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Shatterproof? Chipping Away at Florida Glass Claims

Fla. Stat. §627.7288 requires auto insurers to repair or replace damaged windshields without applying a deductible allowing insured drivers with comprehensive coverage to repair or replace their windshield without any out of pocket cost.

The Florida legislature has not created a statutory scheme for processing glass claims, unlike Uninsured/Underinsured Motorist Coverage and Personal Injury Protection Coverage. As a result, auto insurance carriers have established a vendor network with local glass shops to respond to a claim when reported by an insured. The glass shops within this network and the insurance carriers agree to specified rates for various services provided by the shop.

Other glass shops do not participate within the vendor network arrangement with the insurance carriers and prefer to contract with and arrange for payment with the insured directly by attempting to obtain benefits of coverage under the insured’s automobile policy. These glass shops often charge much more than “in-network” shops for the same repair or replacement services.

Florida allows an insured to assign his/her rights to collect insurance benefits to a third party under an Assignment of Benefits (AOB). The legal impact and enforceability of the AOB is often at issue.

To claim benefits from an auto insurance carrier, the glass shop that is not participating in the vendor network must produce a valid AOB from the insured. The AOB is typically signed and obtained from the insured before the work is performed. It is later submitted to the carrier along with a request for payment after the repair or replacement is completed.

Cases have resulted in dismissal by the Court after testimony established that the insured never signed any forms provided by the glass shop and testimony from the insured that the signature on the AOB produced by the glass shop to the carrier was not, in fact, their signature.[1]

Other cases have been allowed to proceed despite issues related to lack of a valid AOB produced by the glass shop on the claim that there was an equitable assignment based on the insured’s purported “intent” to assign benefits to the glass shop.[2]

In other cases, failure of the glass shop to provide proper notice to the carrier of the claim may result in dismissal. As many insurance policies require parties making claims to give notice to the carrier prior to filing suit seeking benefits under the policy, if the carrier is not provided with proper notice by the insured in accordance with the policy and the insurer is prejudiced, there may be a bar to recovery under the policy.[3] A common scenario unfolds when a replacement is completed when a repair would have sufficed, however, the glass vendor disposes of the damaged windshield within five (5) days of repair without taking pictures, leaving the insurer to adjust a claim without any proof other than a post repair invoice. Of note, however, is that duties under the policy do not transfer to the assignee unless the assignee assumes the duty pursuant to the terms of the AOB.

Fla. Stat. §559.905 requires a written estimate for automobile repairs in excess of $100. If proper notice is not given, the damages are capped at $100.[4] Despite the requirement, most glass shops not participating in the vendor network fail to provide the insured a written estimate of the cost before completing the work.

In most instances, the invoice is not provided until after the repair or replacement is completed. While the Courts have yet to rule whether the post-replacement notice satisfies the requirements of §559.905, the plain language of the statute provides that the written estimate must be provided before the repair or replacement is performed.

Lawsuits raising these issues involving auto glass claims have increased dramatically throughout Florida. According to the Florida Department of Financial Services, approximately 400 auto glass lawsuits were filed against insurers in 2006. By 2019, nearly 35,000 lawsuits were filed against insurers, an increase of 8,650%.

Ramey and Kampf, P.A. has a team of experienced attorneys and paraprofessionals prepared to zealously defend carriers as the number of lawsuits related to auto glass claims continue to rise at an exponential rate. Our in-depth understanding of the various issues that may arise in these claims related to assignments, notice requirements, and compliance with policy provisions is essential in bringing these claims to an efficient and cost-effective resolution.

[1] New View Auto Glass, LLC a/a/o Ernesto Vasquez v. State Farm Mut. Auto. Ins. Co., 15-SC-1031-1 (Fla. 20th Cir. Collier Cty.).
[2] Central Magnetic Imaging Serv., Inc. v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 520 (6th Cir. 2004).
[3] Shaw v. State Farm Fire & Cas. Co., 37 So. 3d 329, 332 (Fla. 5th DCA 2010) (abrogated in part by Nunez v, GEICO    Gen. Ins. Co., 117 So. 3d 388); see also Bankers Ins. Co. v. Macias, 475 So. 2d 1216, 1217-18 (Fla. 1985)
[4] Osteen v. Morris, 481 So. 2d 1287 (Fla. 5th DCA 1986).

#COVID-19 Company Update

To our valued clients, partners and community:

In this unprecedented time, we face circumstances that affect our businesses, employees and clients’ lives, which change daily.

We are closely following events surrounding the COVID 19 pandemic which include decisions made at the National, State and Local government levels.

At Ramey & Kampf PA, we have taken steps to ensure business continuity for all of our clients as well as actions to slow the transmission of COVID 19 for the health of our employees and community.

For our clients, we rely upon a well-established comprehensive business continuity plan to ensure you will continue to receive the same service, access to resources, and results. Our channels and methods of communication remain the same.

Our attorneys and support staff are equipped and trained to work remotely and have been encouraged to do so to assist them in dealing with their personal situations as well as limit possible transmission of the virus.

At this time we expect, and are fully prepared, to continue operations remotely, in anticipation of a government directive to do so.

All non-essential travel plans, events or activities normally arising during litigation may be delayed and/or rescheduled depending upon circumstances and direction of the court.

We are fortunate that we can make these changes with no business disruption and remain committed in our efforts to you, our clients, and our community.

Thank you.

-The RKTrialTeam

Griselda Rubio v. State Farm

December 20, 2019, PIP, invalid pre-suit demand, failure to comply with conditions precedent, Summary Judgment

Style: Spine Correction f/k/a Alignlife a/a/o Griselda Rubio v. State Farm

Venue: County Court, Polk County, Florida

On May 13, 2018, State Farm’s insured, Griselda Rubio, was a restrained passenger in a motor vehicle involved in a rear end collision on Interstate 4. The insured sought medical treatment with the Plaintiff provider, Alignlife, between June 8, 2018 and October 29, 2018.

Upon receipt of Alignlife’s billing, State Farm issued payments for the services, totaling $15,000, in accordance with the Fla. Stat. 627.736, the policy language, the Medicare Part B fee schedules, and the Worker’s Compensation fee schedules until all benefits became exhausted.

On January 14, 2019, the Plaintiff medical provider served State Farm with a pre-suit demand pursuant to Florida Statute 627.736(10) alleging State Farm owed an additional $3,810.39 in PIP benefits for dates of service of June 8, 2018 through October 29, 2018. Fla. Stat. 627.736(10) requires that the provider serve a pre-suit demand at least thirty (30) days prior to the initiation of litigation. The demand is required to include a copy of the assignment of benefits and an itemized statement specifying each exact amount, the date of treatment, and the type of benefit claimed to be due.

Attached to the correspondence was a copy of the Plaintiff’s billing ledger, detailing all dates of service, the total billed by Plaintiff, and the total paid by State Farm. This ledger identified a total patient balance due and owing of $5,351.07. The ledger contained a column entitled “Insurance Responsibility” which identified a total insurance balance due and owing of negative $38.89. Thus, the amount alleged to be due and owing in the pre-suit demand was contradicted by the Plaintiff’s own billing ledger.

Following the filing of suit by Plaintiff, Defendant proceeded with a Motion for Summary Judgment for Failure to Comply with Conditions Precedent. Defendant argued that the Court must apply a strict compliance standard to the requirements of Fla. Stat. 627.736(10), the internal inconsistency between the demanded amount and the account balance fails to strictly comply with the requirements of the statute, and that Summary Judgment, not abatement, is the appropriate remedy.

Plaintiff argued for substantial compliance with the statutory requirements and took the position that a provider cannot know the exact amount of benefits due and owing and that it is the responsibility of the carrier to determine the amount due.

In the first ruling on strict vs. substantial compliance with Fla. Stat. 627.736(10) in Polk County, the Court held that the appropriate standard is strict compliance, the Plaintiff bears the responsibility of determining the amount due and owing when sending a pre-suit demand, and that Plaintiff’s demand failed to strictly comply with that responsibility due to the internal inconsistencies between the demand and the billing ledger.

The Court granted final summary judgment in favor of State Farm with no damages being awarded to Plaintiff.

Williams v. Heckler

October 2, 2019, Arbitration, left wrist fracture, residual scarring right leg.

Style: Anesia Williams v. Bronson James Heckler.

Venue: Circuit Court, Hillsborough County, Florida.

On July 10, 2018, Plaintiff, Anesia Sharine Williams, had been the driver of a 2000 Dodge Neon accompanied by minor son and unrestrained passenger, K.C., which had been traveling southbound on Florida Avenue, Tampa, Hillsborough County, Florida, at approximately 50 mph.

Defendant, Bronson James Heckler, had been the driver of a 2015 Ford F150 pickup truck traveling eastbound on West Shore Drive and at stop for stop sign at intersection of Florida Avenue. After oncoming traffic had cleared Mr. Heckler attempted to make a left hand turn to proceed northbound on Florida Avenue at which time collision between the two vehicles occurred.

Plaintiff, Anesia Sharine Williams, alleged injuries to include fracture to left wrist, scarring to right leg and sprain/strain of the cervical, thoracic, and lumbar spine.

The claims of minor child K.C. were settled through negotiation. The claims of Plaintiff, Anesia Sharine Williams, proceeded to arbitration.

Medical specials were in excess of $20,000.00 with future loss of earning capacity claim estimated at $9,000.00.

No collateral sources were available.

Treating physicians providing expert opinion on behalf of Plaintiff included Christopher MacLaren, D.O.

No witnesses were called on behalf of the Defendant. Plaintiff sought damages in the amount of $100,000.00.

The defense placed a range of settlement value on the matter between $45,000.00 and $50,000.00.

Arbitration resulted in an award of $47,051.22.
The parties were responsible for their respective attorneys’ fees and cost.

Demoura v. Travelers

September 16, 2019, PIP, discontinuation of benefits, directed verdict, failure to show conditions precedent.

Style: Nimo Demoura v. The Travelers Home & Marine Insurance Company.

Venue: County Court, Orange County, Florida.

Plaintiff, Nimo Demoura, had been the restrained driver of a vehicle traveling on I-4 and at a stop for traffic at the on ramp for Lee Road, Orlando, Orange County, Florida, when his vehicle was struck from the rear.

Plaintiff alleged multiple injuries to include headaches, TMJ, neck and low back pain.

Plaintiff initiated medical care with Eric Feiter, D.C., three times per week and ongoing for an extended period of time. Approximately four months post accident Travelers requested a compulsory medical examination which was performed by Fred VanderSchaaf, D.C. who determined that further treatment would not be reasonable, necessary, or related to the accident.

Plaintiff filed suit seeking PIP benefits subsequent to the compulsory medical exam.

Witnesses called on behalf of Plaintiff included Eric Feiter, D.C., treating physician, Nimo Demoura, insured, Ruben Infinger, Corporate Representative for Travelers and Jeffrey Diab, claims adjuster for Travelers.

No witnesses were called on behalf of Defendant.

During his case in chief Plaintiff attempted to introduce, over Defendant’s objection, a copy of the pre-suit demand letter which included an assignment of benefits not included or produced in the original. The Court did not admit the document as evidence as a result.

Plaintiff then attempted to publish the deposition transcript of Ruben Infinger, Corporate Representative of Travelers Insurance however the Court sustained Defendant’s objection to same as the Plaintiff had not listed the Corporate Representative as a witness for trial and due to the fact that upon review of the transcript the demand letter and assignment of benefits at issue had not been discussed.

Finally, Plaintiff called Travelers claim adjuster, Jeffery Diab, who was unable to provide sufficient testimony for introduction of the demand letter or assignment of benefits as he had no knowledge as to the specific document at issue.

At the close of Plaintiff’s case in chief, the Court granted Defendant’s motion directed verdict on Plaintiff’s failure to satisfy conditions precedent.

No damages were awarded as a result.

Defendant is entitled to seek attorneys’ fees and cost.

Ramey & Kampf, P.A. and The Great American Teach In 2019

Associate attorneys, Joe Monte and Amber Inman, participated in The Great American Teach In on November 21, 2019 as a part of the celebration of American Education Week in Hillsborough County, Florida.

Mr. Monte visited Booker T. Washington Elementary School in Ybor City to speak to Ms. Burley’s Fourth Grade students. Mr. Monte shared his educational background and professional experiences with the students who were excited to learn about the types of cases and clients Mr. Monte has represented throughout his career as a practicing attorney.

Ms. Inman visited Broward Elementary School in Seminole Heights to speak to Ms. Arfsten’s Fourth Grade students. The students learned about the role of any attorney in a courtroom, rules of professionalism, and the requirements for an attorney to practice law in the state of Florida.

Ramey & Kampf, P.A. is dedicated to mentorship and “paying it forward” in our community with the Great American Teach In providing a rewarding experience for our attorneys to share their professional journey with students who may be interested in a future legal career.

PIP Ruling

The firm recently obtained a ruling on a matter without precedence when the Second District Court of Appeal, after oral argument, agreed with Ramey & Kampf, P.A.’s managing partner, David Kampf, whom also successfully argued for our client at the trial level, that the insurer was entitled to a commercial right of reimbursement under Florida No-law including recovery from a governmental entity.  The Agency argued that sovereign immunity precluded suit since a PIP action is not an action in tort; and the government may only be sued based on a tort action.  However, the Second District agreed sovereign immunity was waived by the legislature per the language in F.S. 627.732(3), in conjunction with Florida Statute § 627.7405.

The Court determined that the legislature specifically excluded motor vehicles used for public school transportation from the definition of what is not a commercial moto vehicle.  Thus, the legislature expressly included certain government vehicles as being commercial motor vehicles under the No-fault statute which means the statute unequivocally waived sovereign immunity.  The Court determined the Lee County School Board was responsible to reimburse our client notwithstanding exclusions under their policy with Safety National.  The Second District agreed with Mr. Kampf that the statute does not limit the obligation to pay to a no-fault insurer.  Any type insurer of the vehicle is required to extend reimbursement to the PIP insurer.  Further, the Court found the insurer, Safety National, and the Board are not liable to reimburse based on the specific terms of the policy, but is liable based on the statute.   Thus, policy exclusions may not apply.

Mr. Kampf’s knowledge and legal expertise were crucial in obtaining a favorable ruling for our client on a novel area of law.

FIFEC Presentations

Ramey & Kampf, P.A. was honored to present in the 27th Annual Florida Insurance Fraud Education Committee (FIFEC) Conference in Orlando, FL for not one, but two presentations that provided CEU and CLE credits for adjusters and attorneys. FIFEC provides education and training for the insurance fraud investigative community, promotes a coordinated effort within the insurance industry and law enforcement to combat insurance fraud, and educates local communities on ways to combat insurance fraud.FIFEC

Managing partner, Mark Ramey, and associate attorney, Amber L. Inman, presented a course entitled, “Recommendations for Handling Florida BI/UM Pre-Suit Claims and the Impact of the Supreme Court Decision in Harvey v. GEICO.” The course focused on identification of Florida bad faith setups and provided advice to claim representatives, adjusters, and attorneys to avoid a bad faith claim related to the handling of BI/UM pre-suit matters following the recent Florida Supreme Court decision of Harvey v. GEICO using real-life examples from our everyday practice.

Associate attorneys Joseph Monte and Allen Gaffney presented the course titled, “Pre-Suit Examinations Under Oath on Coverage Issues: Residency and Operability of a Motor Vehicle”.  The course focused on the unique and multifaceted factual and legal issues involving claimants as to their residence, family, ownership of a vehicle, and operability of a vehicle.  The course was highly interactive and engaging with the audience with the factual and legal backdrop of EUOs undertaken by Ramey & Kampf, P.A. attorneys in providing advice to claim representatives and adjusters in performing their good faith obligations in investigating claims.

Ambrose v. Ferro & State Farm

March 22, 2019, Low back injury, radiofrequency ablations

Style: Jamie Ambrose v. James J. Ferro & State Farm Mutual Automobile Insurance Company

Venue: Circuit Court, Pasco County, Florida.

Plaintiff, Jamie Ambrose, had been a restrained driver in a vehicle stopped at a red light at the
intersection of U.S. 19 and Moog Road, New Port Richey, Pasco County, Florida. Defendant,
James Ferro, had been the driver of a vehicle that failed to stop, colliding with the rear of
Plaintiff’s vehicle.

Plaintiff alleged she sustained injury to her lumbar spine and underwent radio frequency ablation
with medical expenses totalling over $50,000. Plaintiff sought damages for future medical
expenses as well as past and future pain and suffering in excess of $1,000,000.

Experts testifying for Plaintiff included: Lee Ann Brown, DO, Jay Parekh, DO

Plaintiff denied pre-existing condition.

Experts testifying for Defendant included: Michael Foley, MD, Ananda Som, MD, Peter
Candelora, MD

Defendant argued that Plaintiff presented with pre-existing conditions.

The jury returned a verdict limited to the Emergency Department medical bill in the amount of
$7,442.46, finding no permanent injury had been sustained.

After collateral source offsets, net verdict was zero.

Last modified: April 4, 2019

Mason v. Whiting 11-1-18

November 1, 2018 CATASTROPHIC INJURY, VEGETATIVE STATE

Style: Earl B. Mason Sr. as Plenary Guardian of the ward, Earl B. Mason Jr. v. Robert Hines as Personal Representative of the Estate of Nyla Whiting

Venue: Circuit Court , Hillsborough County , Florida

Defendant Nyla Whiting, age 70, had been the driver of a 2002 Toyota Corolla traveling southbound on 78th St., Tampa, Florida. Plaintiff Earl B Mason Jr. had been a pedestrian who walked into the path of traffic as he attempted to cross 78th St eastbound, approximately 70 ft. from an available pedestrian crosswalk.

Ms. Whiting was unable to avoid striking Mr. Mason making impact between 18 and 22 mph.

Mr. Mason suffered catastrophic injuries and institutionalized in a vegetative state since the accident.

Past medical expenses was $546,742.

Plaintiff sought future medical expense and cost of life care in the amount of $5,514,679 in addition to unspecified amount for pain and suffering.

Experts on behalf of Plaintiff: Robert Martinez MD, Gerri Pennachio, vocational rehab, Brenda Mulder MBA, Steven Koontz PE

Experts on behalf of Defendant: Steven Bifulco MD, Cynthia Stephens Ph D, Charles O Funk Ph D, PE

The matter proceeded to arbitration October 29 2018 with arbitration award entered November 1 2018 in favor of Defendant.

No damages were awarded.