Florida Insurance Law Blog

Suit Filed Against Florida Farm Bureau for Improper Cancellation of Auto Policy

Mark Nation — Wed, 24 Feb 2010 17:48:59 -0500

I filed suit today on behalf of a client against Florida Farm Bureau for improperly canceling her automobile insurance. In order to properly cancel automobile insurance, an insurer must strictly comply with Florida Statute Sections 627.728, 627.7281 and 627.7283. My client was involved in an accident, and submitted the claim for Florida Farm Bureau. Florida Farm Bureau denied the claim, asserting that it had canceled her insurance prior to the accident. However, to the extent that Florida Farm Bureau attempted to cancel the policy, it did not comply with the above statutes, and therefore coverage was in force at the time of the accident.

After the accident, my client was required to obtain insurance with another insurer. That insurer charged a much higher premium rate because of the alleged cancellation. (Whenever applying for insurance, the new insurer asks whether the proposed insured has ever been canceled, or non renewed. If so, they charge a higher rate for the new policy.) This higher premium rate usually lasts about 10 years after the cancellation/non-renewal. In addition to other damages, I am seeking reimbursement of this increased premium rate as part of my client's damages in this case.

As with most of these cases against my client's own insurer, the insurance company must pay my fees and costs if I win, and if I lose, I'll work for free. I will keep you posted.

Suit Filed Against Standard Insurance For Long Term Disability Benefits

Mark Nation — Wed, 24 Feb 2010 15:24:10 -0500

I filed suit today against Standard Insurance Company on behalf of a former firefighter whose LTD benefits were recently terminated. After paying LTD benefits for two years, the insurer has advised my client that they are cutting off the benefits. As with most of these cases, if I win, the insurance company must pay all or my fees and costs, and if I lose, I'll work for free.

State of Florida Issues Consumer Warning Regarding Unauthorized Insurers Transacting Business

Mark Nation — Fri, 19 Feb 2010 18:12:37 -0500

The Florida Department of Financial Services (DFS) today issued a consumer warning for Floridians receiving solicitations from unauthorized insurance companies using the names American Trade Association, Real Benefits Association or Smart Data Solutions. Selling unauthorized insurance is a felony.

No entity is currently licensed to transact insurance business in Florida under these names. Consumers who bought health insurance policies from these entities, or another entity they cannot confirm is licensed to transact insurance in Florida, are urged to call the CFO’s Consumer Helpline at 1-877-MY-FL-CFO (1-877-693-5236) or log on to Consumer Help Online at www.MyFloridaCFO.com.

A full copy of the alert can be found at http://www.myfloridacfo.com/pressoffice/ViewMediaRelease.asp?ID=3434&utm_source=twitterfeed&utm_medium=twitter

Lawsuit Filed Because Allstate Won't Pay Its Insured's Collision Damage

Mark Nation — Fri, 12 Feb 2010 18:10:53 -0500

My client is insured with Allstate automobile insurance. She was in a one car accident, which resulted in body damage to the car, and the destruction of her clutch. Allstate agreed to pay for the body damage, but refused to pay for the clutch.

I filed suit today to try to force Allstate to pay for the damage to the clutch. As with most of these case, if I win the insurance company must pay for my fees and costs, and if I lose, I'll work for free.

Several New Homeowners Insurance Lawsuits Filed

Mark Nation — Fri, 12 Feb 2010 17:27:33 -0500

In the past few weeks I've filed several new lawsuits on behalf of homeowners whose insurance carriers have refused to pay for damage to their homes. These include several suits over storm damage to roofs; water damage to walls from leaks; and damage from a leaking water inlet pipe.

The roof damage claims include losses from Hurricanes Charlie, Frances and Jeanne, as well as several Tropical Storm Fay claims.

Another ERISA Lien Completely Eliminated

Mark Nation — Fri, 12 Feb 2010 07:37:21 -0500

On January 10, I wrote about a case which I filed in order to eliminate an ERISA health benefits lien that was being asserted against my client's personal injury and uninsured motorists settlement. The client's personal injury attorney had made a good recovery for the client, but the ERISA plan wanted to be reimbursed 100% of its lien and would not budge.

I filed a federal declaratory judgment action against the self-funded ERISA plan. Yesterday, the ERISA plan acknowledged that it had no lien, and waived its alleged lien in full.

Repeatedly, I have seen cases where good attorneys pay back liens that do not even exist, or they pay back way too much. Paying back liens that don't exist, or paying back too much is a disservice to our clients, and can be considered malpractice. The law on health insurance liens is complicated and one should not dabble in it unless experienced.

Frequently, personal injury attorneys will recommend their clients to hire The Nation Law Firm to negotiate those liens. This referral removes any potential liability from the personal injury attorney, and provides a much needed service to their clients.

Federal Court ERISA Action Filed to Eliminate Lien on PI Recovery

Mark Nation — Thu, 07 Jan 2010 07:25:31 -0500

I filed suit today in federal Court against a self-funded ERISA plan which was seeking recovery of a lien against my client's personal injury recovery. My client was seriously injured in an automobile accident. The self-funded ERISA plan paid for his medical treatment. Unfortunately, there was limited bodily injury and uninsured motorists limits available. My client's personal injury attorney recovered those benefits, but the ERISA plan sought recovery of 100% of its lien.

As often happens, the personal injury attorney recommended trying to negotiate with the ERISA plan to try to get a reduction of the lien. And, as often happens, the ERISA plan refused to budge. (Even if the plan had agreed to a pro rata reduction, that would have been inappropriate to pay in this case.)

The client found me through this blog, and contacted me to see if I could do anything about the lien. After reviewing the documents, I felt confident that there was no lien at all. I was retained to file suit and try to eliminate the lien. Suit has been filed, and I will let you know how it goes.

I Need an Experienced First-Party Insurance Lawyer

Mark Nation — Tue, 05 Jan 2010 08:04:57 -0500

The Nation Law Firm is in need of an experienced lawyer to litigate cases on behalf of policyholders. You can contact me confidentially at my email at mark@nationlaw.com.

This Week's Verse...

Mark Nation — Mon, 04 Jan 2010 07:47:31 -0500

My Firm's written mission statement has long been: "To glorify God in all that we do and have a positive impact on every person with whom we come into contact." The full explanation of my Firm Mission - in the context of a litigation law firm - can be found on my website at http://www.nationlaw.com/Mission-Statement.asp

As part of that mission, since 2002, I've chosen a new Bible verse each week (well, almost each week) to memorize and meditate on. I pass that verse on to the Firm each Monday. Starting in 2010, I will put it into this blog each week. Please know that I would never seek to force any belief system on anyone, but only want you to get a better picture of who I am, and what is important to me.

This week's verse is:

This is a trustworthy saying, and everyone should accept it: 'Christ Jesus came into the world to save sinners' - and I am the worst of them all. But God had mercy on me so that Christ Jesus could use me as a prime example of his great patience with even the worst sinners. Then others will realize that they, too, can believe in him and receive eternal life. 1 Timothy 1:15-17.

I'm looking forward to a wonderful new year with you. God bless.

State Farm to Remain in Florida

Mark Nation — Wed, 16 Dec 2009 14:54:19 -0500

Today, State Farm and the Florida Office of Insurance Regulation announced an agreement for State Farm to remain in Florida. A copy of the Consent Order between the state and State Farm can be downloaded by clicking here.

State Farm's dispute with the state began with a request by State Farm for a 67.1 percent rate increase. In the Consent Order, the state did agree to a 14.8 percent rate increase.

Attorney's Fee Award Reversed for Failing to Make Written Finding as to Reasonable Number of Hours

Mark Nation — Fri, 11 Dec 2009 09:35:21 -0500

In Palm Beach Polo, Inc. v. TJ Palm Beach Associate, L.P., ____ So.3d ____ (Fla. 4th DCA November 25, 2009), the trial court granted TJ Palm's motion for attorneys fees and awarded fees.

Palm Beach Polo appealed, arguing that the trial court failed to make express written findings in its order as to the time reasonably expended by, and the hourly rates of, Appellee's attorneys. As to the number of hours expended, the 4th DCA reversed, and ordered the trial court to set forth with specificity the reasonable number of hours expended by Appellee's attorneys. The DCA found that the trial court's failure to set forth a specific hourly rate was harmless "because the court referenced another portion of the record which listed those rates, thereby adopting the rates as reasonable."

Is Chinese Drywall Damage Covered Under Homeowners Policy?

Mark Nation — Wed, 09 Dec 2009 13:26:47 -0500

Defective Chinese drywall is a huge problem. Not only does it stink, but it also causes other parts of the home to corrode. What is covered, and what is not?

It appears that any damage to the home resulting from the Chinese drywall should be covered. Chinese drywall causes many of the components of the home to corrode and deteriorate. Resulting damages include corrosion to metal studs, metal lath, nails and screws, air-conditioning equipment, pipes, coils, wiring, furniture, fixture, and jewelry. Those "ensuing losses" should be covered, even if the policy does not provide coverage for the tearing out and replacing the defective drywall.

If an insurer alleges that the policy excludes corrosion or deterioration, keep in mind that that exclusion only applies to a losses that are due to a quality in the product that causes the property to damage or destroy "itself." It does not apply to deterioration or corrosion that is caused to another item. In the context of Chinese drywall, the drywall is not destroying itself, but is destroying other items.

Whether or not losses due to the fumes from the Chinese Drywall would be excluded under a pollution exclusion will be addressed in a forthcoming blog.

4th DCA Denies Appraisal Where Insured Not Notified of Right to Mediation

Mark Nation — Thu, 03 Dec 2009 15:07:06 -0500

In The Florida Insurance Guaranty Association, Inc. v. Shadow Wood Condominium Association, ____ So.3d ____ (Fla. 4th DCA December 2, 2009), FIGA moved for appraisal of a condo claim. The insured argued that FIGA's predecessor waived its right to demand appraisal by failing to provide the insured notice of the state sponsored mediation program pursuant to 627.7015(2).

Subsection (2) of 627.7015 requires the insurer to "notify all first-party claimants of their right to participate in the mediation program under" section 627.7015 "[a]t the time a first-party claim within the scope of this section is filed." Citing subsection (7), the court noted that:

If an insurer fails to comply with the section 627.7015(2) notice requirement, then the insured shall not be required to submit or participate in any contractual loss appraisal process of the property loss damage as a precondition to legal action for breach of contract against the insurer for its failure to pay the policyholder's claims covered by the policy.

The court then noted that the predecessor insurer did not properly notify its insured of the availability of mediation, and then held:

Because FIGA is bound by Southern Family's failure to notify Shadow Wood of the availability of mediation, we hold that Shadow Wood was not required to submit to the loss appraisal process sought by FIGA.

The 4th DCA made a similar finding in another case released at the same time. See, The Florida Insurance Guaranty Association, Inv. v. Devon Neighborhood Association, ____ So.3d ____ (Fla. 4th DCA December 2, 2009).

4th DCA Agrees With 3rd That 627.736(7)(a) "Valid Report" Does Not Require a Physical Examination

Mark Nation — Wed, 02 Dec 2009 09:25:39 -0500

In Central Magnetic Imaging Open MRI of Plantation, Ltd a/a/o v. State Farm Fire and Casualty Insurance Company, ____ So.3d ____ (Fla. 4th DCA November 18, 2009), State Farm received an MRI bill on one of its PIP insureds. State Farm sent the MRI bill and its PIP insured's medical records to be reviewed by its own physician to determine if the MRI was reasonable, necessary and related to a motor vehicle accident. State Farm did not have its PIP insured physically examined by its physician.

Based on the report for the reviewing physician, State Farm denied payment for the bill. The MRI facility, as assignee of the insured, filed suit against State Farm for breach of the insurance contract. On summary judgment in the county court, the MRI facility argued that State Farm was required by 627.736(7)(a) to obtain a "valid report" prior to denying the MRI bill. The MRI facility argued that an essential element of a "valid report" was that State Farm had to obtain a physical exam of its insured prior to denying the bill. The county court agreed, but the circuit court reversed finding that no physical examination was necessary.

The 4th DCA denied the petition for certiorari, finding that the circuit court applied the correct law. According to the 4th

We conclude, in line with the Third District Court of Appeal, that the 'valid report' required by the statute does not require an insurer to order an IME before denying a claim for PIP benefits.

In a footnote, the 4th did note that

Although the issue was not raised in this case, we note that other districts have held that the valid report requirement of section 627.736(7)(a) does not apply at all in a case such as this.... [However, in this case, t]he insurer conceded that the valid report requirements applied to the claim in this case.

As previously noted in this blog, numerous cases have held that 627.736(7)(a) only applies to the withdrawal of future benefits, and section (4)(b) applies to the denial of a past bill. Section (4)(b) does not require a report at all. Section (4)(b) merely requires an insurer to provide "reasonable proof" that the bill is not owed, and such "reasonable proof" can be produced at any time.

Mississippi Supreme Court Issues Important Katrina Decision on Anti-Concurring Cause Clause

Mark Nation — Wed, 18 Nov 2009 07:23:10 -0500

In a unanimous decision, the Mississippi Supreme Court has explained how the anti-concurring cause clause (ACCC) in the standard homeowners insurance policy should be interpreted. Although this decision was from Mississippi, it will prove to be informative in Florida as there is very little Florida law on this important issue. I've previously blogged extensively on the ACCC in Florida and the related topic of efficient proximate case. That blog can be accessed by clicking here. (A word of warning...whenever I write on the ACCC, by necessity, it is long and tedious. Sorry).

In Corban v. USAA, the Corban's home was damaged by wind and flood during Hurricane Katrina. The Corbans had previously purchased a flood policy and a homeowners policy from USAA. The homeowners policy contained an exclusion for flood and an ACCC which purported to exclude coverage for covered losses that "combine" with excluded losses to bring about the loss.

During the adjustment of the claim, USAA concluded that a majority of the damage was caused by flood, and that much of the remaining damage was caused by a combination of flood and wind. USAA did make payments for wind damage to the roof. USAA denied the remainder of the dwelling claim under the ACCC provision of the homeowners policy. Experts employed by the Corbans opined that the home was destroyed by wind before the storm surge arrived.

The trial court found that the homeowners policy barred "coverage for any damage caused by water as defined in the policy or caused concurrently or sequentially by wind and water in combination."

On interlocutory appeal, the Mississippi Supreme Court undertook to answer three questions:

1. Whether the circuit court erred in finding that 'storm surge' is included in the 'water damage' exclusion.

2. Whether the circuit court erred in finding that the ACC clause is applicable in the case sub judice.

3. Which party bears the burden of proof.

Initially, the Court ruled that

'storm surge' is contained unambiguously within the 'water damage' exclusion. This Court finds that 'storm surge' is plainly encompassed within the 'flood' or 'overflow of a body of water' portions of the 'water damage' definition, and no other 'logical interpretation' exists.

With regard to the second question, the Court first noted that

No reasonable person can seriously dispute that if a loss occurs, caused by either a covered period (wind) or an excluded peril (water), that particular loss is not changed by any subsequent cause or event. Nor can the loss be excluded after it has been suffered, as the right to be indemnified for a loss caused by a covered peril attaches at that point in time when the insured suffers deprivation of, physical damage to, or destruction of the property insured. An insurer cannot avoid its obligation to indemnify the insured based upon an event which occurs subsequent to the covered loss. The insured's right to be indemnified for a covered loss vests at time of loss. Once the duty to indemnify arises, it cannot be extinguished by a successive cause or event.... The same principle applies in reverse. In the case of a loss caused by an excluded peril, that particular loss is not changed by any subsequent covered peril or event. Nor can that excluded loss become a covered loss, after it has been suffered.

Next, and still with regard to the second issue, the Court analyzed the "concurrent" and "in any sequence" language of the ACCC. With regard to "concurrent" causes, the Court held that in order for the exclusion to apply, covered and excluded events must "act in conjunction, as an indivisible force, occurring at the same time, to cause direct physical damage resulting in loss." The Court then noted that "[b]ased on the record as it now stands, and as presented by both parties, the subject perils acted in sequence, not concurrently, i.e., at different times, causing different damage, resulting in separate losses.

The Court then held that the "in any sequence" language of the ACCC was ambiguous when read in conjunction with other portions of the policy, and held that this language

applies only if and when covered and excluded perils contemporaneously converge, operating in conjunction, to cause damage resulting in loss to the insured property. If the insured property is separately damaged by a covered or excluded peril, the ACC clause is inapplicable. If damage is caused by a covered peril, the insured is entitled to indemnification for the covered loss, as the insured's right to recover for the loss has vested. Conversely, if the damage is caused by an excluded peril, the insured is not entitled to indemnification for that uncovered loss.

The Court then noted that

[b]ased on the evidence thus far presented, the same loss with multiple causes is not at issue here. Thus, a finder of fact must determine what losses, if any, were caused by wind, and what losses, if any, were caused by flood. If the property suffered damage from wind, and separately was damaged by flood, the insured is entitled to be compensated for those losses caused by wind. Any loss caused by '[flood] damage' is excluded. If the property first suffers damage from wind, resulting in loss, whether additional '[flood] damage' occurs is of no consequence, as the insured has suffered a compensable wind-damage loss. Conversely, if the property first suffers damage from flood, resulting in a loss, and then wind damage occurs, the insured can only recover for losses attributable to wind.

The Court then stated

We conclude the ACC clause has no application for losses caused by wind peril. An insurer may not abrogate its duty to indemnify for such loss by the occurrence of a subsequent, excluded cause or event....

* * *

After a thorough examination of Mississippi case law, the evidence presented to date in this case, the briefs of the parties and amici, and the USAA policy at issue, this Court declares the ACC clause inapplicable. We respectfully reject the proposition that, under the subject ACC clause, 'indivisible damage caused by both excluded perils and covered perils or other causes is not covered.'

The Court next turned its attention to the all-important issue of burden of proof. The Court held:

This Court finds that with respect to the 'all-risk' coverage of 'Coverage A - Dwelling' and 'Coverage B - Other Structures,' the Corbans are required to prove a 'direct, physical loss to property described.' Thereafter, USAA assumes the burden to prove, by a preponderance of the evidence, that the causes of the losses are excluded by the policy, in this case, '[flood] damage.' USAA is obliged to indemnify the Corbans for all losses under 'Coverage A - Dwelling' and 'Coverage B - Other Structures' which USAA cannot establish, by a preponderance of the evidence, to have been caused or concurrently contributed to by '[flood] damage.' 'Contributed to' comes into play only when '[flood] damage' is a cause or event contributing concurrently to the loss. Pursuant to the policy language, only if proof of a 'concurrent' cause is presented to a jury for consideration would the jury receive an instruction including the policy phrase 'contributing concurrently.' Likewise, striking the proper balance, under 'Coverage C - Personal Property,' discussed in PP 52-53 infra, the plaintiff must prove that the loss was caused by a peril insured against, not 'caused or contributed to." Upon proper instruction, these determinations are for a jury.

A copy of the Corban decision can be downloaded by clicking here.

You can access and view the actual Mississippi Supreme Court Oral argument by clicking here.

Important Decision on Fee Multiplier Issued by 1st DCA

Mark Nation — Tue, 17 Nov 2009 14:48:28 -0500

Today, in Massie v. Progressive Express Insurance Company, ____ So.3d ____ (Fla. 1st DCA November 17, 2009), the Circuit Court sitting in its appellate capacity reversed the trial judge's order awarding a multiplier. The Circuit Court reversed because the insured did not testify that she had difficulty securing counsel to represent her in the cause without a multiplier.

The 1st DCA reversed and reinstated the multiplier. The Court held that

expert testimony that a party would have difficulty securing counsel without the opportunity for a multiplier supposts a multiplier's imposition. Here, Petitioner presented such testimony, and the Circuit Court departed from the essential requirements of law by failing to apply a principle of law previously enunciated by this Court rather than that of our sister Fifth Disctrict Court of Appeal.

The 5th DCA decision which the Court was referring to is Progressive Express Insurance Co. v. Schultz, 948 So.2d 1027 (Fla. 5th DCA 2007). I was actually the fee expert in Schultz and have been regretting this holding for about 2 years now. Hopefully, now that there is conflict between Schultz and Massie the Supreme Court will rule on this issue.

A copy of the Massie decision can be downloaded by clicking here.

3rd DCA Holds that a "Valid Report" Used by PIP Insurer to Withdraw Benefits Need Not Be Based on a Physical Exam by the Reviewing Physician

Mark Nation — Tue, 17 Nov 2009 10:02:29 -0500

In United Automobile Insurance Co. v. Garrido, a/a/o Rodriguez, ____ So.3d ____ (Fla. 3d DCA October 28, 2009), the 3rd once spoke on the circumstances under which a PIP insurer can withdraw future PIP benefits. According to the 3rd,

a 'valid report,' even where appropriately required under section 627.736(7)(a) [i.e. when withdrawing future benefits - as opposed to denying past bills], need not be predicated on either a physical examination conducted by the reporting physician or on a physical examination conducted on behalf of the insurance company.

The Court also confirmed once again, that a "valid report" is only necessary when a PIP insurer is withdrawing future PIP benefits, and is not needed where the PIP insurer is denying past bills.

[I]n cases such as this, where no payments have been made resulting in a total rejection of a provider's bills, section 627.736(4) of the Florida Statutes applies. This provision permits an insurer to deny a PIP claim at any time, either before or after that claim becomes 'overdue [because not paid within thirty days]' provided is has 'reasonable proof' that it is not responsible for payment. And, while such proof may come in the form of a report described in section 627.736(7)(a), such a report is not necessary to deny a claim under section 627.736(4)(b).

PIP Insurer Only Needs a Written Medical Report Prior to Withdrawing Future Benefits, Not Prior For Denying Past Benefits

Mark Nation — Tue, 17 Nov 2009 09:39:17 -0500

In United Automobile Insurance Company v. Garrido, a/a/o Alarcon, ____ So.3d ____ (Fla. 3rd DCA October 28, 2009), United Auto - a PIP insurer - denied payment for past services rendered by Dr. Garrido to the insured. United Auto did not first obtain a written report from a physician saying that the denied charges were not reasonable, necessary or related to the crash.

The 3rd held:

In United Automobile Insurance Co. v. Millennium Diagnostic Imaging Center, Inc., 12 So.3d 242, 246-47 (Fla. 3d DCA 2009), we held that an insurer may at any time challenge whether treatment is RRN, and is permitted to rely on a report obtained pursuant to section 627.736(7)(a) even when the report is obtained more than thirty days after the claim was submitted. Building on this conclusion, we explained in United Automobile Insurance Co. v. Santa Fe Medical Center, No. 3D08-547, 2009 WL 3188957 (Fla. 3d DCA October 7, 2009), that an insurer's obligation, pursuant to section 627.736(7)(a), to first obtain a medical report, applied only to withdrawal - as opposed to denial - of payment to a treating physician. Here, United denied payment. Accordingly, the 'first obtained' language of section 627.736(7)(a) is not controlling and the court erred in finding otherwise.

What does it all mean...For a PIP insurer to deny past bills, it can obtain a report/expert/opinion that the bills are not RRN at any time - presumably up until the insured files for summary judgment at which time the PIP insurer probably needs to come up with some evidence. For a PIP insurer to withdraw future treatment, the insurer must first obtain a written report from a physician pursuant to 627.736(7)(a). (Does that report need to based on a physical examination performed by the insurance company physician? Stay tuned, I'm blogging on that in exactly 1 minute).

Assignment of Insurance Proceeds to a Nonexistent Entity Not Valid

Mark Nation — Tue, 17 Nov 2009 08:22:12 -0500

In Progressive Express Insurance Company v. Hartley, ____ So.3d ____ (Fla. 5th DCA October 30, 2009), Progressive provided Hartley with PIP insurance. Hartley was injured in an accident and sought treatment from Michael C. Durant, D.C. Upon seeking treatment from Dr. Durant, Hartley executed an assignment of benefits to "Atlantic Coast Chiropractic Clinic."

From 1993 - 1998, "Atlantic Coast Chiropractic Clinic" was a registered fictitious name for Durant Chiropractic Clinic, Inc. However, in 1998, that corporation failed to renew the fictitious name as required under section 865.09(6)(a), Florida Statutes (1998). Dr. Durant's clinic continued to operate under both the name Durant Chiropractic Clinic and Atlantic Coast Chiropractic Clinic. Dr. Durant submitted claims to Progressive under the name Durant Chiropractic Clinic. Progressive paid some bills and denied others.

In November 2003, Dr. Durant executed a reassignment of benefits back to Hartley, and Hartley filed suit against Progressive for the unpaid bills. Progressive moved for summary judgment asserting that Hartley lacked standing to bring the action. The trial court granted Progressive summary judgment, and the circuit court reversed, finding that the initial purported assignment of Hartley to "Atlantic Coast Chiropractic Clinic" was invalid because the entity did not exist in 2003 or thereafter. Accordingly, Hartley had retained the right to bring the suit.

In its Petition for Cert. to the 5th DCA, Progressive argued that under section 865.09(9)(b), the initial assignment was valid. That section provides that the failure of a business to comply with the fictitious name registration does not impair the validity of any contract of such business. However, according to the 5th,

While that section may have supported Progressive's argument if the initial assignment was to Durant Chiropractic Clinic, Inc., d/b/a Atlantic Coast Chiropractic Clinic (notwithstanding a failure to comply with the fictitious name registration statute), it provides no relief to Progressive in the instant case. The fact remains that the assignment was made to a non-existent entity. Furthermore, if we were to accept Progressive's argument, no party could bring an action against Progressive for the alleged unpaid PIP benefits.

State Farm Must Pay for Subsurface Sinkhole Repairs Before Homeowners Enter into Contract for Repairs

Mark Nation — Fri, 13 Nov 2009 10:13:06 -0500

In State Farm Florida Insurance Company v. Nichols, ____ So.3d ____ (Fla. 5th DCA November 6, 2009), the insured homeowners submitted a claim to State Farm for sinkhole damage. The amount of the loss was settled by appraisal. Although the appraisal awarded an amount for subsurface sinkhole repairs, State Farm refused to pay for the subsurface repairs until after its insureds' entered into contracts for the performance of the repairs.

State Farm based its position on Florida Statute Section 627.707(5)(b) which states:

The insurer may limit its payment to the actual cash value of the sinkhole loss, not including underpinning or grouting or any other repair technique performed below the existing foundation of the building, until the policyholder enters into a contract for the performance of building stabilization or foundation repairs. After the policyholder enters into the contract, the insurer shall pay the amounts necessary to begin and perform such repairs as the work is performed and the expenses are incurred. The insurer may not require the policyholder to advance payment for such repairs.

The homeowners argued that, notwithstanding the 627.707(5)(b), State Farm's policy itself required State Farm to pay the full amount of the appraisal award within 60 days after the amount of the loss was settled by the appraisal.

State Farm's policy stated:

SECTION I - CONDITIONS. . . .

10. Loss Payment. We will adjust all losses with you. We will pay you unless some other person is named in the policy or is legally entitled to receive payment. Loss will be payable:

a. 20 days after we receive your proof of loss and reach agreement with you; or

b. 60 days after we receive your proof of loss and:

(1) there is an entry of a final judgment; or

(2) there is a filing of an appraisal award with us.

The 5th DCA agreed with the homeowners. According to the Court, the language of the statute is

permissive, not mandatory. Because it is permissive, the policy language that requires payment of subsurface repairs within sixty days after the appraisal award is not in conflict with the statute and is binding on the parties to the insurance contract.