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.

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.

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.

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.