Category Archives: Uncategorized

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

Casselberry Residents Being Targeted by Windshield Replacement Scammers

Casselberry, Florida residents are victims of windshield replacement scammers. As reported by News 6, a Casselberry resident recently told police that two men came to her door claiming to work for the state government, insisting that a new law had been enacted that requires Floridians to replace their windshields every six months. As a result, the residents become victims, often times being exposed to an increased risk of a cheap windshield popping out and breaking during an accident. In turn, the scammers will contact the victim’s auto insurer and submit an inflated invoice for a service that was not necessary or properly done; potentially resulting in an increase in the victim’s auto insurance premium.

An increased premium is not the only risk insureds face with these scams, according to the Coalition Against Insurance Fraud, insureds could face possible fines and, even worse, jail time. Making a repair claim for a windshield you know is undamaged could get you convicted of insurance fraud.

Red flags should go up if someone shows up at your door or chases you down in a parking lot offering to fix your windshield for free. If you believe your windshield has sustained damage and needs to be repaired or replaced, call your insurance company for a list of rebuttable windshield repair/replacement companies.

For more information regarding the windshield repair scams and what you can do to fight back, visit http://www.insurancefraud.org/scam-alerts-windshield.htm.

Click here to read full article.

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Filed under Florida, Insurance, Insurance Claims, Insurance Defense, Insurance Fraud, Uncategorized, Windshield, Windshield Damage Scam

New Florida Law Deems Ridesharing Drivers As Independent Contractors & Provides Minimum Insurance Requirements

You may or may not be aware that there is a new Florida law deeming Uber, Lyft and other ridesharing drivers as independent contractors and NOT employees that is going to be taking effect on July 1st. The new Florida law also provides for insurance coverage requirements that will now be mandatory for such drivers and companies. We want to make sure you know how this legislation is going to affect your business.

On May 9, 2017, Florida Governor Rick Scott signed the Transportation Network Companies Act (HB 221), designating drivers for ridesharing companies in the on-demand or gig economy as “independent contractors” as long as the “transportation network company” meets four criteria that are currently met by Uber, Lyft, and other similar companies.

Under this newly enacted legislation, insurance coverage requirements are now also being made mandatory for the drivers and the ridesharing companies when they are engaged in the online application of the ridesharing company and/or in a prearranged ride. The coverage requirements under the new law can be satisfied in one of three ways. The new law also discusses the responsibilities of the driver’s personal auto insurance carrier when an accident occurs and provides avenues for the insurer to investigate the claim with the cooperation of the ridesharing company.

We recently presented a continuing education course at the 25th Annual Florida Insurance Fraud Education Committee (FIFEC) Conference called The Ridesharing Generation: Insurance Implications & Complications which discusses this topic. We are happy to provide a copy of the presentation to you if you are interested.

For questions, or to discuss this issue in greater detail, please feel free to contact Lissette Alvarez or Cecile Mendizabal.

For more information on how to schedule a complimentary continuing education course via webinar or live presentation, please contact the Marketing Department of ROIG Lawyers.

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. 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. You should consult a lawyer with regard to specific law issues that requires attention.

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Filed under Uncategorized

Undercover Investigation Led to Arrests of Bradenton Area Chiropractors

According to ABC Action News, an undercover investigation led to the arrests of two Bradenton area chiropractors and other staff. Detectives say chiropractors Richard Tambe and Yusef Barnes, along with chiropractic assistant Johncina Harrell, performed a fraction of the treatments listed on insurance claims and were billing for treatment never rendered to patients.

The arrests and undercover investigation took place at the Back on Track clinic in Bradenton, Florida. According to the arrest report, all three were booked at the Manatee County Jail on insurance fraud, a third degree felony. Tambe faces 12 counts. Barnes is charged with 8 and Harrell is charged with 13 counts. If convicted each suspect faces as much as 5 years in prison.

Click here for full story.

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Filed under Florida, Insurance, Insurance Claims, Insurance Fraud, Uncategorized

Sixth Person Found Guilty in Unlicensed Chiropractic Clinics Scam

According to Southwest Florida Online News, a federal jury found Nesly Loute guilty of fraud after a six day trial where he and five others testified that they had conspired to operate five unlicensed chiropractic clinics and fraudulently billing auto insurers for Personal Injury Protection benefits. This ruling was the culmination of a two-year law enforcement investigation dubbed Operation Fraudulent Pain.

Loute and five other individuals who have also pleaded guilty are facing a maximum penalty of 20 years each in federal prison and must make restitution to the insurance companies they have defrauded. The unlicensed chiropractic clinics had received more that $2 million in fraudulent PIP payments.

Click here to view the full story.

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Filed under Auto Insurance Fraud, Florida, Insurance Fraud, PIP/No Fault, Uncategorized

Medicare Ban on Non-emergency Ambulance and Home Health Care Agencies Continues

Friday the Centers for Medicare and Medicaid Services extended a temporary ban on nonemergency ambulance and home health care agencies throughout six states, including Florida, as a continued effort to fight fraud.

In continuing the ban on nonemergency ambulance services, the ban on new emergency ambulance services was lifted. The ban, originally only implemented in Miami, Chicago and Houston, was expanded in January of 2014 to combat fraud in other metropolitan areas seen as fraud hotbeds, specifically in Michigan, Pennsylvania and New Jersey. The ban has been expanded for additional six months after being in place for three years so far.

According to CMS, Texas, Florida and Illinois are in the lower third for number of patients per home health care provider. Despite this statistic, these three states have the highest number of home health care providers according to CMS data.

Shantanu Agrawal, CMS’ deputy administrator for program integrity commented on the program:

CMS is continuing its efforts to tackle fraud, waste, abuse and protect benefits and services for those eligible for federal health care programs. . . CMS is also increasing its oversight efforts through the use of heightened screening and investigative tools for new providers in the moratoria areas.

According to the National Health Care Anti-Fraud Association, as much as $60 billion is lost due to fraud, waste and abuse of the federal health care programs.

Click here for full story.

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Filed under Florida, Insurance, Insurance Fraud, Medicare, Uncategorized

Three from Miami Sentenced in $40M Medicare Fraud

Jorge Lorenzo, Yahima Pardo and Roberto De Jesus Alonso, all of Miami, were sentenced to prison and ordered to pay more than $40 million as a result of their involvement in what is considered the Medicare fraud scheme that caused the greatest loss to the government in 2015.

In addition to the nearly $40.4 million in restitution, the government seized over $2 million in cash and personal assets including Rolex and Cartier watches and artwork by prominent Cuban artists.

The case, before U.S. District Judge William Dimitrouleas, centered around Lorenzo’s ownership or control of 8 home health agencies in Miami-Dade County that received in excess of $40 million from Medicare as a result of fraudulent claims by way shell owners at each agency funneling claim payments to other fictitious companies staffed by co-conspirators. Once indication of a Medicare fraud investigation arose, Lorenzo would close the home health agency, keeping them open for only 8 months on average.

Click here for full story.

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Filed under Florida, Insurance Fraud, Medicare, Miami-Dade County, Uncategorized

Third DCA at Odds With Another Court After OKing Red-Light Cameras

The Third District Court of Appeal ruled in favor of red-light camera programs, setting up a disagreement between appellate courts and likely meaning the issue will go to the Florida Supreme Court.

Red-light cameras run by municipalities have long come under fire from critics. Opponents decry the fact that traffic tickets can be given out by someone other than a police officer, especially a private company. That’s exactly what the Fourth DCA said in 2014, ruling that red-light cameras are an unlawful delegation of police power to the third parties issuing the tickets.

The Third DCA said the most recent case was a bit different though. Judges Thomas Logue, Kevin Emas and Linda Ann Wells ruled that it was legal for municipalities to hire private companies to review traffic images and decide which ones to forward to police officers. However, the Third DCA judges said a sworn police officer is required to review the evidence for a final decision and not just rubber-stamp the third-party recommendations.

The Third DCA case arose from a suit challenging red-light cameras in Aventura, while the Fourth DCA case concerned a similar program in Hollywood. Logue and Emas designated the case as one of great importance for the Florida Supreme Court to consider, while Wells asked to certify a conflict with the Fourth DCA.

Click here for the complete story (subscription required).

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Filed under Uncategorized

Medicare Fraud Roundup Is Largest in U.S. History

A nationwide sweep on June 21 resulted in the largest coordinated takedown of alleged Medicare fraudsters in U.S. history.

The Medicare Fraud Strike Force led a sweep in 36 federal court districts that resulted in charges against 301 individuals, including 61 medical professionals. The schemes involved about $900 million in fraudulent billing. South Florida was home to 100 of those defendants participating in fraud schemes involving $220 million in false billings for home health care, mental health services and pharmacy fraud.

The defendants face charges of conspiracy to commit healthcare fraud, violations of anti-kickback statutes, money laundering and aggravated identity theft. More than 60 of the individuals arrested are charged with fraud related to Medicare Part D, the prescription drug plan that is the fast-growing part of Medicare.

The defendants were part of schemes to bill Medicare and Medicaid for treatments that were medically unnecessary or never performed. Medicare beneficiaries and patient recruiters were paid kickbacks for supplying beneficiary information to providers, who used that information for fraudulent billing.

In one case in the Southern District of Florida, nine defendants were charged with operating six home health companies in the Miami area that gave bribes and kickbacks to bill for services that were not medically necessary. Those six companies defrauded Medicare of more than $24 million.

In the Middle District of Florida, which includes Orlando and Tampa, 15 individuals were charged with crimes including compounding pharmacy fraud and intravenous prescription drug fraud involving $17 million in fake bills. The owner of several infusion clinics is accused of being reimbursed by Medicare for $17 million for intravenous prescription drugs that were never purchased or administered to beneficiaries.

Click here for the press release.

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Filed under Health care, Insurance Fraud, Medicare, Miami-Dade Fraud, Southern District of Florida, Uncategorized

Google Compare Auto Insurance Launches in California

As reported earlier in FLPIPGuide.com, recent rumors about Google entering the U.S. auto insurance market have proven to be true as the tech giant recently announced its launch of Google Compare Auto Insurance in California. A roll-out in more states is planned.

According to a recent article in Insurance Journal, Google calls its online price-comparison service a “seamless, intuitive experience for connecting with your customers online.”

A company-issued news release said, “Whether you’re a national insurance provider or one local to California, people searching for car insurance on their phone or computer can find you along with an apples-to-apples comparison of other providers all in as little as 5 minutes.”

The Mountain View, Calif.-based company indicates that participation in Google Compare is based on a flexible cost-per-acquisition model.  Payment is not a factor in ranking or eligibility, according to Google.

The Google Compare Auto Insurance portal is user-friendly, and lists a variety of carriers, including Mercury and MetLife, who are partners in the project. Californians simply enter their zip code to bring up a form that asks for basic information such as name and date of birth. There is also a “speed things up” autofill feature, especially convenient to those on Google’s Chrome browser. Visitors to the site are self-directed through screens, eventually resulting in quotes for auto insurance.

Google Compare Auto Insurance Services Inc. has been licensed to sell insurance in at least 26 states and could reportedly be working with CoverHound, which currently offers online quotes for multiple insurers including Hartford, esurance, 21st Century, Travelers, Safeco, National General, Progressive, Foremost, Plymouth Rock and others, Insurance Journal said.

The company intends to introduce ratings and reviews, as well as local agent support for providers with agent networks.

Google’s entry into the insurance market, along with its role in building autonomous vehicles, could make it a dominant player in the field. William R. Berkley, CEO of W.R. Berkley Corp., revealed in a management seminar presentation to independent agents in January that “Google has the capacity to change auto insurance” because of the competitive advantage it gained when the company invested a significant amount of money to “actively build a rule-road map of America.”

An article in TechCrunch reported that several major insurance carriers may be taking a wait-and-see approach, however.

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Filed under Uncategorized