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Benefits Available in a Property Insurance Claim

Fri Oct 26th, 2018 on     Property Insurance,    

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 […]

ERISA Claimants Must Exhaust Their Administrative Remedies

Fri Oct 19th, 2018 on     Insurance Claims,    

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 […]

How Ambiguous Insurance Provisions Are Resolved

Fri Oct 12th, 2018 on     Insurance Claims,    

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 […]

Reasons to Avoid the Internal Appeals Process

Fri Oct 5th, 2018 on     Insurance Claims,    

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 […]

Diminution in Value and Securing Maximum Benefits

Fri Sep 28th, 2018 on     Property Insurance,    

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 […]

Insurers May Be Liable for Inadequate Coverage Recommendations

Fri Sep 21st, 2018 on     Disability Insurance,    

In some insurance disputes — disability insurance disputes included — policyholders may be surprised to find that their coverage is actually inadequate to pay for their losses.  Insurance agents are not always scrupulous or comprehensive in explaining the terms of the policy that you purchased.  In an effort to make the sale, the insurance agent may be hesitant to explain the contours of such coverage and what benefits you are likely to obtain, and in fact, the insurance agent may recommend a policy that is fundamentally inadequate for your needs and preferences. Fortunately, Florida law gives policyholders the right to sue and recover damages when the insurance company and/or their representatives have misrepresented aspects of the policy. Let’s explore some of the basics. Insurance Agents Have a Duty to Accurately Represent Coverage In Florida, insurance companies and their various representatives — including insurance agents, of course — must clearly and accurately explain the terms of the policy that they’re selling.  They may not misrepresent any relevant aspect of the policy, such as the amount of coverage.  Whether the company representative misrepresented information to you depends on the circumstances of the case. For example, if a simple statement made by the insurance agent would not have misled the average, reasonably prudent policyholder, then in all likelihood, the agent has not violated their duty and misrepresented information.  On the other hand, if the representative knew that your reasonable expectations of the policy were different than the actual terms of the policy, then […]

Employers Cannot Punish Employees for Exercising ERISA Rights

Fri Sep 14th, 2018 on     Insurance Claims,    

Though Florida employers are well aware of the standard discrimination and retaliation prohibitions that restrict their ability to discharge and otherwise punish employees for their actions — such as reporting discrimination in the workplace — there continues to be something of a blind spot when it comes to the exercise of ERISA-related rights. Those who exercise their ERISA-related rights may therefore find themselves subject to unexpected retaliatory action, despite the fact that it is prohibited by law.  Fortunately, ERISA offers such employees the opportunity to bring an action against their employer for various damages, an injunction, and a reinstatement of benefits. Consider the basics. Employment Retaliation is Prohibited Under ERISA Section 510 of the Employee Retirement Income Security Act (ERISA) clearly prohibits retaliation against any ERISA plan participant (i.e., covered employees) who exercise their ERISA-related rights, such as pursuing the benefits to which they’re entitled under their applicable plan. Retaliation is rather common, particularly in situations where the exercise of ERISA-related rights could expose the employer to additional costs, or where it could reveal that the employer has acted in bad faith, perhaps by violating their fiduciary duties to plan participants.  For example, if you are injured and are making a significant disability benefits claim under your ERISA-governed plan, then your employer may attempt to terminate you from your position or otherwise “force you out” in an effort to prevent you from exercising your rights and receiving the benefits at-issue. What Qualifies as Retaliation? If you bring a claim against […]

Disability Insurance: A Brief Look at Occupational Definitions

Fri Sep 7th, 2018 on     Disability Insurance,    

As a disability insurance policyholder, whether you are entitled to secure benefits for your disabling illness, injury, or other condition will depend primarily on your ability to demonstrate that your circumstances qualify you as “disabled” pursuant to the language of your insurance plan.  Insurers are incentivized to interpret plan definitions (and the severity and extent of your condition) in a manner that is unfavorable to your interests — if the insurer can plausibly deny your disability benefits claim, then they can save substantially on costs that would have otherwise been paid out to you. Given the importance of the “disability” definition for your benefits claim, and the likelihood that your insurer will attempt to muddy the waters by interpreting it — and your condition — in a way that is opposed to your interests, it’s worth understanding just how disability is defined in your plan so that you can effectively counter the arguments made by the insurer. Let’s take a look. Variable Definitions of Disability Disability insurance plans either have an own-occupation or an any-occupation definition of what constitutes a “disabling” condition.  The definition described in your plan can have a significant impact on your ability to recover benefits. Own Occupation When a disability insurance policy includes an own-occupation definition of a “disabling” condition, claimants may be awarded benefits so long as they can show that their illness, injury, or other condition has caused them to be unable to perform the major duties of their current occupation. For example, if […]

ERISA Summary Plan Descriptions Must Be Clear

Fri Aug 31st, 2018 on     Insurance Claims,    

The Employee Retirement Income Security Act (ERISA) was enacted in 1974, creating a new set of standards and protections for certain covered plans (i.e., private benefit plans granted or sponsored by an employer).  Since its enactment, ERISA has further expanded those standards and protections, which include rules surrounding the Summary Plan Description (SPD). The SPD is a critical document that details the rights and obligations of the policyholder and beneficiaries pursuant to the insurance plan, as well as identifying information about the plan sponsor, administrator, and other relevant concerns.  Under ERISA, the plan administrator must by default furnish the SPD to the policyholders, and must furnish the SPD to beneficiaries upon request. When pursuing a claim against your insurer in a dispute involving an ERISA-covered plan, it’s important that you request and obtain an SPD.  Your attorney will evaluate the SPD and help determine your rights and obligations under the plan, and whether those rights have been violated by the insurer or plan administrator. What Makes an SPD Inadequate? All employee benefit plans must have an SPD, which details the benefits at-issue, eligibility for such benefits, the timeline for benefits, the procedure for claiming benefits, and the various other rights and obligations of policyholders and beneficiaries under the plan.  An adequate SPD must accurately reflect the contents of the ERISA-covered plan — failure to provide an accurate summation of the plan (with the necessary information), or to legally furnish an updated plan to the policyholder or beneficiary, could expose the […]

What Does a Vocational Expert Do?

Fri Aug 24th, 2018 on     Insurance Claims,    

Though vocational experts are perhaps more well-known for their role in Social Security disputes, they also play a critical role in private disability benefits disputes — as such, it is important to understand how to use vocational experts to your advantage (and how to undermine the testimony of opposing vocational experts) for the purpose of strengthening your benefits claim. Vocational Experts and Disability Insurance Disputes Vocational experts have a very specific role in the disability insurance dispute context — they provide an opinion on career-related issues, which (in conjunction with the medical issues) lie at the very center of a disability benefits dispute.  More specifically, a vocational expert will consider your unique talents, training, education, and physical/mental limitations, and will give testimony as to your capabilities and prospects in the job market.  Vocational experts may also testify as to salary expectations, industry growth, opportunities for advancement in a given career path, and more. For example, if a vocational expert testifies as to the possibility of an alternative career, then they will also have to provide relevant information concerning the salary and opportunities for advancement in that alternative career, given your training/education/abilities.  If opportunities are more limited than your existing career, this difference must be accounted for. Countering Vocational Expert Testimony Vocational experts brought in by opposing counsel may give testimony that clearly conflicts with your interests.  Testimony is not dispositive, however.  It is absolutely possible to weaken and otherwise challenge the testimony of the vocational expert by calling into question […]

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