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Let a Miami Insurance Litigation Lawyer Help All too often, insurance policyholders find themselves beholden to policies that are fundamentally unfair.  Perhaps the insurance contract includes a mandatory arbitration provision that is not explained properly.  In the alternative, perhaps the insurance contract includes a rather odd and unexpected provision such as indemnity for costs in the event of a challenge. If you’ve had a legitimate claim for insurance benefits denied on the basis of a fundamentally unfair provision in the underlying insurance contract, then you may be entitled — under pervading Florida common law — to bring an action against your insurer and have the provision at issue modified or ignored. In Florida, unconscionable contract provisions cannot be enforced, but it can be quite difficult to show that a provision of your insurance contract is unconscionable.  Let’s take a closer look at the concept. What Qualifies as an Unconscionable Contract Provision Under Florida Law? A contract provision will be deemed unconscionable if it is both procedurally and substantively unconscionable.  Florida applies a sliding scale when determining unconscionability — stated simply, a contract provision may be deemed unconscionable if it is “mostly” procedurally unconscionable or “mostly” substantively unconscionable.  It is not necessary that both procedural and substantive unconscionability be at the same level. So, what are the two forms of unconscionability? Procedural unconscionability involves unfairness relating to the manner in which the contract was entered.  Factors influencing procedural unconscionability include: the lack of a meaningful choice at the time the contract […]

If you’re experiencing issues with regard to making an insurance claim, then you might be wondering about the liability of the insurance agent who marketed and brokered the contract in the first place.  In the event that you were misled or otherwise misinformed by your insurance agent, Florida law may entitle you to bring an action against them for damages as compensation for your losses.  Under certain (limited) circumstances, a failure to advise you as to what would be “ideal” or “sufficient” coverage may also give rise to a cause of action for damages. Let’s take a closer look. No General Duty to Advise Insurance agents do not have a general duty to advise prospective policyholders on what coverage they should procure.  Simply put, an insurance agent’s failure to advise you on what sort of policy you should ideally acquire is not actionable — the insurance agent need only explain the details of coverage and exercise care when selecting such coverage (at the direction of the client). Exceptions exist, however. Special Relationship May Be Created Under Limited Circumstances In Florida, if the insurance agent created a special relationship with the prospective policyholder above and beyond that of a normal insurance agent — for example, if they offered insurance advisory services to the policyholder — then there may be a duty to properly advise the prospective policyholder on coverage.  Failure to exercise reasonable care in this regard could expose the insurance agent to significant liability. Confused?  Consider the following. Suppose that […]

In Florida — as in other states — attempting to recover fully for your property losses can be quite a challenge.  Insurers understand that you may be in a vulnerable position, and they may take advantage by undervaluing your property losses or by otherwise appraising the property at issue in a way that creates an even more lopsided dynamic. If you find yourself disagreeing with your insurer over the value of your property losses, then you may want to explore the insurance appraisal process.  “Appraisal” is an alternative dispute resolution process that is included in many property insurance policies as a voluntary option in the event of a disagreement.  It’s important to note that appraisal is not a panacea — it is problematic in many ways, though (depending on the circumstances) you may want to consider the option. Let’s take a closer look. Understanding the Appraisal Process The appraisal clause in a property insurance policy allows the policyholder to demand an appraisal of the loss when there is a disagreement.  Each party selects a competent and impartial appraiser to separately evaluate the amount of the loss at-issue.  A neutral umpire is also selected — this umpire will determine the correct amount of the loss if the two impartial appraisers cannot come to an agreement. Appraisal is binding, which is to say that the amount determined by the umpire must be accepted by each disputing party (the policyholder and the insurer). Given the high stakes of appraisal, it’s important to work […]

Miami Disability Insurance Lawyers If you’ve had your disability insurance claim wrongfully denied, undervalued, delayed, or otherwise mishandled by your insurer, then you may be feeling overwhelmed, and for good reason.  Though your priority should be managing your health in the wake of a disability, it’s critical that you secure benefits that will serve as “income replacement” if you cannot return to work. Insurers are frequently aggressive about denying claims, and in fact, they often wrongfully deny disability benefits claims that are legitimate.  Insurance companies may feel justified in making denial decisions due to the insurance policy including a strict “any occupation” definition of disability.  It’s important that you understand what “any occupation” disability insurance is and what circumstances may allow you to secure benefits. What is “Any Occupation” Disability Insurance? Private disability insurance plans generally feature one of two different definitions of a disabling condition: any occupation and own occupation. Own occupation allows for the receipt of benefits in the event that the policyholder is incapable of performing the material duties of their existing occupation.  By contrast, any occupation only allows for the receipt of benefits in the event that the policyholder is rendered incapable of performing the material duties of any occupation for which he or she may reasonably become qualified. Any occupation disability insurance therefore requires that the policyholder establish that they are impaired to the degree that they cannot secure an alternative job for which they are or can become reasonably qualified. Reasonably Qualified to Perform […]

Miami Health Insurance Lawyer More than ever, Floridians suffering from injuries and illness — whether chronic or acute in nature — are seeking out alternative medical treatments (i.e., homeopathic remedies, massage therapy, traditional medicine, etc.) to resolve their health problems in a way that they feel comfortable with.  This trend is unsurprising.  In recent years, many have expressed their anxieties about the ubiquity of heavy pharmaceutical and surgical treatment in situations that might be more gently resolved through the use of alternative medicine. If you’ve received alternative medical care — in conjunction with standard medical treatment or exclusive of such treatment — then you may find that your health insurer denies your claim for benefits on the basis that your care is not “covered” or otherwise fits an exclusion in the insurance policy. It’s important to understand that a denial of benefits does not signal the end of your insurance claim.  You are entitled to challenge the decision of your insurer, and in fact, depending on the wording of the policy, the denial may have been wrongful. Let’s take a closer look. Healthcare Insurance Coverage is Generally Limited to Medically Necessary Treatment Most healthcare insurance coverage extends only to “medically necessary” treatment.  Every plan defines “medically necessary” differently.  One plan may explicitly list out treatments that are medically necessary (given certain diagnoses), while others may give a more general definition that references functional impairment.  For example, an insurance plan may deem treatment as “medically necessary” if it is cheap, efficacious, […]

Property insurance claims can leave many policyholders feeling vulnerable, and for good reason.  Whether they have had their home destroyed in a natural disaster, or have had their vehicle totaled in an accident, the policyholder may find that the property insurer is rather aggressive in denying, undervaluing, or otherwise mishandling their claim for benefits — given how difficult their circumstances may be at such a time, the adverse decisions of their insurer can deepen the already-significant emotional challenge. Let’s take a look at the benefits that you might be entitled to receive as a property insurance claimant. Property Insurance Benefits May Cover a Range of Losses Property insurance policies vary significantly from plan-to-plan, so there is really no “one size fits all” explanation that will be suitable for all claimants.  If you paid for a high-end homeowner’s insurance plan, for example, then your plan may feature a provision that grants you loss of use benefits, whereas if you paid for a cheaper plan, then it may lack such coverage. Loss of Use Loss of use coverage will grant you benefits to cover losses associated with: Having to rent another property to use in the interim period (until repairs can be performed, or a replacement is found) Costs for relocation Increased costs of living Storage costs For example, if you lose access to your house due to a natural disaster that destroys most of the home, then you may submit a claim and receive benefits for loss of use to cover […]

If you have had your insurance benefits claim denied or otherwise mishandled by your insurance company, then you’re entitled to challenge the adverse determination made by your insurer under Florida (and federal) law.  It’s important to note, however, that the procedures and limitations applicable to your case will be somewhat different than the “standard” if your insurance benefits policy is ERISA-governed. The Employment Retirement Income Security Act (ERISA) is a federal regulatory scheme that establishes a unique set of standards, protections, and limitations that are applicable to qualified plans (e.g. all private insurance benefits plans that are provided or sponsored by one’s employer, so long as it is a non-religious organization). Among the unique requirements imposed by ERISA is that of “administrative remedy exhaustion.”  Those looking to claim benefits under an ERISA-governed plan are likely to encounter this limitation. Let’s take a look at some of the basics. ERISA Remedy Exhaustion Basics If your claim has been denied — or if you have been subject to some other serious and adverse determination (i.e., undervalued claim, award of partial benefits as opposed to full benefits, etc.) — then you may challenge the insurer’s decision, but ERISA requires that you go through an internal process known as the “administrative appeals” process. More specifically, ERISA requires that claimants first exhaust their administrative remedies available under their plan — the internal appeals process — before bringing a lawsuit in civil court.  In fact, claimants are not legally entitled to bring a lawsuit until they […]

Whether you’re a policyholder in a health, disability, or property insurance plan, it’s possible that you will encounter — or have already encountered — some blowback when it comes time to submit a claim for benefits.  Insurers are fundamentally incentivized to deny, undervalue, or otherwise mishandle claims so that they can minimize their own costs.  This is particularly true in situations where an important coverage-related provision of the contract is ambiguous and therefore open to interpretation. In many cases involving an adverse determination by the insurer, the policyholder-claimant is taken by surprise — after all, the policyholder may have interpreted an ambiguous provision quite differently than the insurer. Let’s take a look at how benefits disputes associated with such ambiguities are resolved. Interpreting Ambiguity in an Insurance Policy If you believe that your insurance policy contains an ambiguous provision that is being misinterpreted by the insurer in an effort to deny your rightful benefits, then it’s important that you don’t despair — it’s not necessary that you resign yourself to insurer’s decision.  Florida law imposes beneficial rules that protect you in circumstances where ambiguous insurance provisions are being misinterpreted or misused. Favoring the Claimant In Florida, ambiguous insurance provisions are strictly interpreted in favor of the insurance claimant — the courts must interpret any genuine ambiguities against the interests of the insurance provider. Suppose, for example, that you are a property insurance policyholder, and your plan contains an exclusion clause that is somewhat ambiguous.  Perhaps the clause prevents you from […]

If you have had your insurance benefits claim — disability, health, property, etc. — denied or otherwise subject to an adverse determination, then you are entitled by law to challenge the insurer’s determination.  Generally speaking, your plan will determine many of the protections and limitations relevant to your benefits claim (and any subsequent challenge). Policies that are ERISA-governed, for example, require that the claimant first exhaust their administrative remedies — by going through an internal appeals process — before bringing a civil action against the insurer for benefits and other damages. In situations where the policy is not ERISA-governed, by contrast, claimants are not bound to go through the internal appeals process.  They may choose whether to bring a civil action against the insurer, and in fact, many claimants choose to do just that instead of dealing with the additional hassle of the internal appeals process.  Pursuing a lawsuit puts immediate pressure on the insurer to reconsider their earlier decision and payout the benefits that you’re owed. Consider the following. Review Not Conducted by a Neutral Third-Party In many cases, those policyholders who have had their benefits claim denied (or otherwise been subject to adverse determination) choose to go through the internal appeals process with the intention of minimizing the time, cost, and complication they associated with litigation.  The policyholder may also not be comfortable with approaching an attorney for assistance until they have navigated the internal appeals process first. In truth, however, the internal appeals process can be something […]

If you are involved in a dispute with your insurer over benefits owed in the event that your property has diminished in value (following an accident), then you may be entitled to bring an action against the insurer to secure the desired benefits.  Effectively bringing a diminished value claim can be quite a challenge, however, given that Florida law does not allow such benefits recovery by default unless the insurance policy specifically empowers the claimant to recover benefits for diminution in value. What is diminution in value? Generally speaking, property — such as a motor vehicle — tends to lose value after an accident.  If it has not been adequately repaired, then the loss of value is quite obvious.  On the other hand, even if it has been repaired perfectly and returned to a condition that is otherwise impossible to differentiate from “new,” the property will lose at least some of its original value.  Purchasers who become aware of the fact that a motor vehicle has an accident history are less likely to pay as much for the vehicle than if it had not been involved in accident.  This is a fairly well-studied trend in purchasing. Given the likelihood that your property has diminished in value, adequate compensation must account for such loss.  If you are submitting a benefits claim with your insurer, then you may be wondering whether you are entitled to recover benefits that cover the diminished value of your property. Let’s take a look. Availability of First-Party […]