The new law provides:

An insurer may exclude an individual for all claims and/or lawsuits arising out of operation of a motor vehicle for the following coverages:

• No-Fault
• Bodily injury
• Property damage
• Uninsured motorist
• Any other coverage which is not required by law to be purchased

In order to exclude a person:

• The named insured must identify the individual on the declaratory page and/or an endorsement (the named insured cannot be excluded)
• The named insured must consent in writing to exclude the person
• An excluded driver must establish, maintain, and show proof of financial ability to respond for damages arising out of the ownership, maintenance or use of the motor vehicle as required by Chapter 324, Fla. Stat., and maintain security as required by §627.733, Fla. Stat.

An insurer can not exclude coverage:

• For the named insured
• For an identified individual who is injured while not operating a motor vehicle
• For any person excluded solely because of race, color, religion, sex, national origin, age, or handicap
• If the exclusion is not consistent with the insurer’s underwriting filed pursuant to §627.0651(13)(a), Fla. Stat. 

Section 627.736, Fla. Stat., (the PIP statute) was amended to allow this exclusion in PIP policies.

Potential issues to consider before denying coverage for an excluded individual:

• Verify the excluded person is listed on the declaratory page or on an endorsement
• Verify there is written consent from the named insured for the exclusion. This is likely going to be similar to a UM coverage rejection/selection form
• Verify proof of financial ability to respond to damages for the excluded person were in fact established and maintained

The new law takes effect July 1, 2021.

For more information and/or questions, please contact us at info@kubickidraper.com.

Heather Eres v. Progressive Am. Ins. Co., No. 20-11006, 8:17-cv-02354-TPB-SPF (11th Cir. 2021)

• Upon being notified of an accident where plaintiff was severely injured and her son was killed, the insurer immediately tendered its policy limits to plaintiff’s attorney, who was not ready “to receive the checks.” 
• The court found that the insurer remained diligent in following up regarding the tender.
• Plaintiff later communicated through new counsel a desire to accept settlement with certain conditions, including an affidavit from the tortfeasor and a release without indemnity or hold harmless language. 
• The insurer complied with all demands but while the release did not have indemnity language, it contained a waiver of subrogation which plaintiff found to be overbroad and not to comply with her demand to settle.
• The settlement was never effectuated, and plaintiff recovered $10 million following a jury trial -- then filed a bad faith suit.
• The Eleventh Circuit, affirming the Middle District of Florida, found the insurer did not act in bad faith. 
  • With regard to the release, the Court held the totality of the circumstances, including the fact that the insurer told plaintiff’s counsel in writing that the disputed language could be stricken from the release, relieved the insurer of any bad faith liability.

   

Fourth District Rejects Efforts to Introduce a Plaintiff’s Total Billed Medical Expenses When Medicare Paid a Reduced Amount

In Gulfstream Park Racing Ass’n, Inc. d/b/a Gulfstream Park Racing & Casino v. Volin, 4D19-3471, Fla. 4th DCA, May 19, 2021, the Fourth District reaffirmed its holding in Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547, 551 (Fla. 4th DCA 2003), and ordered a new trial on damages when a trial court allowed a Plaintiff to introduce the full amount billed by her medical providers instead of limiting the evidence of past medical expenses to the amounts actually paid by Medicare.

• The opinion notes the general confusion courts have when applying Florida’s collateral source rule and offers a concise explanation of Florida’s law on the subject; that this confusion is likely the result of aggressive advocacy by plaintiffs’ attorneys to chip away at Florida’s long-established principal that “the measure of compensatory damages in a tort case is limited to the actual damages sustained by the aggrieved party.” Id. at *2-3.
• Plaintiff argued that Joerg v. State Farm Mut. Auto. Ins. Co., 176 So. 3d 1247 (Fla. 2015), implicitly overruled a long line of case law, including Thyssenkrupp Elevator Corp., when it held that it was proper to exclude evidence of a plaintiff’s eligibility for future benefits from sources like Medicare and Medicaid.
• The Fourth District disagreed and noted that Joerg only applied to future medical expenses and did not address past medical expenses.
• The Fourth District is not the first court to reject the argument Joerg extends to evidence of past medical benefits. The Second District came to the same conclusion in Dial v. Calusa Palms Master Ass’n, Inc., 308 So. 3d 690 (Fla. 2d DCA 2020). The Fourth District agreed with the Dial decision and joined the Second District in certifying the following question of great public importance to the Florida Supreme Court:
   

DOES THE HOLDING IN JOERG V. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., 176 SO. 3D 1247 (FLA. 2015), PROHIBITING THE INTRODUCTION OF EVIDENCE OF MEDICARE BENEFITS IN A PERSONAL INJURY CASE FOR PURPOSES OF A JURY’S CONSIDERATION OF FUTURE MEDICAL EXPENSES ALSO APPLY TO PAST MEDICAL EXPENSES?

• Clarification from the Florida Supreme Court regarding the application of Florida’s collateral source rule would be a helpful tool to withstand the rigorous opposition defendants face from plaintiffs regarding evidence of past medical expenses in the lead-up to trial. In the meantime, the Fourth District’s decision offers a clear rejection of the argument that Joerg overrules the long-standing prohibition against admitting the full amount billed by medical providers when providers accepted a reduced payment from Medicare or Medicaid.

What you need to know about Florida’s adoption of the federal summary judgment standard when it goes into effect on May 1.

The well-being of our attendees and our team is a priority. In this spirit, we have made the difficult decision to convert our live construction conference to a virtual platform due to the present circumstances.

As much as we would have loved to see everyone in person, we hope you will join us for the great program we have lined up from the comfort of your workspace.

If you already registered, you will receive online connection links for each session over the next couple of days.

If you have not yet registered, please contact info@kubickidraper.com for more information.
The complimentary event is designed to provide claims professionals with valuable information that will assist them in their claims handling and management.

We look forward to hosting you and will look forward to getting our live events back on track next year!

Construction Conference Program

Experts in Construction Related Cases - Selection, Direction and Protection

Presenters: Charles Kondla, Pedro Lopez, Harold Saul

This course will discuss the various aspects of expert retention and why each step in the process can be critical, starting with selection of the expert. This course will walk the audience through the entire process from choosing the right expert to putting the expert in the best position to not only help your case, but also survive a Daubert challenge. The course will culminate in a mock Daubert evidentiary hearing of the expert.
 

Warranty Claims in Construction Cases

Presenters: Michelle Krone, Aaron Haak, Eric Fluharty

Warranty issues arise in almost all construction cases. Whether statutory, express or implied, it is necessary to understand the differences. In this course, the KD team will review the various types of warranty claims, the ramifications of the pleadings, the potential damages recoverable and the defenses available.
 

Construction Defect Claims: Overview and Current Trends on Indemnity Law

Presenters: Michael Suarez, Bryan Krasinski, Jayme Idle

This course will provide a general overview of indemnity law and varying perspectives of its application from three Florida based construction defect practitioners. Topics range from interpretation of contractual indemnity provisions, anti-indemnity statutes, and additional insured considerations. The final discussion will be on the reasons behind and the effect of the current trend of contractors asserting claims for entitlement to contractual indemnity against their subcontractors and then swiftly seeking early determination by the court through summary judgment motions.
 

Construction Defect Coverage Issues

Presenters: Caryn Bellus, Jacqueline Bertelsen, Barbara Fox

Given the number of contractors often involved and the length of time it takes to complete construction projects, coverage issues arise in almost every case. This course will walk claims professionals through the steps of identifying and handling coverage issues, as well as highlighting the latest “hot coverage topics” in construction claims.
 

Effective Construction Defect Case Resolution

Presenters: Peter Baumberger, Raquel Loret de Mola

Achieving early case resolution in construction cases has become increasingly more challenging for claims professionals and parties involved in construction cases. This presentation will cover those challenges and will discuss strategies to effectively approach early case resolution in a cost effective manner.
 

For more information, or to register please email info@kubickidraper.com.

• Regulatory Awareness
• Insurance Law and Updates
• Ethical Requirements
• Industry Trends
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For more information, or to register please contact info@kubickidraper.com.

Presenters: Stephen Cozart and Angela Trawick

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