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Reporter Makes Mistatement about Bad Faith Negotiation Law in Florida

Evan Rosen — Thu, 08 Mar 2007 14:26:10 GMT

I am posting a response that I sent to the author of an article I recently read about the upcoming Personal Injury and Auto Accident debate in the Florida Legislature.

Dear Ms. Garcia,

I am a Florida attorney and our office has been handling personal injury cases since 1965. I recently read your article on line, and wanted to point out a misstatement.

The sentence in your article that reads, "And Florida's bad-faith law requires insurers to pay attorneys' fees as well as damages if they lose in court," is not accurate when read in context. Florida's bad faith law does not require insurance to pay attorneys fees or damages if the insurer simply loses in court on the underlying personal injury or PIP claim.

In 1982, Florida's Legislature became the first state in the US to create the right to bring a private lawsuit for an insurance company's violations of the Unfair Insurance Trade Practices Act (UITPA). It was codified as Florida statute 624.155, commonly known as Florida's Bad Faith Statute. It provides a remedy for insurers who do not "attempt in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly towards its insured and with due regard for [the insured's] interests." This standard is well above and beyond just losing. In fact it's an entirely separate lawsuit that must be handled by a separate attorney because the original attorney representing the injured party now becomes a witness against the insurance company for their "bad-faith" negotiations. As for damages, the jury can award punitive damages against the insurer only if it finds the insurance company (a) acted willfully, wantonly and maliciously with respect to any person claiming damage under the statute, or (b) in reckless disregard of the rights of one of its insured's. Bad Faith is a very tough standard.

I also felt the slant of your article doesn't do enough to shed light on the abuses insurance companies take. For example, United Auto's reputation is beyond that they are tough, it is more so that they just don't pay. They collect premiums gladly but when it comes time to pay a PIP claim, they deny and delay, on almost every case we've seen with them. In general, insurance companies deny and delay as much as possible. They are companies in business to make money and the formula to do so is very simple, increase revenue, which means collect premiums, and decrease expenses, which includes paying as little as possible. Very often, people involved in personal injury cases that were through no fault of their own are left with huge unresolved doctor's bills and hospital liens either because the PIP ran out, there was inadequate BI or UM coverage, or because the insurance companies refuse to pay the full amount.

My opinion is the law is broken and the insurance industry is an inherent conflict of interest. We trust them with so much of our citizens well-being on health and medical care issues, when it is not in their best interest to pay. I believe it was the insurance companies who wanted this "no-fault" PIP law in the first place to save them money. I think PIP in some ways is just a new angle for fraud and likewise a new medium for insurers to delay and deny truly injured parties their contractually agreed upon rights. Our laws currently require people to carry insurance only for their own injuries, PIP, and someone else's property damage. So the average Joe can run a stop sign and hit you but under Florida law he is not required to carry insurance to help pay for your even your medical care. I think this is backwards. Why should I have to pay to cover my injuries when someone else is the cause of them? I would like to see mandatory Bodily Injury Coverage for at least $25,000.00. As you probably know, one day in the hospital/ER will cost at least $10,000.00. Mandatory BI is not perfect but I believe it is the most fair and rational way.

If you ever want to hear my opinions on Florida's Medical Malpractice "crisis" please let me know!

Sincerely yours,
Evan M. Rosen

Originally posted at InjuryBoard by Evan Rosen

Bicyclist Killed On A1A In Fort Lauderdale

Chrissie Cole — Tue, 01 Sep 2009 17:48:00 GMT

A man was struck and killed by a car on A1A in Fort Lauderdale, according to a police department news release.

Daniel Colotte, 59, was riding his bicycle north at the 1100 block of A1A when he was struck by a white Mercedes Benz that was also driving northbound on State Road A1A.

Colotte was taken to Broward General Medical Center where he was pronounced dead.

O’Donnell is being investigated for driving while under the influence; charges are pending.

There is a bike lane where the accident occurred, but it’s a bit narrower at that part of A1A and tends to be more dangerous at night.

Originally posted at InjuryBoard by Chrissie Cole

Allstate Banned from Writing New Auto Insurance Policies in Florida

Evan Rosen — Wed, 16 Jan 2008 19:05:24 GMT

After just two hours into a meeting with Allstate, Florida Insurance Commissioner McCarty suspended Allstate's ability to write new automobile insurance policies in the state. Despite demands to turn over certain documents, Allstate failed to comply stating that the documents the state was demanding were "irrelevant."

Governor Charlie Crist issued the following statement.

"I applaud Commissioner McCarty for sending a clear message to Allstate Companies and protecting Florida's consumers. It is clear to me that Allstate must have something to hide if they are unwilling to comply with the Commissioner's requests. This type of behavior is an unconscionable disregard for this process and their customers.

I am grateful to Commissioner McCarty for taking this bold action today and look forward to further progress through the Senate Select Committee's work next month."

For more information on this subject, please refer to the section on Car and Motorcycle Accidents.

Originally posted at InjuryBoard by Evan Rosen

Caps on Medical Malpractice Cap Citizens Right to Justice

Evan Rosen — Sat, 29 Dec 2007 15:54:59 GMT

A recent study of Medical Malpractice data conducted in California since its enactment of legislation capping awards on "non-economic" damages has shown that a lot of individuals can no longer afford access to the courts. Recently, a doctor found it impossible to find a lawyer to represent him after his mother had died from a medical error despite an exhaustive search of almost two dozen local lawyers.

Florida is experiencing the exact same problem. In Florida, we have very similar caps limiting a person's recovery for pain and suffering type damages which often times can make up the bulk of the award on a catastrophic injury or death case. By capping the awards, attorneys faced with potentially six figure costs to pursue these matters have to not only be much more selective but they must also turn down legitimate cases that for one factor or another don't generate enough potential "economic" damages like medical bills and future lost wages to justify the humongous expense. For example, in cases where a person who is retired passes away or is seriously injured by a physician's malpractice, there are no future lost wages which then makes the pursuit of justice, economically infeasible.

Lawyers who pursue justice in medical malpractice cases in general, do want to help people but most can't afford to do it at a loss nor should they have to. Besides regular business overhead expenses, lawyers who pursue these cases must pay similar competent doctors to be expert witnesses to examine the potential case, provide guidance along the way and testify in court. These fees can range between $500-$1,000 per hour and it wouldn't be unheard of to have $50,000 in expert witness fees on any particular medical malpractice case. Complex matters with multiple defendants, like a few doctors who were involved in a patient's care plus say a hospital could easily cause that figure to triple or quadruple.

Yet, while litigation volume and costs for insurance companies are being cut in half, Doctors still pay extremely high premiums and insurance company profits continue to soar. Medical Malpractice insurance companies used to make @ $.37 per dollar collected in premiums. Because of a severe drop of almost 48% of the number of cases brought to court, insurance companies now have the benefit of retaining $.61 per dollar collected as profit.

The pendulum has swung way too far the other way now....

For more information on this subject, please refer to the section on Medical Malpractice and Negligent Care.

Originally posted at InjuryBoard by Evan Rosen

Preparense para la Inexistencia de "No-Fault"

Evan Rosen — Fri, 17 Aug 2007 19:51:23 GMT

De acuerdo con Alex Sink, el principal official financiero del estado, deberiamos estar preparados para la vida sin la ley de "No-Fault". Esta ley expirarÃ¡ Octubre 1, 2007. El 18 de Septiembre habra una sesiÃ³n especial del congreso se hablara acerca del presupuesto y posiblemente acerca de esta ley. Apesar que el gobernador Charlie Christ esta a favor de extender la ley de seguro de protecciÃ³n de lesiones personales (Ã³ P.I.P por sus insignias en InglÃ©s), parece que el Senado y la Casa de Representantes no han llegado a un acuerdo para extenderla.

Originally posted at InjuryBoard by Evan Rosen

Major Personal Injury Law up for Debate

Evan Rosen — Tue, 27 Mar 2007 06:09:58 GMT

Well the insurance lobby propaganda is up to business as usual. Today I read a post on the Sun-Sentinel website titled "Keep Target off Deep Pockets." The post is clearly stating that "Fabre v. Marin" and it's resulting codification is the only thing keeping lawyers from going after only deep pockets, leaving truly at fault, non-wealthy defendants out if they chose. Futher, the post incorrectly states that "Fabre Doctrine" creates apportionment of damages based on fault.

You can read this insidious misstatement of the law and the proposed Senate and House bills on the Sun-Sentinel website. For fear of generating more activity to that post, I do not want to post a link to it. I will however paste my reply below:

You couldn't be more wrong!

First of all, Fabre did not stop lawyers from going after one party for all of the damages regardless of fault. Apportionment of damages based on fault was already codified prior to Fabre by the Florida Legislature in the Tort Reform and Insurance Act of 1986. What Fabre did decide and what was later codified as "Fabre Doctrine" was the ability to apportion damages not just among defendants based on their percentage of fault but also against non-parties. Under our current law, a defendant has to allege and prove by a preponderance of the evidence that a non-party was also at fault and that non-party can be added to the jury verdict form and damages can then be apportioned against that non-party. However, since that entity is a non-party, a plaintiff cannot collect a dime against them. The true result of Fabre Doctrine, Plaintiff lawyers have to sue everyone and sometimes even non-responsible parties get dragged in.

Also, you cite HB 733 and SB 1558 as creating a system where "personal injury lawyers would be able to target the deepest pocket regardless of their percentage of fault, letting those truly responsible walk away" and you say the bills would send a "green light to those lawyers who would cherry pick defendants in a get-rich-quick lawsuit-lottery game." Maybe you haven't read the bills? You should know the bills continue to apportion fault amongst all defendants only, it just eliminates apportionment among non-parties. If a defendant thinks someone else is to blame before Fabre or after if it gets abolished, they can still bring a non-party into court by making them a party via a third party complaint.

I think the insurance lobby's misinformation is a disgusting abuse of its greed and attempt to continually influence, dominate and manipulate all the while painting trial lawyers as that which the insurance companies are, greedy and corrupt. Trial lawyers aren't perfect and yes, some lawsuits are unfair and frivolous but there are many mechanisms to police corrupt attorneys. Frivolous lawsuits get quashed, propaganda that leads to increased profits for insurance companies at the expense of less benefits and higher premiums to the public do not. Where are the mechanisms to police the greed and corruption of our insurance companies who claim to be looking out for our best interests...?

Insurance companies are for-profit corporations. They make money by collecting premiums and not paying or paying out as little as they can.

I'd like to see how you feel if you get injured in an accident and the insurance companies who are paying for your propaganda website (specific website address deleted so it does not get more hits) decide not pay for your medical bills...

Originally posted at InjuryBoard by Evan Rosen

What Happens if you File for Bankruptcy during a Personal Injury Case

Evan Rosen — Mon, 27 Aug 2007 17:57:23 GMT

Clients who have ongoing Personal Injury cases that file for bankruptcy, quickly cease to technically be our clients. The Bankruptcy Trustee becomes our "client" as we are retained as "special attorneys" once bankruptcy has been filed. Our goal in the case remains the same, to resolve it for the most amount of compensation possible. However, instead of the client being authorized to approve a settlement, the Bankruptcy court must approve it. Should the parties settle or should the case get resolved at trial, the Trustee and/or Bankruptcy attorney will disburse the proceeds among the creditors. The client will only get money if there are funds remaining after all obligations have been satisfied. As attorneys, we also have to notify the medical providers of the pending bankruptcy and they then typically join in to make their claim for their outstanding medical bills.

Moral of the story: consult with your Personal Injury and Bankruptcy attorney before filing bankruptcy while your personal injury case is pending!

Originally posted at InjuryBoard by Evan Rosen

Florida PIP Law May be Extended

Evan Rosen — Wed, 25 Apr 2007 03:54:17 GMT

Barring an act of Florida Congress, Florida's no-fault law will expire by October 1, 2007. Today a senate committee passed a bill that will keep PIP entact. The insurance industry who intially lobbied for PIP/No-Fault Law is now trying to see that it goes away. Meanwhile, doctors, hospitals and some trial lawyers still see it as being a viable first line of coverage to ensure injured people get medical attention.

Originally posted at InjuryBoard by Evan Rosen

Medical Malpractice Lawsuits Down

Evan Rosen — Wed, 02 Jan 2008 13:21:26 GMT

All over the country reports are coming in that Medical Malpractice lawsuits are down tremendously, despite the insurance lobby propaganda. In Pennsylvania, for example, medical malpractice lawsuits are down 38% since 2002 and in Philadelphia by 52%. Furthermore, two of the largest insurance carriers in the state for that kind of coverage are decreasing their rates and since 2002, 57 new carriers are offering policies to doctors.

It's a shame that the misinformation about this continues and no one really knows the truth about personal injury or medical malpractice litigation unless they unfortunately have to go through it. It is not a jackpot or lottery system and most insurance defense lawyers will tell you that not only are the great majority of jury verdicts in favor of doctors but both the number of lawsuits and the actual dollar amount of verdicts are down substantially.

For more information on this subject, please refer to the section on Medical Malpractice and Negligent Care.

Originally posted at InjuryBoard by Evan Rosen

La Corte Suprema Niega la Compensacion de Danos Punitivos contra el "Gran Tobaco"

Evan Rosen — Mon, 14 May 2007 19:02:03 GMT

El MartÃ©s, Febrero 20, 2007, la Corte Suprema negÃ³ una compensaciÃ³n de daÃ±os punitivos de $79.5 millones contra la compaÃ±ia tabacalera Phillip Morris. El demandante en este caso fue el Sr. Jesse Williams, quien murio despues de aÃ±os de haber fumado cigarrillos Marlboro. La viuda de este argumentÃ³ que la compaÃ±ia de tabaco condujo fraude al promocionar a proposito que los cigarrillos no eran daÃ±inos.

El jurado de la corte original decidio dar a la viuda $800,000 en daÃ±os compensatorios mÃ¡s $79.5 millones en daÃ±os punitivos. MÃ¡s adelante los daÃ±os compensatorios fueron reducidos a $500,000. El proposito de los daÃ±os punitivos es castigar a los demandados por su conducta extrema e indignante. Hasta el dÃa de hoy, ninguna corte incluso la Corte Suprema ha puesto un limite Ã³ un modelo sobre estas compensaciones de dinero. Pero en este caso, la Corte Suprema dijo que la compensaciÃ³n por daÃ±os punitivos, que es de 97 veces mÃ¡s que los daÃ±os compensatorios, era excesiva. La Corte Suprema mandÃ³ el caso a la corte estatal para que hicieran un nuevo juicio Ã³ una reducciÃ³n sobre los daÃ±os punitivos.

Originally posted at InjuryBoard by Evan Rosen