Category Archives: PIP/No Fault

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.

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

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

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

UPDATE: Sixth Person Found Guilty in Unlicensed Chiropractic Clinics Scam

A Naples man convicted of committing mail fraud back in September of 2016 has been sentenced to 14 years in prison. According to the Naples Daily News, Nesly Loute, was also ordered to pay restitution of almost $2.15 million to the insurance companies.

Loute and five others plead guilty and were convicted of operating five unlicensed chiropractic clinics and fraudulently billing auto insurers for Personal Injury Protection benefits.

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

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Filed under auto insurance, Auto Insurance Fraud, Florida, Insurance Fraud, Personal Injury Protection, PIP, PIP/No Fault, Unlicensed Clinics

Will You Have Coverage When You Cross The Line?

Is an automobile insurance company required to extend Florida Personal Injury Protection (PIP) benefits to an insured who resides in another state?

Well yes and no.

An automobile insurer who sells automobile insurance policies in Florida and the nonresident insured’s state is required to extend the minimum Florida Personal Injury Protection (PIP) benefits of $10,000.00 to the insured if they are involved in a motor vehicle accident in Florida, but only if they qualify under Florida law.

To qualify, the nonresident insured’s vehicle must have been physically located in Florida for 90 nonconsecutive days out of the previous 365 days from the date of the accident. By nonconsecutive days, it means that the insured vehicle could leave Florida and re-enter and still qualify for Florida PIP benefits if the vehicle has been in Florida for longer than 90 days throughout that preceding year.

An insurer is not required to extend the $10,000.00 in Florida PIP benefits to a nonresident insured whose vehicle is not in Florida for longer than 90 nonconsecutive days out of the previous 365 days from the date of the accident.

Most if not all automobile insurance policies have an “Out-of-State Coverage” provision which will detail that insurer’s obligation to comply with a State’s minimum insurance requirements if their nonresident insured becomes subject to the insurance laws of that State. However, some insurance contracts make it the responsibility of the nonresident insured and not the insurer to purchase the required minimum Florida PIP coverage if they plan to stay in Florida for longer than 90-days.

An insurer is not required to extend additional Florida PIP benefits to a nonresident insured that enters Florida and whose insurance policy meets the States minimum PIP or No-Fault requirements.

For Example:

The New York Automobile No-Fault Law requires each insured to carry a minimum of $50,000.00 in No-Fault/ PIP benefits. Thus, if a New York resident drives their vehicle into Florida and is involved in a motor vehicle accident, then they will receive the $50,000.00 in New York PIP benefits as this is greater coverage than the minimum $10,000.00 in PIP benefits which is required under Florida law.

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.

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Filed under Auto Insurance Fraud, Florida, Insurance, Insurance Claims, Personal Injury Protection, 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.

Click here to view the full story.

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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 Backs Allstate Policy Language in Landmark PIP Case

On January 26, 2017, after months of waiting, those of us in the PIP world finally have our answer to the Allstate policy language debate. It appears that you just need to read the policy as a whole and within its context.

Does Allstate’s PIP policy provide legally sufficient notice to its insureds of its election to use the permissive Medicare fee schedules found in Florida Statute 627.736(5)(a)2 (2009) in order to limit reimbursements for medical services?

The Florida Supreme Court released its opinion on January 26, 2017 holding that Allstate’s PIP insurance policy stating that Allstate’s policy “provides legally sufficient notice of Allstate’s election to use the permissive Medicare Fee Schedule identified in section 627.736(5)(a)2 to limit reimbursements.” Allstate Ins. Co. v. Orthopedic Specialists, No. SC15-2298, at *2, (Fla. 2017).

The case before the Florida Supreme Court involved a certified decision from Florida’s Fourth District Court of Appeals, which had held that Allstate’s policy language did not provide sufficient notice to allow the insurer to apply the Medicare Fee Schedules in limiting reimbursements to bills submitted under the PIP portion of the subject policies. The Fourth District Court of Appeals had certified its decision as it provided a direct conflict with the First District Court of Appeals’ ruling in Allstate Fire & Cas. Ins. v. Stand-Up MRI of Tallahassee, P.A., 188 So. 3d 1 (Fla. 1st DCA 2015), which held that Allstate’s policy language did in fact provide sufficient notice to its insurer’s to allow the Medicare Fee Schedules to be used in limiting reimbursements to bills submitted under the PIP portion of the subject policies. The First District Court of Appeals was not the only Court in the state to opine in favor of Allstate, in fact by the time that the Florida Supreme Court held oral arguments in this matter in August of 2016, the Second and Third District Courts of Appeals had already entered rulings on the issue agreeing with the First District Court of Appeals’ opinion that Allstate had provided sufficient notice to its insureds of its intent to limit PIP reimbursement by using the permissive Medicare fee schedules found in Florida Statute 627.736(5)(a)2 (2009).

The specific portion of Allstate’s policy language which was being evaluated in Orthopedic Specialists v. Allstate Insurance Co., 177 So. 3d 19 (Fla. 4th DCA 2015), states that Allstate will make payments as follows:

“Allstate will pay to or on behalf of the injured person the following benefits:

1. Medical Expenses

Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services.

Id. at 21. An endorsement to the policy provides:

Limits of Liability

. . . .

Any amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise continued in the law, including, but not limited to, all fee schedules.

Id. (emphasis and alterations omitted).” Allstate Ins. Co. v. Orthopedic Specialists, No. SC15-2298, at *3, (Fla. 2017)

The Florida Supreme Court found that “[t]he endorsement to Allstate’s policy clearly and unambiguously states that ‘[a]ny amounts payable’ for medical expense reimbursements ‘shall be subject to any and all limitations, authorized by section 627.736, . . . including . . . all fee schedules.’ When read in its context and as a whole with Allstate’s policy, the plain and obvious meaning of the endorsement is that reimbursements will be made in accordance with all of the fee schedule limitations contained within section 627.736(5)(a)2. See, e.g., Stand-Up MRI, 188 So. 3d at 3 (“Virtual Imaging requires no other magic words from Allstate’s policy and its simple notice requirement is satisfied by Allstate’s [unambiguous] language limiting ‘[a]ny amounts payable’ to the fee schedule-based limitations found in the statute.” (second alteration in original); Fla. Wellness & Rehab. v. Allstate Fire & Cas. Ins. Co., 201 So. 3d 169, 173 (Fla. 3d DCA 2016) (“The use of the phrase ‘subject to’ in the policy places the insured on notice of the limitations elected by Allstate; indeed, we cannot discern any other alternative meaning to this language.”); Allstate Indem. Co. v. Markley Chiropractic & Acupuncture, LLC, 41 Fla. L. Weekly D793, 2016 WL 1238533, at *4 (Fla. 2d DCA Mar. 30, 2016) (explaining that “Virtual Imaging did not dictate a form of notice” or require insurers to specifically state the word “Medicare”). Allstate’s policy thus places both providers and insured on notice of Allstate’s election to use the permissive Medicare fee schedules identified in section 627.736(5)(a)2. to limit reimbursements.” Allstate Ins. Co. v. Orthopedic Specialists, No. SC15-2298, at *8-9, (Fla. 2017).

Click here to read the full opinion.

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Filed under Florida Supreme Court, Fourth District Court of Appeals, Insurance Claims, Insurance Defense, Personal Injury Protection, PIP/No Fault