Category Archives: FL Legislation

Florida’s Third District Court of Appeal Retroactively Applies Allstate PIP Decision

According to Law360, on Wednesday, April 19th Florida’s Third District Court of Appeal retroactively applied a state Supreme Court decision involving Allstate Insurance Co.’s personal injury protection policy language regarding the use of the Medicare fee schedules, overriding a lower court’s ruling and handing Allstate the win. After denying the insurer’s request for review of a circuit court appellate division’s ruling in favor of medical provider Hallandale Open MRI LLC last September, the court reversed course, applying the Supreme Court’s January decision in Allstate v. Orthopedic Specialists.

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Filed under auto insurance, Case Law, FL Legislation, Florida, Insurance, PIP, PIP/No Fault

Chiropractor’s Challenge To ‘PIP’ Law Kicked Back By Appeals Court

In a 14-page ruling on Wednesday, February 15th, the 3rd District Court of Appeal upheld part of a 2012 overhaul of the state’s personal-injury protection auto insurance system that limits No-Fault (Personal Injury Protection) benefits to $2,500 for individuals who were not diagnosed with an emergency medical condition. The appeals court overturned a judge’s decision in a Miami-Dade County court citing arguments that the 2012 law overhaul was intended to help prevent fraud in the PIP insurance system, but was unconstitutional.

The ruling was in response to chiropractor Eduardo Garrido’s legal victory against Progressive American Insurance Company. Garrido was seeking a determination that the insurer should pay up to the policy limit of $10,000 in the absence of diagnosis that the patient suffered an emergency medical condition as the result of an automobile accident. He also challenged that it was unconstitutional to bar chiropractors from being able to diagnose patients with having suffered an emergency medical condition. The chiropractor treated a patient after an accident in 2013 and submitted invoices to Progressive who only paid $2,500 of the $6,075 billed. According to Progressive, there had been no determination, other than Dr. Garrido’s, a chiropractor, that the patient suffered an emergency medical condition.

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Filed under FL Legislation, Florida, Insurance, Insurance Claims, Insurance Defense, Miami-Dade County, Personal Injury Protection, PIP/No Fault

Florida Supreme Court Allstate Fee Schedule Litigation: Shall We Read The Tea Leaves?

The Florida Supreme Court recently heard oral argument in Allstate Insurance Company v. Orthopedic Specialists, No. SC15-2298. At issue was an appeal of a ruling that it wrongfully limited its reimbursements under Medicare fee schedules for motorists’ personal injury protection (PIP) claims.

Allstate’s policy language has been found to be exceedingly clear and concise by the majority of appellate courts across the state. A ruling affirming the Fourth District Court of Appeals decision would only serve to blindside Florida’s citizens with additional bills for costly co-payments while also limiting the amount of coverage available to them.

While we wait for a final opinion, industry professionals have been closely watching the court for any and all clues. Politics of the high court aside, what “shall” we analyze to determine how the justices will rule?

One such clue seems to be overlooked, yet is hiding in plain sight. On the very day that the court heard oral argument in Allstate v. Orthopedic Specialists the court issued a Per Curiam Opinion amending the Florida Rules of Civil Procedure in which the word “shall” was stricken over 200 times. See In Re: Amendments to the Florida Rules of Civil Procedure No. SC16-155. Ironically and perhaps persuasively, the court writes unanimously that “[t]he amendments shall become effective January 1, 2017, at 12:01 a.m.” (emphasis mine.)

More recently, numerous Per Curiam Opinions amending various procedural and administrative rules have been issued. They have seen the court continue to favor “shall”. Amendments to the Rules of Criminal Procedure, Rules of Appellate Procedure, Code of Judicial Conduct and Small Claims Rules did not remove any “shall” provisions.

Pouring over minor amendments by the high court with no clear answer, perhaps we are left to channel Judge May’s epic dissent in the Fourth District Court of Appeals Opinion in which she found Allstate’s policy language to be unambiguous and compliant. While accusing the medical providers of leading the majority down the yellow brick road she writes frustratingly, “As the Pope once asked Michelangelo during the painting of the Sistine Chapel: “When will there be an end?”

We “shall” know soon.

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Filed under Auto Insurance Fraud, FL Legislation, Florida, Florida Supreme Court, Fourth District Court of Appeals, Insurance, Insurance Claims, Personal Injury Protection

Florida Uber Driver Insurance Bill Gains traction

On January 19, 2016, the Florida Senate Banking and Insurance committee unanimously advanced an “Uber bill” that would set statewide insurance standards for drivers of ride-sharing services. The panel voted 10-0 to send Senate Bill 1118 to the next step in the legislative process.

The senate bill was filed by Senator David Simmons, R-Altamonte Springs, and sets separate minimum coverage requirements for when drivers are personally using their vehicles and when drivers are logged into transportation network companies’ apps.

The bill would require transportation network company drivers to carry primary automobile insurance coverage of at least $50,000 for death and bodily injury per person, $100,000 for death and bodily injury per incident, and $25,000 for property damage, under Simmons’ bill. Also, the insurer must be aware that the driver provides TNC services, and the policy must still apply while the driver is logged into a TNC app to receive ride requests but is not in the act of transporting a paying passenger, according to the bill.

“There exists no mechanism in the state of Florida to require that the company even have any insurance,” Simmons said. “My goal is to provide coverage to the person who is the driver and the riders and the persons who may be injured as third parties in the event of an accident.”

S.B. 1118 also provides definitions of TNCs, drivers and other elements of the service, and requires that TNCs cooperate with any claims investigations, including providing precise times that a driver logged on and off the company’s digital network for the 12-hour periods immediately before and after an accident.

The bill aims to go into effect January 1, 2017, and includes a section preempting local governments from imposing any insurance requirements on TNCs.

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Filed under FL Legislation, Fla. Stat. 627.736 (2012), Insurance, Transportation Network Companies

Florida Personal Injury Law Caps Unclear

On October 8th, Plaintiffs in two putative class actions against insurers in Florida argued before the Eleventh Circuit Court that the 2013 amendments to the State’s No-Fault Personal Injury Protection Statute created ambiguities in determining caps and that the lower courts erred in attempts to resolve those ambiguities

The contested issue is the interpretation of two sections lawmakers added to the law intended to maintain the existing $10,000 PIP benefit cap but only for claimants who have an emergency medical condition while reducing the maximum cap to $2,500 for those who did not.

Judge Carnes acknowledged that he was not satisfied with the Plaintiffs’ arguments and questioned why there was a need for certification in order to receive the $10,000 maximum for an emergency if a lack of certification would also default to a $10,000 maximum based on the prior law. However, the Judge allowed the Plaintiff’s attorney seven days to identify and submit two best examples of decisions from the Florida Supreme Court, which show a conflicting inconsistency in a state law, where the proper step is not to turn to the legislative history but to revert to prior law instead.

The Judge also challenged the Plaintiff’s argument against relying on legislative history before the defense. Counsel for the defense, Thomas E. Scott stated that “If the court were to rule this way, it would serve to defeat all that lawmakers were trying to accomplish.” The Defendant’s argument in the case is that the Legislature wanted some form of security to establish the two-tier benefit system and placed a burden on the claimant to prove their medical condition.

A decision has not yet been rendered in this case.

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Filed under FL Legislation, Florida, PIP/No Fault

Insurance Trade Group Recommends Changes to Florida Insurance Coverage Laws

In a recent article, Property Casualty Insurers Association of America (PCI) advised the State of Florida to address potential insurance coverage issues under Florida law related to Transportation Network Companies (TNCs) such as Uber and Lyft. Insurance trade groups are concerned about the gray area regarding insurance coverage as it relates to TNCs.

The issue centers on when auto insurance coverage provided through transportation network companies begins. According to PCI, “Personal auto insurance policies are not intended for commercial use and will not cover damages if it is determined the driver was using their vehicle for hire.’’ This issue could leave drivers at financial risk if they were in an accident since they may not have the proper insurance coverage when driving for a TNC.

During the 2015 Florida Legislative Session, House Bill 817 and Senate Bill 1298 were introduced to address the insurance coverage issues. However, the sudden end to the legislative session prevented these vital bills from coming to a full vote on the floor.

PCI, along with other trade groups, hopes to see this insurance coverage issue resolved by the Florida Legislature and hopes to see progress in the upcoming legislative session. California, Colorado and most recently Georgia have adopted insurance coverage parameters to address the insurance gap related to TNCs.

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Filed under FL Legislation

Uber and Lyft Oppose Florida Push for Increased Insurance Coverage

Florida Sen. David Simmons, R-Altamonte Springs, is pushing for stronger insurance requirements for transportation network companies that connect drivers with passengers through smartphone apps. According to a recent article in the Herald-Tribune, the Senate Banking and Insurance Committee supported the measure (SB 1298), despite opposition from Uber and Lyft—the two leaders in the burgeoning app-connected industry of for-hire drivers.

The proposed legislation would create the following distinctive coverage requirements:

  1. the “on call” period from when a driver is notified about a customer to pick up to when the passenger gets in the vehicle—which currently is considered a coverage gap
  2. when a customer is actually riding in the vehicle—called the ‘ride acceptance’ period

Sen. Simmons believes the proposal is necessary to protect people who may be harmed by ride-service drivers who are on their way to pick up a passenger. In addition, the proposed changes could protect the companies themselves if drivers bypass the app service and notify customers that they are available directly for future rides.

Lobbyists for the transportation network companies, however, dispute the necessity for “on-call” coverage, which they say, will lead to increased fares. Part of the success of Uber and Lyft is a result of traditionally lower fares than standard taxicab company rates.

Currently, these for-hire drivers only need the state minimum of insurance.

Under the proposed legislative bill, the driver or company would be required to carry liability coverage of at least $125,000 for death and bodily injury, at least $50,000 for property damage, and at least $250,000 in uninsured and underinsured motorist coverage. When a passenger is riding in the vehicle, the coverage would jump to at least $1 million for death, bodily injury and property damage, and $1 million in uninsured and underinsured motorist coverage.

Taxi and limousine services, the majority of which are currently controlled by local governments, must carry policies under Florida law that include minimum limits of $125,000 per person for bodily injury, up to $250,000 per incident for bodily injury, and $50,000 for property damage.

The proposal, which still has to clear two additional Senate committees and has not been heard in the House as of yet, comes on the heels of industry requests for the state to clarify insurance requirements in the “for hire” transportation industry.

Click on the link for more information about Florida SB 1298, Insurance for Short-term Rental and Transportation Network Companies.

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Filed under FL Legislation

Insurance Bill addresses issues with Assignment of Benefits

Florida House of Representative, John Tobia of the 53rd district, has introduced CS/HB 669 which addresses consumer issues related to “Assignment of Benefits”. The bill is still alive after a hearing on March 19, 2015 in front of the House Insurance and Banking Subcommittee. The bill addresses insurance-claims issues regarding AOB’s dealing with property insurance. An AOB occurs when a policyholder has a loss and signs a contract with a third party to reconcile the damage. Once the AOB is signed the contract allows for the third party to be assigned the proceeds from the homeowner’s insurance policy. AOB’s are currently a hot topic with property insurance carriers and for years have been the keystone of PIP/No Fault Litigation.

CS/HB 669

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Filed under FL Legislation