Category Archives: 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

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.

Filed under Legislation, Personal Injury Protection (PIP)

Discount Plan Organization (DPO): What is it and why should we know?

A “Discount Medical Plan Organization” was created in 2004 and is now simply called a “Discount Plan Organization (DPO).”

What is it and why should we know?

It is like a concierge medical agreement where a patient pays a fee, for example, $1,500/year to get quick access to a specific doctor.  Usually, the DPO is the only way to access specific practitioners.  It does little more than grant access, some prophylactic treatment, and the practitioners are usually the patients’ primary care physician.  You may see these organizations providing post-accident services.

Let’s make sure we are not also paying for the DPO in disguise through administrative CPT’s. Click here for the Bill Analysis.

Summary:

Discount Medical Plan Organizations (DMPOs) offer discount medical plans, in exchange for fees, dues, charges, or other consideration, which provide access for plan members to providers of medical services and the right to receive medical services from those providers at a discount. The Legislature established the regulatory scheme for DMPOs in 2004, which includes licensure, forms and rate filings and approval, disclosure requirements, and penalties.

CS/HB 577 renames a “Discount Medical Plan” and a “Discount Medical Plan Organization” as a “Discount Plan” and a “Discount Plan Organization” (DPO), and makes extensive conforming changes to part II of ch. 636, F.S., to reflect the new names. The bill clarifies the definition of a “Discount Plan” to exclude any plan that does not charge a fee to members. The bill removes all rate and form filing and approval requirements for DPOs. To increase flexibility in marketing and reduce administrative barriers for DPOs, the bill:

  • Defines “first page”, upon which certain disclosures must appear, to mean the first page of any marketing material that first includes information describing benefits;
  • Allows DPOs to delegate functions to marketers and binds DPOs to the actions of those marketers within the scope of the delegation; and
  • Allows marketers and DPOs to commingle certain information on forms, advertisements, marketing materials, or brochures.

To maintain consumer protections for members and potential members of Discount Plans, the bill:

  • Changes the disclosure requirements by requiring acknowledgement and acceptance of the disclosures before enrollment and creating visibility and follow up requirements for disclosures made by electronic means or telephone;
  • Establishes new cancellation and reimbursement requirements for DPOs to disallow any charges beyond the effective cancellation date;
  • Requires pro rata reimbursement of charges paid by a member for the months beyond the effective cancellation date; and
  • Requires pro rata reimbursement for members who cancel during an open enrollment period, upon return of his or her discount card.

The bill does not have a fiscal impact on state or local government.

The bill became law on June 14, 2017, and is now Chapter 2017-112, Laws of Florida.

If you have any questions or would like to discuss this issue in greater detail, please feel free to contact Dennis LaRosa (dlarosa@roiglawyers.com/850-264-6389) or any ROIG Lawyers attorney of your choice.

Filed under Legislation

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.

Filed under Legislation, Personal Injury Protection (PIP)