(Note: this Guest Blog is by Kristin Demers-Crowell, an attorney with Merlin Law Group in the Tampa, Florida, office. This is part of a series that she and fellow attorney Donna DeVaney are writing on sinkhole issues).

Step right up! Step right up! Come one, come all! In our center ring, presenting Florida’s legislative contortionists . . .

There is nothing that irks a policyholder counsel more than when the legislature monkeys with the Rules of Evidence and due process regarding the ability of an insured to collect benefits. The “neutral” evaluation scheme incorporated into Florida’s sinkhole statute, §627.7074, does just that.

Ask yourself:

Is it fair to force insureds to submit their sinkhole claims to a “neutral” evaluator who earns her living primarily as an insurance company expert witness?

Is it right to present the evaluator’s written report, cloaked with the designation “neutral” and the apparent legitimacy of the Florida Department of Financial Services, to a jury charged with deciding if there is a covered sinkhole loss?

Is it proper for an insurer to be excused from liability for bad faith damages, even if a jury finds the company wrongfully denied coverage?

These are just a few of the highlights of §627.7074. It is a lion’s den of evidentiary problems and opens a whole new arena of discovery for lawyers to argue over: Do I get to depose the neutral evaluator? Who pays his witness fee? May I subpoena all of his nearby sinkhole investigations for insurers? Rest assured, insurers will fight to prevent this information from emerging for fear of losing the advantage the statute gives the companies over their customers.

Seems the legislature’s neutral evaluation hoop has become a full-blown three-ring circus. In the wise words of School House Rock:

Gonna have a three-ring circus someday,
People will say it’s a fine one, son.
Gonna have a three-ring circus someday,
People will come from miles around.
Lions, tigers, acrobats, and jugglers and clowns galore,
Tightrope walkers, pony riders, elephants, and so much more…

Guess I got the idea right here at school.
Felt like a fool when they called my name,
Talkin’ about the government and how it’s arranged,
Divided in three like a circus.
Ring one, Executive,
Two is Legislative, that’s Congress.
Ring three, Judiciary.
See it’s kind of like my circus, circus.

Ladies and gentlemen, boys and girls, please draw your attention to Ring Three, where the judiciary branch will attempt to tame a law gone wild.

 

https://youtube.com/watch?v=gLQg7G3hkGY%26hl%3Den_US%26fs%3D1%26rel%3D0%26color1%3D0x2b405b%26color2%3D0x6b8ab6

  • Mike Serrano

    So that said, are there any “neutral” evaluators out there who exhibit a propensity for less bias toward the insurance carrier? If so, who?