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In some cases, your insurer may deny your claim due to a specific misrepresentation in your insurance application — even if the misrepresentation at issue was not intentional and was merely a mistake borne of a simple misunderstanding. Material Misrepresentation as a Defense Insurers can use a material misrepresentation defense to avoid having to pay out for your legitimate insurance claims.  Oftentimes, an insurer will discover some mistake in your application and will anchor their arguments on it.  For example, if you fill out a disability insurance application and write down your family history of disability (and other health conditions) incorrectly due to a lack of information, the insurer may argue that this mistake constitutes a material misrepresentation. If you’ve had your claim denied or delayed (or otherwise handled in an unfavorable manner) due to a purported “material misrepresentation,” then you may feel as though you don’t have many options.  In reality, however, policyholders can utilize a number of different arguments to overcome this defense. Not all Misrepresentations Preclude Insurance Coverage The mere fact that you made a mistake — or even intentionally misrepresented something on your insurance application — is not enough to preclude insurance coverage.  According to Florida Statutes section 627,409(1), a misrepresentation, omission, or mistake will only prevent the insurance claimant from recovering damages if the insurer would not have issued the policy in the first place (given the misrepresentation at-issue). Further, your insurer cannot preclude coverage unless the particular misrepresentation is causally linked to the loss […]

Insurers — whether in the health insurance context, or some other context — will look for any possible justification to support their denial of a policyholder’s substantial claims, however legitimate those claims may be.  Recent scandals plaguing health insurers have shaken the industry to its core and revealed that many health insurers do not enforce their guidelines or properly supervise their assessors, which can lead to systemic wrongdoing. If you have a legitimate health insurance claim that has been denied by your insurer, you may be entitled to damages on the basis of their wrongful denial.  With the assistance of a qualified health insurance attorney, you can gather additional evidence and repackage your health insurance claim, appeal the denial, or — ultimately — pursue trial litigation against the insurer to recover the compensation to which you are entitled. Understanding the reasoning that insurers use to rationalize their claim denial is fundamentally important, as it highlights those issues that must be circumvented or challenged.  Consider the following. Common Justifications for Claim Denial Treatment Not Medically Necessary Whether treatment is deemed medically necessary depends on a number of factors, from the language and provisions of the insurance policy, to the circumstances of your injury (and potential treatment thereof).  Each plan may differ in terms of its definition of medically necessary treatment, with some plans executing a broader construction, and some plans executing a stricter construction.  For example, your plan may require that only certain type of medical devices be use to treat […]

Florida insurers owe a duty of good faith to their policyholders.  Essentially, Florida law (as is the case in various other jurisdictions throughout the country) requires that insurers avoid acting purely out of self-interest in handling the claims filed by their policyholders.  In processing the claims filed by their policyholders, insurers must act with a degree of care and diligence akin to that a reasonably prudent person who is managing the affairs of their own business.  Failure to act in good faith can expose the insurer to substantial liability, thus giving the policyholder a remedy at law. Importantly, timely processing of claims is among the many violations that legitimate bad faith insurance litigation.  Timeliness is inextricably tied to “bad faith,” as policyholders may be exposed to significant financial distress when there has been a delay. In contexts besides the processing of claims, for example, Florida law ties issues of timeliness to bad faith liability.  Specifically, section 624.155(b) of the Florida Statutes gives policyholders a civil remedy in the event that their insurer has failed to settle their claims in a timely manner. A Florida court will assess whether the insurer has violated their duty of good faith by assessing the “totality of the circumstances.”  For example, if the processing delay is justified by a lack of clarity on relevant facts pertaining to the claim at-issue, and if the insurer has notified the policyholder about the need for further delay (perhaps to perform an additional investigation into the facts), then in […]

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 […]

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 […]

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 […]

  As a result of Hurricane Irma, people and businesses will begin to take stock of the damage suffered and evaluate potential recovery assistance promised by property insurance. We urge those affected to seek professional help and guidance; insurance policies are complicated documents. We suggest some simple steps that should be followed in finding the right help and guidance, and to assist in getting paid fairly and promptly. Make your claim: Insurance policies have time limits on when and how a claim should be made. More than 50 years ago, the Florida Supreme Court observed that most folks don’t read their insurance policies until disaster strikes – get the policy and review it now. If you need help interpreting what you need to do and when, check with your agent or broker. A good agent or broker can and will help you with the mechanics of providing notice of a claim. Document your claim: Always keep careful track of the extent and expense of your claim. All insurance policies require you to mitigate your damage to prevent more loss, but don’t try to fix anything unless lots of pictures are taken. If paying in cash, get a receipt. Insurance companies expected to make a large claim payment need an equally large amount of paper to justify the payment. Even if something is not covered by the policy or there is a large deductible, there may be tax reasons to keep all of that paper – consult a professional to tell […]

Anyone who has ever been involved in what proves to be a relatively minor car accident knows that one of the biggest headaches from the entire ordeal comes from the damage to their vehicle.

Indeed, the headache rapidly reaches migraine proportions if their vehicle, which was otherwise in good working order, was totaled, such that they’re left looking for a new means of suitable transportation.

At this time of the year, most people are focused on preparations, gatherings and all things holiday-related. Indeed, it’s probably safe to say that the last thing on the minds of many Floridians are the two major hurricanes that hit the state this past fall — Hurricane Hermine in September and Hurricane Matthew in October.

When the day finally arrives for a person to take the plunge and purchase a new car after years of driving the same vehicle, they will find that much has changed. These changes aren’t just confined to things like engines, fuel economy and interior features, however, but also safety.