Florida Lawmakers Fail to Pass AOB Reform

March 20, 2018/in The Insurance Insider

Florida lawmakers fail to pass AOB reform

Laura Sanicola 20 March 2018

Lawmakers in Tallahassee have once again failed to tackle the assignment of benefits (AOB) crisis that reform advocates say is rapidly pushing up insurance rates and dragging down the Florida economy.

The 2018 legislative session, which ended on 11 March, marked more than five years without the passage of a bill addressing AOB abuse after reform legislation stalled in the state Senate.

AOBs allow an insured to sign over control of their homeowner’s or auto policy to a third party, who is then able to push for a higher claim payout, including suing an insurer without notifying the insured.

Abuse of this system imposes a tax on everyone in Florida through higher insurance rates, which businesses pass on to consumers, according to William Large, president of the Florida Justice Reform Institute, which has advocated for AOB reform.

“This unfortunately will lead to higher insurance premiums for Florida consumers as this litigation scam will continue to increase throughout Florida,” Large said.

AOB reform hinges on another Florida statute known as the one-way attorney fee, part of a century-old Florida law that lets lawyers collect legal costs from an insurer when a claim settlement exceeds the carrier’s initial offer.

Many insurers and advocates say the fee law has been used to strong-arm insurers – eager to avoid hefty litigation expenses – into settling inflated claims, in turn pushing loss costs sharply higher.

A measure to reform the one-way fee law also stalled in the Senate, where opponents have asked insurers to guarantee lower rates in exchange for modifying either that statute or the AOB law.

Barry Gilway, president of state-run insurer of last resort Citizens, said carriers cannot offer that assurance.

“[Legislation] will control premiums over time, but to roll back rates based upon a piece of legislation that is unproven is not realistic,” Gilway said. “That’s not the way insurance works.”

The Senate had favoured a competing bill that did not address one-way attorney fees and would have forced insurers to ignore AOB legal costs in rate submissions.
Insurers opposed the measure, echoing concerns that the one-way fees are at the crux of the abuse problem.

Evidence of claim inflation is mounting.

In 2016, Citizens said its average water claim cost rose by more than $9,000 between 2012 and 2016.

Meanwhile, lawsuits involving alleged AOB abuse are skyrocketing.

Between 2006 and 2016, the number increased by more than 6,800 percent, according to the Consumer Protection Coalition, an advocacy group created by the Florida Chamber of Commerce that focuses on AOB abuse.

As a result, premiums are expected to keep rising. Owners of a $150,000 home can expect to pay 29 percent higher premiums by 2022, the Florida Office of Insurance Regulation has said. And some insurers have stopped taking on new business from hotspots of abuse, such as Miami.

http://www.insuranceinsider.com/-1273264/10

Florida AOB Crisis Worsens as Reform Efforts Struggle

February 20, 2018/in The Insurance Insider

Ted Bunker – 20 February 2018

Florida’s assignment-of-benefits (AOB) crisis shows no sign of abating, and the one-way attorney fee rule often leaves insurers with little choice but to settle inflated claims without a fight, according to a study released today by a group advocating a reform of AOB laws.

The group, the Florida Justice Reform Institute, said in the report that lawsuits tied to an AOB, in which an insured hands a vendor the right to represent them before an insurer, rose for a third straight year and reached 129,781 in 2017.

Meanwhile, legislation to restrain the growth in AOB actions and to put new limits on attorney fees remain mired in the state Senate, where opponents have asked insurers to guarantee lower rates in exchange for the reforms. Rates on homeowner policies are projected to soar partly because of AOB lawsuits.

The institute’s president, William Large, blamed one-way attorney fees for driving growth in AOB claims, particularly those that are relatively small.

Under Florida law, a lawyer can collect an hourly fee from working on an assigned claim that must be paid by the insurer when the claimant is successful, and that has created a powerful motivation for insurers to settle even questionable claims to avoid paying excessive legal costs, Large told The Insurance Insider.

Large provided as an example a property damage claim that a third-party vendor, armed with an AOB from the insured, submits for $14,000 when a claims database shows similar repairs should cost $5,000. If the insurer rejects what it sees as a grossly inflated claim, a lawsuit typically follows.

But Florida law also requires an insurer to pay the claimant’s legal costs if it loses the case. As a result, even if the claimants only win a few hundred dollars more, the insurer can owe thousands of dollars to the plaintiff’s lawyer, Large said.

“So no insurer is going to take the risk,” he added, noting that in cases like the hypothetical one above, most carriers will settle without a fight.

“Unquestionably, the cause of the AOB explosion is the no-risk proposition of attorney’s fees, enabled by Florida’s one-way attorney fee law and court cases that have extended it past its pro-policyholder intent,” the institute said in its report.

As it has in previous reports, the advocacy group found that a small number of law firms and lawyers are responsible for a disproportionate share of AOB claims: “About a dozen attorneys contribute to a quarter of all AOB litigation statewide.”

“As long as the one-way attorney fee exists, attorneys will find ways to flood courts with litigation to access easy money and will be able to lure vendors into this scheme by promising ‘no-risk’ lawsuits,” the institute said in the report.

“This is clearly evident from the many ‘coaching materials’ that are circulating on the internet and elsewhere encouraging vendors to sign up with law firms.”

A 26-fold increase in AOB lawsuits over the past 10 years documented in the report, coupled with one-way attorney fees, amounts to a tax on everyone in Florida that is paid through higher insurance rates, Large said.

Indeed, the average price of a homeowner policy will surge 29 percent statewide by the start of 2022 unless AOB abuse is limited by reforms, the Florida Office of Insurance Regulation has estimated. In the Miami area alone, where AOB claims have been concentrated, the regulator has projected a 63 percent jump in rates.

State officials have joined business leaders and insurers in pressing for reforms of rules on AOB and one-way lawyer fees, and legislation has passed in the state House of Representatives. But reform efforts have repeatedly stalled in the Senate.

Last month, the House passed HB 7015, which would impose restrictions on assignees – contractors and others who represent the insured under an AOB contract – and require those covered to be told about the legal implications they may face. It would also give insureds the chance to rescind an AOB within seven days of signing at no cost.

The bill also would get rid of one-way legal fees by imposing certain new rules on how attorney fees are determined in the event of a lawsuit.

The state Senate has not indicated whether it will take up HB 7015. But in considering a different bill that also seeks to address the AOB crisis, lawmakers on the chamber’s Judiciary Committee earlier this month stripped out provisions that dealt with attorney fees.

http://www.insuranceinsider.com/florida-aob-crisis-worsens-as-reform-efforts-struggle

Attorney, Vendor AOB Lawsuits Top Insurance Litigation in 2017: FJRI Report

February 20, 2018/in The Insurance Insider

Attorney, Vendor AOB Lawsuits Top Insurance Litigation in 2017: FJRI Report

By Amy O’Connor | February 20, 2018

Litigation from the abuse of assignment of benefits by third parties represented more than half of all Florida insurance litigation in 2017, and without a legislative fix those fueling the abuse will continue to get rich at the expense of insurance consumers, according to the Florida Justice Reform Institute (FJRI).

In a new report that underscores the need for AOB reform in the current Florida legislative session, FJRI states lawsuits against insurance companies that involve an AOB increased 58 percent between 2015 and 2017. FJRI said insurance lawsuits with an AOB rose from 82,263 in 2015 to 129,781 in 2017.

Contractors and attorneys are blamed for abuse of AOB’s, meant to be a policyholder benefit, by taking control of a homeowner’s policy, inflating water or roof damage claims, and then suing the insurance company when it disputes the bill.

The explosion of AOB litigation is not just isolated to the homeowners insurance space. The abuse of AOBs is also happening on the auto glass side. According to the Florida Department of Financial Services, in 2006, approximately 400 auto glass AOB lawsuits were filed against auto insurers. In 2016, nearly 20,000 lawsuits were filed.

The insurance industry claims Florida’s one-way attorney fee statute has fueled the abuse because it requires that insurers pay attorney fees if they are found to have underpaid a claim by any amount. The statute has created an incentive for an assignee to file suit against an insurer, the industry says.

FJRI, a nonprofit that advocates for judicial reform, agrees.

FJRI noted that AOB litigation is unique in that it has developed in a very “patchwork way.” Almost all property insurance AOB litigation in 2016 occurred in the Tri-County region of South Florida – Miami-Dade, Broward and Palm Beach counties. On the auto glass side, the Tampa Bay area had an “outsized proportion” of AOB lawsuits, FJRI said.

FJRI said its research into the development of AOB litigation found there is no “meteorological or other explanation for why pipes are bursting in Miami or windshields are cracking disproportionately in Tampa Bay.”

However, the report says, attorneys and vendor alliances, as well as coaching and vendor recruitment by attorneys specializing in AOB litigation, has helped to fuel the abuse statewide. FJRI noted that about a dozen attorneys contribute to a quarter of all AOB litigation in the state. The result? Increased insurance rates for everyone, FJRI said.

“It matters because everyone pays more in insurance premiums to make a handful of lawyers and vendors very, very rich,” the report states.

The timing of when Florida’s AOB litigation began to increase also coincides “very closely” with Personal Injury Protection (PIP) reform passed by the Florida Legislature in 2012, FJRI noted in the AOB report.

The 2012 PIP reforms sought to clamp down on alleged abuse and fraud with auto insurance by imposing a cap of $10,000 for medical emergencies and a limit on non-emergency medical care to $2,500 for car accident victims. The reforms also excluded payments to chiropractors, acupuncturists and massage therapists, and required accident victims to report an auto-related injury and seek treatment within 14 days.

“Anecdotally, we know that many PIP lawyers took their business model and developed relationships with other vendors, such as water remediators and auto glass shops, then applied the PIP template – assignments that transfer the one-way attorney fee – to property and auto glass coverages,” the FJRI report states.

Lawmakers are currently debating several options to reform AOB, but the bill currently making headway in the Florida Senate, Senate Bill 1168, does not address the one-way attorney fee statute and is favored by the trial bar and water restoration contractors.

The Florida House has passed a bill the industry supports, House Bill 7015, but the Florida Senate has yet to act on it. The industry says it would be the most effective at reforming AOB because of provisions addressing Florida’s one-way attorney fee statute. Another bill addressing auto glass abuse, Senate Bill 396, would allow insurers to require inspections of windshield damage before an auto shop can do the repair or replacement. That bill was making progress through the Senate but hasn’t moved since Feb. 1.

FJRI said if the Florida Legislature passes a “strong AOB bill which addresses the heart of the problem, losses will stop inflating costs, which will put downward pressure on rates.” But it emphasized that outcome is dependent on what the final legislation looks like and how strong it is.

FJRI said reform helped curb PIP abuse and led to rate decreases on PIP rates – before PIP reform in 2012, more than 85 percent of rate filings had increases; after 72 percent resulted in decreases or no change. Reform, FJRI added, also worked to significantly lower both medical malpractice and workers’ compensation rates in 2003.

“You can’t predict the future accurately when a host of variables are introduced,” the FJRI report states. “What we do know is this: legal reform works.”

https://www.insurancejournal.com/news/southeast/2018/02/20/481075.htm

AOB in Focus

November 20, 2017/in The Insurance Insider

AOB in focus

Ted Bunker – November 20, 2017

Florida lawmakers recently began another effort to rein in abuses of the Sunshine State’s assignment of benefits policy, which lets repair contractors stand in an insured’s place in pursuing claims for things like non-storm related water damage.

Whether reformers have a chance of succeeding remains an open bet, but the odds don’t look good.

The industry has been clamoring for reforms for years. An attempt to mitigate some of the abuse faltered earlier this year when a state Senate panel failed to take up reform proposals that had passed in the House of Representatives.

But renewed movement suggests hope remains. On Tuesday, the House Judiciary committee passed a new reform bill 13-5, sending it to the chamber’s leadership to decide where it goes from there. The next legislative session begins in January.

In the state Senate, lawmakers have kicked around the idea of interposing an alternative dispute resolution process such as mediation or arbitration to head off lawsuits over disputed claims, including those that arise from AOB situations.

The panel, led by Senator Anitere Flores, a Miami Republican, blocked the reform effort that emerged from the House last Spring. Flores cited concerns that the bill favored insurers over consumers.

Meanwhile, rates for many homeowners, especially in the area around Miami, continue to rise.

Insurer of last resort Citizens has asked for 10.5 percent and 10.4 percent average rate increases in Dade and Broward Counties in the Miami metro area, as well as 9.3 percent in nearby Palm Beach County.

About 9 in 10 property insurers are seeking rate hikes for 2018 compared with fewer than half just three years ago, state insurance regulator David Altmaier told a conference earlier this month, according to the Palm Beach Post.

Citizens CEO Barry Gilway told Altmaier in an August rate hearing that without AOB reform, homeowners’ premiums may rise for years to come.

Average water claims costs have doubled to $20,000 since 2015, Gilway said, noting that nearly two-thirds of policyholders are facing rate hikes compared with fewer than a third three years ago.

Making matters worse for consumers, some insurers are starting to wall off South Florida – simply walking away from the market by refusing to write new homeowners’ business there, citing the skyrocketing costs stemming from AOB abuse.

It’s hard to argue that there’s no need for reforms, but whether voters feeling the pinch of double-digit rate increases in the Miami area can outweigh the influence of trial lawyers who stand behind AOB claimants remains to be seen.

A study released early this year by the Florida Justice Reform Institute said that just 11 lawyers filed a quarter of all AOB-related lawsuits from 2013 to 2016, including one who brought more than 30,000 cases. As Gilway has commented, some lawyers are making a mint on AOB.

And when it comes to elections, money talks. According to data collected and analysed by the National Institute on Money in State Politics, lawyers and lobbyists gave almost $8.5mn to Sunshine State political campaigns in the 2016 election cycle, the most of any industry group.

Money can’t vote, but it can buy a lot of advertising and fund campaign events, which can produce a decisive edge at the ballot box. And 2018 is an election year.

http://www.insuranceinsider.com/

Florida AOB crisis flares as groups game system: study

March 9, 2017/in The Insurance Insider

The Insurance Insider

Florida AOB crisis flares as groups game system: study

Ted Bunker 09 March 2017

Florida’s assignment of benefits (AOB) crisis can be partly blamed on a small number of lawyers and service providers who have helped fuel the explosive growth in lawsuits brought against insurers in recent years, a new study shows.

Eleven lawyers accounted for a quarter of all AOB cases brought to court from 2013 to 2106, while the Florida Justice Reform Institute study said one lawyer alone filed over 30,000 of the lawsuits against insurers from 2015 to last year. The data reflect all types of AOB cases, from personal injury to auto glass and property damage.

The report comes as many homeowners’ carriers in the state continue to feel pressure on loss ratios from the deteriorating operating environment in the state, including from the impact of litigated water claims with AOBs attached.

The worsening conditions were cited by ratings agency Demotech last month as it pulled its guidance on the Florida homeowners’ sector and warned that a number of carriers could face downgrades.

The study may fuel legislative efforts to reform rules that presently allow insureds or those to whom they have assigned benefits to sue carriers that have denied claims without concern that they may lose a costly legal battle. At least one bill to end the abuse has been filed in the state legislature.

Florida law says while insurers must cover successful litigants’ legal costs, losers don’t have to pay a carrier’s court expenses. A bill supported by state Insurance Commissioner David Altmaier would prevent contractors with AOB agreements from receiving attorney fee awards.

The so-called one-way attorney fee law is often used by unscrupulous contractors and lawyers to extract payments from insurers, according to the Florida Property & Casualty Association.

In an example on its website, the industry group says the scheme typically works like this:

An insured who suffers a water leak calls a plumber, who in turn refers the home or business owner to an emergency services provider to siphon out water in a structure. That vendor then obtains an AOB agreement from the insured.

Armed with the AOB, the service provider cleans up the structure but then sends a “grossly inflated” bill to the insurer. When the carrier rejects the claim, the provider hires an AOB specialist to sue.

The insurer is then confronted with either paying the grossly inflated claim or entering what could be a protracted, expensive legal fight that, if lost, will result in a much higher payment.

Attorney fees on successful AOB claims average nearly three times the amount paid to the AOB recipient, the Justice Reform study said.

The AOB mechanism also can spawn multiple lawsuits from the same claim, the study showed, as insureds hire different vendors to address different effects of an event, such as a plumber and a mould remediation specialist, and they in turn hire their own lawyers to sue over rejected claims.

“This litigation-for-profit scheme permeates the property insurance, auto glass and PIP [personal injury protection] marketplaces,” the study says.

The concentration of AOB actions among lawyers is mirrored among contractors, the study showed.

“A few vendors file hundreds, sometimes thousands, of AOB cases each year,” it said.

Since 2010, the volume of property damage lawsuits has exploded, rising to almost 13,000 in 2016 from about 1,000 cases just six years earlier, the study shows. The percentage involving AOB, meanwhile, jumped to about a third from less than 5 percent.

The number of AOB cases brought in Florida climbed to about 28,000 last year from 405 in 2006, said state CFO Jeff Atwater, whose office oversees the state’s insurance regulators, speaking last month.

And Barry Gilway, Citizens Property Insurance president, CEO and executive director, commented in December: “While less than 15 percent of water-related claims resulted in litigation in 2011, nearly 50 percent did so in 2016.”

“The situation is really out of control.”

The state-formed insurer of last resort reported that 8,097 new lawsuits were brought against it from January of last year through to November, a 30 percent increase from the same period in 2015. Its policyholder base fell by 26 percent during the same period.

https://insuranceinsider.com/articles/110186/florida-aob-crisis-flares-as-groups-game-system-study

Florida Workers’ Comp Law Shields Disney World, SeaWorld from Suits

September 17, 2010/in The Insurance Insider

Florida Workers’ Comp Law Shields Disney World, SeaWorld from Suits

By Jason Garcia | September 17, 2010

They are two of Central Florida’s biggest and best-known employers — and both face the prospect of potentially ugly lawsuits stemming from a worker’s death on the job.

And yet Walt Disney World, which is being sued by the mother of a monorail driver killed in a train collision in July 2009, and SeaWorld Orlando, which is bracing for a similar suit from the husband of a killer-whale trainer drowned by an orca last February, are well insulated.

The reason: Florida law gives employers near-ironclad protection from lawsuits sparked by on-the-job injuries and fatalities. It’s a legacy of a 7-year-old overhaul of the state’s workers’ compensation laws championed by former Republican Gov. Jeb Bush and Florida’s business lobby.

Critics say the system is too heavily slanted in favor of businesses.

The tight clamp on lawsuits is “a horrible burden on the injured worker,” said Matthew Noyes, a personal-injury lawyer who heads the workers’ compensation group at the firm Perenich, Caulfield, Avril & Noyes in Sarasota. “The practical effect is that employers don’t feel the pressure to make their workplace as safe as possible for their workers.”

Boosters of the current laws argue that the system holds down costs by ensuring standardized payments in accidents and by protecting businesses from the threat of outsized jury awards.

“Workers’ comp is very predictable from the insurance perspective, and workers’ comp carriers can price this product and a business and an employer can figure out what the cost is going to be and go forward and do business,” said William Large, president of the Tallahassee-based Florida Justice Reform Institute, a business-financed group that lobbies for tighter lawsuit restrictions. “Tort is very unpredictable.”

Workers’ compensation was originally established to steer claims arising from on-the-job accidents away from courts altogether.

In Florida, as in most other states, most businesses are required to carry workers’ compensation insurance. And when an employee is injured on the job — regardless of who was at fault in the accident — those policies are supposed to ensure prompt payments covering medical costs and lost wages.

Workers gain the ability to obtain payment without having to go through expensive and protracted litigation. But they also lose their ability to sue their employer for larger sums.

In accidents that lead to the death of an employee, cumulative wage payments are capped at $150,000, plus up to $7,500 to cover funeral expenses and in the cases of surviving spouses payment of student fees for as many as 1,800 classroom hours at sanctioned career centers or 80 semester hours at community colleges.

Courts have long held that there are some limited exceptions to employers’ immunity from lawsuits. In 1993, for instance, the Florida Supreme Court ruled that businesses were entitled to protections from suits provided they did not intentionally harm employees or engage in conduct that was “substantially certain” to result in injury or death.

Then in 2000, the court opened the window wider: In a case stemming from an explosion at an Alachua County chemical plant that killed one worker and seriously injured another, the court defined “substantially certain” to mean a situation in which a business should have known — rather than actually knew — its actions were likely to lead to the injury or death of a worker.

That ruling outraged Florida’s business community, which was already complaining of widespread workers’ compensation fraud and skyrocketing insurance costs. Companies felt “the language the Supreme Court had put out could really and significantly erode the protections from tort liability that the employers are paying workers’ comp coverage to have,” said Tamela Perdue, general counsel for Associated Industries of Florida, one of the state’s largest business trade groups.

Industry lobbyists found allies in the state Capitol. In 2003, then-Gov. Bush and the Republican-controlled Legislature approved a 182-page rewrite of the state’s workers’ compensation laws that, among many other provisions, increased some benefits and curtailed others while also imposing strict caps on the fees lawyers could earn in such cases. And it dramatically re-strengthened businesses’ lawsuit shield.

Lawmakers abandoned the Supreme Court’s “should have known” standard, instead deciding that lawsuits in worker injuries could go forward only if an employer engaged in conduct that it “knew” was “virtually certain” to lead to injury or death. And they added a provision that requires any injured employee suing his or her employer to also prove that the risk was not apparent and that the business deliberately concealed the danger.

What’s more, the legislation requires that employees prove it all by “clear and convincing evidence” a higher bar than another commonly used legal threshold, “preponderance of the evidence.”

It may be the biggest legal hurdles facing the families of Austin Wuennenberg, the 21-year-old Disney monorail driver killed July 5, 2009, and Dawn Brancheau, the 40-year-old SeaWorld killer-whale trainer drowned Feb. 24 of this year. Wuennenberg’s mother has already filed a wrongful-death lawsuit against Disney; Brancheau’s husband has hired lawyers but has so far not sued.

Both parties would appear to have ammunition for suits: Federal regulators investigating the accidents cited Disney with a “serious” safety violation and noted multiple monorail-policy lapses and separately charged SeaWorld with an even-stiffer, “willful” violation and recommended that trainers never again be allowed unprotected contact with the killer whale that killed Brancheau.

But Noyes, the Sarasota personal-injury lawyer, called the lawsuit requirements set by Florida law “nearly impossible” to meet.

Disney and SeaWorld, for their parts, declined to discuss the litigation in detail. “At this point the most appropriate way to respond to this legal matter is through the court process,” said Disney spokeswoman Andrea Finger.

“Florida law concerning workers’ compensation applies to the accident Feb. 24 that resulted in the tragic death of Dawn Brancheau,” added SeaWorld Parks & Entertainment spokesman Fred Jacobs. “Any discussion of litigation outside that context is premature.”

https://www.insurancejournal.com/news/southeast/2010/09/17/113315.htm

Florida lawmakers fail to pass AOB reform

Attorney, Vendor AOB Lawsuits Top Insurance Litigation in 2017: FJRI Report

AOB in focus

Florida Justice Reform Institute

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