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.
- 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®ion=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.
- 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.
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