of similar services, not just hospitals." 

As to the second question, the Court held that

In the context of the statute, it is clear what is called for is the fair market value of the services provided.  Fair market value is the price that a willing buyer will pay and a willing seller will accept in an arm's-length transaction....

In determining the fair market value of the services, it is appropriate to consider the amounts billed and the amounts accepted by providers with one exception.  The reimbursement rates for Medicare and Medicaid are set by government agencies and cannot be said to be 'arm's-length.'  Moreover, in the emergency medical services context, hospitals do not have the option that private providers have to refuse to provide services to Medicare or Medicaid patients.  Thus, it is not appropriate to consider the amounts accepted by providers for patients covered by Medicare and Medicaid.

Baker County Medical Services, Inc v. Aetna Health Management, LLC, ____ So.3d ____ (Fla. 1st DCA February 24, 2010).

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My client's vehicle was involved a horrendous motor vehicle accident.  Within hours of the accident, he claimed that his car had been stolen after leaving the keys in the trunk.  Months later, he pled guilty to criminal charges of leaving the scene of the accident with injuries and death. 

GEICO insured my client and the vehicle for the accident.  My client was sued by one of the injured parties, and the estate of a person who was killed in the crash.  GEICO appointed a defense attorney, and advised my client that it was defending the suits under a reservation of rights.  GEICO also filed a declaratory judgment action seeking to disclaim coverage based on various coverage defenses, including material misrepresentation in the presentation of the claim, late notice, and failure to cooperate. 

Pursuant to Florida Statue Section 627.426(2)(b) an insurer waives all "coverage defenses" unless within 60 days of receiving the lawsuit against its insured, the insurer:  1) gives written notice of its refusal to defend; 2) obtains a written non-waiver agreement; or 3) retains mutually agreeable counsel to defend the lawsuit.

In this case, GEICO failed to comply with any of these three options.  Instead, it simply appointed counsel under a reservation of rights.  Florida cases hold that appointing counsel is the "antithesis" of retaining mutually agreeable counsel. 

On Wednesday, the trial court granted summary judgment to my client, holding that GEICO had indeed waived all coverage defenses.  This is a great victory for those injured and killed in the crash. 

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Cabellero was driving a company vehicle on the job when he crashed, killing himself and injuring Bautista, a co-employee.  Bautista sued Caballero's estate for his personal injuries.  Mercury Insurance, the employer's commercial auto carrier, brought a declaratory judgment action against Bautista seeking a declaration that an exclusion precluded coverage under its policy. 

Cross motions for summary judgment were filed.  The trial court denied Mercury's motion and granted Bautista's motion, ruling that there was insurance coverage for the crash.  The 4th DCA reversed. 

The exclusion at issue states that there is no coverage for, and Mercury's duty to defend "does not apply to"

6.  Bodily injury to an employee of an insured ... arising out of or within the course of employment, except with respect to a domestic employee if benefits are neither paid nor required to be provided under any Workers' Compensation, disability benefits or other similar law.  This exclusion applies whether the insured may be liable as an employer or in any other capacity and to any obligation to share damages with or repay someone else who must pay damages because of the injury.

The 4th found that the exclusion applied in this scenario.  It noted that: 

There is no dispute (1) that Charlies's [the employer] is 'an insured' within the meaning of the exclusion, (2) that Bautista was an employee of Charlie's, and (3) that Bautista's injuries arose out of or within the course of his employment with Charlie's. 

The Court rejected Bautista's argument that "an insured" must refer only to Cabellero, because Cabellero is the only "insured" he has sued.  "The exclusion is not confined to the parameters of a particular lawsuit, but is directed at the facts of the accident for which coverage is sought.  There is not getting around the fact that Charlie's is "an insured" under the policy."

Mercury Insurance Company of Florida v. Bautista, ____ So.3d ____ (Fla. 4th DCA February 24, 2010). 

Bautista's attorney made a valiant effort in showing that the exclusion either did not apply in these circumstances, or was ambiguous, by pointing out that "an insured" must refer to the employer and in this case, the employer was simply not sued. 

As with all insurance coverage cases, the outcome of this case, was dependent on the precise language in the policy.  While the Court found that this particular policy did not provide coverage, another policy, under the exact same circumstances may. 

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In Heather Appel v. Lexington Insurance Company, ____ So.3d ____ (Fla. 5th DCA February 26, 2010, the 5th DCA was asked to determine whether a professional liability endorsement in a commercial general liability policy provided coverage to directors of a company who were sued by investors for breach of fiduciary duty.  The allegations stemmed from the directors alleged failure to detect a Ponzi scheme perpetrated by the company's president. 

When the directors were sued, they tendered the defense of the lawsuit to Lexington.  Lexington disclaimed coverage, and the directors filed a declaratory judgment action seeking a declaration that the CGL policy provided coverage for the claims against the directors.  The trial court found no coverage. 

The CGL policy contained a professional liability endorsement.  However, the endorsement defined rather narrowly the "professional services" for which there was coverage.  The endorsement defined "professional services" as:

professional services rendered in the business of selling, installing, maintaining, monitoring or providing connection services for:

1.  Alarm / Security Systems, 2.  Phone Networks, 3.  Video / Video Dial-a-tone, 4.  Wireless Communications, 5.  Cable, 6.  Internet, 7.  Web and Fax services

The 5th DCA found no coverage.  According to the Court, 

the acts and omissions of Green and Martz alleged in the [investors' lawsuit] did not constitute 'professional services rendered for others by the insured' under the policies issued by Lexington.

Procedurally, the case was complicated by the fact that Lexington did not answer the declaratory judgment action, and a default was entered.  However, the 5th DCA held that

The default operates as an admission by Lexington of the well-pled allegations of the complaint, but not as an admission of facts not properly pled or conclusions of law....

Ultimately, the sufficiency of the coverage complaint hinges on whether the allegations that Lexington had a duty to defend Green and Martz in the SOS lawsuit, which is Incorporated in the coverage complaint, and the plain language of the insurance policies, which are attached to the coverage complaint.  Where a document on which the pleader relies in the complaint directly conflicts with the allegations of the complaint, the variance is fatal and the complaint is subject to dismissal for failure to state a cause of action.

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