Justia Insurance Law Opinion Summaries

Based on unethical actions during the 2004-2005 hurricane season, the Legislature enacted Section 626.854(6), Florida Statutes: A public adjuster may not directly or indirectly through any other person or entity initiate contact or engage in face-to-face or telephonic solicitation or enter into a contract with any insured or claimant under an insurance policy until at least 48 hours after the occurrence of an event that may be the subject of a claim under the insurance policy unless contact is initiated by the insured or claimant. An adjuster sued. The trial court upheld the law, accepting an interpretation that it prohibited only in-person or telephonic communication, that it primarily regulates conduct, not speech, and furthers an important governmental interest. The appeals court reversed, finding that the section regulates commercial speech and that the Department failed to demonstrate that prohibiting property owners from receiving information from public adjusters for 48 hours is justified by the possibility that some public adjuster may unduly pressure traumatized victims or otherwise engage in unethical behavior. The Florida Supreme Court affirmed, holding that the statute unconstitutionally restricts commercial speech and was not narrowly tailored to serve interests in ensuring ethical conduct by public adjusters and protecting homeowners. View "Atwater v. Kortum" on Justia Law

Claimant Jerry Benoit worked for Turner Industries for twenty-seven years. For ten of those years he worked as a general laborer for a Lake Charles Citgo refinery, where Turner was contracted to perform general maintenance. Claimant's duties included cleaning chemical discharges and oily waste which collected in the drainage ditches, sewers, and processing units at the refinery. In the course of this work, he was exposed to any number of potentially dangerous or carcinogenic chemicals, including high levels of benzene. In July 2006, Claimant fell ill. He was diagnosed with acute myeloid leukemia (AML), known to be linked to high levels of benzene exposure. Despite the medical evidence linking Claimant's cancer to the chemicals he was exposed to at work, his claim for medical benefits was denied. The eventual medical bills totaled over $625,000. Medicaid paid for $203,124.68. The remaining $422,043.59 was "written off" by the medical care providers. Turner paid nothing. Claimant's family filed suit in 2007. The Office of Workers' Compensation (OWC) awarded Claimant total medical expenses and attorney fees. Turner appealed, and the court of appeals affirmed the OWC judgment in its entirety. Upon review of the correctness of the OWC award of medical expenses, the Supreme Court concluded the OWC erred in awarding the "written off" medical expenses: "Claimant would receive an improper windfall if he was allowed to recover for medical expenses which have been reduced by health care providers as a result of their contractual arrangements with Medicaid." The Court reversed the appellate court's decision and remanded the case for further proceedings.

Plaintiffs brought an enforcement suit against defendants under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. 1001-1461. At issue was whether the district court properly granted summary judgment in favor of defendants, concluding that defendants' practice of offering discounted telephone services to employees and retirees ("Concession") was not a pension plan in whole or in part. The court affirmed summary judgment and held that the district court did not err in holding that Concession was one plan, at least as it regarded to all retirees; in refusing to examine the out-of-region retiree Concession in isolation; in concluding that although Concession did provide income to some retirees, such income was incidental to the benefit, and was not designed for the purpose of paying retirement income; and in holding that Concession did not result in a deferral of income.

The company is being sued for sending commercial fax messages without consent from the recipients in violation of the Telephone Consumer Protection Act, 47 U.S.C. 227(b). Its insurers deny that coverage for "making known to any person or organization covered material that violates a personâs right of privacy" extends to liability under the Act. The First Circuit applied Massachusetts law and reversed the district court's declaratory judgment in favor of the insured company. The policy covers disclosure, not intrusion into privacy described by the Act.