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.
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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.
Continue Reading...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.
Continue Reading...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.
Continue Reading...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.
Continue Reading...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.
Continue Reading...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?
Continue Reading...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).
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).
My clients sustained a fire loss at their home. The fire, smoke and water also significantly damaged their personal property. As a result, they were out of the house for quite a while and incurred additional living expenses.
The claim was submitted to their homeowners insurance company for payment. The insurance company has paid some of the losses, but has simply refused to pay for the entire loss. Instead of paying the claim, the insurance company has also consistently requested that my clients provide it with documents which they have already repeatedly given to the insurance company.
My clients' public adjuster eventually demanded appraisal. In response, the insurance company named its appraiser, while refusing to give his phone number or address. Since identifying its appraiser (by name only), the insurance company has refused to participate in the appraisal process.
Yesterday, I filed suit for breach of contract as a result of the homeowners insurance company failing to pay the loss. At this point, the insurer has waived its right to demand appraisal, and we will be pursing litigation.
As with almost all of my insurance cases, I 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.
My client, a home owners association (HOA), was sued by one of the home owners in its community. The HOA submitted the claim to its errors and omissions insurance carrier. The E & O Carrier denied the claim and refused to defend. I filed a declaratory judgment action which resulted in the insurance company agreeing to defend the claim.
Unfortunately, the case went to trial and the HOA lost. As a result, the HOA owed a sizable judgment, and the other side's attorneys fees and costs. The HOA's attorneys also incurred significant litigation costs at trial. To add insult to injury the E & O insurance carrier has refused to pay the judgment, or the other side's attorneys fees and costs. The carrier has also refused to pay the outstanding litigation costs incurred by the HOA at trial.
This week, I filed another lawsuit against the same E & O carrier seeking payment of the above expenses.
As will almost all of my insurance cases, I 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.
My client's husband had a seizure and fell in his home. He struck his head on the floor which resulted in a traumatic brain injury. Tragically, he later died of the TBI.
At the time of his death, he was a plan participant in an ERISA benefits plan sponsored by his employer. One of his benefits was an Accidental Death and Dismemberment insurance policy issued by Metropolitan Life. His widow submitted the claim for Accidental Death and Dismemberment benefits.
The ERISA policy contained an exclusion for losses that are "caused by or contributed to" by a medical condition. Metlife denied the claim based on the medical condition exclusion.
I have filed an administrative appeal under ERISA. I believe that the exclusion only applies to deaths that are caused by a medical condition, not accidents that are caused by medical conditions. Case law from as far back as the 1800's support our position on this appeal.
In Geico Indemnity Company v. Physicians Group, LLC, a/a/o Paul Androski, ____ So.3d ____ (Fla. 2nd DCA August 13, 2010), the 2nd DCA ruled that the PIP fee schedules which went into effect on January 1, 2008, do not apply to any accidents that occurred before that date.
The opinion was fairly short and straightforward. Specifically, the Court held that:
the 2008 version of section 627.736(a)(2)(f) does not retroactively apply to an insurance policy that was in effect and that expired before the statute's effective date of January 1, 2008.
A copy of the 2nd DCA's opinion can be downloaded by clicking here.
We should all expect that this decision will be appealed to the Florida Supreme Court.
My good friend Attorney Tom Player successfully handled the appeal for Physicians Group. Great job Tom!
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