Claims And Issues

POSTSCRIPT TO THE FLORIDA NURSING HOME STORY.

In a postscript to the story of the Florida nursing home concerning liability insurance coverage questions for various actors, the Florida governor's office says that all the calls to the governor's cellphone for help during Irma were returned.

We cannot listen to the calls themselves, actually. The calls were recorded.

But they have been deleted.

All the calls were returned though, the governor's office says. And anyway, they say, the calls did not indicate an emergency. See Caitlin Ostroff, "Voicemails From Nursing Home Where 11 Died Were Deleted by Governor's Office" (Tampa Bay Times online, posted on Monday, September 25, 2017).

As noted in the previous articles posted here, for its part the nursing home reportedly says no, its calls for help were not answered. Read the hyperlinked sources in the previous articles posted here. You can see for yourself whether what the nursing home says that it said in its voicemail messages, reflected an emergency, or not. Parenthetically, the nursing home also says that it also called 911. In a statement, the Florida governor's office says in effect that was too late and no-one should confuse the Florida governor's cellphone with 911. See Kirby Wilson, "Rick Scott Fires Back at Critics in Statement on Hollywood Nursing Home Deaths" (Tampa Bay Times online, posted Tuesday, September 26, 2017). The linked article appends a copy of the Florida governor's office's statement. A review of the statement does not reflect why exactly the Florida governor did give out his cellphone number.

Other people made calls and left voicemails at the Florida governor's cellphone about the overheated conditions facing the residents of the Florida nursing home. No clear word yet on whether the calls that other people made to the governor's cellphone, in addition to the calls made by the nursing home itself, reflected the emergency at the nursing home during Irma, but since all the calls have all been deleted, we cannot listen to any of them, apparently.

Please Read The Disclaimer. ©2017 by Dennis J. Wall. All Rights Reserved.

DEATH AND COVERAGE IN FLORIDA: A CONTINUING STORY.

First installment, "They Called But No-One Came:  Liability Insurance Coverage Questions":  Monday, 09.18.17.  The second of three installments focused on liability insurance coverage questions regarding the Florida power company, "IS YOUR GENERATOR WORKING?" also at http://insuranceclaimsissues.typepad.com/insurance_claims_and_issu/2017/09/is-your-generator-working-the-first-installment-they-called-but-no-one-came-liability-insurance-coverage-questions-monda.html .  In this the final installment, we will address liability insurance coverage questions concerning the Florida nursing home.

Here is the story that continues to develop behind our insurance coverage questions.  I cautioned from the beginning of the first installment that this is a developing story,  that we do not know all the facts, and that much more remains to be reported as time goes on.

Those cautions have been borne out in the past week since I posted my first article in this series.  There are now eleven people who reportedly died after Hurricane Irma struck Florida and specifically struck a Florida nursing home.   The nursing home's air conditioning went out.  It got hot.  Very hot.

Eleven people have died from the heat.

A number of people and corporations played a role in this story.  Together we addressed liability insurance coverage questions regarding the Florida governor in the first installment, and in the second installment we addressed some liability insurance coverage questions surrounding the Florida power company.  In this last installment, together we will address liability insurance coverage questions involving the Florida nursing home.  To write again what I wrote at the outset:  What follows is from the reporting so far on what happened.   The reporting is not complete even now.  There are competing stories on lots of points.  As yet, only some things have been finalized, but they are enough to see the outlines of some important liability insurance coverage questions.

The focus of this series of articles is not on whether there may be any good claims of potential liability, but on whether there are claims to potential liability insurance coverage.

1. The Florida nursing home: Questions of Liability.

The Florida nursing home seems to be a target of opportunity for placing blame on what went wrong at the nursing home that resulted in eleven people dying when the nursing home's air conditioning failed during Hurricane Irma.  Yet it should never be overlooked that there are many actors in this play.

"Somewhere in between, the misery of a nursing home teetering toward tragedy was reported to every official channel, but no attempt was made to transfer the residents to a safer place, or even to the air-conditioned hospital practically next door."  Ellen Gabler, Sheri Fink & Vivian Yee, "At Florida Nursing Home, Many Calls for Help, But None That Made a Difference" (New York Times online, posted Saturday, September 23, 2017), also available at https://www.nytimes.com/2017/09/23/us/nursing-home-deaths.html?hpw&rref=us&action=click&pgtype=Homepage&module=well-region&region=bottom-well&WT.nav=bottom-well.

After so many people died, the Florida governor insisted that his Florida Agency for Health Care Administration adopt emergency rules requiring nursing homes to have backup generators.  But that is not the way it was before Irma and before so many people died.

There were calls to require emergency backup generators at Florida nursing homes long before Hurricane Irma was a little breeze somewhere in the Atlantic Ocean.  The expense of operating a Florida nursing home caused these calls to go without any meaningful response.  To put it another way, money talked and people in power listened.

"Very few nursing homes had generators powerful enough to keep the air-conditioning running. In 2006, Florida lawmakers considered requiring nursing homes to maintain generators to ensure comfortable temperatures during disasters. But the industry raised concerns about the cost, according to The Miami Herald, and the bill died. Last week, after the Hollywood Hills deaths, Mr. Scott announced new rules requiring those generators."  Ellen Gabler, Sheri Fink & Vivian Yee, New York Times supra.

Certainly, the Florida nursing home is experiencing its share of allegations that it was either the sole cause or a contributing cause of these people's horrible deaths.  The current owners of the Florida nursing home have run a facility that received below-average ratings from Medicare even before Irma.  And they have experienced allegations related to Medicare and nursing homes before Irma, as well, including allegations of kickbacks.  See Ellen Gabler, Sheri Fink & Vivian Yee, New York Times supra (reporting that the current owners of the Florida nursing home "were among defendants who paid $15.4 million in 2006 to settle federal and state civil claims that they had paid kickbacks to doctors in exchange for patient admissions.").

No evidence of previous wrongdoing including kickbacks, even if admissible, would prove the allegations of wrongdoing now.  What evidence there is to prove the allegations now will depend in the end on what evidence is uncovered or introduced in the inevitable lawsuits that are the result of these tragic deaths.  See, e.g., "Report:  Before Deaths, Nursing Home Called Rick Scott's Emergency Number Three Times, To No Avail" (Tampa Bay Times staff, posted online on Friday, September 15, 2017), also available at http://www.tampabay.com/news/politics/stateroundup/report-nursing-home-called-rick-scotts-emergency-number-three-times-to-no/2337665.

("On Friday, a Miami law firm filed a complaint against the Hollywood facility ....); "'Red Flag' Calls Signaled Post-Irma Deaths at Nursing Home" (Associated Press copyrighted story published online in The New York Times on Saturday, September 16, 2017), also accessible at https://www.nytimes.com/aponline/2017/09/16/us/ap-us-hurricane-irma-nursing-home-deaths-.html (reporting that a family member of a surviving resident "hired an attorney after her 93-year-old mother became severely dehydrated on Wednesday.").

Our focus here remains on the liability insurance coverage questions arising from this tragedy.  In this final installment of a continuing series of articles, our particular focus here is on liability insurance coverage questions which confront the Florida nursing home.

2. Liability Insurance Coverage Questions and the Florida nursing home.

The liability insurance coverage questions surrounding the Florida nursing home in this circumstance are similar to the liability insurance coverage questions that surround the Florida power company which were previously asked here.

The questions that follow are not all the questions that can or will be raised concerning the Florida nursing home's liability insurance coverages.  Some of these questions may not apply.

"Occurrence":  Was there an accident neither expected nor intended from the standpoint of the insured, in this instance, neither expected nor intended from the standpoint of the Florida nursing home?  This is where the history of Medicare inspections and evaluations of the Florida nursing home may prove relevant.

In the context of Directors and Officers coverage if any for the operators of the Florida nursing home:  Is there any covered conduct at issue on the part of the Florida nursing home's directors and officers?  Alternatively or additionally, is any potentially "covered conduct" excluded because of the availability of liability insurance coverage, if any, under other liability insurance policies available to the directors and officers?

The number of occurrences, if any.  Was there one or were there 11 or more "occurrences," if any?  Was there one occurrence (if any) because, say, there was at least arguably one practice and procedure at the Florida nursing home which resulted in the damages that might be complained of here?  Or were there at least 11 occurrences (again, if any) because so far 11 people have died?  Or if there were any occurrences under the insurance policies at issue, were there more than 11, counting all the people who were injured but who have not died?

Time will tell, and it bears repeating:   Over time the answers to liability insurance coverage questions like these will likely be given by the Florida courts.

Please Read The Disclaimer.  ©2017 by Dennis J. Wall.  All Rights Reserved.

"IS YOUR GENERATOR WORKING?"

The first installment, "They Called But No-One Came: Liability Insurance Coverage Questions": Monday, 09.18.17. This is the second of three installments. This installment will address liability insurance coverage questions regarding the Florida power company. In the final installment, we will address liability insurance coverage questions concerning the Florida nursing home.

Here is the story behind our insurance coverage questions:

Eight people died in a nursing home in Hollywood, Florida during Hurricane Irma. The nursing home's air conditioning went out. It got hot. Very hot.

Eight people died from the heat.

A number of people and corporations played a role in this story. We addressed liability insurance coverage questions regarding the Florida governor on Monday, and today we address some liability insurance coverage questions surrounding the Florida power company. Our last installment will address liability insurance coverage questions involving the Florida nursing home. Their continuing stories will be featured here throughout the coming week, along with their related liability insurance coverage questions.

What follows is from the reporting so far on what happened.  The reporting is not complete even now. There are competing stories on lots of points. As yet, only some things have been finalized, enough to see the outlines of some important liability insurance coverage questions.

The focus of this series of articles is not on whether there may be any good claims of potential liability, but on whether there are claims to potential liability insurance coverage.

1. The Florida power company: Questions of Liability.

Eight people died in a nursing home in Florida when the air conditioning went out. "Survival also depended on phone tag between nursing-home administrators, state officials and utility providers." Aaron Davis, Katie Zezima & Mark Berman, "Officials at Nursing Home Where 8 Died Say They Called Florida Gov. Rick Scott 3 Times For Help" (Washington Post via Chicago Tribune posted on Friday, September 15, 2017), also available at http://www.chicagotribune.com/news/nationworld/ct-florida-nursing-home-deaths-rick-scott-20170915-story.html.

The nursing home called the power company when a transformer blew out and the air conditioning stopped. This was the first of several calls the Florida nursing home says it made to the Florida power company. "Report: Before Deaths, Nursing Home Called Rick Scott's Emergency Number Three Times, To No Avail" (Tampa Bay Times staff, posted online on Friday, September 15, 2017), also available at http://www.tampabay.com/news/politics/stateroundup/report-nursing-home-called-rick-scotts-emergency-number-three-times-to-no/2337665.

The Washington Post report via the Chicago Tribune linked above reflects that "[t]he nursing home provided ticket numbers for service requests that it had placed with" the Florida power company. "The Post was able to confirm two of the requests using state records and the utility's website." Id.

The same reporting further reveals what was not widely reported previously: The nursing home personnel were not the only ones who called the Florida power company. At least one relative of a nursing home resident, perhaps joined by others, "repeatedly called" the power company. "I told [the power company] the generators were going to give up soon. And it happened." Id. [Emphasis added.]

Finally, people also called 911, more than once, before anyone died. "'Red Flag' Calls Signaled Post-Irma Deaths at Nursing Home" (Associated Press copyrighted story published online in The New York Times on Saturday, September 16, 2017), also accessible at https://www.nytimes.com/aponline/2017/09/16/us/ap-us-hurricane-irma-nursing-home-deaths-.html.

The Associated Press story which has just been hyperlinked above, summarizes the calls to the Florida power company to restore power for the air conditioning in the sweltering heat: "The [nursing home] said the hurricane knocked out a transformer that powered the air conditioning. The center said in a detailed timeline of events released Friday that it repeatedly was told by [the Florida power company] that it would fix the transformer, but the utility did not show up until Wednesday morning, hours after the first patients began having emergencies."

For its part, before it stopped issuing statements or answering questions the Florida power company said that the nursing home "was supposed to have an operational generator."

As noted, the reporting is not complete even now. However, not one report has recorded that the power company ever asked this question to anyone at the nursing home:

Is your generator working?

The power company said in a statement using the passive voice, that "'other critical facilities were identified as higher priorities.'" Tampa Bay Times, supra.

"The utility refused to answer any specific questions about the nursing home case." Associated Press, supra. While the Florida power company conveyed "'our deepest sympathies,'" the power company "did not answer questions regarding the calls the nursing home said were made." Washington Post via Chicago Tribune, supra.

"'At the time this incident occurred, you have to remember when the first patients were dying, there were 150 nursing homes across the state that did not have power.'" Jim Defede, CBS4News, Miami, quoted in Tampa Bay Times, supra.

 

2. Liability Insurance Coverage Questions and the Florida power company.

The questions that follow are not all the questions that can or will be raised concerning the Florida power company's liability insurance coverages. Some of these questions may not apply. Answers, if any, may be forthcoming in newly filed lawsuits. See Tampa Bay Times, supra ("On Friday, a Miami law firm filed a complaint against the Hollywood facility ....); Associated Press, supra (reporting that a family member of a surviving resident "hired an attorney after her 93-year-old mother became severely dehydrated on Wednesday.").

Depending on the type of policy involved, including whether it is a "claims made and reported" policy or an "occurrence-based" policy, the foremost question of liability insurance coverage regarding the power company may involve this one:

"Occurrence": Was there an accident neither expected nor intended from the standpoint of the insured, in this instance, neither expected nor intended from the standpoint of the Florida power company?

Like unto it, the question arises in the context of Directors and Officers coverage if any: Is there any covered conduct at issue on the part of any of the power company's directors and officers? Or is such coverage excluded by the availability of liability insurance coverage, if any, under other liability insurance policies available to the directors and officers?

Is there potential liability of the Florida power company here only for breach of contract, which is ordinarily excluded under standard liability insurance policies? Or is the power company's potential liability the kind that it would have even if there had been no contract?

Finally, now a very significant question from the outset: the number of occurrences, if any. Was there one or were there 8 or more "occurrences," if any? Was there one occurrence (if any) because for example there was one practice and procedure at the power company which resulted in the damages that might be complained of here? Or were there 8 occurrences (again, if any) because 8 people died? Or if there were any occurrences under the insurance policies at issue, were there more than 8, counting all the people who were injured but who did not die?

Time will tell, and over time the answers to liability insurance coverage questions like these will likely be given by the Florida courts.

Please Read The Disclaimer. ©2017 by Dennis J. Wall. All Rights Reserved.

 

THEY CALLED BUT NO-ONE CAME: LIABILITY INSURANCE COVERAGE QUESTIONS.

Eight people died in a nursing home in Hollywood, Florida during Hurricane Irma.  The nursing home's air conditioning went out.  It got hot.  Very hot.

Eight people died from the heat.

A number of people and corporations played a role in this story:  The Florida governor, the Florida power company, and the Florida nursing home.  Their continuing stories will be featured here throughout the coming week, along with their related liability insurance coverage questions.

The stories of the governor, the power company, and the nursing home will not be complete without the starting point of each story:  Eight people died.  What follows is from the reporting so far on what happened.

Moreover, the focus of this article is not on whether there may be good claims of potential liability, but on whether there are claims to potential liability insurance coverage.

1. The Governor: Questions of Liability.

Eight people died in a nursing home in Florida when the air conditioning went out.  The governor gave out his cell phone number to the nursing home operators, among others, to call if they had problems during the Hurricane so that he could help solve them.  The governor's office does not contest that.

They telephoned.  The nursing home called the governor's cell phone three times in fact.  They said that they had called the power company and the power company had not come.  They told the governor's office that they needed the governor's "immediate assistance" to get the power company to help get the air conditioning online again.

No help came.

Not even a return telephone call, they said.

See among the other sources listed in this article:  Aaron Davis, Katie Zezima & Mark Berman, "Officials at Nursing Home Where 8 Died Say They Called Florida Gov. Rick Scott 3 Times For Help" (Washington Post via Chicago Tribune posted on Friday, September 15, 2017), also available at http://www.chicagotribune.com/news/nationworld/ct-florida-nursing-home-deaths-rick-scott-20170915-story.html.

A spokesperson for the Florida governor said that all calls were returned.

The nursing home says that it called the governor's cell phone three times and no-one came.  See in addition, for example, Chris Perez, "Florida Nursing Home:  Gov. Scott Ignored Our Distress Calls" (New York Post online, posted on Friday, September 15, 2017), also at http://nypost.com/2017/09/15/florida-nursing-home-gov-scott-ignored-our-distress-calls/.

The governor's spokesperson also said that it was not his responsibility; all the calls to his cell number were relayed to the Florida Agency for Health Care Administration or AHCA.

AHCA is the Florida governor.  He appoints them.  They report to him.  They are a part of the government he heads in Florida.

The governor's spokesperson also said that the nursing home should have called 911 if they had a problem.  It was "100% their responsibility" to care for the health of the people in their charge, the governor's office said.  "Report: Before deaths, nursing home called Rick Scott's emergency number three times, to no avail" (Tampa Bay Times staff, posted online on Friday, September 15, 2017), also accessible at http://www.tampabay.com/news/politics/stateroundup/report-nursing-home-called-rick-scotts-emergency-number-three-times-to-no/2337665.  After the hurricane, the Florida governor ordered AHCA to issue emergency rules requiring nursing homes, among others, to have working generators. "'Red Flag' Calls Signaled Post-Irma Deaths at Nursing Home" (copyrighted Associated Press Report, published in the New York Times online on Saturday, September 16, 2017), also at https://www.nytimes.com/aponline/2017/09/16/us/ap-us-hurricane-irma-nursing-home-deaths-.html.  

Future installments in this series will, as noted, address liability insurance coverage questions raised by the prospective liability of other participants in the story including the Florida power company and the Florida nursing home.

But this story is about the prospective liability insurance coverage questions surrounding potential coverage, if any, for the Florida governor for the deaths of 8 people from heat in a nursing home during Hurricane Irma.  Whether the nursing home should have called 911, they say that they did call you.  

And no-one came.  You allegedly said to call that special cell number if they needed help. They called.  They did not get help.

 

 

2. Liability Insurance Coverage Questions and the Florida Governor.

The Florida governor may be immune under State law even if he did something wrong in his official capacity.  Assuming that immunity applied here, and as yet there have only been accusations and no allegations or lawsuits, could the liability carrier with coverage in this situation claim the benefit of that immunity to deny all coverage whether the governor claimed immunity or not in the future?

The appropriate method of obtaining compensation from the State is by a claims bill.  If the governor's actions or omissions amount to prospective liability for the State, and if a claims bill is introduced and approved accordingly, would the liability carrier involved in this matter have coverage for the claims bill?  Do you know?

I do not know but I think it is worth finding the answers to these and similar questions.

And the answers, perhaps, to other questions:  Could the plaintiffs (whoever might sue) bring in evidence of the governor's experience with Medicare fraud?  Nursing home residents are almost always Medicare recipients; were the 8 victims?

Finally, did Mr. Scott ever do business with this particular nursing home or its previous corporate iterations in his previous life, so to speak, as the executive of a healthcare corporation?

Please Read The Disclaimer.  ©2017 by Dennis J. Wall.  All Rights Reserved.

HURRICANE IRMA.

Hurricane Irma has interrupted service.  I know that you will understand.  Thank you.

Please Read The Disclaimer.  ©2017 by Dennis J. Wall.  All Rights Reserved.

Is This Conduct in Office Malum in Se?

I was originally preparing an article to post here on the issues raised by "Trump Administration Sharply Cuts Spending on Health Law Enrollment," by Abby Goodnough and Robert Pear (New York Times online, posted on Thursday, August 31, 2017), also available at https://www.nytimes.com/2017/08/31/health/affordable-care-act-trump-spending.html (subscription may be required).

Then came another article raising issues of what to do when the federal government which is supposed to spend money to enforce a law, instead spends that same money to dismantle the same law, see this article posted online on Labor Day 2017, by Audrey Carlsen and Haeyoun Park, "The Same Agency That Runs Obamacare is Using Taxpayer Money to Undermine It"  (New York Times online, posted Monday, September 4, 2017), also available at https://www.nytimes.com/interactive/2017/09/04/us/hhs-anti-obamacare-campaign.html.

If these people were using their own money to dismantle the law they swore to enforce, that would not eliminate at least the issue of how can public officers they get away with acting against the public interest?  Concentrating on remaining insurance coverage issues is part and parcel with that issue.

Related questions, then:  Since the law in question that these people took an oath to uphold is the Affordable Care Act, what remedies are available to the people who have enrolled for health care insurance under that law?

And do those available remedies include a mandatory injunction to make public officials obey the law they have sworn to uphold and enforce?

Please Read The Disclaimer.  ©2017 by Dennis J. Wall.  All Rights Reserved.

WELLS FARGO DIRECTORS' LOBBYISTS: COVERED BY D&O INSURANCE, OR SHAREHOLDERS?

A Labor Day Special.

In a first-of-its-kind development, the directors of Wells Fargo report that they paid for lobbyists to lobby for them personally, over and apart from the bank's own lobbying fees.  Directors have not ever done this before now, not the directors of any corporation, ever.  Before now.  See Gretchen Morgenson, "Fair Game / Wells Fargo's Testimony Left Some Feeling Shortchanged" (New York Times online, posted on Thursday, August 31, 2017), also available at https://www.nytimes.com/2017/08/31/business/wells-fargo-testimony.html?rref=collection%2Fsectioncollection%2Fbusiness&action=click&contentCollection=business&region=rank&module=package&version=highlights&contentPlacement=12&pgtype=sectionfront (subscription may be required).

This development has not been reported much.  In fact, I have not seen it reported elsewhere.  Many other developments at, with, and by Wells Fargo have gotten all the publicity, it seems.  The other developments are also discussed in the linked column by Gretchen Morgenson.

Wells Fargo, JPMorgan Chase, Citigroup, and Bank of America collectively spent about $22,200,000.00 on lobbyists during the 18 months through the quarter that ended on June 20, 2017, adding up their separate figures provided in the column.

The Wells Fargo directors have independently spent some $450,000.00 on lobbyists during one-half that period, or during the last 9 months that ended on June 30, 2017.  Id.

Ms. Morgenson asked Wells Fargo directly what value these director's individual lobbying expenses have to the shareholders, and what disclosures about this spending are being provided to shareholders.

Ms. Morgenson also reports that she asked "whether the lobbying expenditures were covered by directors' and officers' insurance or by shareholders."  Good questions.

 Wells Fargo's spokesperson "declined to comment" on any of these questions, Ms. Morgenson also reports.

Since there are no answers yet from Wells Fargo, what are your answers to these questions?  In particular for our purposes here, do you think that director's individual lobbying expenses are generally covered by the usual provisions found in a corporation's directors' and officers' insurance policy?

Please Read The Disclaimer.  ©2017 by Dennis J. Wall.  All Rights Reserved.