On July 1, 2014, several law changes went into effect as a result of the Homeowner Claims Bill of Rights passed by the legislature earlier this year.
As a way of background, the proposed amendments came from Florida’s CFO, Jeff Atwater, with input from the Office of the Insurance Consumer Advocate. Last June, when Robin Westcott was the Insurance Consumer Advocate,1 she brought together a working group to offer a collaborative report to the CFO. As a member of this working group, I blogged about the meetings here on the Property Insurance Coverage Law Blog. While the suggestions from the working group appeared to be helpful information and I feel like it was a very important way to spend my time and energy, the actual law changes that were adopted by Florida’s legislature were morphed, modified, and in some areas difficult to recognize. Anyone who has lobbied to make the law better knows that not only is there a small chance anything will pass, but if it does, amendments and changes are inevitable.
The law that recently passed does impact policyholders and the public adjusters who represent them. It is important that all adjusters are aware of these changes. My summary is provided below, but the complete list can be found in Chapter Law 2014-86.
One change that I am pleased to report was adopted as a result of the working group meetings, relates to allegations of misrepresentations in insurance applications. As it pertains to residential property insurance, the new law states that if a policy has been in effect for more than 90 days, a filed claim cannot be denied based on credit information available in public records. This provision was put forth in order to stop the "gotcha" tactic used by one of Florida’s largest insurers.
§627.409 (3) For residential property insurance, if a policy or contract has been in effect for more than 90 days, a claim filed by the insured cannot be denied based on credit information available in public records.
Another section of the law that has changed relates to the appraisal process within an insurance policy. The Florida Department of Financial Services had many complaints about the neutrality and the lack of regulations required of the persons deciding the fate of their claim. The language here is not as beneficial to the policyholders as is needed:
§627.70151 Appraisal; conflicts of interest.—An insurer that offers residential coverage as defined in s. 627.4025, or a policyholder that uses an appraisal clause in a property insurance contract to establish a process for estimating or evaluating the amount of loss through the use of an impartial umpire, may challenge an umpire’s impartiality and disqualify the proposed umpire only if:
(1) A familial relationship within the third degree exists between the umpire and a party or a representative of a party;
(2) The umpire has previously represented a party in a professional capacity in the same claim or matter involving the same property;
(3) The umpire has represented another person in a professional capacity on the same or a substantially related matter that includes the claim, the same property or an adjacent property, and the other person’s interests are materially adverse to the interests of a party; or
(4) The umpire has worked as an employer or employee of a party within the preceding 5 years.
The neutral evaluator requirements were also amended to provide a statute that addresses conflicts and qualifications:
§627.7074 Alternative procedure for resolution of disputed sinkhole insurance claims.
(7) Upon receipt of a request for neutral evaluation, the department shall provide the parties a list of certified neutral evaluators. The department shall allow the parties to submit requests to disqualify evaluators on the list for cause.
(a) The department shall disqualify neutral evaluators for cause based only on any of the following grounds:
1. A familial relationship within the third degree exists between the neutral evaluator and either party or a representative of either party within the third degree.
2. The proposed neutral evaluator has, in a professional capacity, previously represented either party or a representative of either party, in the same or a substantially related matter.
3. The proposed neutral evaluator has, in a professional capacity, represented another person in the same or a substantially related matter and that person’s interests are materially adverse to the interests of the parties. The term “substantially related matter” means participation by the neutral evaluator on the same claim, property, or adjacent property.
4. The proposed neutral evaluator has, within the preceding 5 years, worked as an employer or employee of any party to the case.
(b) The department shall deny an application for, or suspend or revoke its certification of, a neutral evaluator if the department finds that any of the following grounds exist:
1. Lack of one or more of the qualifications specified in this section for approval or certification.
2. Material misstatement, misrepresentation, or fraud in obtaining or attempting to obtain approval or certification.
3. Demonstrated lack of fitness or trustworthiness to act as a neutral evaluator.
4. Fraudulent or dishonest practices in the conduct of an evaluation or in the conduct of financial services business.
5. Violation of any provision of this code or of a lawful order or rule of the department, or aiding, instructing, or encouraging another party in committing such a violation.
The law now also requires all policyholders to be given the Homeowner Claims Bill of Rights within 14 days of the initial communication of the claim. This is not an all inclusive list and it does not have the teeth necessary to prevent insurer violations. Insurance companies need to be held accountable when they fail to properly handle a claim. Of course, as advocates for policyholders we want the homeowners to know that they have legal rights when an insurance company does not properly respond. The way this list reads gives the insurance company too much room to offer up more excuses, but here is the list:
HOMEOWNER CLAIMS BILL OF RIGHTS
This Bill of Rights is specific to the claims process and does not represent all of your rights under Florida law regarding your policy. There are also exceptions to the stated timelines when conditions are beyond your insurance company’s control. This document does not create a civil cause of action by an individual policyholder, or a class of policyholders, against an insurer or insurers and does not prohibit an insurer from exercising its right to repair damaged property in compliance with the terms of an applicable policy.
YOU HAVE THE RIGHT TO:
1. Receive from your insurance company an acknowledgment of your reported claim within 14 days after the time you communicated the claim.
2. Upon written request, receive from your insurance company within 30 days after you have submitted a complete proof-of-loss statement to your insurance company, confirmation that your claim is covered in full, partially covered, or denied, or receive a written statement that your claim is being investigated.
3. Within 90 days, subject to any dual interest noted in the policy, receive full settlement payment for your claim or payment of the undisputed portion of your claim, or your insurance company’s denial of your claim.
4. Free mediation of your disputed claim by the Florida Department of Financial Services Division of Consumer Services, under most circumstances and subject to certain restrictions.
5. Neutral evaluation of your disputed claim, if your claim is for damage caused by a sinkhole and is covered by your policy.
6. Contact the Florida Department of Financial Services Division of Consumer Services’ toll-free helpline for assistance with any insurance claim or questions pertaining to the handling of your claim. You can reach the Helpline by phone at…toll free phone number…, or you can seek assistance online at the Florida Department of Financial Services Division of Consumer Services’ website at…website address….
YOU ARE ADVISED TO:
1. Contact your insurance company before entering into any contract for repairs to confirm any managed repair policy provisions or optional preferred vendors.
2. Make and document emergency repairs that are necessary to prevent further damage. Keep the damaged property, if feasible, keep all receipts, and take photographs of damage before and after any repairs.
3. Carefully read any contract that requires you to pay out-of-pocket expenses or a fee that is based on a percentage of the insurance proceeds that you will receive for repairing or replacing your property.
4. Confirm that the contractor you choose is licensed to do business in Florida. You can verify a contractor’s license and check to see if there are any complaints against him or her by calling the Florida Department of Business and Professional Regulation. You should also ask the contractor for references from previous work.
5. Require all contractors to provide proof of insurance before beginning repairs.
6. Take precautions if the damage requires you to leave your home, including securing your property and turning off your gas, water, and electricity, and contacting your insurance company and provide a phone number where you can be reached.
To see more past blogs on this topic, check out:
1 Steve Burgess is now the Insurance Consumer Advocate and was throughout the legislative session.