Claims And Issues

Health Insurance Companies Demand to Offer Public No Option.

    Health Insurance Companies are in favor of requiring every person in America to have Health Insurance, so long as they are the only ones offering the Health Insurance.

    The Health Insurance Companies are in favor of a mandate for every person in this country to have Health Insurance or pay penalties if they do not.  However, the Health Insurers want to be the only ones that can offer that Coverage.  They oppose any Public Health Option being offered, even an Option of choice.  That leaves the only option for all of the suddenly-mandated Health Insurance Policyholders to obtain Health Insurance from -- the Health Insurance Companies.  See Janet Adamy, "Insurers Face Renewed Attacks Despite Concessions" p. A4, col. 1 (Wall Street Journal, Thursday, July 30, 2009).

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State Farm, Already Moving Out, Leaving Florida Mitigation Discounts Behind?

    State Farm has been stymied in its request for Premium Rate Increases in Florida.  Its requests have been rejected by the Florida Office of Insurance Regulation and the O.I.R. has been upheld by the Florida Courts.  State Farm is still moving across the Florida state line and does not want to issue Homeowner's and other Property Insurance Policies in Florida.

    State Farm has just filed a new Rate request.  State Farm reportedly wants to reduce home mitigation discounts under existing Policies, and also reduce or eliminate entirely discounts for State Farm Policyholders "remaining claims-free as long-time State Farm policyholders and for having multiple policies with the insurer, among other premium savings."  The net result would "spell higher premiums".  Jeff Harrington, "State Farm Asks to Eliminate Home Insurance Discounts in Florida" (St. Petersburg Times Online, Friday, July 24, 2009).  Of these discounts under fire from the State Farm Rate filing, the ones which have received the most attention are the discounts contemplated in the Florida Statutes for Homeowner Mitigation against Storm Damage.  See id.

    There appears to be a dispute brewing between the Florida Legislature, or at least one influential Florida Legislator, and State Farm over whether any Insurer can modify the insurance premium discounts addressed by the Florida Statutes.  The Florida O.I.R. reportedly supports State Farm's authority to do so, at least in the abstract.  See id.

     Significant Florida Statutes which address mitigation measures for homes against storm damage, appear to be silent on whether Insurance Companies can in essence provide Premium discounts in size or timing of their own choosing.  Take a look for yourself:

    Section 215.5586 of the Florida Statutes provides for Florida's My Safe Florida Home Program.  The Program is administered by the Florida Department of Financial Services, which includes the Florida Office of Insurance Regulation.

    Section 215.559 provides for Florida's Hurricane Loss Mitigation Program.

You can decide for yourself or, at your election, you can enlist the services of an experienced Insurance Lawyer.  The outcome of that analysis may affect your Insurance Premium, particularly if you or those you advise need Homeowner's Insurance Coverage in Florida.

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More On Florida Federal Courts Confronting Contrary State Law.

    The Federal Judge in this case was made aware of Florida State Law that there is no claim or cause of action for First-Party Bad Faith outside of the Florida Bad Faith Statute:  Download Arlen House East Condominium Ass'n v. QBE Insurance (Europe) Ltd. (S.D. Fla. Opinion Filed Sept. 30, 2008).  "However, a cause of action for breach of the implied warranty of good faith and fair dealing is separate and distinct from bad faith claims."  Download Arlen House East Condominium Ass'n v. QBE Insurance (Europe) Ltd. (S.D. Fla. Opinion Filed Sept. 30, 2008), attached slipsheet official opinion at 3.

    Just to be on the safe side, however, the Federal Judge in this case ruled that the Policyholder "shall not be allowed to recover any extra-contractual damages" under its alleged cause of action for breach of the implied warranty of Good Faith and Fair Dealing.  The Policyholder in that case would "be limited to damages stemming from any breach of the insurance contract and attorney's fees, if appropriate.  This limitation shall ensure that [the Policyholder] will not sneak any bad faith claim or damages by dressing them in breach of implied warranty clothing."  Download Arlen House East Condominium Ass'n v. QBE Insurance (Europe) Ltd. (S.D. Fla. Opinion Filed Sept. 30, 2008), attached slipsheet official opinion at 4.

    The Online Docket of this case reveals that it has been dismissed with prejudice pursuant to stipulation of settlement.

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Climate Risk Disclosure by Insurance Companies.

    The National Association of Insurance Commissioners wants Insurance Companies to disclose the climate change risks facing them, to their regulators.  The NAIC also wants Insurance Companies to disclose what they are doing to combat those risks.  The initial deadline for completing the Survey proposed by the NAIC is May 1, 2010.

    The Survey form developed by the NAIC and announced in March, 2009 would apply to all Fiscal Year 2009 Reporting Insurance Companies with $500,000,000.00 ($500 Million) or more In Premiums, or with $300,000,000.00 ($300 Million) in annual Premiums if Reporting in 2010 and thereafter.  Here are the NAIC Insurer Risk Climate Disclosure Survey form and the NAIC's Instructions that apply to it.

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"CICO": Catastrophes In, Catastrophes Out: Are CatModels Being Gamed?

    Computer Models are used to predict Catastrophes and raise Premiums.  There is a dispute over how long a time period is valid for inputting data.

    In simple terms, Property Insurance Companies would like to use the last 5 years, for example, which would treat Hurricanes like Charley, Katrina and Wilma as the new reality.  They base their Premium Rate Increase Requests accordingly.  This is in fact very like what they do at the present time.

    Others rely on inputting the Catastrophe and other weather data which has accumulated over the last 100 years or so.  This would have the effect of keeping Property Insurance Premiums lower and produce more accurate results, or at least this system has produced more accurate results for years since it is the system that has been and is still in use.

    This dispute appears to be at the center of talks in Tallahassee, Florida in the past week, as reported by Julie Patel of the Ft. Lauderdale Sun-Sentinel at "House Keys/Hurricane Insurance is the Talk of Tallahassee Today" (Posted Thursday, July 23, 2009).  Florida is the only State with its own Computer Model for predicting the frequency and likelihood of Catastrophes like Hurricanes -- and which Florida uses to check the data relied on by Property Insurance Companies filing Premium Rate Increase Requests.

    The results are not in.  As soon as they are, they will be posted.  Discussions like these are important.

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Asset Affidavits and Bad Faith, or Not, in Settlement.

    A demand for an "asset affidavit" as part of a demand for settlement was the center of attention in the District Court in Maldonado v. First Liberty Insurance Corp.,  546 F. Supp. 2d 1347 (S.D. Fla. 2008)(subscription required), click here for the Official Report:  Download Maldonado v. First Liberty Insurance Corp. (S.D. Fla. Opinion Filed April 22, 2008).  The Online Docket of this case reveals that a Notice of Appeal has been filed.

    The settlement demand in that case included a not-uncommon demand for an affidavit executed by the insureds stating that the insureds had no assets other than the insurance coverage.

    The insureds refused to provide that affidavit.

 

    The defendant Liability Insurance Company informed the insureds of the settlement  demands several times, and of the consequences if the demands were not met, and of the Insurance Company's unsuccessful tenders of the policy limits in exchange for the insureds' full release, and of the exposure which would face the insureds without such an affidavit in response to the settlement demand, and also that the Liability Insurance Company had requested that the insureds be allowed instead to provide an affidavit in a form which would meet the privacy concerns expressed by the insureds as their reason for refusing to execute it, and that the opposing attorney had refused to do that. 

     These record facts resulted in a summary judgment of no Bad Faith:

First Liberty ... at all times recognized the liability of its insured and was, therefore, ready to settle for the policy limits, expressing to all those involved its willingness to settle, and did not settle only because of the conduct of its own insured.  As a matter of law, there was no bad faith on the part of First Liberty.

Download Maldonado v. First Liberty Insurance Corp. (S.D. Fla. Opinion Filed April 22, 2008) see attached Offiicial Slipsheet Opinion at 17.

 

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Florida Court: Attorney-Client Privilege in First-Party Bad Faith.

    In a recent decision that is well worth close examination, a Florida intermediate Appellate Court has held that the Attorney-Client Privilege applies in First-Party Bad Faith Statutory actions in Florida.  Download West Bend Mutual Insurance Co. v. Higgins (Fla. 5th DCA Opinion Filed March 27, 2009).  Specifically, two memoranda were held not discoverable as they were prepared by Attorneys for the First-Party Insurance Company-Defendant after the Bad Faith claim was made.  Download West Bend Mutual Insurance Co. v. Higgins (Fla. 5th DCA Opinion Filed March 27, 2009), attached slipsheet opinion at 2.  In order to reach this holding in this case, the Florida intermediate Appellate Court viewed seemingly contrary language in a Supreme Court of Florida decision as not warranting a contrary result, i.e., as dicta not to be followed in the case at hand:  Download Allstate Indemnity Co. v. Ruiz (Fla. 2005).

    A bill for legal services submitted by the same Attorneys in the West Bend case, however, contained "a description of billed-for attorney activities that predate the underlying judgment [otherwise unidentified by the Appellate Court in this First-Party case]."  To that extent, "and given our conclusion that no substantive, privileged communications are contained in the statement--and with the caveat that post-litigation entries must be redacted prior to disclosure--we will not disturb the trial court's order that the statement [i.e., bill for legal services] be discovered." Download West Bend Mutual Insurance Co. v. Higgins (Fla. 5th DCA Opinion Filed March 27, 2009), attached slipsheet opinion at 2.

A further post is on Insurance Claims Bad Faith Law Web Log at www.insuranceclaimsbadfaith.typepad.com.

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Children's Health Insurance Program Extended in 13+ States.

    We are in the midst of the Great Recession, and when it will end, few are certain.  In at least 13 States, however, it is certain that now Children's Health Insurance will be made available to Children who otherwise might not have received the Medical Care they require, if they received Medical Care at all.  See Kevin Sack, "Defying Slump, 13 States Insure More Children" p. A1, col. 6 (New York Times Nat'l ed., Sunday, July 19, 2009). 

    The 13 States are not radicals but they are on the right side of the Children who will now have Insurance Coverage there but otherwise would not have it at all:  Alabama, Arkansas, Colorado, Indiana, Iowa, Kansas, Montana, Nebraska, North Dakota, Oklahoma, Oregon, Washington, and West Virginia.  Reportedly, Ohio has a State Budget in place that includes the expansion of Children's Health Insurance benefits to Children who have none now, but its funding depends in part on the outcome of a pending lawsuit.  Id.

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Credit Default Swaps a/k/a Credit Insurance Target of Antitrust Investigation.

     Markit Group Holdings provides information about Credit Default Swaps and other Derivatives to approximately 300 firms trading in them.  These firms are sellers of such Derivatives.  "Markit collects pricing information from the largest players in the derivatives industry, and then provides it to more than 300 financial firms that use it to determine the prices of similar contracts in their own books."  Eric Dash, "Derivatives Are Focus of Antitrust Investigators" p. B1, col. 6 (New York Times Nat'l ed., "Business Day" Section, Wed., July 15, 2009).   The majority owners of Markit are Bank of America, Goldman Sachs, JP Morgan Chase, and the Royal Bank of Scotland.  Id.

    The purchasers of CDS's and other Derivatives are apparently not provided this information, however.  The financial firms which sell them object to providing information about them.  Thus, the Antitrust investigation.  See id.  See also Rob Cox, Antony Currie and Dwight Cass, "Derivatives Inquiry," Breakingviews.com, published on p. B2, col. 1, New York Times Nat'l ed., "Business Day" Section, Wed., July 15, 2009.  Disclosure of at least some CDS's is among the provisions of the current Administration's proposals for regulating Derivatives.  See generally Edmund L. Andrews, "Unresolved Questions After Hearing With Geithner" p. B3, col. 1 (New York Times Nat'l ed., "Business Day" Section, Saturday, July 11, 2009).

    Parenthetically, without proposing anything like an outright ban on Derivatives which is urged by many economists, the current Administration has proposed greater Reserves in order to handle the kinds of claims that may be made upon them -- and which are at the heart of the current Great Recession.  Id.

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Alleging and Proving Jury Issues of Insurer Bad Faith or Not?

    Do allegations and proof of Insurer Bad Faith conduct in your jurisdiction require pleading with specificity, as though alleging a fraud claim or cause of action?  Even if the claim or cause of action is not for fraud?

    Does the standard of extracontractual liability in your jurisdiction arguably require knowledge of the consequences or intent to act?  At least with regard to a claim of  "failure to investigate" in Bad Faith?

    Whether you represent Policyholders or Insurance Companies, arguments on these issues can be made based on analogous holdings in non-Insurance Bad Faith cases.  One such holding was briefly and simply summarized by the Delaware Chancery Court earlier this year:

A plaintiff can show bad faith conduct by, for example, properly alleging particularized facts that show that a director consciously disregarded an obligation to be reasonably informed about the business and its risks or consciously disregarded the duty to monitor and oversee the business.

Download In re Citigroup, Inc. Shareholder Derivative Litigation (Del.Ch. Opinion Filed Feb. 24, 2009), at 28.  [Emphasis by the Court.]

A related post appears on Insurance Claims Bad Faith Law Web Log at www.insuranceclaimsbadfaith.typepad.com.

 

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Paying for Health in America.

    Conflicts abound between Health Insurance Plans being considered in the two houses of the United States Congress.  Among the reported conflicts is how to pay for the Plan.

    The U.S. House of Representatives is considering an increase in Income Taxes on certain people.   If this method of payment is adopted, about 50% of the House's Plan would be paid for.  The remaining 50% or so of the cost would come from decreasing "costs" (Coverage?) in Medicare payments.  David M. Herszenhorn, "Leaders in House Would Tax Rich For Health Plan" p.A1, col. 1 (New York Times Nat'l ed., Saturday, July 11, 2009).  

    The more a person makes, the higher the increase in Income Tax.  The increase would be called a "surcharge".  David M. Herszenhorn, "Democrats Are at Odds On Financing Health Care" p. A13, col. 6 (New York Times Nat'l ed., Friday, July 10, 2009).

    The floor for the proposed Income Tax increase would begin with persons who bring home income of $280,000.00 a year, and $350,000.00 take-home a year for a couple.   David M. Herszenhorn, Saturday July 11, 2009 New York Times, supra.

    The U.S. Senate's Finance Committee instead is focusing on a bipartisan approach refusing to increase Income Taxes on rich people.  The Senate Finance Committee Plan (not to be confused with the Plan just approved by the Senate Health, Education, Labor and Pension or "HELP" Committee) would reportedly increase other Taxes, however.  Sick people would pay a Tax for making Health Insurance Claims.  The higher their limits of Coverage, the more they would pay to fund the Senate Plan.  David M. Herszenhorn, Friday July 10, 2009 New York Times, supra.  This approach rings a distant bell.  It is reminiscent of how at present, many Health Insurance Companies refuse to provide Coverage to sick people.

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Florida Federal Court: First Party Bad Faith Without Statute.

    A Federal Judge in Florida has held that, although Florida State Courts have never allowed a cause of action for alleged First-Party Bad Faith except under Florida's Bad Faith Statute, an alleged Breach of the Implied Covenant of Good Faith and Fair Dealing was authorized by Florida Common Law:  Download Tropical Paradise Resorts, LLC v. Clarendon Am. Ins. Co. (S.D. Fla. Aug. 20, 2008).  This ruling governed the case in the Southern District of Florida until very recently.

    The Online Docket of this case reveals that, following this ruling, the case was settled and the complaint was dismissed with prejudice by stipulation.

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Accumulating Electronic Devices Increases Amounts of LIghtning Claims.

    In four years of reporting lightning damages Claims, from 2004 to 2008, a group of Homeowner's Insurance Companies announced recently that total Claims Paid amounts increased by nearly 50% while somehow the price of "the average claims" for covered damages attributable to lightning rose more than 200%:

• To $1.07 Billion in total damages paid from $735.5 Million; and

• To $5,321.00 paid per "average claim" in 2008 from $2,646.00 paid for such claims in 2004.

The culprit?  More stuff.  More, and increasingly more expensive, electronic devices are reported by the Homeowner's Insurance Companies involved in these lightning claims.  See Cordell Eddings, "U.S. Lightning Damage Costs Rises, Topping $1 Billion:  Study (Correct)"  (Bloomberg.com, Friday, June 26, 2009).  And search the Insurance Information Institute web site which posted the report.

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UPDATE: "Federal Taxpayers Likely to Lose, Again, on TARP Refunds".

    This is an Update to previous posts in the Categories of Fiduciary Duties, and Market Performance.

    Getting paid realistic amounts of money, approaching fair market value, for "warrants" given to Federal Taxpayers is in doubt.  Corporations which sought and received Federal Taxpayer Money from TARP, the Troubled Asset Relief Program, provided warrants to purchase their stock as a kind of collateral for the loans.  Reimbursement at anything approaching fair market value is in doubt.  At least under the current Treasury governance.

    Old National bought back their warrants from the Treasury Department for a small, small fraction of their market value.  In "10 transactions since then," reportedly the Treasury Department did much better but still ended up negotiating on behalf of the Federal Taxpayer for less than market value of the warrants.  Some people found in this performance a reason to hope for better results.  See Richard Beales and Rob Cox, "Treasury Drives a Hard Bargain" p. B2, col. 1 (New York Times Nat'l ed., "Business Day" Section, "BreakingViews.com," Friday, July 10, 2009).

    The second big batter up facing the Treasury Department was State Street Bank.  It has reportedly just paid some $60 Million to repurchase its warrants.  Robert Schmidt, "State Street Corporation Pays Treasury $60 Million for TARP Warrants" (Bloomberg.com, Friday, July 10, 2009). 

    So much for hoping that the current Treasury Department will learn how to negotiate.  The next batters facing the Treasury Department are the TARP's heavy hitters:  Goldman Sachs, JP Morgan Chase, and Morgan Stanley.  Do not hold your breath for good returns to the Federal Tax coffers unless you like the color blue, as they say.

There are related posts at Insurance Claims and Bad Faith Law Blog, www.insuranceclaimsbadfaith.typepad.com.

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Stealth Regulation: Federal Creeps Into Power Over Insurance?

    President Obama and the Treasury Department reportedly have included Federal Regulation over all Insurance Companies that fall into some financial categories in their plans to address the current collapse of financial relationships.  Under the plans, a new Federal "Office of National Insurance" would be made "within the Treasury Department to monitor the industry, represent U.S. interests in international insurance agreements, and look for gaps in state oversight."  Erik Holm, "Obama's Insurance Proposal May Grab Power From States (Update 1)" (Bloomberg.com, Friday, June 19, 2009).

    The "initial read" announced in a Press Release by the National Association of Insurance Commissioners is both deliberately optimistic and understandably afraid.  First, the NAIC Press Release praises the Obama Administration's plan for apparently focusing on systemic risk problems -- for which Insurance Companies are not at all responsible.  Then, the Commissioners "urge inclusion of state regulators to offer expertise and information on the insurance markets." Press Release, National Association of Insurance Commissioners, "NAIC Praises Preservation of State Regulation Under Obama Administration's Plan" (June 17, 2009).  This sounds very like whistling in the dark.

    What do the Federals currently holding power mean when they announce that they have plans "to monitor the [Insurance] industry"?  Or when they announce that they plan to "look for gaps in state oversight"?  "State oversight" of what, exactly?  Parenthetically, if the current Federals want to "look for gaps," presumably in the financial world, they could profitably start with the preexisting Federal Regulators themselves.

    What effect if any will the McCann-Ferguson Act have on the Obama Administration's plans?  The McCann-Ferguson Act is the Federal law enacted decades ago that reserves regulation of the business of Insurance to the States.  These plans invite research and review.

    Time will tell.

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Options to Consider When Health Insurance is Not Available.

    Lawyers and other professionals who counsel people concerning Healthcare options should consider counseling people who have no Health Insurance to consider exploring the resources identified by David Colker, "Surviving Recession/Resources For Those Without Health Insurance" (Los Angeles Times Online, Sunday, June 21, 2009).

    COBRA is an expensive and unique option available to terminated employees who have lost their Health Insurance from their employers and who otherwise qualify for COBRA, as explained for example by Kathy M. Kristof, "Personal Finance/Under COBRA, Act Quickly to Retain Health Plan After Job Loss" (Los Angeles Times Online, Sunday, June 21, 2009).

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Surety Settlement Found in Bad Faith in Florida.

    "Whether a surety has settled a claim in good faith or not, of course, depends on the particular facts of the case."  Download Auto-Owners Insurance Co. v. Southeast Floating Docks, Inc. (11th Cir. Opinion Filed June 16, 2009).

    In the Auto-Owners case, the Eleventh Circuit Court of Appeals held that a jury could find on the record evidence that, under Florida law, the surety settled a bond claim in bad faith.  The record evidence, according to the Eleventh Circuit, included bases for jury findings that among other things investigation and assessments as to the merits and strengths of the bond claim were ignored, that settlement for the full amount of the bond claim did not match the strength of that claim, and the "secretive nature of the negotiations" indulged in by the surety to settle the bond claim.  The Eleventh Circuit Court of Appeals held that although evidence of "an unreasonable and inadequate investigation and handling of a claim, standing alone, may be insufficient to support a finding of bad faith, the jury in the case also heard evidence to support an inference Auto-Owners had an improper and self-interested motive to settle a claim."  Download Auto-Owners Insurance Co. v. Southeast Floating Docks, Inc. (11th Cir. Opinion Filed June 16, 2009).

    The implications of this holding on the law of Insurer Bad Faith are pretty clear:  Whenever a settlement is even remotely suspicious, and is used as the basis for a claim of Bad Faith against an Insurance Company which is why the underlying claim was settled as it was, that settlement is potentially subject to the legal standards imposed under the holding in this new Eleventh Circuit decision.

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Resources for Counseling Clients About Life Insurance Companies' Likely Lifespans.

    You may share with me the sense that counseling about Life Insurance Coverage also often includes counseling about how to find out which Life Insurance Companies are most likely to be around next year, or next decade.  A suggested list of helpful resources and links is provided by Kathy M. Kristof, "Personal Finance/How to Check Your Life Insurer's Health" (Los Angeles Times Online, Sunday, June 28, 2009).

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Health, Care, Public Health Option, Medicare...Or Exclusions?

    How much of a model Medicare will be for a Public Health Option among the Plans being debated in Congress, is unclear.  The issues are addressed generally by Reed Abelson, "Medicare's Mixed Legacy" p. 4, col. 4 (New York Times Nat'l ed., "Week In Review" Section, Sunday, July 5, 2009).

    A good resource for understanding the way Medicare itself works is the web site of the Medicare Rights Center.

    The web site of America's Health Insurance Plans is the web site of perhaps the largest organization of Health Insurance Companies.    

    Another perspective is provided by the web site of the Commonwealth Fund, described in the linked newspaper article as "a New York nonprofit group that favors the creation of a public plan."

    When researching the possible outcomes of having an optional Public Health Insurance Plan, another potentially valuable resource is provided by the Center for Studying Health System Change.

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Beginning to Learn and Counsel About Long-Term Care Insurance.

       Happy Fourth of July!

    Here are some resources which offer potential value to those of us that counsel concerning Insurance Coverage and other Insurance issues, and to our clients.

    Counseling clients about Long-Term Care Insurance, or any other form of Insurance Coverage, can involve a large learning curve.  A good starting point is with this informative newspaper article by Walecia Konrad, "Patient Money/Getting Insurance For One's Frailest Years" p. B6, col. 1 (New York Times Nat'l ed., "Personal Business" Section, Saturday, June 27, 2009).

    A potentially helpful resource noted in the linked article is the Federal Web Site www.longtermcare.gov.

    Another potentially helpful link is to the web site of the National Association of Insurance Commissioners at www.naic.org, where you can download and counsel others to download as well, a free booklet, "A Shopper's Guide to Long-Term Care Insurance".  While on that site, you and your clients can learn about "Long-Term Care Insurance, What You Should Know".

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Directors and Officers Coverage Comes With Big Bills, Major Issues.

    Directors and Officers Liability Insurance Coverage is notoriously "complex".  It requires specialized handling and experience.  See Saskia Scholtes, "Insurers Face $6Bn Bill for D & O Claims" (Financial Times Online, Tuesday, June 23, 2009).

    Coverage disputes include allocating the available Policy Limits between and among the Policyholder and other Insureds.  Saskia Scholtes, "Insurers Face $6Bn Bill for Board Protection" (Financial Times Online, Monday, June 22, 2009).

    Accordingly, Directors and Officers Insurers have responded by, among other things, raising Premiums and decreasing Coverage. Id.; Suchita Nayar, "More Questions Than Answers in Financial Insurance" (Financial Times Online, Sunday, June 21, 2009).

    The increase in Premiums and decrease in Coverage come at a time when the number of Claims against Directors and Officers is increasing and in particular "investor claims related to mismanagement and failure to disclose risks ... are on the rise."  Id.

    Not a time for the fainthearted, nor the inexperienced.

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Attorney's Fees Denied To Florida Insured Unsuccessfully Seeking Certiorari.

    Florida's Attorney's Fees Statute is Section 627.428.  It requires an "insured or beneficiary" to prevail in the event of an appeal.  An intermediate Florida Appellate Court has just held that this Florida Statute does not authorize Florida Appellate Courts "to grant fees to an insured who does not succeed in his or her application for certiorari."  Grider-Garcia v. State Farm Mutual Automobile Insurance Co. (Fla. 5th DCA Case No. 5D08-3793, Opinion Filed June 12, 2009), attached slipsheet Official Opinion at 4.

    The Florida intermediate Appellate Court followed the Supreme Court of Florida's ruling in the case of Brass & Springer, P.A. v. United Automobile Insurance Co. (Fla. 2006) approving a construction of Section 627.428 which resulted in a denial of Attorney's Fees on Appeal "to a party that did not prevail".  Grider-Garcia, attached slipsheet Opinon at 4.

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