Bad Faith Insurance: Duty to Settle?

Attorney John Mark Frazier Jr.

By: John M. Frazier Jr.

An insurance company is refusing to settle a claim that has clear liability and damages that exceed policy limits? Bad faith? Duty to settle? How does it all come together?

Insurance companies offer policies to the general public. Those that purchase those policies are called policy holders.

An insurance policy exists to shield the policy holder from judgments and damages resulting from the negligent actions of the policy holder. The insurance company acts as a fiduciary to the policy holder. In exchange, the policy holder must make continued payments in the form of premiums.

An insurance company has a duty to act in good faith to settle all claims within the policy limits when the policy holder’s liability is clear and the judgment would likely be in excess of the policy limits. A policy holder may be personally liable for a judgment that exceeds the policy limits. By failing to adequately protect the policy holder, the insurance company begins acting in bad faith. Bad faith claims are brought forward either as a first-party or third-party claimants. This is ultimately dependent upon the party relationship and type of coverage; BI or UM.

However, if an insurance company acts in bad faith while handling a claim, then the insurance company will be found liable for the excess judgment and damages. This constitutes a breach of the insurance company’s duty to settle a claim within policy limits. When liability is reasonably clear and there wasn’t a good faith attempt for a fair and reasonable settlement based upon the liability and damages; i.e., statutory bad faith, this breach opens the door for the insurance company to be on the hook for the excess judgments (judgments over the policy limits).

In order for this whole process to begin, a demand letter must first be sent out to the insurance company. The demand letter should generally include but not necessarily be to limited to the following; evidence of liability, medical expenses, doctor notes, surgery letters, post treatment costs, and any pain and suffering.

It is important that when drafting a demand letter to have an experienced personal injury attorney do the work.

Consequently, a demand letter will set the tone for the entire claim. The demand letter gives the insurance company an opportunity to fulfill their duty. This allows them to settle a claim and conduct their own investigation. The insurance company must be given the opportunity to tender the policy limits. If the value of the claim clearly exceeds the policy limits and the insurance company refuses to settle the claim then the door becomes open for bad faith.

If you need assistance with a personal injury claim, or any other type of legal matter, feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.

Uninsured Motorist (UM) Coverage: Should I Have it?

Attorney John Mark Frazier Jr.

By: John M. Frazier Jr.

Uninsured motorist coverage applies when the tortfeasor (at fault party) strikes your vehicle and causes damages but either did not carry bodily injury insurance coverage or did not carry enough bodily injury insurance coverage. If you are involved in an accident, the first place to look for coverage would be the bodily injury (BI) coverage of the tortfeasor. If that person does not carry BI or only has minimal coverage then you are out of luck unless you have uninsured motorist (UM) coverage.

Many insurance salespersons do not properly explain the benefits of UM coverage. They do not mention the need for such coverage. Often, you will be told that in order to keep your premiums low you should not elect to have UM coverage. You should elect to have UM coverage, despite what any insurance salesperson may tell you. If you do not carry UM on your auto policy then you will be at the mercy of the insurance coverage, or lack thereof, of the tortfeasor. There are many cases in which a person is injured in an auto accident, does not carry UM, and the at fault party has no BI or only a “10/20” policy; i.e., $10,000.00/person maximum but up to $20,000.00 total. Hospital bills alone can range in the thousands for even low impact auto accidents depending upon the factors of the collision.

Additionally, chiropractors and MRIs will use up most of the Personal Injury Protection (PIP) coverage. If you have herniated discs or any significant injury then without UM you are risking having minimal or no coverage for your medical expenses and treatment options.

In Florida, uninsured motorist coverage nor bodily injury coverage are required by law. However, this may soon change as the legislature in Florida has been proposing amendments to PIP coverage and moving towards a system of requiring bodily injury coverage. As of this posting of this article, PIP is the only required coverage and BI is not required by law.

If you need assistance with a personal injury claim, or any other type of legal matter, feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.

Mediation – An Overview

Attorney John Mark Frazier Jr.

By: John M. Frazier Jr.

Mediation is the process of bringing two parties together to resolve a dispute or conflict. In law, mediation is used as a tool to help settle cases by bringing the two (or more) parties together. Mediation is conducted by a professional called a mediator. Often times, mediators are retired judges or retired lawyers, however, mediators come from all walks of life. A mediator must undergo training and certification prior to being allowed to mediate. Additionally, there are mediators that can only handle county claims and others that can handle circuit court or federal claims. The dividing line between county and circuit court is a sum in conflict of up to $ 15,000.00 or greater. F.S. 34.01(1)(c).

Mediation is a great tool if your attorney knows how to use it because it allows the attorney to negotiate with the other side. A wise man once told me, that if both parties leave neither completely happy or completely upset then a good deal was reached. The entire purpose is a compromise from both sides of the table to resolve a dispute or conflict prior to a case going into a jury trial.

Mediation can also be a wake-up call to personal injury clients who overvalue their case but it can also be a situation where an insurance company purposefully low balls to see if you will cut bait. It is important to have an attorney that has handled mediation before. This is because many personal injury cases will eventually resolve in this manner. It is important to remember that mediation and arbitration are two separate and distinct processes.

If you need assistance with a personal injury or insurance claim, feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.

 

E-Cigarettes: Lithium-ion Batteries and Explosions

Attorney John Mark Frazier Jr.

By: John M. Frazier Jr.

Lithium-ion batteries are found in everything from smartphones to laptops to Telsa Model S. Additionally, e-cigarettes use lithium-ion batteries. Modern technology uses lithium-ion batteries for all sort of devices, gadgets, and gizmos. Recently in the news there have been occasions where the lithium-ion batteries for e-cigarettes have exploded inside of unsuspecting user’s pockets. See Video. While this appears to be rare compared to the amount of lithium-ion batteries in use; it happens nonetheless. In fact, all of the news about the hover boards exploding and catching fire are due to lithium-ion batteries malfunctioning.

These explosions of the e-cigarettes lithium-ion batteries can result in second and third degree burns, the need for skin grafts, and permanent scarring. See Article. Whenever these type of explosions occur it is important to hold the product manufacturer, retailers, and wholesalers accountable. These explosions that happen while a battery is sitting inside a pant pocket are not due to any comparative negligence on the part of the consumer. The blame is upon the product manufacturer that has a faulty design or provides inferior components that are susceptible to malfunction. Additionally, for the retailers and wholesalers for selling these products. If this happens to you, then you need to be aware that you may have a legal claim of action against the responsible parties which would cover your medical costs and possibly pain and suffering. Medical costs for these types of explosions can reach in the thousands. The initial pain of the explosion, the severe pain of a burn (second or third degree), the need for skin grafts, and permanent scarring are all reasons to seek out legal counsel to hold the parties responsible for their conduct.

This issue will continue to grow as more and more users of traditional cigarettes switch over to e-cigarettes and the popularity of vaping among youth is on the rise. Just add this to the list of potential risks involved with using this product along with the toxicity issues that are Burnt up vapor pensarising. The FDA has not yet regulated e-cigarettes as of March 22, 2016. This means that the likelihood of consumers being harmed is fairly high. If you find yourself harmed from an e-cigarette lithium-ion battery explosion then you should seek out an attorney knowledgeable on the subject matter.

If you need assistance with a personal injury, product liability, or e-cigarettes lithium-ion battery exploding and causing injuries, feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.

Discovery – Generally

Attorney John Mark Frazier Jr.

By: John M. Frazier Jr.

Discovery is the legal process of information gathering. This process is fundamental to developing or defending a lawsuit or criminal charge. This process will differ slightly in the framework of how it is conducted between a civil and criminal case. This is because criminal cases are governed under the Florida Rules of Criminal Procedure while civil cases are governed under the Florida Rules of Civil Procedure. There are many differences between the two but for the purposes of discovery the same overarching concept applies – fact finding.

Discovery is a mechanism for obtaining facts that may be relevant to your case. The concept of relevancy has a much wider application in the discovery context than in the context of admissible evidence at trial. This is true for both civil and criminal cases. In criminal cases, the State has the burden of proof and will do the vast majority of fact-finding as they obtain police reports/narratives, any videos or photos, physical evidence, or recorded statements before they make a decision to file a criminal charge but will have to disclose any discovery that they obtain and may use against a citizen accused at trial to the defense. However, an important aspect of defending a criminal case involves taking depositions of all the witnesses in a felony case to check on inconsistencies in testimony or determine the credibility and strength of a witness. The issue of disclosure of confidential informants can also arise. In Florida, you are not permitted to take depositions in misdemeanor cases. For DUI cases (which are misdemeanor unless upgraded to felony under certain circumstances), a formal review hearing can simultaneously work as a deposition of officers involved as it is taken under oath and recorded. Additionally, in certain criminal cases, it can be beneficial to obtain mental examinations during the discovery phase which can assist in the overall outcome of the criminal case.

Civil cases work a bit differently with a handful of overlap. Discovery can be obtained by a number of ways: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission as noted in Fla.R.Civ.P. 1.280(a). Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discStack of filesovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. Fla.R.Civ.P. 1280(b)(1). It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Fla.R.Civ.P. 1280(b)(1).

The discovery process will differ between civil and criminal cases but the theme of discovery remains the exact same for both – fact-finding of information that may reasonably calculated to lead to the discovery of admissible evidence.

If you need assistance with a legal matter, feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.

Loss of Consortium

Attorney John Mark Frazier Jr.

By: John M. Frazier Jr., Esq.

Consortium is the marital relationship between a husband and wife and their respective right to each other’s support, cooperation, aid and companionship.

Loss of consortium is an actionable injury for the loss of love, sexual relations, and services of a spouse  due to injury for which money damages may be awarded. These types of claims arise out personal injury cases such as medical malpractice, negligence, and wrongful death. This is a legal claim that is made by the spouse who did not suffer the debilitating effect. Consortium is a common law right and is not specified by Florida statute.

“The concept of damages for loss of consortium is necessarily a vague and subjective one left largely to the discretion of the jury. It is intended to compensate the spouse of an injured person for past and future loss of such intangibles as love, sex, companionship, society, comfort and solace, and for help in performing one’s tasks about the household.” Tavakoly v. Fiddlers Green Ranch of Florida, Inc., 998 So. 2d 1183, 1185 (Fla. 5th DCA 2009).

Couple holding hands

If undisputed evidence can be presented to the jury regarding a loss of consortium claim then a jury must award nominal damages. Nominal damages would typically mean being awarded $1 or $2. The purpose of nominal damages are: (1) Vindication; (2) Open the door for potential punitive damages; or (3) Fighting for a cause outside of monetary gain. If the jury returns a zero verdict then the spouse has a right to new trial. “While the evidence in this case does not rise to the level presented in Jones, it is nevertheless well settled that where sufficient undisputed evidence is presented on a consortium claim that would require an award of at least nominal damages, a zero verdict is inadequate as a matter of law.” Id. It is important to remember that loss of consortium is a legal claim available to a husband and wife. However, as time moves forward it may become likely that a claim for loss of consortium becomes available to unmarried domestic partners, or even possibly children for the loss of parents. If you need assistance with a personal injury claim, or any other type of legal matter, feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.

Due Process – What is it?

Attorney John Mark Frazier Jr.

By: John M. Frazier Jr., Esq.

Due process of law is one of the most fundamental aspects of our legal system in America. Due Process can trace its roots back to the Magna Carta. The Magna Carta was the first English document that limited the arbitrary power of government. Due Process affords citizens the right from the government in depriving anyone of life, liberty, or property without the opportunity to be heard at a meaningful time and in a meaningful manner. There exists two types of Due Process – Procedural and Substantive.

Procedural due process requires that each litigant be given proper notice and a full and fair opportunity to be heard. Carmona v. Wal-Mart Stores, East, LP, 81 So.3d 461, 463 (Fla. 2nd DCA 2011). Additionally, procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue. Id. As you may be aware, agencies such as the DMV, FWC, etc., often jokingly considered the fourth branch of government, are held to this standard as they are within the executive branch. As such, whenever you are having your license suspended by the DMV, for instance, because of a refusal in a breath test DUI case, you are afford the right for a formal review hearing before your license suspension can be upheld; unless you waive that right. Spoiler alert – hearing officers or those within agencies that preside over your hearing (giving you the constitutional bare minimum due process) are not trained in law and are just employees of the agency. It doesn’t take a brilliant mind to determine the typical outcome of these hearings.

Most often, there are no rules of evidence in these types of agency hearings, or the rules are barely adhered to, and it isn’t conducted in a manner which would be consistent with a court of law. The term most often used for these proceedings is a “kangaroo court.” Their rulings are suU.S. Constitutionbject to appeal but are rarely overturned. However, it does afford you the bare minimum due process of law as required by both the U.S. Constitution and the Florida Constitution. The great benefit of these hearings are in the vein of judicial economy. Courts have limited resources (namely, time) and the idea is to have certain matters heard by agencies as long as the agencies have the proper legal rules and principles – their authority must be consistent with constitutional constraints and legislative intent. However, a more detailed discussion on this topic would delve into the complex area of administrative law.

Substantive due process is distinguished from procedural due process. The substantive component of the Due Process Clause of law acts to limit state authority to enact measures that impinge on fundamental rights, even if enacted with appropriate procedural safeguards. Brandon-Thomas v. Brandon-Thomas, 163 So.3d 644, 646 (Fla. 2nd DCA 2015). Substantive due process protects the full panoply of individual rights from unwarranted encroachment by the government. Haire v. Florida Dept. of Agriculture and Consumer Services, 870 So.2d 774, 781 (Fla. 2004). Substantive due process prohibits the government from infringing on fundamental constitutional liberties. Where as, procedural due process applies to the manner in which law is administered, applied, or enforced. This means that procedural due process is connected to the hearings and right to be heard, i.e. formalities. Substantive due process concerns itself with acts that government must refrain from regardless of the fairness of the procedures used to implement them. This is best explained in that the government passes a statute which violates a fundamental right that no matter what procedural steps are taken to assure a fair hearing, the statute would not be a valid law. The key between the two is whether there is a formal shortcoming or because the substance of the law violates a fundamental right or fairness and as such cannot claim to be the law.

Due process of law can be a fairly complex legal issue and is most often litigated within the realm of administrative law. However, due process of law touches every corner of our legal system. Due process of law is vitally important to the goal of justice and fairness. This was first fleshed out in the Magna Carta but was then a foundational building block of the creation of our country and legal system.

If you need assistance with a legal matter, feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.

PIP: Personal Injury Protection Benefits

Auto accidents. They happen. It is an unfortunate situation that can overwhelm just about anyone. You have to deal with insurance companies, finding a replacement vehicle, and possible injuries. If you’ve been injured in a car accident, and have auto insurance (like you are required to have), then it will pay what is called personal injury protection benefits (“PIP”). It is important to note a distinction – PIP is covered by your auto insurance and not your health insurance. PIP covers “eighty percent (80%) of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices and medically necessary ambulance, hospital, and nursing services if the individual receives initial services and care.” F.S. 627.736(1)(a). PIP is covered under Florida Statutes Section 627.736.

So, does PIP only cover the insured? No. PIP covers “the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in the motor vehicle, and other persons struck by the motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle.” F.S. 627.736(1). However, for the purposes of this article, I will only focus on PIP being covered by the named insured who was driving their own vehicle so you are aware of what you should do after an auto accident.

First, you must receive medical treatment within fourteen (14) days of the accident. Therefore, it is imperative that you seek medical treatment as soon as possible not just for your own health but also to document your injuries should you later seek to pursue a personal injury law suit.

Next, you must receive the “allowable” medical treatment. By “allowable”, I mean “allowable” under the statute. You can only have PIP cover services rendered by a physican, dentist, or chiropractor.

Most physicians, dentists, or chiropractors are well-versed in PIP. Or, at least versed enough to know the basics. You shouldn’t have any issues with confusion from the medical professional that you are obtaining treatment from through PIP. If you do, then I would recommend finding another treating medical professional that fits the “allowable” definition previously mentioned.

So, you have an accident, get injured, and go obtain medical treatment – then your auto insurance Auto Accidentcompany refuses to pay. What happens? Do you have to pay that money out of pocket? The answer is a resounding NO! You should seek an attorney that is competent in handling PIP suits. They need to know whether there was an assignment of benefits or revocation, whether your injury was emergency medical care or not, and how to properly file a lawsuit against your auto insurance provider. It is important that your attorney be capable of handling the auto insurance provider and not back down. You may need aggressive representation. Often times, this will result in a speedy and fair settlement.

Additionally, your attorney should do all of this without you having to pay anything. If your attorney is successful in your PIP suit then attorney fees are paid for by the other side, most likely, as part of the speedy and fair settlement. Don’t let an attorney nickel and dime you.

If you need assistance with a PIP suit or another matter, feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.