Verdict for the Defense

As a trial recap, the plaintiff, Danais Santana, asserted that she has $17,000 in medical bills as a result of an October 2009 accident. The Plaintiff filed, years ago, and before any of these people were involved, a proposal for settlement for $4,250. Therefore, if this plaintiff received a verdict totaling roughly $5,500, our insured would be exposed to approximately $200,000 in attorneys’ fees.

The Plaintiff presented her own testimony at trial, which went very poorly, as this plaintiff was involved in three prior accidents. The plaintiffs then just simply read the previous testimony of Dr. Robert Martinez, our expert. The plaintiffs then called Dr. Freed, Chiropractor who had seen the plaintiff after this motor vehicle accident. The cross examination of Dr. Freed went  well,  Dr. Freed had to admit that he didn’t have knowledge of the plaintiff’s three previous accidents, or the extent of the injuries that she sustained in these accidents. Despite this, he did not change his opinion.

 To finish the case we played the deposition of Dr. Ravipati, treating physician, whose testimony was confusing, but in any event, established that because of the inaccurate medical history the plaintiff had given him, he could not determine within a reasonable degree of medical probability that there was any injury caused by the October 2009 accident.

 The jury determined there was no causation of any damage as a result of the October 2009 accident, and came back with a defense verdict in approximately 20 minutes.

 In my opinion, any time that we can get a plaintiff or a claimant lying, it is devastating to their case.

Confirmation of Insurance needs is Key in Insurance Agency Cases

The general standard in most states for proving duty of an insurance agent is outlined below in Merriam:

absence of circumstances indicating the insurance agent has assumed a duty beyond the procurement of the coverage requested by the client, the insurance agent has no obligation to advise a client regarding additional coverage or risk management.

The key to a successful case is often centered on showing the special circumstances which establish a duty. Absent such circumstances, many courts will rule that an insurance agent has a duty similar to the person taking an order at a fast food restaurant–give the price for the coverage specifically requested and provide that product if ordered.

In Merriam, the customer asked about home, auto and life insurance. There was no discussion or promise by the agent to analyze workers compensation coverage. Thus, the claim that the agent failed to provide or advise regarding workers compensation insurance failed. Promises, oral or in writing, by the agent are key to establishing a definite duty. Advertisements or claims to be a specialist, expert and advisor regarding insurance perils which are related to risk management duties are very valuable in proving negligence or a breach of contract.

The circumstances relevant to proving an error or omission case:

[I]t is for the fact finder to determine, based on a consideration of all the circumstances, the agreement of the parties with respect to the service to be rendered by the insurance agent….

Some of the circumstances that may be considered by the fact finder in determining the undertaking of the insurance agent include the nature and content of the discussions between the agent and the client; the prior dealings of the parties, if any; the knowledge and sophistication of the client; whether the agent holds himself out as an insurance specialist, consultant, or counselor; and whether the agent receives compensation for additional or specialized services.

…the client bears the burden of proving an agreement to render services beyond the general duty to obtain the coverage requested.

Practice Tip:   Confirm the specific insurance needs of the insureds in writing at the application stage and delivery of policy.

 

Insurers can prevail on Declaratory Judgment actions when they have “Communicable Disease” exclusions for “bodily injury”

  1. In Clarke v. State Farm, 37 Fla. L. Weekly D2540, 4th DCA, October 31, 2012, the Fourth District Court of Appeal upheld the lower court’s order granting State Farm’s  motion for summary judgment on a coverage action.  State Farm argued its insuring agreement which defined bodily injury to exclude: “any of the following which are communicable: disease, bacteria, parasite, virus, or other organism, any of which are transmitted by any insured to any other person” was broad enough to allow them to prevail on the declaratory judgment action. The plaintiff in the case filed a complaint asserting bodily injury from Herpes Simplex Virus under theories of negligence, fraudulent concealment, battery, and intentional infliction of emotional distress.  The court found that event though the exclusion did not have the “arising out of” language which allows for coverage cases to be decided decisively for insurers, the court determined the plain language of the policy would not allow any other meaning to be interpreted.
Practice Tip:  The “plain language” or plain meaning argument seems to be gaining some steam in the appellant courts.  After sending the reservation of rights and filing a motion to abate and consolidate the case early with the dec action, these coverage cases can be very successful.

 

A Defendant in a Car Accident is not Mandated to Provide Medical Records Without an “in camera” inspection to examine the relevance of the records to the accident

The Fourth DCA in James v. Veneziano, 37 Fla. L. Weekly D2338, Oct 3,2012 held that while a Defendant’a medical records showing  health problems in the form of a brain tumor causing memory issues may have to be examined by the court, they can’t be produced unless and until the court has an “in camera” inspection. The inspection is to determine and the parties to argue  the relevance of the records and to protect the Defendant’s constitutional and statutory privacy rights to the records.  Practice tip: Please carefully review any medical records of your insured/client BEFORE they are confronted with a deposition which may put them in a position to produce the same. Always file motions for protective order and objection to any subpoena issued to a client/insured.

Doctors Warn That MRIs Are Often Overused

Here is a link to a New York Times article that provides confirmation that MRIs are overused and not clinically important unless correlated with symptoms.

Click here to view article

Article in Latest TBT Declares Tampa “Epicenter of Staged Car Accidents in Florida”

Page 16 of the August 17, 2011 edition of the Tampa Bay Times (TBT) has some persuading statistics and commentary about the issued of staged car accidents throughout Florida. It is certainly worth a read.

Click here to open article in new window

 

Staged Crash Crackdown

The Tampa police busted these clinics for staging accidents in Hillsborough County:

Doctor Florida Rehabilitation located on 2123 W. Dr. MLK;
Injury Health Care Therapy located on 5537 Sheldon Road;
Recovery Rehabilitation Services located on 7025 W. Hillsborough Ave.; and
Healing Touch located on 6821 W. Hillsborough Ave.

We will continue to keep you posted on these developments.

Click here for more information: http://www2.tbo.com/news/news/2011/may/13/MENEWSO3-staged-crash-crackdown-ar-207043/

April 2011 Legal News & Updates

Insurance Adjusters Beware—Read the Subpoena Duces Tecum
In Cartaya vs. Sanchez-Arias, the Hillsborough County Court entered sanctions against the defending insurance company after the insurance company failed to schedule a hearing on its Motion for Protective Order to be heard prior to the deposition of the company’s adjuster.  The Court also sanctioned the insurance company because the adjuster appeared at the deposition without his claim file or claim notes, which the Plaintiff requested in its subpoena duces tecum.  Based on this ruling, defending insurers should read subpoena duces tecums carefully, and prepare and set for hearing before their depositions any Motions for Protective.

Questionable Clinics That Should Be On Your Radar
As many adjusters adjusting claims in Florida know, there is certainly no shortage of clinics that will say anything to support a claimant and/or plaintiff’s claim—that is, diagnose and “allegedly” treat non-existent injuries, and even commit fraud by generating false medical records.  Insurance companies have also routinely observed these clinics get away with this sometimes illegal activity with little or no interference from law enforcement.

Despite the fact the State rarely enforces its laws against insurance fraud as much as those in the insurance industry would like, many of these clinics perform another criminal act that exposes their fraudulent nature—drug dealing.

For approximately the last two years Hillsborough law enforcement has been working vigorously to shut down these so-called “pill mills,” which are clinics who supply prescription pain medications to addicts.  The clinics in Hillsborough County the authorities have already closed include Superior Injury Center of Tampa, Habana Spine and Medical Center, and 1st Medical Group.

Based on this information, this firm recommends adjusters revisit their Hillsborough County claims in order to determine if any of the claimants treated for their injuries at any of these clinics.  If so, then the adjuster will have additional ammunition for the defense of the claim.

SHM Wins Another Motion to Dismiss for Fraud Upon the Court
When a defendant moves to dismiss a lawsuit because the plaintiff has committed a fraud upon the court, the defendant is basically asking the judge to sit in the shoes of the jury in order to pass judgment on the plaintiff’s credibility.  Since such a motion contradicts the long line of jurisprudence in which our legal system delegates the judging of a plaintiff’s credibility to the trier of fact (who in most circumstances is a jury), most judges are reluctant to grant such motions.

Despite the obstacles standing in the way of obtaining an Order dismissing a case for fraud upon the court, Scarborough Hull & Miller has been extremely successful in obtaining such Orders.  In fact, in April of 2011, Kevin M. Davis of Scarborough Hull & Miller not only obtained a dismissal based on the plaintiff’s fraud, but even an Order permitting the firm’s client to pursue fees and costs against the plaintiff pursuant to Section 57.105, Florida Statutes.

In the Hillsborough County case of Burns vs. Mitchell, the Plaintiff alleged to have suffered a knee injury after being stuck by a taxicab driven by the Defendant.  Vigorous investigation, however, uncovered two witnesses, who attested under oath the Plaintiff struck himself in the knee with a crowbar in order to “invent” a claim against the Defendant.

The Defendant then sought dismissal for fraud and for sanctions upon learning this material.  The Plaintiff’s attorney subsequently withdrew—leaving the Plaintiff unrepresented for the hearing.  Since the Plaintiff neither filed any response, nor appeared for the hearing, the Pinellas County Court dismissed the action for fraud, and issued an order entitling the Defendant to fees and costs.

Public Policies Do Not Require Suit Against Uninsured Motorist

The Fourth District Court of Appeal in Saris v. State Farm Mutual Automobile Insurance Company, determined that a uninsured motorist policy provision requiring the insured or policyholder to sue the owner or driver of an insured motor vehicle was void against public policy.  Therefore, the Plaintiff does not have to sue the tortfeasor prior bringing suit against the uninsured motorist carrier.

Conflicting Authorities When PIP Benefits Cut Off

Apparently there are conflicting authorities as to when an IME permits an insurer to cut-off PIP benefits.  According to the Eleventh Judicial Circuit, the question as to when an IME serves to cut-off an insurer’s obligation to pay PIP benefits is a question of fact for the jury.  United vs. Asclepius Medical, Inc. (2010).  In United vs. Asclepius Medical, Inc., the Circuit Court addressed in its appellate capacity whether the date of the IME, the date of the subsequent cut-off letter, or the date the clinic receives the cut-off letter is the date when the insurer can cut-off paying PIP benefits.  The Court evidently refrained from ruling on the issue by holding such a scenario represents a question of fact for the jury to determine. Alternatively, however, the Eleventh Judicial Circuit held in United vs. Canal (2010) the date of the IME is the date on which the insurance company can cease making PIP benefit payments.  Based on these conflicting rulings in the Circuit Court, we can expect the Third District Court of Appeal to resolve this issue.