Category Archives: Claims Handling

ROIG Attorneys Publish Ridesharing Article in Daily Business Review

ROIG Lawyers Attorneys Cecile S. Mendizabal and Lissette M. Alvarez published the article, “Ridesharing Legislation May Trigger New Wave of Litigation” in the Daily Business Review.

ROIG Lawyers Summer Law Clerk Yasbel Perez also contributed to the article.

Subscription required for full article.

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Filed under auto insurance, Claims Handling, FL Legislation, Florida, Insurance, Insurance Claims, Insurance Defense, Personal Injury Protection, PIP, PIP/No Fault, Ridesharing, Transportation Network Companies

New Opinion Released Regarding Examinations Under Oath (EUOs)

A new opinion was recently released by the Florida 9th Circuit Court in its appellate capacity interpreting Fla. Stat. § 627.736(6)(g) and the timely scheduling of Examinations Under Oath (EUOs). This case reaffirms that as a general rule, an insurer ought to schedule the initial EUO in any claim under investigation to occur within 30 days of receipt of the first bill to ensure that the investigation is being conducted well within the time limits set forth in the PIP statute without obliging the insurer to issue a payment of the subject bill prior to investigation.

In Geico Indemnity Co. v. Central Florida Chiropractic Care a/a/o David Cherry (2016-CV-000038-A-O), Central Florida Chiropractic sued Geico for breach of contract for failure to pay overdue PIP benefits. Geico asserted as an affirmative defense that coverage was appropriately denied because the assignor failed to appear for two EUOs.

Central Florida Chiropractic contested Geico’s above-described defense because the EUOs were scheduled to occur more than 30 days after the date on which Central Florida Chiropractic had submitted the bills for the alleged charges at issue and, thus, the EUOs were unreasonably set to occur beyond the 30-day statutory period for payment of said bills. In fact, the Court noted, the first EUO request was not even sent until after 30 days had lapsed. Further, Geico had not informed the claimant pursuant to Fla. Stat. § 627.736(4)(i) that his claim was pending investigation.

The 9th Circuit ruled that even though attendance at an EUO is a condition precedent to receiving PIP benefits under Fla. Stat. § 627.736(6)(g), this provision “cannot be read in a vacuum.” The Court specifically looked to section (4)(b), which requires provider bills to be processed within 30 days of receipt, and to section (4)(i), which states that the claimant should be notified in writing within 30 days of filing the claim that an investigation is under way. Geico argued that section (4)(i) permits a 60-day extension of time for investigation beyond 30 days, but the Court pointed out that Geico failed to send any letter notifying the claimant of the investigation in this case, so the 30-day window was not extended.

The Court also explained that timely payment of the provider bills does not foreclose the insurer from investigating the claim. Nonetheless, “nothing in the statute additionally excuses the insurer’s potential breach for failure to pay a PIP claim within 30 days as contemplated by section 627.736(4)(b).”

Therefore, Geico could not enforce the EUO as condition precedent to receiving PIP benefits because by the time it had scheduled the EUOs, it was already in breach of the policy as the provider’s bills were not timely paid within 30 days. “[B]ecause Geico was already in breach of the insurance contract before the EUOs were scheduled to take place, [the assignor] was not obliged to submit to them.”

The Geico case is the latest in a long line of opinions and trial court orders, starting with Amador v. United Auto. Ins. Co., 748 So. 2d 307 (Fla. 3d DCA 1999), which holds that an EUO does not toll or extend the 30-day period within which an insurer must pay otherwise timely, compensable charges pursuant to Fla. Stat. § 627.736(4)(b). Courts have also ruled that the insurer does not comply with the 30-day requirement if it coordinates the EUO within 30 days, but the EUO is nonetheless scheduled to occur beyond the 30-day window. (See Micro-Diagnostics & South Florida Inst. of Medicina a/a/o Luz Solarte v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 248a (Fla. 11th Cir. Ct. App. 2004). In general, an insurer cannot defend claims on the basis of a claimant’s failure to attend an EUO if said EUO is scheduled to occur outside the 30-day period after submission of the medical bills. (See Humanitary Health Care, Inc. a/a/o Juan Esquivel v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 531b (Fla. 11th Cir. Ct. 2005).

However, a Miami-Dade appellate court did find that an insurer may still benefit from the claimant’s failure to appear for an EUO if said EUO is initially scheduled to occur within 30 days, but then rescheduled for a later date at the claimant’s request. (See West Dixie Rehab. & Medical Ctr. v. State Farm Fire & Casualty Co., 10 Fla. L. Weekly Supp. 16a (Fla. 11th Cir. Ct. App. 2002)).

The above cases make clear that any communications regarding the re-scheduling of an EUO ought to be done in writing, with language that clearly communicates that the change in date was done to accommodate the request of the insured or insured’s attorney. When appropriate, the insurer may send a letter to the claimant or claimant’s attorney pursuant to section (4)(i) advising that a claim is under investigation within 30 days of the claim filing. This will extend the time period within which an investigation may be conducted up to 90days after the submission of the claim, and thus allows additional time before any provider bills must be processed.

If you have any questions or would like to discuss this issue in greater detail, please feel free to contact us.

ROIG Lawyers is a minority-owned litigation firm with a primary focus on Insurance Defense Litigation. We serve as primary counsel for numerous national and regional carriers and corporations related to all aspects of insurance litigation from 7 offices throughout the state of Florida. ROIG Lawyers does not intend to create an attorney-client relationship by offering this information, and anyone’s review of the information shall not be deemed to create such a relationship. E-mail list/s from ROIG Lawyers are intended to provide information of general interest to the public and are not intended to offer legal advice about specific situations or problems. You should consult a lawyer with regard to specific legal issues that require attention.

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Filed under auto insurance, Case Law, Claims Handling, Examinations Under Oath (EUO), FL Legislation, Insurance, Insurance Claims, Insurance Defense, Personal Injury Protection, PIP, PIP/No Fault

Sunny South Florida, Out-of-State College Students and the question of Vehicle Insurance Coverage

Spring Break, a time where college students from all over the Country flock down to Florida, known by many as the “Spring Break Capital of the World”, looking to have some fun in the sun.

Florida has many Universities, Colleges and other institutions of higher learning that welcome students from other States to attend.

So the question is, does an out-of-state student who attends University or College in Florida for 2 or 4 years now become a resident of Florida because they have decided to live in Florida during this time? Is that out-of-state student now required to register and license their out-of-state vehicle in Florida and obtain the minimum Florida automobile insurance coverage on that vehicle which is $10,000.00 in Personal Injury Protection and $10,000.00 in Property Damage Liability?

Well yes and no.

If the out-of-state student is planning to domicile themselves in Florida then they are required to license their vehicle in Florida and obtain the minimum insurance in order to operate that vehicle on the roads and highways of the State.

However, if the student maintains their residence in another State while they are enrolled as a full-time student in an “institution of higher learning”, then they are exempt from licensing their vehicle and obtaining the minimum insurance on that vehicle during the duration of their enrollment, as long as they have complied with the licensing and insurance requirements of the State for which they are a resident. One less thing for parents to worry about when they watch their babies leave the nest for the first time.

However, what constitutes an “institution of higher learning”.

The Merriam-Webster Dictionary® defines this term as “a college or university”. But what about a trade school, vocational school or cosmetology school? The Federal Government generally defines an ”institution of higher education” as a public or nonprofit educational institution who only admits students who have a high school diploma or have a recognized equivalent certificate such as a General Educational Diploma (GED); is accredited or has pre-accreditation status; awards a Bachelor’s Degree or a 2-years Associates Degree; or, any school that provides not less than a 1-year training program beyond High School, to prepare students for gainful employment in a recognized occupation.[1]

These are inquiries that an insurance company must properly investigate in an automobile accident claim involving a nonresident student in order to determine whether they would be exempt from maintaining the minimum Florida insurance on their vehicle while in Florida or if the insurer may be required to extend that student the minimum insurance under Florida law.

So would your insured qualify for the exemption as a nonresident student?

This article is not intended to create an attorney-client relationship by offering this information, and anyone’s review of the information shall not be deemed to create such a relationship. The content provided is intended to provide information of general interest to the public and is not intended to offer legal advice about specific situations or problems. You should consult a lawyer with regard to specific law issues that requires attention.

For additional information, please contact Stephen Mellor of Roig Lawyers at 954-354-1541 or by email at smellor@roiglawyers.com. Stephen G. Mellor is a partner in the Deerfield Beach office of Roig Lawyers who primarily focuses on out-of-state policy claims for insurance carriers. 

[1] 20 U.S. Code § 1001

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Filed under auto insurance, Claims Handling, Florida, Insurance, Insurance Claims, Insurance Defense, Personal Injury Protection, PIP, PIP/No Fault

Andrew v. Matthew: The Evolution of Investigative Tools in Insurance Investigations

I am sure right now many of our insurance carriers are out there running themselves ragged, trying to quickly and efficiently adjust the thousands of claims that are pouring in from Hurricane Matthew.

As the dust settles, I want to remind you of all the great resources and tools you have to investigate and adjust claims that were not available during the time of Hurricane Andrew. Although there are many, the most impactful are cellphones, portable computers and trade-specific tools of laser distance meters, moisture meters and thermal imaging devices.

Clearly, we have come a long way from the time of paper files, pay phones and disposable cameras. During Hurricane Andrew, if you wanted to review a prior claim file, you would need to retrieve it from storage or an archive. If you wanted to make an appointment to inspect the property, you would need to leave messages for the insured at their home or office, and wait for them to call you back at the office. Finally, if you wanted to take pictures of the damage, you would have needed to use a disposable camera (which date back to 1986) and hoped you captured the images you needed.

The most significant technological advancement we have at our fingertips is our cell phones. Cell phones give us the ability to take photographs, take videos, record audio and otherwise document an event. As an example, the first cameras on cell phones arrived in 2000. Since then, cellphones quickly evolved into what we know today. With that in mind, ensure that the insured is asked whether they have any photographs of the property taken prior to your inspection as well as any photographs of the damaged areas prior to them being damaged.

Ask for this information early on in the claim handling, so that if it exists, it can be secured prior to a coverage decision. A photograph is worth a thousand words, and you do not want a few of those words to be “if I’d seen that …. ”

Also, be aware that pursuant to Florida Statute 626.854 (15)(c), which states in pertinent part that an insurer shall not be prevented from “timely conducting an inspection of any part of the insured property for which there is a claim for loss or damage,” you are entitled to inspect all areas claimed as damaged. As such, make sure you are asking to see just that — all damaged areas.

Tools Of The Trade
Advancements specific to the trade have been measuring tools, moisture meters and thermal cameras, to name a few. Although the spring-click tape measure was invented in 1868, it was not until the early 1990s that laser distance measures began to circulate. These electronic tape measures not only provide precise measurements, they also assist in obtaining measurements of hard to reach or unsafe areas, common in many homes after the passing of a major hurricane.

Moisture meters and thermal-imaging devices in their current form are fairly recent concepts that have significantly impacted the trade. These two items, when used together, are very effective in locating sources of leaks, water patterns and extent of moisture. The thermal-imaging device will depict a pattern of temperature differences through contrasting colors, while the moisture meter will indicate whether an item is wet or not and can even provide the percentage of wetness depending on the device.

However, please keep in mind that thermal-imaging devices only measure differences in temperature, and the manufacturers of those devices strongly suggest verifying the thermal readings with moisture meters for that very reason. A change in temperature does not equate to moisture in and of itself.

Finally, the best technological advancement for claims handling has been the portability of the computer, i.e. tablets and laptops. These portable computers were invented in 1981 and provide the ability to retain and organize the information obtained by all of the other advancements mentioned. They also allow you to carry large amounts of information regarding weather conditions, aerial photographs of insured properties and claims history.

Knowledge Base
Ultimately, the one thing that has not changed since Hurricane Andrew is that the insured continues to be your best source of knowledge. Remember that Florida Statute 626.854(15)(b) states in pertinent part that a “person acting on behalf of the insurer” should have “reasonable access at reasonable times to any insured or claimant.”

Use that reasonable access to chat with your insured about the loss while it is still fresh in their mind. Topics of interest should include the specific details of the loss, when the loss was first discovered, efforts at mitigation, and any individuals and companies that have helped with the claim. As to efforts at mitigation, make sure to ask what was done, who did it and how they did. This information will be essential to your handling of the claim to ensure all of the insured’s proceeds are used as efficiently as possible to put the home back to its pre loss condition.

Coupling your best source of knowledge with the information you secure during your claims handling and your grasp of the relevant law will be your recipe for success during the aftermath of Hurricane Matthew.

If you are in need of a quick refresher on the rights and duties included in the applicable statutes, get in touch with registered continuing education instructors who may already have this information in a course approved by the state.

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Filed under Claims Handling, Florida Statute 626.854 (15)(c), Hurricane Andrew, Hurricane Matthew, Insurance, Insurance Claims