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Yearly Archives: 2017

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When is an Injury Deemed a Disability for the Purpose of Insurance?

Fri Dec 29th, 2017 on     Disability Insurance,    

In Florida, as in other states, there are a variety of private insurance plans for disability coverage, each with their own respective terms and provisions relating to such disability coverage.  If you are suffering from an injury or other health condition that has rendered you disabled (partial or full), however, then you may find that your insurer — despite having provided you “comprehensive” coverage — has wrongfully denied benefits to you on the basis that your injuries/condition do not qualify as a disability under the plan. You have a number of different options: a) you can resubmit your original application if your documentation was inadequate, or if there was some other procedural issue; b) you can challenge the denial of your original claim through the appeal process; or c) after you have exhausted administrative remedies, you can bring a lawsuit against the insurer for wrongful denial of benefits (and perhaps for bad faith conduct). So, what counts as a disability, and what is defined as a non-disabling condition?  Let’s take a look. Each Plan Has Its Own Rules Your disability policy may differ from others, so it’s important that you have a qualified attorney assess the language of the contract.  Whereas one disability coverage plan may have a broader definition of “disability,” another may have a narrow definition — it’s critical that you understand the range of conditions that your plan covers. Typical Disability Factors Generally speaking, you will be entitled to receive disability benefits if you can show that […]

Understanding the Duty to Defend

Fri Dec 22nd, 2017 on     Insurance Claims,    

As an insured defendant, the fact that the insurer will step in to provide a defense in claims (that fall within the applicable coverage) brought against the defendant is critical to effective litigation in many cases, particularly those where the defendant lacks personal financial assets necessary to pay for the expense of litigation.  Insurers owe a duty to their policyholders to step in and provide a defense in covered claims brought against their insured — this is known as the “duty to defend.” For example, suppose that you are being sued for negligently operating your vehicle and thus causing an accident (and subsequent injuries).  Your liability insurance coverage is $500,000 and requires that the insurer step in to defend claims brought against you for injuries that you caused as a result of negligent driving conduct. If an insurer fails to step in and satisfy their duty to defend, then the defendant-policyholder could be left with the responsibility of securing an attorney on your own and paying for the significant expense of litigation.  Even if the claims are illegitimate or otherwise unlikely to result in an award of damages to the plaintiff, the insurer is required to step in on their policyholder’s behalf in the defense. Failure to Defend Florida law requires that insurers provide a defense in claims brought against their policyholders so long as the claims are covered pursuant to the terms of the policy.  For example, if you have a liability insurance policy that handles motorcycle accidents, but […]

Insurance Benefits: Partial vs. Total Disability

Fri Dec 15th, 2017 on     Disability Insurance,    

Depending on your insurance coverage, you may be eligible to submit an insurance claim for either total or partial disability.  Too often, however, insurers wrongfully deny, delay, or undervalue disabled policyholders’ claims so as to minimize their liabilities.  In the disability insurance context, for example, an insurer might define your disability as merely partial, when in fact the disability is totally debilitating with respect to your ability to work and earn a living.  If your insurer defines your disability as “partial” when the disability is actually “total,” you will lose out on substantial benefits that are necessary when your income-earning potential has been so thoroughly damaged. Plans can vary quite a bit with regard to their provisions and definitions, so there are not necessarily one-size-fits-all truisms that apply to each and every disability insurance plan in Florida.  Generally speaking, however, there are certain ways in which insurers define total and partial disability that are worth keeping in mind as you begin the process of pursuing your rightful disability benefits. Total Disability Total disability can be defined differently between policies, but as a general rule, total disability tends to be linked to whether the policyholder can perform their material duties (with respect to their current occupation).  If the policyholder cannot perform the material duties of their occupation, then they may be entitled to receive total disability benefits. Some disability insurance plans offer total disability benefits only if the policyholder can show that they have been rendered incapable of performing the material […]

How Does Insurance Adjustment Work?

Fri Dec 8th, 2017 on     Insurance Claims,    

If you are making or have filed an insurance claim (whether for health benefits, disability benefits, liability coverage, etc.), your claim will be evaluated and ultimately processed by an adjuster.  Insurance claims adjusters generally work with teams of specialists to evaluate claims from beginning-to-end — the adjuster will then deny the claim, delay processing, or make an offer. It’s important to note that insurance claims adjusters are not on your side.  In fact, one could reasonably argue that adjusters are in direct conflict with policyholders.  Fundamentally, a claims adjuster is negotiating on behalf of the insurer with the intent to minimize (or avoid) a payout. Claims Adjusters — Responsibilities and Expectations The responsibilities placed on claims adjusters vary from insurer to insurer.  Generally speaking, however, adjusters (and their teams, which may include specialists such as appraisers, claims examiners, investigators, among others) are expected to: Evaluate the claim and review relevant documentation Investigate criminal activity or fraud relating to the claim Negotiate a settlement of the claim with the policyholder Gather evidence Connect with relevant parties (i.e., treating physicians, property managers, businesses, employers, etc.) to determine whether a claim is being accurately portrayed Authorize the payment of a claim Consult with attorneys And more Whether the adjuster decides to deny your claim, delay your claim, or make an offer — and the settlement amount that is actually offered — depends on a range of factors that include, but are not necessarily limited, to the availability of documentation giving rise to certainty […]

First Party and Third Party Bad Faith — What’s the Difference?

Fri Nov 24th, 2017 on     Bad Faith Insurance,    

If you believe that you have been wronged by your insurer in Florida, you may be entitled to bring a bad faith insurance claim against them and thus recover compensation for the losses you suffered.  In Florida, insurers have a duty to their policyholders to act in good faith in settling claims, and to act fairly and honestly (with due regard for the policyholder’s interests) when doing so. Bad faith insurance claims can be either first-party or third-party.  Policyholders who are new litigants may be unfamiliar with insurance litigation at-large may recognize the terms “first-party” and “third-party” in the bad faith insurance lawsuit context, but may not be entirely familiar with the differences between such claims. Let’s take a brief look. First-Party Bad Faith First-party bad faith insurance claims are brought pursuant to section 624.155 of the Florida Statutes (which, incidentally, has additional procedural requirements that include giving written notice of the purported violation of good faith within 60 days of the violation).  Essentially, a first-party bad faith insurance action is brought by the policyholder against their insurer on the basis of the insurer’s wrongful denial, delay, or underestimated payout of your submitted insurance claim. For example, suppose that you are covered by private disability insurance, and you suffer an injury that renders you physically disabled and unable to work.  You subsequently file an insurance claim for disability benefits, but your insurer denies your claim.  If you can show that the insurer wrongfully denied your claim, then you may have […]

ERISA Fiduciary Duties

Fri Nov 17th, 2017 on     Insurance Claims,    

The Employment Retirement Income Security Act (ERISA) was enacted with the intention of protecting the fund assets of policyholders — in qualified, covered plans — from plan mismanagement and other violations of fiduciary duty by those with authority over the plan and its assets.  Fiduciaries include trustees, administrators, and investment committee members, among various other authority figures who are tasked with management of the plan and its assets. Fiduciary Duties ERISA plan fiduciaries owe a number of duties (both specific and general) to the plan beneficiaries, and these duties may also vary depending on the role that the fiduciary plays within the larger context of the ERISA plan.  For example, the manager of an ERISA plan fund must disclose information relating to the investment of fund assets, and information relating to fiduciary compensation. Specific duties required of all fiduciaries include, but are not necessarily limited, to: Duty to Act Prudently Fiduciaries must act prudently with regard to their management of the plan assets, and of the plan itself.  If a fiduciary lacks critical expertise, then they are required — in accordance with their duty to act prudently — to incorporate the expertise of a person or entity who does have the expertise necessary to perform the tasks at-issue. Duty to Act in the Interest of Beneficiaries Fiduciaries must act only in the interest of plan participants and their beneficiaries.  They may not manage the plan and its assets for any other purpose.  If some other purpose is revealed (i.e., if […]

Insurers Must Settle When They Have The Chance

Fri Nov 10th, 2017 on     Bad Faith Insurance,    

In Florida, if an insurer does not settle a claim within the insured’s policy limits (whether the claim is first-party or third-party), the insurer may be exposed to liability in excess of the policy limits on the basis of having violated their duty of good faith.  This mechanism lies at the center of some controversy in the state of Florida, as legislators have actively debated whether allowing claimants to bring a bad faith action against the insurer and thus controvert the coverage limits of their insurance plan is beneficial as a matter of public policy. Bad Faith Liability Florida courts have generally held that, in the context of reaching a settlement, insurers must initiate settlement negotiations when the liability of the insured is clear and it is likely that there will be a judgment in excess of the policy limits.  In the event that settlement negotiations fall through, the insurer must prove that there was no reasonable prospect of settling within the policy limits.  The fact that an insurer does not reach a settlement (and that there is a later judgment in excess of the policy limits) is not itself proof of bad faith, however.  If the liability of the insured is unclear and if it is not reasonably certain that the judgment would be in excess of the policy limits, the insurer’s failure to reach a settlement cannot necessarily be deemed bad faith conduct. What constitutes bad faith conduct? In Florida, when negotiating a settlement, the insurer’s duty of […]

What Is An ERISA Insurance Claim?

Fri Nov 3rd, 2017 on     Disability Insurance,    

If you are covered by an employee benefit plan (life insurance, pension, health, retirement benefits, etc.), and you work for a private industry employer, then in all likelihood, your plan is governed by ERISA regulation.  ERISA can have important ramifications for your insurance claims and the process by which you can seek proper recourse in the event that your claims are wrongfully denied. What is ERISA? The Employee Retirement Income Security Act (ERISA) was enacted into federal law in 1974 to establish standards for private employee benefit plans.  ERISA does not mandate that employers sponsor private benefit plans for their employees, but it ensures that when employers do offer benefit plans, they abide by various regulations relating to accountability, reporting, fiduciary duty, conduct, disclosures, and more. Thanks to application of the interstate commerce doctrine, federal ERISA regulation applies to employee benefit plans whether or not the employer’s business crosses state lines.  For example, a small three-person firm in Miami will be governed by ERISA (with regard to benefit plans offered by the employer), even if the firm only works with Florida-based clientele. Your benefit plans will not be governed by ERISA regulation if you are a public employee or the employee of a qualified religious organization.  ERISA applies only to benefit plans offered by private employers. Consequences of ERISA for Claim Denial As an insurance claimant, ERISA affects the basis and process by which you obtain benefits when your claim has been denied. If your insurance provider denies your benefits […]

Insurers Have a Duty to Act in Good Faith

Fri Oct 20th, 2017 on     Bad Faith Insurance,    

In Florida, insurers owe their policyholders a duty of good faith to refrain from acting on exclusively on the basis of their own self-interest in handling a claim and in their decision-making surrounding a settlement.  The insurer is required by Florida law to handle claims brought against their policyholders with the degree of care and diligence that would have been exercised by a reasonably prudent person in managing their own business. If you are a policyholder and believe that your insurer may have violated their duty to act in good faith when handling your claims, you may be entitled to bring a bad faith insurance claim against your insurer.  Let’s take a look at some of the basics. Bad Faith Conduct Section 624.155 of the Florida Statutes provides policyholders with a civil remedy when their insurer has, among various other acts: Not attempted in good faith to settle claims when it would have done so (given the circumstances) had the insurer acted with due regard for the policyholder’s interests; or Failed to settle claims in a timely manner when the obligation to settle a claim has become reasonably clear. Florida law also establishes various common law violations giving rise to bad faith insurance claims, including but not limited to: Failure to initiate settlement negotiations when liability is reasonably certain and damages are substantial. Failure to disclose policy limits. Failure to accept a reasonable settlement demand. Failure to keep policyholders reasonably informed of the claims process. Failure to adequately investigate claims. […]

How a Pre-Existing Condition Affects Your Insurance Claim in an Accident

Wed Oct 18th, 2017 on     Health Insurance,    

Whether you are injured in an accident in which there is an at-fault third-party and are attempting to recover damages through the third-party’s liability insurance, or whether you’re making a first-party claim with your own health insurer, the presence of a pre-existing condition could complicate recovery somewhat. Injury Must Be Distinct or Aggravated In Florida, you may recover for injuries that are either distinct from a pre-existing injury, or that have simply aggravated a pre-existing injury to a substantial degree. Distinct Injury An injury may be new and distinct from a pre-existing injury, even if the new injury affects similar areas of the body — whether the injury is “distinct” may sometimes depend on how detailed the examination of the injury is. For example, suppose that you are suffering from a pre-existing shoulder injury.  You are later involved in an accident where your shoulder is further injured.  Though at first glance one might assume that the injuries are one and the same, medical imaging might reveal that the new injury caused damage to previously unaffected parts of the shoulder. Aggravated Injury Importantly, even if you have not suffered a distinct injury, you may be entitled to make an insurance claim if your pre-existing injury was aggravated in an accident.  Aggravation of a pre-existing injury may reduce your potential recovery, however, as you will only be entitled to the losses suffered as a result of the aggravation itself (not the injury as a whole). Let’s return to our shoulder injury example.  […]

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