Category Archives: Personal Injury Protection

IIHS Confirmed Tesla’s Claims About Reducing Injury Liability Claims with Autopilot

The Insurance Institute for Highway Safety (IIHS) has confirmed Tesla’s claim that its Autopilot and active safety features result in ‘fewer physical damage, injury liability claims.’ However, IIHS also found that the introduction of these features could increase other kinds of claims.

The combined driver assistance features on the 2014–16 Model S lowered the frequency of claims filed under property damage liability (PDL) and bodily injury (BI) liability coverage with the 2012–14 Model S without the technology. However, IIHS didn’t find that they lowered the frequency of collision claims. They also saw increases in MedPay and PIP claims.

Highway Loss Data Institute’s senior vice president, Matt Moore, admits that they would need more data to really understand the effect of Autopilot.

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Filed under auto insurance, Personal Injury Protection, PIP, PIP/No Fault

Appeal Court Backed Air Ambulance Firm in PIP Dispute

The 11th U.S. Circuit Court of Appeals backed air-ambulance firm Air Methods Corp. in a dispute stemming from a traffic accident that resulted in the death of accident victim Lemar Bailey about whether the amount paid for helicopter services should be limited by Florida’s no-fault auto insurance law. The federal appeals court ruled that the air-ambulance firm is considered an air carrier under federal law and should be able to bill the child’s father, Lenworth Bailey, for costs that exceeded the limits in the state’s no-fault system.

Following the March 2013 accident, Air Methods Corp. billed $27,975 for its services. Bailey’s auto insurer, State Farm Mutual Automobile Insurance Co., paid $6,911 under the fee schedule. His health insurer, Aetna Life Insurance Co. paid another $3,681. However, Bailey did not pay the remaining balance of nearly $17,400. He filed a potential class-action lawsuit alleging that the air ambulance company was trying to improperly collect amounts in excess of the fee schedule. However, the judge ruled in favor of the Air Method, which led Bailey to the appeals court that also rejected such arguments.

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

UPDATE: Ringleader Pleads Guilty To His Role In $23 Million Auto Insurance Fraud Crime Ring

Andrew Rubinstein of Miami and the self-confessed ringleader, Felix Filenger of Sunny Isles pleaded guilty to a racketeering conspiracy charge last year. Rubinstein and Filenger were paying kickbacks to tow truck drivers and body shop workers who illegally steered accident victims to chiropractic clinics they owned at a rate of $1,500 to $2,000 per “patient.” Clinic workers would then have patients attend multiple visits, document exaggerated pain levels, and bill insurance providers for treatment in the amount of $10,000, the maximum allowed under Florida law.

According to Prosecutors, the clinics were located throughout south and central Florida, including Sunrise, Hollywood, Hallandale Beach, Pompano Beach, Delray Beach, West Palm Beach, Miami, Orlando and Kissimmee.

Under the terms of his plea agreement, both sides had agreed to recommend the six-year sentence for Rubinstein. Filenger’s sentencing has been postponed. Several other people who also admitted their roles in the fraud are scheduled for sentencing later this year.

Click here to view the full article. (Previous post)

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Filed under Auto Insurance Fraud, Florida, Fraud, Insurance, Insurance Fraud, Personal Injury Protection, PIP, PIP/No Fault

Ringleader Pleads Guilty To His Role In $23 Million Auto Insurance Fraud Crime Ring

According to the Sun Sentinel, Felix Filenger of Sunny Isles, pleaded guilty this week to his role in an elaborate crime ring that operated at several South Florida chiropractor clinics. The fraud totaled at least $23 million from 10 auto insurance companies over the last seven years, per court records.

Federal prosecutors say Filenger and Andrew Rubinstein took over troubled clinics and hid their ownership by having chiropractors and other people register the practices in their names. The men told chiropractors what treatments they wanted to be performed, based on the potential revenue from the services, prosecutors said. Medical staff who refused to “play ball” were fired, they said.

Filenger admitted he, and other group leaders, paid kickbacks of $1,500 to $2,000 – per patient – to tow truck drivers and body shop workers who agreed to illegally steer accident victims to chiropractic clinics that were secretly owned by Filenger and his allies.

Filenger plead guilty to one count of racketeering conspiracy on Monday in federal court in Miami and is scheduled to go to trial on January 8.  Two co-defendants, who are still scheduled for trial that day, may plead guilty to related charges on Wednesday, court records show.

Andrew Rubinstein, 48, of Miami, is jailed on charges of racketeering and mail fraud conspiracies, wire fraud, health care fraud, and making false statements.

Olga Spivak, 59, a chiropractor from Hollywood, is free on bond. She faces the same charges.

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Filed under auto insurance, Auto Insurance Fraud, Broward County, Florida, Florida Division of Insurance Fraud, Insurance Fraud, Miami-Dade County, Palm Beach County, Personal Injury Protection, PIP, PIP/No Fault

Attorney Fee Multipliers in PIP and the Search for a Guiding Lodestar

In October 2017, the Supreme Court again addressed the issue of contingency fee multipliers to awards of attorneys’ fees. Personal Injury Protection (PIP) Plaintiff attorneys felt a tinge of delight and perhaps delayed buying their lottery tickets in hopes that this new decision will help them win an attorney fee multiplier if they prevail in a PIP suit. While HB 119 in 2012 eliminated multipliers from newer PIP lawsuits, there are still many older cases that are now being resolved which face the possibility of large awards of attorney fees going to Plaintiff attorneys. Additionally, there is no penalty for a Plaintiff attorney to attempt to pursue a multiplier, thus the key question is how to best defend against this potential windfall.

To understand the new decision in Joyce v. Federated Nat’l Ins. Co., 2017 Fla. LEXIS 2070 (Fla. 2017), it is beneficial to look back at the Florida Supreme Court’s interpretation of how and when to award a multiplier. The seminal decision regarding the applicability of multipliers is still the Quanstrom decision from 1990. Specifically, the requirements under Quanstrom necessary to find a fee multiplier are:

  1. Whether the relevant market requires a contingency fee multiplier to obtain competent counsel.
  2. Whether the attorney was able to mitigate the risk of non-payment in any way.
  3. Whether any of the factors set forth in Rowe are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client. Id. at 834.

Joyce re-iterates that a market inquiry as to whether a multiplier was necessary to obtain competent counsel is the primary factor under the Quanstrom[1] requirements. This is important to PIP litigation since there are few, if any, potential PIP lawsuits that cannot find a warm and welcoming PIP attorney eager and willing to take the case.

Interestingly, the Florida Supreme Court in Joyce noted that the United States Supreme Court in 1992 revisited the issue of contingency fee multipliers in Burlington v. Dague, 505 U.S. 557 (1992), concluding that “enhancements for contingency [was] not permitted under the fee-shifting statutes at issue…[and] Justice Scalia, writing for the majority, reasoned that enhancement for contingency would likely duplicate in substantial part factors already subsumed in the lodestar.” Joyce. at 17, citing Dague at 567.

Under Joyce, the Florida Supreme Court separated itself from this federal precedent and continued to allow the use of multipliers under Florida law. The fear was that without the possibility of contingency multipliers some individuals with meritorious claims would fail to obtain competent counsel and the Florida Supreme Court noted “their usefulness in helping parties secure legal representation and their importance in ensuring access to Courts.” Id. at 17-18 citing Bell v. U.S.B. Acquisition Co., Inc., 734 So.2d 403, 411 (Fla. 1999). In other words, the Florida Supreme Court was concerned that Justice Scalia failed to consider that without a potential multiplier there is a danger of never obtaining competent counsel. Id. at 25. But with the thousands of PIP lawsuits being filed every year, can a Plaintiff truly make an argument that finding a PIP attorney is difficult?

Under Joyce, it appears that contingency fee multipliers are alive and well under Florida Law, and there are some circumstances where they are certainly warranted. Paradoxically, the best argument against the applicability of multipliers to the majority of PIP lawsuits comes from the Joyce opinion itself. The majority opinion which intentionally diverged from federal precedent on multipliers in order to preserve access to courts appears to have absolutely no concern about whether prohibiting multipliers in PIP lawsuits somehow prevents individuals from obtaining fair access to courts or diminishes one’s ability to obtain competent counsel. The dissent also argues that PIP litigation suffered no decrease in volume after HB 119 and that there was no negative impact on an insured’s ability to obtain counsel in PIP cases. Id. at 40-41. The dissent even cites the Plaintiff’s own expert testimony that there is no lack of attorneys willing and able to take PIP cases and “that same fee expert begrudgingly ‘hate[d]’ to admit that plaintiffs’ attorneys throughout the entire State of Florida are abundantly motivated to take PIP cases (even though PIP cases contain no possibility of a multiplier).” Id. at 42.

The majority opinion in Joyce actually agreed with the dissent that PIP litigation is different because of the number of attorneys willing to take PIP lawsuits. The majority opinion notes that PIP should not be compared to other types of first-party litigation since, “the fact that there are attorneys who specialize in PIP claims, which can be handled with relative ease in a volume practice, does not correlate with the availability of competent attorneys who are willing to litigate other types of insurance coverage cases, where generally more complex issues are raised.” Id. at 25. Clearly, the majority opinion is willing to differentiate PIP lawsuits from other types of first-party litigation due to the ease of obtaining a competent attorney.

Ultimately, none of the Quanstrom factors changed with the recent Joyce decision. However, the new opinion does provide an excellent analysis and justification as to how multipliers developed under Florida law and why the Supreme Court continues to think multipliers are necessary to ensure fair and equal access to the courts. It is important to keep in mind that Joyce does not mean a PIP lawsuit can never justify a multiplier. In fact, the Quanstrom decision is a PIP lawsuit[2]. Understanding the best way to contest aggressive attempts to collect fee multipliers and create an appropriate record at the trial court level remains important in PIP litigation.

[1] Standard Guaranty Insurance Co. v. Quanstrom,555 So.2d 828 (Fla. 1990)
[2] Other notable PIP lawsuits have been awarded multipliers after there was substantial and competent evidence to justify that a multiplier was necessary.  See  State Farm Fire & Casualty Co. v. Palma, 555 So.2d 836 (Fla. 1990)

If you have any questions on this issue, please feel free to contact our Insurance Services Team at info@roiglawyers.com.

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 seven 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, Florida, Insurance, Insurance Claims, Insurance Defense, Personal Injury Protection, PIP, PIP/No Fault, Uncategorized

Florida Man Caught Staging Crash on Dashcam

According to the Sun Sentinel, a Florida man was arrested on Friday, October 6th in connection with an alleged staged crash that occurred in December of 2016. 65-year-old Mauril Aldophe of Delray Beach plotted to force a tow truck to rear-end him. Unfortunately for Mr. Aldophe, the tow truck was equipped with a dashcam capturing footage of him abruptly stopping for no apparent reason and then driving forward for several feet, throwing his car into reverse, and then slamming back into the tow truck.

According to investigators, Mr. Aldophe went to a medical clinic three days after the incident and filed a personal injury claim stating a truck had rear-ended him while he was stopped at a red light.

Mr. Aldophe now faces charges for insurance fraud and participation in an intentional crash.

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Filed under Auto Insurance Fraud, Florida, Insurance Claims, Insurance Fraud, Personal Injury Protection, PIP, PIP/No Fault

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.

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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

Geico Sues Florida Health Clinic for ‘Unnecessary’ Massage Claims

As reported by Law360, Geico sued Medical Wellness Services Inc. of Miami, FL for allegedly making $1.2 million in claims for providing medically unnecessary treatments for automobile accident victims who were eligible for coverage under their no-fault insurance policies. According to Geico, some of the claims were for services that were not actually provided and contained billing codes that misrepresented and exaggerated the services.

“The defendants do not now have — and never had — any right to be compensated for the fraudulent services that were billed to Geico through Medical Wellness,” Geico said. Geico claims Medical Wellness Services Inc. submitted claims for massage therapist services which are not reimbursable because Florida law prohibits no-fault insurance reimbursement for massages or other similar services.

According to the suit, the scheme began no later than 2013 and continues to this day. In addition to the request for $1.2 million in damages, Geico is also requesting a declaration from the court saying it will not have to pay any pending fraudulent claims by the health clinic which totals more than $75,000.

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Filed under Auto Insurance Fraud, Florida, Insurance, Insurance Claims, Insurance Defense, Insurance Fraud, Miami-Dade County, Miami-Dade Fraud, Personal Injury Protection, 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