Category Archives: Legislation

Possible Changes to Florida Damages Statute: Florida Statute 768.042 in Personal Injury Cases

Jurys often time struggle with calculating future medical expenses to award or not to award during jury deliberations. Florida law restricts recovery of future medical expenses to those expenses “reasonably certain” to be incurred. [1] At trial, a jury must be offered evidence which reasonably supports that future medical services are reasonably certain to occur. Awarding damages for future medical expenses cannot be grounded on the mere possibility that certain treatment might be obtained in the future. [2]

Further, a jury must be provided evidence that is reasonably certain to allow a jury to determine the amount of those expenses. In proving special [past] medical damages for personal injuries, proof should be offered (1) that the medical services were rendered, (2) what the reasonable charges are therefor, (3) that the services for which they were rendered were necessary, and (4) that they were related to the trauma suffered in the accident. Florida law restricts recovery of future medical expenses to those expenses “reasonably certain” to be incurred. [3] At trial, a jury must be offered evidence which reasonably supports that future medical services are reasonably certain to occur. Awarding damages for future medical expenses cannot be grounded on the mere possibility that certain treatment might be obtained in the future. [4]

Florida Standard Jury Instruction 501.2(b) provides the basis of how a jury is to award damages for medical expenses. Specifically, Florida Standard Jury Instruction 501.2(b) states:

b. Medical expenses:

Care and treatment of claimant:

The reasonable [value] [or] [expense] of [hospitalization and] medical [in nursing] care and treatment necessarily or reasonably obtained by (claimant) in the past [or to be so obtained in the future].

Recently, House Bill 9/Senate Bill 1668 was offered to require certain medical expenses in personal injury claims be based on certain usual & customary amounts received. Should this bill become law, a jury will be allowed to rely upon usual and customary charges as evidence to be utilized as a way to calculate past, present, or future medical expenses. Currently, Florida Statute 768.042 states:

768.042 Damages-

(1) In any action brought in the Circuit Court to recover damages for personal injury or wrongful death, the amount of general damages shall not be stated in the complaint, but the amount of special damages, if any, may be specifically pleaded and the requisite jurisdictional amount established for filing in any court of competent jurisdiction.

However, should House Bill 9/Senate Bill 1668 become law, the following will be added as subsection 2 to Florida Statute 768.042:

(2) In any claim for damages related to personal injury to the claimant, evidence regarding the past, present, or future medical expenses must be based on the usual and customary charges of the community where the medical expenses are or are reasonably probable to be, incurred. With respect to past and present medical expenses, if the claimant is entitled to be reimbursed to any public or private health insurance or governmental health coverage, the amounts paid or payable under the insurance or governmental health coverage shall be presumed to be the usual and customary medical charges, unless the claimant shows that such amounts are inadequate under the circumstances. With respect to damages for future medical expenses, evidence of the availability of private or public health insurance coverage may be considered along with other relevant evidence. Usual and customary charges may not include increased or additional charges based on the outcome of the litigation.

As outlined in the January 28, 2020 Bill Analysis and Fiscal Impact Statement concerning Senate Bill 1668, this bill would require that in any claim for damages for personal injury to a claimant, evidence of past, present, or future medical expenses would have to be based on the usual and customary charges in the community where the medical expenses were incurred.

Currently, jury’s rely upon evidence of past expenses and testimony from experts as to reasonably certain procedures which are alleged needed as evidence of what future medical expenses it should award. This proposed new methodology of calculating future medical expenses is consistent with the current Florida methodology for calculating PIP reimbursement under Florida No-Fault Law, which also requires a determination of costs based on usual and customary charges in the community. This bill would prevent utilization of evidence of cost which had been inflated in anticipation of the jury award that may be larger than the amount insurers are typically willing to pay and larger than amounts healthcare providers typically accept. As a result, this will decrease the opportunity for plaintiffs to present evidence of inflated costs through the use of a letter of protection.

[1]Loftin v. Wilson, 67 So. 2d 185,188 (Fla 1953)

[2] White v. Westlund, 624 So. 2d 185, 188 (Fla. 4th DCA 1993)

[3] Loftin v. Wilson, 67 So. 2d 185,188 (Fla 1953)

[4] White v. Westlund, 624 So. 2d 185, 188 (Fla. 4th DCA 1993). Crowe v. Overland Hauling, Inc., 245 So. 2d 654, 656 (Fla. 4th DCA 1971) (quoting Ratay v. Yu Chen Liu, 260 A. 2d 484, 486 (Pa. Superior, 1969).

Filed under Legislation, Personal Injury Protection (PIP)

FL Insurance Industry Pushes for Lawsuit Abuse Reform in 2020 Legislative Session

Florida’s insurance industry and consumer advocates are pushing lawmakers to consider reforms that would curb lawsuit abuses that clog the state’s legal system and hurt insurers’ bottom lines. During the last legislative session, lawmakers for passed AOB reform legislation that has led to lower rates for Citizens Property Insurance Corporation policyholders. Governor Ron DeSantis urged Florida lawmakers to target other lawsuit abuses.

Click here to read the article.

Filed under Legislation

Insurance Bills to Watch for the 2020 Legislative Session in Florida

Several key insurance-related bills were introduced in this year’s Legislative Session, including reform for auto glass (windshield), assignment of benefits (AOB) abuse, reforms to the state’s legal system, and changes to the Florida Hurricane Catastrophe Fund.

Here are a few more bills to keep an eye on:

  • CS/SB 292: Insurance Claims Data
  • SB 898/HB 529: Insurance Guaranty Associations
  • HB 329/SB 540: Insurance Guaranty Associations
  • HB 359: Insurance (General)
  • SB 378: Motor Vehicle Insurance (Personal Injury Protection)
  • HB 771: Motor Vehicle Insurance (Personal Injury Protection)
  • HB 895: Insurance
  • SB 904: Sinkhole and Catastrophic Ground Cover Collapse Insurance
  • HB 963/SB 1670: Consumer Data Privacy
  • HB 1137/SB 1492: Consumer Protection
  • SB 1204: Citizens Property Insurance Corporation
  • Senate Joint Resolution 1460: Commissioner of Insurance
  • SB 1494: Insurance Coverage for Condominium Unit Owners
  • HB359/SB 1334: Financial Services

Click here to read the article.

Filed under Legislation

Florida Supreme Court Dismisses Review of Assignment of Benefits Dispute

A divided Florida Supreme Court discharged jurisdiction and dismissed the review proceeding of an assignment of benefits case due to a law that was passed this spring revamping the AOB system.

According to court documents, the policyholders, John and Liza Squitieri assigned benefits to Restoration 1 to clean up water damage in their home. However, their insurance company Ark Royal Insurance Co. refused to pay the full amount. Restoration 1 sued Ark Royal for breach of contract but lost in circuit court and appeals court.

Click here to read the article.

Filed under Legislation, Property (Homeowners)

What Laws Did or Did Not Pass During Florida’s 2019 Legislative Session

Many laws that were passed by the Florida Legislature during the 2019 legislative session effect the insurance industry. The majority of the laws took affect on July 1st. Here’s a summary of what did and did not pass.

Here’s what passed:

  • HB 7065 – AOB Reform (Effective date: July 1, 2019)
  • HB 301 – Insurance “Omnibus” bill (Effective date: July 1, 2019)
  • HB 617 – Flood Insurance Disclosure (Effective date: July 1, 2019)
  • HB 107 – Hands-Free Driving Requirement (Effective date: July 1, 2019)
  • HB 311 – Autonomous Vehicles (Effective date: July 1, 2019)
  • SB 1024 – Blockchain Technology Task Force (Effective date: July 1, 2019)
  • HB 1393 – Modifies Areas Regulated by the Florida Department of Financial Services (Effective date: July 1, 2019)
  • HB 7091 – Hurricane and Flood Loss Model Trade Secrets (Effective date: October 1, 2019)
  • SB 426 – Firefighters Cancer Benefits (Effective date: July 1, 2019)
  • HB 1253 – Prescription Drug Monitoring Program (Effective date: July 1, 2019)
  • SB 983 – First Responder PTSD (Effective date: Upon becoming law)

Here’s what didn’t pass:

  • HB 323 – Motor Vehicle Insurance Coverage for Windshield Glass
  • SB 1052 – Motor Vehicle Insurance/Personal Injury Protection (PIP)
  • HB 7077 – Medical Malpractice
  • SB 538/HB 387 – Nonadmitted Insurance Markets
  • HB 751 – Duty of Good Faith

Click here to read the article.

Filed under Legislation, Property (Homeowners)

Florida Legislature Passes Assignment of Benefits Reform Bill

On April 24, 2019, by a vote of 25-14 the Florida Senate passed SB 122 that addresses AOB’s for residential or commercial property insurance claims and limits attorney’s fees related to AOB agreements. The Senate bill was a committee substitute for House Bill 7065, which passed the House on April 11, 2019. Governor Ron DeSantis is expected to sign the bill which would become law effective July 1, 2019. Click here to view the entire Bill: Florida SB 122/HB 7065

Contact us for more information or to discuss the implications of this significant change in Florida law.

Filed under Legislation, Property (Homeowners)

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.

Click here to view the full article.

Filed under Legislation, Personal Injury Protection (PIP)

Minor ADA Violations Cost Florida Businesses Thousands in Attorneys Fees

Central Florida businesses being sued by a Daytona Beach attorney for potential violations of the Americans with Disabilities Act are awaiting a federal ruling to determine whether they’ll have to pay settlements in the form of attorney fees. The law forbids plaintiffs from receiving money for “relief” regardless of a court’s decision.

The alleged violations are often quick fixes, but they can cost businesses thousands in legal fees and settlement costs that could be passed on to customers.

More than three dozen Central Florida businesses have recently been hit with almost identical lawsuits filed by attorney Joe Quick. Quick represents the same four clients, often referred to as “testers” by some critics, in each lawsuit filed in the U.S. District Court for the Middle District of Florida.

Last legislative session, State Rep. Tom Leek introduced and passed legislation that allows business owners to hire ADA experts to inspect their businesses. Businesses are able to apply for a grace period to fix violations, but so far, only two businesses in the state have done so. Click here for more information on the Florida Department of Business and Professional Regulation’s ADA Title III Registry.

Click here for the full article.

Filed under Legislation

Overreaching Assignments & Their Impact on Your Claims Handling

Recently, there has been an uptick in changes to the language in the assignment of benefit contracts which emergency mitigation companies are having Insureds sign.

One of the changes in the contracts is that the Insured’s execution of the assignment of benefits authorizes the carrier to not only directly pay them for their services, but to also include them on all checks regardless of the coverage they are for. For example, if the carrier pays the insured under Coverage A for repair, Coverage C for contents, or Coverage D for additional living expenses, this contractual language may require that the AOB company be listed on these checks.

A second change in the contracts is that the assignment of benefits may have a single sentence seeking to exceed any emergency services cap the carrier’s policy may have. Once the carrier receives this contract, the clock begins ticking on the time frame for the carrier to respond. If the carrier fails to respond within the timeframe detailed in the policy, this cap is waived.

With an influx of insurance claims due to recent natural disasters, being aware of these changes is key to how you handle these claims. Hopefully, this overreaching on behalf of the AOB companies will be the final push needed to have some laws passed to regulate this AOB realm.

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

ROIG Lawyers attorneys have provided presentations on Assignment of Benefits as well as other areas that are beneficial to our clients in the Property Insurance industry. 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.

Filed under Legislation, Property (Homeowners)

New Statute To Help Deflect Frivolous ADA Lawsuits

As reported in the Miami Herald, Florida lawmakers have implemented a new law aimed at ADA public accommodation compliance lawsuits often pressuring small businesses and property owners into quick settlements in order to avoid lengthy and costly court battles. In an analysis published in March by The News-Press (Fort Myers), of all the lawsuits filed under the ADA’s public accommodations law in Florida during the past five years, more than half of the approximately 6,000 suits were filed by just 12 plaintiffs. In addition, many of the plaintiffs are represented by the same law firms. The bill, receiving unanimous approval in both the Florida House and Senate during the 2017 legislative session, was recently signed into law by Gov. Rick Scott and is now in effect.

The new statute enables businesses and property owners to take substantive, preventative measures to help insulate themselves from the most frivolous claims. Under the law, a business or property owner may retain a qualified expert to conduct an inspection of their property to ensure compliance with building codes satisfying the ADA’s requirements. If the property is found to be in compliance with the ADA, the expert may issue a certificate of conformity that includes the date of inspection, proof of the expert’s qualifications, and a statement confirming that the property is in conformity. For properties that are not found to be in compliance, the owner may develop and submit a remediation plan approved by a qualified expert indicating that the property will be brought into conformity within a specified time period.

The compliance certifications or remediation plans may be filed with the state’s Department of Business and Professional Regulation, which will now maintain a publicly accessible website to serve as a registry for all of the certifications and remediation plans that it receives. Importantly, a remediation plan in existence before an ADA lawsuit is filed could serve to moot such a lawsuit.

The new law does not prohibit disabled plaintiffs from filing ADA public accommodations lawsuits, nor does it prohibit plaintiffs’ attorneys from seeking fees. It does, however, provide Florida businesses and property owners with a means to potentially defeat or limit frivolous ADA barrier-to-access lawsuits and greatly minimize their exposure to related attorney fees and costs.

Click here for the full article.

Filed under Legislation