William Large
Guest Author – March 14, 2017

A state law that was originally intended to give individual policyholders special rights in disputes with their insurance companies is instead being used by some repair vendors and their lawyers to generate a self-serving windfall. The problem is serious and growing, and it’s driving insurance costs higher and higher.

The so-called “one-way attorney fee” allows a policyholder to collect their legal fees from their insurer if they win a claims dispute. But, if the policyholder loses in court, they don’t have to pay the insurer’s legal fees.

Some repair vendors, though, are tricking policyholders into signing an assignment of benefits or AOB. This allows the vendor to seize control of the policyholder’s special rights, file a claim and sue the insurer, often without the policyholder’s knowledge or consent.

Now, this litigation-for-profit scheme has become an incentive for lawyers and their vendor clients — often water damage remediation firms, roofers, or auto glass shops with aggressive marketing schemes — to clog the courts with lawsuits and generate big paydays for themselves.

Recently, the Florida Justice Reform Institute revealed how the growing use of AOBs and the one-way attorney fee by third parties is increasing litigation and costs.

Using the Florida Department of Financial Services’ service of process database, we discovered some startling insights.

From 2000 to 2016, Florida’s population increased 26 percent, while total litigation filed against insurance companies increased about 280 percent.

In particular, AOB litigation increased by over 66 percent from 2010 to 2011, fell briefly after the 2012 auto insurance reforms, and then started rising again. From 2014 to 2015, AOB litigation increased 10.7 percent, and then 21 percent from 2015 to 2016.

AOB lawsuits initiated by vendors who provide water cleanup, restoration, drying, mitigation, mold detection, or remediation services were overwhelmingly concentrated in Palm Beach, Broward and Miami-Dade counties. On average, these three counties produced more than 80 percent of litigation from these vendors in 2014, and that share rose to nearly 85 percent in 2015, and nearly 89 percent in 2016.

Unfortunately, the problem is not just confined to home insurance claims. Auto glass claims also saw a staggering increase — over 3,000 percent in five years — from 591 claims in 2011 to 19,558 claims in 2016.

But the most surprising discovery was that nearly 25 percent of all AOB cases — from property to auto to auto glass — filed in Florida between 2013 and 2016 were filed by just 11 lawyers.

The bottom line is that all this rampant AOB abuse and litigation is driving insurance costs up. Insurance Commissioner David Altmaier had it right last month when he told the Governor and Cabinet that there’s no other explanation other than the one-way attorney fees.

The Florida Legislature has strong data supporting this growing problem. It’s time for them to pass meaningful reforms and stop a handful of unscrupulous repair vendors and their lawyers from using the policyholders’ special rights for their own benefit. Keep consumers in control of the insurance policies they bought and paid for, and stop the abuse that’s sending insurance rates higher.

William Large is President of the Florida Justice Reform Institute.

http://floridapolitics.com/archives/233919-william-large-florida-must-end-assignment-benefits-abuse-self-serving-windfalls

 

Supreme Court rejects evidence standard supported by Rick Scott, lawmakers

JIM ROSICA
February 16, 2017, 12:36 pm

In yet another rejection of a policy backed by conservative lawmakers and Gov. Rick Scott, the Florida Supreme Court Thursday “declined” to change the state’s expert evidence rule to one used by federal courts and most states.

“We decline to adopt the Daubert Amendment to the extent that it is procedural, due to the constitutional concerns raised, which must be left for a proper case or controversy,” said the majority opinion by Chief Justice Jorge Labarga and Justices R. Fred Lewis, Barbara Pariente and Peggy A. Quince.

Those concerns include “undermining the right to a jury trial and denying access to courts.”

Florida uses the Frye standard, generally considered easier for plaintiffs to get damaging expert testimony before a jury, while it’s much harder to do so under Daubert.

That’s why Frye is preferred by plaintiffs’ attorneys, and Daubert became a favorite of the defense bar and its big business clients. The Florida Bar’s Board of Governors last year voted to recommend to the court against the change.

Justices Charles Canady and Ricky Polston, the court’s conservative minority, disagreed with their colleagues. The newest justice, conservative C. Alan Lawson, did not participate in the decision.

Polston, in a dissent in which Canady joined, questioned the majority’s concerns.

“Has the entire federal court system for the last 23 years as well as 36 states denied parties’ rights to a jury trial and access to courts? Do only Florida and a few other states have a constitutionally sound standard for the admissibility of expert testimony? Of course not,” he wrote.

In 2013, the Legislature approved and Scott signed into law the changing of Florida’s expert evidence rule to the Daubert standard, but the courts did not immediately follow suit.

The judicial branch avoided having to follow the change because of a question over whether switching the expert testimony rule is substantive or procedural. Generally under the state constitution, the Legislature has authority over the “substance” of court operations and the courts decide matters purely of “procedure.”

State Rep. Larry Metz, who sponsored the law that included the Frye-to-Daubert swap, had argued before the court last year that the change “gets to the fundamental purpose of courts,” having “a greater standard of reliability so we can get to the truth in cases.”

On Thursday, he said the court ignored the fact that his legislation passed in both chambers with comfortable majorities: “And we are representing the people of Florida in doing that.”

But William Large, president of the Florida Justice Reform Institute, a group created by the Florida Chamber of Commerce, said in a statement “there are no federal cases holding (that) Daubert violates a right to a jury trial and access to courts. The court was wrong to insinuate otherwise.”

The court noted it had received 56 comments in favor of keeping Frye and 131 comments in favor of switching to Daubert.

Of those, 77 were “form emails from ‘small business owners’ repeating the same request that the court (move to) ‘the Daubert expert witness standard that the Florida legislature passed in 2013,’ ” a footnote in the majority opinion said.

The Frye standard asks whether expert testimony is “generally accepted” in a particular scientific community. Daubert is stricter scientifically and can often require a kind of “mini-trial” even before an expert can appear in front of jurors. Both are named after court cases.

Oral argument in the case last year added the wrinkle of criminal cases, where advocates said Daubert might help defendants’ lawyers hold police crime labs more accountable, in cases involving drug-sniffing dogs and testing for arson, for example.

The full court Thursday also turned down two other proposed evidence changes.

One would require “a standard-of-care expert witness in a medical malpractice action to specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered.”

The other would change “the hearsay exception relating to reports of abuse by elderly persons or disabled adults.”

 http://floridapolitics.com/archives/232254-supreme-court-rejects-daubert

 

Jim Rosica – December 16, 2016

Conservative appellate judge C. Alan Lawson will become the next Florida Supreme Court justice, Gov. Rick Scott announced Friday morning.

Lawson, who will replace retiring Justice James E.C. Perry, is chief judge of the state’s 5th District Court of Appeal in Daytona Beach. Perry’s retirement is effective Dec. 30; Lawson’s first day is the 31st.

“He’s got a 20-year track record, he’s been a public servant, he clearly believes in following the rule of law,” Scott said, standing next to Lawson – his first ever Supreme Court pick – and his family. “He is going to do a good job … and he’s not going to legislate from the bench.”

Lawson now makes a third conservative vote on a seven-member state Supreme Court that often splits 5-2 on matters of public policy. To date, Justices Charles Canady and Ricky Polston have been the court’s most reliable conservative voices.

In a statement, both men “applaud(ed)” the appointment, calling Lawson “a true leader (who) brings strong conservative principles” to the court.

Conservative lawmakers and business interests have long derided the court – specifically its liberal-leaning triumvirate of Justices Barbara Pariente, Peggy A. Quince and R. Fred Lewis – for “judicial overreach,” saying the court often breached the separation of powers between the lawmaking and judicial branches.

Recently, they denounced decisions chipping away at protections afforded business owners in the state’s workers’ compensation law, striking down caps on attorney fees and ordering disability benefits extended for injured workers.

The state’s highest court also becomes more white; Perry is black. With his departure, Quince is the now the lone African American on the court.

This isn’t Lawson’s first attempt to join the court. Perry, whom Lawson is replacing, beat him in 2009 for the opening created by the retirement of Justice Charles T. Wells.

Lawson appeared with his wife Julie and son Caleb, as well as his father and mother, Charles and Velma Lawson, sister Laurie Lawson Cox and brother-in-law Thomas Cox.

Lawson, whom Scott had first mistakenly introduced as “Lanson,” told reporters that the judiciary’s mandate to interpret laws “came with a promise, that it would be exercised with judicial restraint.”

“There are a lot of precedents from the Florida Supreme Court and U.S. Supreme Court that details what judicial restraint means and is not supposed to mean,” he added. Many critics have noted that “judges and courts have moved away from what is clearly laid out … that says, ‘this is what courts are supposed to do.’ “

When asked if he could name decisions in which judges have “overreached,” he said, “No. It’s not ethical for judges to comment on issues that could come before the Supreme Court.”

Lawson was then backed by “religious conservatives and the National Rifle Association,” wrote politics reporter William March in a February 2009 story for the now-defunct Tampa Tribune, while Perry was favored by “liberal groups and black leaders.” Those backers were largely silent this time around.

The appointment created a quandary for then-GOP Gov. Charlie Crist, March wrote, “pit(ting) conservatives in his own party (then Republican) against a minority community Crist is courting.” He eventually picked Perry, who joined the court the next month.

Lawson, born in Lakeland, grew up in Tallahassee. He graduated from Tallahassee Community College and later Clemson University with a degree in Parks, Recreation & Tourism Management, according to his online bio. He got his law degree from Florida State University in 1987.

He was in private practice for several years before becoming an assistant county attorney in Orange County and then a circuit judge in 2002.

Lawson also was a Florida Bar exam question writer and grader. He moved to the 5th District appellate bench in 2006. Both his judicial appointments were by Republican former Gov. JebBush.

In 2012, he was a member of a three-judge appeals panel that considered a custody battle between two women who were formerly in a relationship.

The majority said both women have parental rights, but Lawson wrote “a blistering dissent,” in which he said a child can have only one mother, according to the Associated Press.

The court shouldn’t recognize two mothers “unless we are also willing to invalidate laws prohibiting same-sex marriage, bigamy, polygamy, or adult incestuous relationships on the same basis,” Lawson said. In a 4-3 opinion, the state Supreme Court later said the non-birth mother could seek shared custody.

Scott picked Lawson over two other conservative finalists for the post: Wendy W. Berger, another judge on the 5th District Court of Appeal, and Dan Gerber, an Orlando civil-trial defense attorney.

Scott “had three excellent candidates to consider,” Florida Bar President William J. Schifino Jr. said in a statement.

“I applaud the governor, the Judicial Nominating Commission and the process, and very much look forward to working with soon-to-be Justice Lawson in the future,” Schifino said. “He has demonstrated himself to be an excellent jurist and someone who has the best interests of all Floridians at heart.”

Business interests also commended the pick.

William Large, president of the Florida Justice Reform Institute, a group created by the Florida Chamber of Commerce, said Lawson’s appointment is a “reaffirmation of our system of checks and balances between the three branches of government.”

Scott “based his decision on the precepts that judges should strictly adhere to the rule of law,” he said in an email. The governor’s “thoughtful choice in this solemn duty will have a profoundly positive impact on Florida for a long time.”

Tom Feeney, CEO of Associated Industries of Florida, added that his members have been “anxious for the day that a majority of the Florida Supreme Court can restore respect for the constitutional separation of powers, including legitimate powers of the popularly elected members of the legislative and executive branches.”

“If the Florida Supreme Court will exercise only those legitimate judicial powers, such as deciding controversies of fact and enforcing the language of our duly enacted statutes and Constitution, as opposed to arbitrarily injecting their personal and political preferences, a constitutional balance can be restored.”

Scott could have the opportunity himself to put a conservative majority on the bench. Pariente, Quince and Lewis face mandatory retirement in early 2019, and Scott said he plans to replace them before he leaves office that January.

“I will appoint three more justices the morning I finish my term,” he said.

http://floridapolitics.com/archives/229060-rick-scott-supreme-court