Claims & Lawsuits Against Insurance Companies
Most people have some type of insurance. In Florida, if you drive a motor vehicle having no fault insurance is mandatory. Most employers by law must carry workers’ compensation insurance for their workers. Many home owners purchase home owners’ insurance. In Florida, we know what damage a tropical storm can do to a home. Insurance is a blessing when you need it and great when it works. But, what happens when things go wrong and the insurance company does not live up to its promises under the policy? Where does that leave you?
Fortunately, in Florida insurance is heavily regulated and there are statutes, case law and rules to protect the consumer. Some laws protect the insurance company and some the consumer or injured party. In workers’ compensation, generally, an injured worker who receives benefits cannot also sue his employer or workers ‘ compensation carrier. It is like an umbrella of immunity that protects them from civil lawsuits, and the only remedy for the injured worker is to apply for workers’ compensation benefits which includes primarily lost wages and medical care. You do not get to collect for pain and suffering in workers’ compensation; you only receive medical and compensation benefits as provided under the workers’ compensation statutes and according to what the authorized doctors say or Judge of Compensation Claims determines.
...what happens when things go wrong and the insurance company does not live up to its promises under the policy?"
As with every law there is another one that is an exception to it. One exception about filing a civil suit against the workers’ compensation insurance company is when the adjuster or claims handler willfully and intentionally causes harm to the injured worker knowing that his or her bad actions are substantially certain to result in injury. This type of case is sometimes referred to an “Aguilera” case based on an actual Florida Supreme Court decision published in 2005. Such a case can be based on actions the adjuster takes (acts of commission) or actions the claims handler fails to take (acts of omission). If the facts justify it, then this action can be filed in circuit court and damages can include the intentional infliction of emotional distress, pain and suffering. If there is a very high degree of wanton and willful conduct, on the part of the adjuster or claims handler, then the court may even allow a claim for punitive damages which go beyond and are in addition to the normal compensatory damages. Compensatory damages are designed to make whole the victim, and punitive damages are to punish the wrongdoer and send a message to the community that such bad conduct should not be tolerated under the norms of a civil society.
Most workers’ compensation adjusters are ethical and do not engage in willful misconduct. Proving the insurance company willfully injured the employee knowing the misconduct was substantially certain to cause harm is a hard standard to prove in a court of law, but it can and does occur in rare cases. The client who has this type of case usually has a very compelling story to tell. We at DeCiccio & Johnson are good listeners and have handled these types of cases. Having experience in workers’ compensation law and civil trial experience puts us in a unique position to assist with these cases.
Having experience in workers’ compensation law and civil trial experience puts us in a unique position to assist with these cases."
If you have a case like this, we will need to meet with you and conduct an in depth interview, secure all of the medical records, review the workers’ compensation case materials and speak with key witnesses.