Florida Insurance Claims Lawyer Blog

Sinkholes have been in the news lately and Floridians are rightly concerned about both safety and ensuring their property is properly covered by insurance in case a sinkhole damages their home. Building off of our last post on sinkholes and the difficulties for homeowners and their insurance policies in Florida (see post here), our Florida property insurance lawyers saw another recent story about a case involving this very issue.

Florida's First District Court of Appeals, in a case called Florida Farm Bureau Casualty Insurance Company and Florida Farm Bureau General Insurance Company v. State of Florida, Office of Insurance Regulation, has upheld a decision by state regulators saying that property insurance companies must offer sinkhole loss coverage equal to the value of the dwelling coverage limit. The case began when Farm Bureau Insurance requested to amend its policies to limit sinkhole damage coverage to 25 percent of the overall coverage amount. Florida's Office of Insurance Regulation rejected this request. The Office cited section 627.706(1) of Florida Statutes, providing that insurers must "make available ... coverage for sinkhole losses on any structure ... to the extent provided in the form to which the coverage attaches". They interpreted that to mean that insurers must offer an equal amount for sinkhole losses as the dwelling coverage limit, and not any lesser amount as Farm Bureau wanted. So Farm Bureau, dissatisfied, brought the case to the courts.

The First District Court of Appeals, in a decision written by Judge Marstiller (the decision can be found here), found that the Office of Insurance Regulation's decision was not clearly erroneous and their decision was a permissible interpretation of the statute entitled to deference from the court. The DCA noted that when the relevant statutory provision is read as a whole, it ties deductibles to base policy coverage limits. Therefore, the Court found it is reasonable to interpret the statutory provision as intending that the amount of sinkhole loss coverage be equal to that coverage provided in the base insurance policy. In ruling thus, the Court noted that Florida property insurance companies have been required to provide catastrophic ground cover collapse coverage in addition to optional sinkhole insurance coverage since 2007 when it was included in the language of section 627.706, even before it was amended in 2011.

With so much tied up in the value of your home and the cost to insure it, make sure you stay on top of what your insurance policy covers and does not cover. And if you are having problems with your insurance company giving you the run around, contact a Florida insurance attorney to learn about your options as soon as possible. Under Florida law, if you proceed with a case and you succeed, the attorney's fees will automatically be the responsibility of the insurance company. Large claim or small claim, you would get to keep the court award and not have to worry about paying lawyer's fees just to get what you deserve under your insurance policy.

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Our Palm Beach injury attorney understands that a crucial component of the job of a lawyer is to understand all the ways that a client may recover for their losses. This often requires keeping up to date with all relevant legal decisions that may have ramifications for injury victims in our area. Most of the time this means that the lawyer needs to understand precedents in a given area of the law. These include previous cases and ruling on particular issues such as when a lawsuit must be filed, who can be sued, and other issues. In the vast majority of cases a court is bound by that precedent and must apply the rule decided in a previous case. However, in rare instances, an attorney is called upon to argue on behalf of a client in an area in which no previous rule has been created.

For example, one high profile case recently decided by the Florida Supreme Court explains how a Florida injury lawyer may be used to advance a novel position that either challenges a previous precedent or decides and rule that has yet to be commented upon. Because of the severe damages caused to those who are exposed to asbestos, Florida personal injury attorneys have used the courts to protect the legal rights of victims.

Last month, the Supreme Court of Florida decided the case American Optical v. Spiewak that will affect the ability of asbestos victims to recover in Florida courts. The case was about the validity of the Asbestos and Silica Compensation Fairness Act [the Act], passed in 2005 by the Florida legislature. The Act made it more difficult for victims of asbestos exposure to make a claim in court, because it added an additional fact that must be proven before a Florida court can award damages. Victims now are required to show that they not only have a lung disease resulting from exposure to asbestos, but also that they have a "malignancy" or "actual physical impairment" that the asbestos exposure caused.

The Act also requires that the asbestos exposure be a "substantial contributing factor" to the victim's injuries. While this sounds great on paper, in reality this makes it much more difficult for victims to recover on an asbestos-related claim. Under the Act, even a finding by a doctor that a victim's illness is "consistent with" asbestos exposure is not enough. This high degree of proof imposes a significant burden on victims attempting to recover in Florida courts with the assistance of personal injury attorneys.

The personal injury plaintiffs in American Optical v. Spiewak filed their lawsuits before the Act was passed in 2005. The plaintiffs understandably felt that they should not be required to prove the additional facts required by the Act, since they filed suit before the Act went into law. Recognizing the unfairness of depriving the victims a recovery for their asbestos-related injuries, a Florida court ruled that the Act would not apply to the plaintiffs. Therefore, the plaintiffs were not required to prove that they had suffered a malignancy or actual physical impairment that was substantially related to asbestos exposure. Other Florida courts had ruled differently on this issue, so the Florida Supreme Court decided to clear the air.

The Supreme Court sided with the plaintiffs and ruled that the Act could not retroactively prevent the victims from recovering for their injuries. The Court correctly said that a cause of action, or the legal basis of a lawsuit, is a property right that can only be interfered with by the legislature under limited circumstances. The Court concluded that the Act retroactively impaired the vested rights of the victims in their cause of action for recovery of damages. This was a violation of the Florida Constitution's Due Process clause.

American Optical v. Spiewak highlights the way in which all legal advocates, including our Palm Beach injury attorney is capable of using the legal system in a variety of ways to zealously advocate on behalf of clients. Our Florida personal injury law firm is similarly committed to pursuing all available avenues to help victims of a wide-range of injuries receive compensation for their losses caused by others.

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