DeSantis mum on protecting businesses from COVID liability

Congress is considering another COVID-19 relief package, and many Republicans contend that liability protections need to be part of any legislation that is ultimately passed and sent to President Donald Trump.

Governor Ron DeSantis. [MARTHA ASENCIO RHINE | Times]

By Christine Sexton – July 22, 2020

TALLAHASSEE — Twenty-one Republican governors sent a letter this week to congressional leaders arguing that businesses, health care workers and schools need lawsuit protections because of the COVID-19 pandemic, but Florida Gov. Ron DeSantis did not sign on.

Congress is considering another COVID-19 relief package, and many Republicans contend that liability protections need to be part of any legislation that is ultimately passed and sent to President Donald Trump.

“To accelerate reopening our economies as quickly and as safely as possible, we must allow citizens to get back to their livelihoods and make a living for their families without the threat of frivolous lawsuits,” the letter to House Speaker Nancy Pelosi, House Minority Leader Kevin McCarthy, Senate Majority Leader Mitch McConnell and Senate Minority Leader Charles Schumer said. “As public policymakers, it is our duty to provide clarity, consistency, and stability to our citizens and their businesses, and the uniformity that federal law provides is critical to America’s industries that work across state lines.”

DeSantis’ office didn’t immediately respond to The News Service of Florida’s request for comment or explain why he didn’t sign onto the document, which was touted by the Republican Governors Association. DeSantis was one of five Republican governors who did not sign on to the request, along with the governors of Georgia, Massachusetts, South Dakota and Vermont.

It wasn’t the first time that DeSantis, who is an attorney, has been mum on the issue of lawsuit protections.

DeSantis received letters in April from associations representing hospitals and nursing homes asking him to issue an executive order protecting their members from liability amid the pandemic. The Florida Health Care Association, the state’s largest nursing-home association, sent a letter to DeSantis on April 3 requesting he provide nursing homes with civil and criminal protections, including safeguards from suits stemming from staffing or resource shortages.

Florida Health Care Association spokeswoman Kristen Knapp on Tuesday declined to comment on this week’s letter. “We’re going to keep our focus on ensuring our facilities have the resources they need to keep their residents safe and protected right now,” Knapp said in an emailed statement to the News Service.

The Florida Hospital Association sent a similar letter to DeSantis on April 22 requesting that he temporarily provide legal protections to hospitals. The association proposed that the protections from civil and criminal suits last through Oct. 1. Attempts to contact the hospital association Tuesday were not immediately successful.

The first groups to ask DeSantis for protections amid the pandemic were doctors. The Florida Medical Association and the Florida Osteopathic Medical Association joined with the Florida Justice Reform Institute, an organization that focuses on lawsuit limits, and asked DeSantis in March to issue an executive order limiting liability and providing sovereign immunity protections for doctors who were complying with emergency orders that shut down optional health-care services. The letter also asked DeSantis to extend the state’s “Good Samaritan Act” to apply to physicians working during the pandemic.

DeSantis did not issue any of the requested executive orders and avoided answering media questions about the requests.

Attempts to limit lawsuits — an issue commonly known as tort reform — often spur fierce political battles in Tallahassee, with plaintiffs’ attorneys squaring off against business and health-care groups. Opponents of such limits generally contend that they penalize people who are injured because of the actions of businesses or health-care providers.

Despite DeSantis’ lack of action on the issue during the pandemic, Florida Justice Reform Institute President William Large said Tuesday that legal protections still are necessary. 

In part, Large said a timeframe people have to file lawsuits against businesses or health care providers should be shortened from the current four years to one year. Large also said evidentiary standards and culpability standards also need to be heightened to provide protections businesses need.

While DeSantis didn’t approve the requests, Large said he remains optimistic that the governor supports lawsuit protections.

“The first opportunity the Legislature addresses any subject dealing with COVID-19, such as the budget, we will ask for appropriate liability (protections) ” Large said. 

https://www.tampabay.com/florida-politics/buzz/2020/07/22/desantis-mum-on-protecting-businesses-from-covid-liability/

 

Four things that could affect Florida business this summer. One involves flood insurance.

The state has already had a pile of big business stories this year.

Blue-green algae enveloping an area along the St. Lucie River in Stuart, on the east coast of Florida. Associated Press

By Graham Brink
Published May 30
Updated May 31

It’s already been a busy year for Florida business.

The governor signed off on 350 miles of new toll roads, Amazon struck a deal to bring an air cargo hub to Lakeland, and several South Florida companies were caught up in the largest Medicare scam in history.

Closer to home, health care giant Centene announced the purchase of WellCare Health Plans, one of the area’s largest corporations, and home sales kept chugging along, though they have shown signs of wavering.

What happens next? I’m no fortune teller, but here are four things to keep an eye on this summer.

Algae watch

Reports of slimy green algae plagued the state last summer. The worst of the toxic brew flowed out of Lake Okeechobee and contaminated the St. Lucie and Caloosahatchee rivers, killing fish and other marine life. It smelled awful and hurt businesses, from fishing guides to name-brand hotels. Photos and video of the brightly colored ooze beamed across the world. Not a good look for a state so reliant on tourism.

Are we in for a repeat performance?

So far, experts have spotted only a few small algae blooms on the lake, which didn’t stick around long and were only mildly toxic. More good news: Nutrient levels aren’t as high as recent years.

The Army Corps of Engineers has also kept the lake’s water levels lower, which reduces the risk of needing a large-scale discharge into the two rivers as the state enters the rainy season.

Flood insurance

Late last year, Congress extended the National Flood Insurance Program until May 31, the 10th short-term continuation since September 2017. That’s 10 failed opportunities for lawmakers to come up with a long-term fix.

More recently, the flood program was caught up in the fight over a $19.1 billion disaster aid package that lawmakers have argued over for months. The bill extends the flood program until September, pushing the problem off until the middle of hurricane season.

On Thursday, lawmakers approved an emergency 14-day extension of the flood program, so it wouldn’t expire while they fight over the disaster aid package.

The idea is for lawmakers to figure out a permanent solution for the program, which has hemorrhaged money since Hurricane Katrina in 2005 and Hurricane Sandy in 2012. The debt load — now more than $20 billion — got worse after Hurricane Harvey deluged Houston in 2017 and Hurricane Irma raked Florida the same year.

Mortgage companies require many homeowners to buy flood insurance, but few private insurers offer the coverage. That leaves the tattered national program, which can’t go on losing money. It needs a major overhaul, but it’s hard to believe that Congress will come up with a remedy soon. Expect them to punt again.

Assignment of benefits

You may have heard the buzz about “assignment of benefits” lawsuits. They involve policyholders who grant third parties like construction contractors or windshield repair companies the right to bill insurers on their behalf.

The lawsuits have become all the rage. In 2004, there were less than 10,000, according to the Florida Justice Reform Institute. By 2017, the number nearly hit 100,000.

Florida’s “one-way” attorney fee law helped drive the increase. In assignment of benefit cases, insurers could be held liable for all attorneys’ fees if they lost a case. Plaintiffs, on the other hand, were not obligated to pay the insurers’ attorneys fees. The idea was to level the playing field for consumers when they took on large insurance companies.

Plaintiffs’ attorneys argued that the arrangement helped ensure that insurers paid a fair price, instead of letting them get away with lowball estimates. Critics pushed back in recent years, saying contractors and attorneys abused the system by running up large legal bills, especially in water damage cases. Insurers complained that the numerous lawsuits forced them to increase rates, contributing to the high cost of insurance in Florida.

Gov. Ron DeSantis came down on the side of the insurers. He recently signed a bill that limited attorneys’ fees in assignment of benefits lawsuits filed by contractors. The bill also allows insurers to offer policies that restrict or ban people from signing their rights over to a third party.

The changes to the law should curtail the number of lawsuits, unless cagey attorneys find a way around it.

The law takes effect July 1.

Rays attendance

The Tampa Bay Rays are winning a lot of games. They play a fun brand of baseball, and the players are easy to get behind.

Still, Tropicana Field feels like a graveyard.

On Tuesday night, the Rays drew a record-low turnout of 5,786 against the Toronto Blue Jays. The Tampa Bay Rowdies, a second-division soccer team, averaged better than that last year.

If it was just a one-game blip, it wouldn’t matter. But Rays attendance has been dismal for years. If the popular New York Yankees and Boston Red Sox didn’t come to town several times a year, the numbers would look even worse.

The Rays have explored stadium sites in Tampa. The team also has been linked with moves to other cities including Las Vegas, Charlotte and Portland. They won’t be going anywhere soon, but the rationale for staying in St. Petersburg is hanging by a thread.

Will another summer of lousy attendance end the argument once and for all?

Contact Graham Brink at [email protected]. Follow @GrahamBrink.

https://www.tampabay.com/business/four-things-that-could-affect-florida-business-this-summer-one-involves-flood-insurance-20190530/

 

‘Privacy’ fears? Florida lawmakers use old argument against attorney general’s opioid bill

Privacy was used as an excuse by lawmakers in the 2000s in establishing a database that could be used to alleviate a burgeoning opioid crisis. Now, lawmakers are using the same excuse to prevent Florida from using the data to help its case against Big Pharma.

  Florida Attorney General Ashley Moody [BRONTE WITTPENN | Times]

By Lawrence Mower

TALLAHASSEE — Throughout the 2000s, Florida lawmakers tried repeatedly to create a database of drug prescriptions to fight the pill mill crisis as it bloomed into a full-blown epidemic.

But every year for nine years, it was shot down over concerns about patient privacy. It was only when the issue escalated into a national crisis did lawmakers finally establish a database that could be used to track problem doctors and keep addicts from getting pills.

Now, Florida senators are using the same excuse they used then — patient privacy — to reject a request by Florida’s top law enforcement official. Attorney General Ashley Moody wants access to the database to bolster the state’s lawsuit against the nation’s largest drug makers, distributors and pharmacies, which could be worth billions in damages for Florida and its opioid victims.

On Monday, the Florida House passed their bill 111-0 granting her access to the Florida Department of Health’s data.

But in the Senate, Moody’s request remains in deep trouble, stranded in a committee with four days left before legislative session ends.

The extraordinary standoff, pitting Senate Republicans against their new attorney general, threatens to delay the state’s lawsuit against companies like Purdue Pharma, the maker of Oxycontin, and pharmacy giants CVS and Walgreens.

Florida is one of many states suing the companies over their roles in the opioid epidemic. If the bill succeeds, some say it could serve as a model for other states.

“This is a very significant piece of legislation,” said William Large, president of the tort reform advocacy group Florida Justice Reform Institute, and a critic of Moody’s effort. “If this passes, it will be the template for the other states to try to get the data in a civil context.”

Florida was slow to react to the pill mill epidemic of the 2000s. From 2001 to 2008, lawmakers proposed creating a key tool to help in the fight: a prescription drug monitoring program that would track doctors and pharmacies’ prescribing habits.

Many other states had such a system, and as their numbers grew, more and more people from other states came to Florida for their pills.

Other states had a drug monitoring program that helped crack down on abuse. But Florida lawmakers continued to reject adopting a similar program. As the Sunshine State became a destination for addicts, governors in other states to begged Florida to create a database.

It wasn’t until 2009 that Florida did so, and it proved instrumental in shutting down pill mills. So instrumental, in fact, that the nation’s opioid addicts that year turned to heroin, a chemically similar drug.

Today, current and former lawmakers see the same privacy argument, and some suspect it’s just an excuse to give cover for big corporations.

“They used the word ‘privacy,’ which gets people’s attention,” said former Sen. Mike Fasano, who was instrumental in getting the drug database created in 2009 and is now the Pasco County tax collector. “What this comes down to is protecting the corporations that need to be held accountable for helping to create this epidemic we have.”

Sen. Gayle Harrell, R-Stuart, tried and failed six times to get the bill passed in the House in the 2000s. She supports Moody’s effort.

“It’s the same privacy argument,” she said. “But we have learned a lot along the way. And it’s even, I think, less germane at this point.”

The database tracks all monitored drugs, from oxycodone to sleeping pills. But Moody can’t use it for her civil lawsuit. By law, it’s restricted to criminal cases and administrative actions against doctors.

It’s not Moody’s only way to get the data. She could get it from the companies themselves, through the discovery process. But the companies could drag the process out for years.

She’s asking lawmakers to use parts of the state’s own data in her civil case. She would not get patients’ names, dates of birth, sex or addresses. Each patient would be assigned a random ID number.

And she would only be allowed to get the database under a court order, and under very specific circumstances.

Behind the scenes, some of the companies being sued have lobbied lawmakers against the bill.

Publicly, however, the most vocal opponent of Moody’s bill has been Large, the president of the tort reform organization.

A Walgreens vice president is on the organization’s board, but Large said he’s is mostly opposed to the bill for philosophical reasons.

“I’m advocating against this bill because it’s an expansion of civil liability and uses a state database to prove the civil liability parts of the AG’s case,” Large said.

He also has practical concerns about the bill. He fears that each person’s “unique identifier number” will not really be unique, and that whoever gets the data will be able to decode it.

He also fears a potential data breach. While Virginia’s drug database was hacked in 2009, however, Florida’s has not been. And privacy concerns have largely centered around the fact that police were getting access to the database at an alarming rate. Lawmakers tightened the system a few years ago.

A spokeswoman for Moody dismissed Large’s concerns.

“These issues are nothing more than conspiracy theories of a high paid lobbyist of a defendant in the State’s lawsuit with no basis in reality,” Lauren Schenone said in a statement. “Experts have concluded that you are more likely to be struck by a meteor than have your privacy compromised by this bill.”

Whether the Senate will take it up this week, in the final days of session, remains to be seen. Moody has been lobbying senators herself, and met with Senate President Bill Galvano, R-Bradenton, on Monday.

But on Friday, Galvano was skeptical his chamber would take it up. The bill has to pass the Rules Committee, but chair Lizbeth Benacquisto, R-Fort Myers, has refused to hear it, citing privacy concerns. Her brother-in-law is also a lobbyist for Walgreens.

“The concerns that were raised to me were regarding the privacy of certain information, and protecting certain information from an open analysis,” Galvano said.

The bill sponsor, Sen. Tom Lee, R-Thonotosassa, thinks he has the numbers to get it passed — if it could get a hearing.

“I think there’s clearly a privacy issue,” Lee said. “And it is that there are certain pharmacies that want their information to remain private.”

https://www.tampabay.com/florida-politics/buzz/2019/04/29/privacy-fears-florida-lawmakers-use-old-argument-against-attorney-generals-opioid-bill/

 

Tampa Bay is ground-zero for assignment of benefits cases over broken auto glass

Auto glass lawsuits filed by a third party (through what’s known as assignment of benefits) are skyrocketing in Tampa Bay. [Times file photo]

By Malena Carollo
Published: May 25, 2017
Updated: May 25, 2017 at 08:57 PM

When Rachel Thorpe tried to renew her auto insurance last year for her Toyta RAV4, she was stunned to see her monthly premium had nearly doubled to $600. The Sarasota driver was baffled since her only recent claim was over a broken windshield.

The problem: she had signed over her rights to deal directly with the insurance provider to her auto glass company. And, unbeknownst to Thorpe, her insurance company was sued over the repair. Then came the rate hike.

“I was irate,” she said. “I was totally irate.”

There is an air of familiarity to this tale.

Homeowners and insurance companies the past few years have cried foul over what’s known as assignment of benefits, in which a property owner signs over their insurance rights to a third party like a contractor, repair firm or attorney.

A barrage of non-weather related water claims led to big losses at Citizens Property Insurance and other companies, which, in turn, has triggered higher rates for consumers.

Now, instead of property insurers being sued for busted water pipes and leaking roofs, it’s auto insurers sued for cracked windshields. And instead of south Florida — the focal point of the water damage insurance claims — Tampa Bay is now ground zero for auto glass claims.

In the past few years, lawsuits brought by auto glass companies against insurance companies exploded from 1,389 in 2012 to 19,695 in 2016 according to the Florida Department of Financial Services.

Hillsborough County accounts for almost 35 percent of such cases statewide for 2016 — 6,663 — followed by Pinellas County at just above 4,415, a January study by the Florida Justice Reform Institute found.

Related coverage: Leaky pipe problems pose risk to Florida homeowners insurance

Claims that make it to court follow a pattern: An auto glass company offers to fix a consumer’s windshield and deal with the insurance company for them. The consumer then signs an assignment of benefits agreement, allowing the glass company to deal directly with insurance issues. The glass company bills the insurer for the repair, and if the insurance company refuses to pay that amount, the glass company brings a lawsuit.

The latter part is what Thorpe didn’t expect when she had her windshield replaced in February 2016. A crack from an errant rock on the highway grew into a gash one hot day, so she called her insurance company to have it fixed. Everything seemed to go smoothly. Auto Glass America, a company she chose after hearing their ads, replaced the windshield.

But Thorpe was unaware of what happened next. Auto Glass America billed her insurance company, Esurance, for just over $1,200 for the windshield replacement. When Esurance refused to pay, Auto Glass America then assigned Thorpe’s benefits over to a second company, Broward Insurance Recovery Center, which took Esurance to court. Thorpe’s name was included in the plaintiff section as the assignor of benefits to Broward.

Here’s where the central issue crops up: When a consumer takes their insurance company to court over a disputed amount and wins, they are eligible for what’s known as a one-way attorney fee. The fee is a Florida statute that requires insurance companies to pay the winning consumer’s lawyer fees.

“The idea was if David, the insured, is going to take on Goliath, the insurer,” then the smaller party should have their fees paid, said William Large, president of FJRI.

In assignment of benefits cases, the auto glass company is acting as the consumer, and is thus entitled to have their lawyer’s fees paid. This drives up what could be a dispute over a few hundred dollars to a potential bill for a few thousand dollars for the insurance company. Large argues that this is an abuse of assignment of benefits.

“This is a business model perfected by third party corporate vendors and their attorneys to use a statute that was meant to benefit an insured (consumer), not them,” FJRI’s Large said.

According to the FJRI analysis, a majority of the suits come from a small set of auto glass vendors and lawyers. Auto Glass America files far and away the most lawsuits against insurance companies across Florida courts, including 5,589 for 2016. Broward Insurance Recovery filed the second most at about 1,600.

Auto glass companies, however, say they are heading to court so often because insurance companies give them no other choice. Chuck Isaly, owner of Auto Glass America, said that his company has the most lawsuits because of its size. He said lawsuits are the only recourse companies like his have to get paid fairly if insurance companies refuse their bill.

“I can assure you that all auto glass companies simply want to be paid fairly and not be strangled by these Goliath insurance companies,” Isaly said. “We just want to be paid fairly and then compete against each other for the business and make a fair living. That’s all we want in life.”

What’s more, he said, it’s just a few large insurance companies that balk at paying glass companies’ prices. A large swath of Auto Glass America’s cases are against Geico, the largest auto insurer in Florida. Many large companies, Isaly said, have pricing agreements with auto glass companies, which helps both parties avoid such litigation. Isaly said Geico doesn’t have a pricing agreement with his or most other glass companies. Geico would not answer questions for this article, instead referring the Tampa Bay Times to Property Casualty Insurers Association of America, an industry trade association.

Logan McFaddin, Florida-based regional manager for PCIAA, coudn’t directly address Geico’s practices.

But she acknowledged that lawsuits can have unintended consequences for the consumers involved, even unknowingly.

“If you’re seen as a litigious consumer who’s going to sue your (insurance) company right out of the gate, then that’s a risk for the company,” McFaddin said.

The breadth of lawsuits may also lead to higher premiums for consumers, though it’s unclear how much the litigation will actually affect insurance prices. And regulators aren’t talking about it.

Insurance companies and regulators have been extremely vocal about how assignment of benefits have affected their costs. It was a major issue during the recent session of the Florida Legislature, though lawmakers wound up making no changes. When it comes to assignment of benefits for auto insurance, however, state regulators are reluctant to even discuss the topic.

The Office of Insurance Regulation typically tracks assignment of benefits issues and acknowledges that such claims have existed in the state for over a century. But OIR spokesperson Amy Bogner said the agency doesn’t track auto glass claims because they fall under the umbrella of comprehensive coverage and aren’t separated out specifically.

OIR deferred to the Florida Department of Financial Services, which tracks lawsuits related to assignment of benefits, including those for auto glass. DFS would not make someone available for an interview and did not answer a list of emailed questions sent Monday, instead emailing a short statement.

“Similar to what is being seen in the property insurance market, these rising trends will produce negative impacts for consumers in the form of higher rates,” Ashley Carr, director of communications for DFS, said in a email.

http://www.tampabay.com/news/business/banking/tampa-bay-is-ground-zero-for-assignment-of-benefits-cases-over-broken-auto/2325132