Insurance Claims And Issues

Arbitrary? Capricious? Katrina?

     Delay or denial of covered claims can give rise to an Insurance Company incurring liability to pay all sorts of penalties, assessments, attorney's fees, and other damages outside of the contract of insurance.  A recent case, pending a motion for reconsideration at the time of this post, contains the holding that whether or not a refusal to pay a Renter's Insurance Claim in New Orleans after Hurricane Katrina is arbitrary, capricious or without probable cause depends on the facts known to the Insurance Company at the time of its action.  Aronson_v. State Farm Fire & Casualty Co. (La. Ct. App. 4th Cir. Case No. 2007CA0573, Opinion Filed October 10, 2007).pdf at page 15 of the linked Official Opinion from the Court's publicly accessible web site; also available by subscription as 2007 WL 3015571 at *7.  The currently available opinion reports the record facts in some detail that supported both the Trial Court's decision and the Appellate Court's decision that in this case, there was an arbitrary and capricious refusal to settle an insurance claim at the time the Insurance Company failed to reconsider its denial of a Renter's Claim after it had been told that it had already paid an Owner's Insurance Policy Claim based on damage caused by Hurricane Katrina to the same duplex in New Orleans.

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Attorney's Fees and Florida PIP ... And Wait Till Next Year!

     Personal Injury Protection ("PIP") benefits are generally available under Automobile Insurance policies issued in the United States.  In Florida, PIP benefits were scheduled to permanently expire when the statute requiring them "sunset," or expired,  on September 30, 2007.    The Florida Legislature  passed a reauthorization of the Florida PIP statute on Friday, October 5, 2007--effective, however, on January 1, 2008.  It is difficult to find a link to this new statute which was passed three days ago at the time of this post.   Link  here  to the "enrolled" bill which appears to be a compromise Florida Senate and House Bill 13.

     New subsection (15) of Section 627.736 is of special interest.  It is found on page 85 of 89 pages on the attached link.  Subsection (15) regulates awards of attorney's fees.  In some cases, there will be no attorney's fees awarded at all under this new statute.

     Here is how it is written.  How it will work will depend on the Florida Courts.  Whenever a claimant files a lawsuit against the Insurance Company under Section 627.736 to recover PIP benefits allegedly due and owing under the Insurance Policy, the new provision purports to bar attorney's fees awards when there is a claim that "should have been brought in a prior civil action" but was not brought before, AND "the court determines" that to be the case. 

     The same new Subsection 627.736(15) also provides that "all claims related to the same health care provider for the same injured person shall be brought in one action," ordinarily.  In other words, at least one of the times when the Legislature was of the view that a PIP claim "should have been brought in a prior civil action," is whenever there was a previous claim for PIP benefits "related to the same health care provider for the same injured person".   Parenthetically, Section 627.736 did not convey a statutory definition of "health care provider" before or after the new provision was enacted.

     Whether there are any other times that a "court determines" that a lawsuit "is filed for a claim that should have been brought in a prior civil action," is of course also for the Courts to determine.

     In the interim, the Florida PIP statute was recently reenacted to take effect next year.

                                                      

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