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

Yesterday, I took the deposition of an engineer and field geologist who had been retained by an insurance company to evaluate the presence of sinkhole activity at my client's house.  The engineering firm performed testing and gave the opinion that there was no sinkhole.  However, contrary to the conclusion stated in their report, the actual test results in the report indicated that there was indeed sinkhole activity causing damage to the home.  I filed suit against the insurance company for breach of contract.

Interestingly, in its final report, the engineering firm hired by the insurance company wrote that  “testing of soil samples was judged to be unnecessary to conduct this study.” However, in his deposition yesterday, the writer of that report, admitted that, contrary to what he wrote in the report, he did indeed test various soil samples with hydrochloric acid. That testing and his test results are documented in handwriting on the boring logs contained in the engineering company's internal files. HCL testing is the quintessential laboratory test in a sinkhole investigation. The HCL testing was reactive for the presence of the building blocks of limestone, and indicative of dissolved limestone under my client's residence.

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Our clients’ home in Volusia County, Florida was severely damaged by an electrical fire. They filed a claim with their homeowner’s insurer, Citizens Property Insurance. Despite being presented with much higher estimates from contractors retained by my clients, Citizens is only willing to pay in accordance with its own adjuster’s estimate. Citizens is refusing to acknowledge that my clients’ ordinance and law coverage applies to bring the house up to code. They are also attempting to repair several items that should be replaced.

Although our clients just recently sought our help, they have been fighting with Citizens for over 2 years on this claim. During this time, they have been living outside their home because they do not have sufficient funds to complete the home repairs. Therefore, in our breach of contract lawsuit against Citizens, we will not only seek recovery of those unpaid damages covered by the policy. we will also seek recovery of all damages (even if they are not covered by the insurance policy) incurred by our clients as a result of Citizens not paying the claim in full in a timely manner. These types of damages are called consequential damages and are recoverable in Florida in a breach of contract action.
 

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My client was severely injured in an automobile accident.  He received medical treatment that was paid for by his employer's group health insurance policy.  The plan is a fully insured health insurance policy. 

I was able to settle the injury case for the policy limits of the person who caused the accident, plus the policy limits from my client's uninsured motorists carrier.  Although I obtained policy limits for my client, he was not fully compensated for his injuries because of the low policy limits available. 

As is frequently the case, my client's ERISA health insurer has requested that it be "fully" reimbursed for all money which it expended for medical treatment related to the crash.  I objected to paying them back the full amount and suggested that they take about a 90% reduction in what they would accept.  They refused.  

Today, I filed suit against the health insurer seeking a judicial declaration that the health insurer must substantially reduce what it is seeking.  Because this is a fully insured ERISA policy, I believe that the insurer must base its request for reimbursement on Florida Statue Section 768.76.  The insurer insists that 768.76 doesn't apply because this is an ERISA plan.  (The insurer is wrong on this). 

Based on 768.76, the health insurer must significantly reduce what it is seeking out of the settlement with the person who caused the crash; and it is not allowed to collect anything from the uninsured motorists settlement.   

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.

As with many of my insurance cases, there will be no fees or costs for my client in this matter.  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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In an order dated March 2, 2011, the Circuit Court in Hillsborough County ruled that damage caused to a home by Chinese Drywall was covered under a standard Florida homeowners insurance policy.  The Court further determined that policy exclusions for "wear and tear" and "errors, omissions, and defects" did not apply. 

While the coverage for the dwelling itself is covered under the "all-risk" portion of the policy, damage to personal property in the dwelling is only covered if it is damaged by a "named peril."  "Smoke" was a named peril in the policy (as in all standard Florida homeowners policies).  Smoke is not defined in the policy, so the court utilized a dictionary definition of smoke.  Merriam-Webster defines smoke as "a suspension of particles in an gas."  The Court then found that the sulfur particles contained in the "off-gassing" caused by the Chinese Drywall constitutes "smoke" under the policy.  Accordingly, the Court held that the damage to the insureds' personal property was covered under the policy. 

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

This policy did not contain a pollution exclusion.  It is unclear how that particular exclusion would have played out in this case. 

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My client resides in Punta Gorda, Florida and has his homeowners insurance with Citizens Property Insurance.  His water heater malfunctioned and flooded his home with water.  He reported the claim to Citizens Insurance.  Citizens said that the loss was not covered because the water heater malfunctioned.  Citizens cited a clause in their policy that excludes losses caused by defective products.     

However, this clause only excludes the damage to the defective part itself, not damage caused by the defective part.  The water damage is covered.  I see this type of denial from various insurance companies all the time.  To an unsuspecting homeowner, this may sound reasonable, but it is dead wrong.  Homeowners insurance covers this type of loss. 

Yesterday, I filed a lawsuit against Citizens for breach of contract.  As with many of my insurance cases, if I win the insurance company will be required to pay all of my fees and costs; and if I lose, I'll work for free. 

I handle these types of cases all over the State of Florida. 

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My client resides in Dunedin, Florida and has his homeowners insurance with Citizens Property Insurance.  The roof on his condo leaked, and damaged his wood flooring and walls.  He reported the claim to Citizens Insurance.  Citizens said that it was the fault of roofers who had recently been hired by his Condo Association, and that either his Condo Association or the roofers were responsible.  Wrong.   

This is a common tactic which I see quite frequently.  To an unsuspecting homeowner, this may sound reasonable, but it is dead wrong.  Homeowners insurance covers this type of loss, plain and simple.  If the loss was caused by a negligent party, then the homeowners insurer is supposed to pay the claim; and then the insurer will sue the negligent party in order to get its money back as well as getting the insured's deductible back.  Nothing could be clearer.

Yesterday, I filed a lawsuit against Citizens for breach of contract.  As with many of my insurance cases, if I win the insurance company will be required to pay all of my fees and costs; and if I lose, I'll work for free. 

I handle these types of cases all over the State of Florida. 

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