Fairness in Florida Homeowner’s Insurance Claims Handling

The Homeowners’ Policy & Claims Bill of Rights Working Group is tackling issues such as setting parameters for examinations under oath, and policy provisions for mediation, appraisal, and an insurer’s right to repair beginning with two workshops held in Tallahassee on July 17 and July 18, 2013.

Working group participants include consumer organization advocates and representatives for some of Florida’s major insurance companies. Florida Insurance Consumer Advocate Robin Smith Westcott, appointed by Florida Chief Financial Officer Jeff Atwater, is chairing the working group. During the workshops, Westcott said she was concerned with an insurance company checking homeowners’ applications and credit reports after a claim was made, only to deny the claim and void the policy.

Denials, significant reductions in payment of valid claims and delays in claims handling, which hurt vulnerable homeowners, are some of the insurance industry abuses the working group hopes to remedy. The goal is to provide better consumer education and changes to Florida law through a comprehensive, collaborative report that will offer recommendations for improvements either administratively or through new legislation, along with a review of the Policyholders’ Bill of Rights.

The working group aims to have a bill package presented to lawmakers for pre-session committee meetings set to take place in September and October.

Watch the full-length 7/17/13 workshop and 7/18/13 workshop on The Florida Channel.

Article Written by Cohen Battisti, Attorneys at Law.


ADA Anniversary Week

Information obtained by the United States Department of Justice

In honor of the 23rd anniversary of the Americans with Disabilities Act, each day this week – ADA Anniversary Week – the Department of Justice will highlight a different enforcement action or initiative combating discrimination on the basis of disability.

Today we highlight the Department’s Project Civic Access, a wide-ranging effort to ensure that counties, cities, towns, and villages comply with the ADA by eliminating physical and communication barriers that prevent people with disabilities from participating fully in all aspects of government.  The US Department of Justice’s blog entry today describes a settlement agreement that the Department reached with the Town of Poestenkill, New York, to improve access to all aspects of civic life for persons with disabilities.

To find out more about ADA Anniversary Week and Project Civic Access visit the Justice Blog.  For more general information on the Americans with Disabilities Act visit ADA.gov, or call the toll-free ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY).

Overhead and Profit is now Officially Fair Game for General Contractors

The dispute about whether general contractors are entitled to compensation from insurance companies for overhead and profit charges is now officially over.  In an opinion published by the Supreme Court of Florida on July 3, 2013, Trinidad v. Florida Peninsula Ins. Co., 38 Fla. L. Weekly Supp. 507 (Fla. 2013), the Court held general contractors ARE entitled to such charges under a replacement cost homeowner’s policy.  Specifically, the ruling held that homeowners are entitled to payment for overhead and profit when the insured (homeowner) is reasonably likely to need a general contractor.

The Court reasoned that overhead and profit are a necessary component of replacement cost policies since the policy is expressly intended to compensate a homeowner for the cost to replace the damaged property.  Moreover, the Trinidad holding specifically overruled Second District Court of Appeals opinion that had previously held that general contractors were only entitled to payment for overhead and profit when the homeowner had actually incurred such charges or where reasonably likely to incur such charges.The ruling in Trinidad is a step in the right direction. However, there is a still an enormous amount of work to do in order to keep the momentum moving in the proper direction. Please feel free to contact our office if you have any specific questions about the impact or application of this ruling.

Article Written By: Paul T. Zeniewicz, Esquire


Attorney at: Cohen Battisti, Attorneys at Law

Paul T. Zeniewicz, Esquire is an attorney at Cohen Battisti.  His practice primarily focuses on first party insurance claims. 

Rescuing Hostage Checks

Oftentimes, one sees situations where claims checks or settlement checks due to clients are held hostage by either a homeowner and/or a bank to avoid paying one’s client under an assignment of benefits.  If a claims check or settlement check is improperly encumbered or negotiated by a homeowner or bank, Florida’s civil theft law can help sort the situation out.

Florida’s statutes place strict liability upon a bank for a check’s conversion. Fla. Stat. § 673.1101(4) is very clear where a negotiable instrument “is payable to two or more persons not alternatively, it is payable to all of them and may be negotiated, discharged, or enforced only by all of them” (emphasis added).  Moreover, a negotiable instrument is converted pursuant to Fla. Stat. § 673.4201(1), “if it is taken by transfer, other than a negotiation, from a person not entitled to enforce the instrument or a bank makes or obtains payment with respect to a person not entitled to enforce the instrument or receive payment.” (emphasis added).

Consequently, such a check conversion is punishable under Florida’s civil theft statute, Fla. Stat. § 772.11 (1) (2001), entitled “Civil Remedy For Theft,” which provides: 

Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of the provisions of ss. 812.012-812.037 has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts.

Therefore, a lawsuit under Florida’s civil theft statute would award one’s client treble damages, attorney’s fees and legal costs.  Note that the law requires that one first make a written demand for the monies due for a period of thirty (30) days.  If the letter’s recipient fails to pay the amount at issue within those thirty (30) days, then one may file suit for the hostage check’s amount, attorney’s fees and treble damages.

 Article Written By: Ricardo Diaz


Attorney at: Cohen Battisti, Attorneys at Law

Landlord Tenant Disputes

It is not uncommon that landlords and tenants have disputes regarding the terms and conditions of their rental contract.  Most commonly, landlord tenant issues revolve around withheld security deposit money, a dispute which leads to a tenant moving out before the lease ends, or unpaid rent.  Although ideally a landlord and tenant will be able to work out a solution without the need to involve attorneys or the Courts, sometimes one party may have to file a lawsuit against the other for money allegedly owed.

In these circumstances, Florida law says that the party who is successful obtains their agreed upon settlement and their respective attorney’s fees and costs.  If you are the person who sued, “winning” means recovering at least $1.00 or more, whether through jury verdict or settlement agreement.  If you are the person being sued, “winning” means a jury or judge made a ruling in your favor, and the case is dismissed without money being awarded.

Of course, there may exists exceptions and circumstances that fall outside these general rules.  If you believe you have a possible claim against a tenant of landlord, you should speak with a licensed attorney regarding your specific circumstances.  Renter rights should not be taken lightly.  If you are a renter, know your rights!

South Florida Restoration Symposium

South Florida Summer Restoration Symposium