Proposed changes to the law in Florida could ultimately affect the ability for policyholders to hold their insurance companies accountable in terms of delaying or failing to settle claims, including those related to hurricane relief. A bill recently submitted to the legislature would make a number of changes that would cripple the ability for the consumer to go after their insurance company in the face of bad faith behavior, including taking the claim away from a jury and placing it into the hands of an administrative judge and denying the consumer the right to discovery, which would effectively leave them without any evidence, and without a case.

Current State of “Bad Faith Insurance Law” in Florida

Florida imposes what’s known as a “duty of good faith” when it comes to settling a claim with the insured or a third party, which means acting “fairly and honestly” towards its insured with regard to their interest. This means that the insurer cannot expose the insured to increased liability by failing to settle any claims against the insured, nor can they harm a third party to the insurance contract by failing to settle a claim.

An insurer also owes two major contractual duties to the insured—the duty to indemnify (payment on a valid claim)—and to defend against any third party lawsuits brought against the insured in court. In other words, the insurer owes a fiduciary duty, whereby they cannot act on the sole basis of its own interests when it comes to negotiating claims. If the insurer does not attempt to negotiate in good faith, a bad faith claim can currently be filed against them. In deciding on the claim, a court focuses on the insurer’s conduct; and while a failure to settle does not necessarily constitute “bad faith,” the insurer must initiate settlement negotiations and, if it fails to reach a settlement, it has the burden of demonstrating that it did so because there was “no realistic possibility of settlement within policy limits.” Ultimately, the court relies on the “totality of circumstances” standard and makes its determination on a case-by-case basis. The courts have established a strong precedent that determining whether or not an insurer has acted in good faith is a question for the jury, not the court.

How That Would Change

The proposed legislation would effectively undo this case law and mandate that anyone claiming a violation of an insurer’s duty of good faith would have to file an administrative complaint with the Department of Financial Services, which would first determine “the sufficiency of complaints.” If the department determines that the complaint does not meet very specific requirements, that complaint would automatically be dismissed.

Contact our Florida Insurance Claim Attorneys to Find Out More

If you have questions regarding exposure to bad faith or extra contractual liability, contact our Florida insurance attorneys at HD Law Partners today to find out more about our services.

Resources:

flsenate.gov/Session/Bill/2019/751/BillText/c1/PDF

wfla.com/8-on-your-side/investigations/change-in-insurance-law-would-take-away-consumers-day-in-court/1851917864

http://A Look at Hurricane Michael’s Damage in Florida & New Rules for Insurance Companies

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HD Law Partners is proud to support The First Tee of Tampa Bay’s inaugural event, SpringSwing, on May 23, 2019. SpringSwing is a fundraising event at TopGolf Tampa to help support the children of The First Tee of Tampa Bay. SpringSwing is a team competition, wherein your 6 players compete against others in the field. The main contest is a target point-scoring game in which experienced players and novices alike can participate, compete and win. For more information on the event and The First Tee of Tampa Bay, click the following link: https://www.golfgenius.com/pages/1759284.

The First Tee of Tampa Bay’s mission is to impact the lives of young people in the greater Tampa area by providing educational programs that build character, instill life-enhancing values and promote healthy choices through the game of golf.

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A number of older individuals who have divorced or are contemplating divorce are concerned about the impacts of divorce on their Social Security benefits. This is especially the case for older individuals, who may have, since their divorce, remarried again, and now have questions as to whether they can obtain their divorced spouse’s benefits.

Fortunately, remarriage typically does not disqualify someone from being eligible for a previous spouse’s benefits, as we discuss below.

The Rules After Divorce

If you divorced, but your marriage lasted 10 years or longer, you can receive benefits based on your ex if:

• Your benefit is less than your ex’s;
• Your ex is entitled to their disability or Social Security retirement;
• You are 62 or older; and
• You are unmarried.

However, it is also important to remember that there are some exceptions to the marriage duration requirements when it comes to widows collecting benefits. For example, if a spouse’s death was accidental, you may be able to draw reduced benefits from the deceased spouse, and then switch to receiving benefits on the first spouse’s record at a later time (provided that the first spouse provides more beneficial benefits). This is beneficial if the first spouse has a higher benefit rate than the second spouse.

If you start receiving benefits at your full retirement age, your benefit (as a divorced individual) will be one-half of your ex’s full retirement (or benefit). However, if you remarry, you cannot collect the benefits based on the former ex’s record unless that subsequent marriage ends (for example, by annulment, death, or divorce).

Where Remarriage Ends in Death or Divorce

Let’s take someone who remarries; where that remarriage ends in death or divorce: this person is still qualified to receive their divorced spouse’s benefits, even if that spouse was their first spouse (i.e. before their remarriage). In order for divorced spouses to receive spousal benefits, the high earning spouse must either be deceased, age 62, or already engaged in drawing benefits.

Still, the individual who is seeking to collect the benefits needs to wait until they are full retirement age, or else they could risk receiving a reduced benefit. Full retirement age is typically around age 66, although it depends on the year you were born. After this age, it does not make sense to wait to file for your divorce to spouses benefits.

Contact Our Florida Divorce Attorneys to Find Out More

If you live in Florida and have questions about divorce—including how to protect yourself when it comes to Social Security benefits—contact our experienced Tampa divorce attorneys at HD Law Partners today to find out how we can help. We can guide you through what is necessary to help protect you, and provide you with the very best in experienced counsel.

Resources:

pbs.org/newshour/economy/making-sense/how-to-navigate-social-securitys-benefits-after-marriage-death-and-divorce

ssa.gov/planners/retire/divspouse.html

The Most Important Mistakes to Avoid During Divorce

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A devastating fire broke out in the Florida Panhandle on March 30, and would have been reportedly easy to contain, but, instead, spread and caused a significant amount of devastation to homes and other properties due to debris that was leftover from hurricane Michael. According to the reports, the fire burned close to 700 acres just over the weekend, and forced more than 20 homeowners to evacuate; homeowners that will undoubtedly need to file insurance claims in order to try and address the devastation. It all started from a debris burn that got out of control, and as of April 1, was still not completely contained.

In fact, the effects of the Hurricane are so severe as to continue to threaten the health and safety of Florida residents that, on April 2, Gov. Ron DeSantis signed an executive order extending the state’s “State of Emergency” status for another 60 days. The counties affected by the extension include Bay, Calhoun, Franklin, Gadsden, Gulf, Holmes, Jackson, Jefferson, Leon, Liberty, Okaloosa, Walton, Washington, and Wakulla counties.

Home Damage in Florida Only Likely to Increase 

Hurricane Michael caused more than 70 million tons of trees to fall between the Georgia border and the Gulf Coast; most of which have not yet been cleared. Experts estimate that it will still take close to $40 million to remove debris and address other hazardous issues left over from hurricane Michael.

According to climatologists, this year has also been an especially dry year for the state, which only makes things worse during peak wildfire season in April and May. According to state Forest Service officials, at this point, even a normal wildfire season could catastrophic because of all the available “fuel;” with all of the trees lying on or near the ground described as “the perfect kindling.” This is likely to make life even more difficult for residents who still have not recovered from Hurricane Michael; especially those who still have not been made right via their insurance claims. Michael was the strongest hurricane to ever hit the Panhandle, and only intensified over time due to the warmer-than-average temperatures. According to estimates, hurricane industry losses just in 2018 are estimated at $11 billion, representing market wide insured loss to public and private insurers. 

If You Are Dealing with Hurricane Insurance Claims in Florida, Contact Our Experienced Attorneys

So many homes were already destroyed in Hurricane Michael, and now this latest disaster hits Floridians. If your home has suffered from Hurricane Michael, a wildfire, or any other disaster, contact our experienced Fort Myers hurricane insurance attorneys at HD Law Partners today to find out how we can help ensure that you receive the compensation you need to get back on your feet.

Resources:

artemis.bm/news/hurricane-michael-industry-loss-hits-11bn-florence-5-5bn-aon/

tampabay.com/breaking-news/hurricane-michael-debris-fuels-500-acre-wildfire-in-florida-panhandle-20190401/

newsherald.com/news/20190402/hurricane-michael-state-of-emergency-extended-for-panhandle-counties

ecowatch.com/marine-heat-waves-dolphins-2633506677.html?rebelltitem=4

As Hurricane Michael Insurance Claims Are Delayed, Floridians Could Be Made Homeless

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When it comes to transactions involving business purchases, it is crucial that the purchasing company conducts due diligence concerning the businesses’ operations and potential liabilities; especially when it comes to human resources and labor and employment law matters. Specifically, it is important to ascertain whether there are risks that could affect the value of the transaction and therefore whether the company needs to engage in activities to mitigate those risks.

While labor and employment issues have not historically presented a significant amount of risk and potential liability, this is changing, and there are now a number of emerging legal issues in this field which have the potential to affect the proposed transaction. Below, we identify some of these risks and discuss how to address them via mitigation strategies.

General Areas of Concern

There are several general areas when it comes to basic labor and employment issues; including but not limited to the following:

• Compliance with any liability regarding local, state, and federal laws, contract employment documents, and legal duties arising out of employment relationships;
• Demographics, organizational structure, and workforce operations;
• Employee benefits;
• Labor and employment costs; and
• Labor union matters.

When it comes to high-risk categories, it is crucial that you obtain assistance from qualified legal counsel and assessing the degree of risk and liability.

Sexual Harassment Claims

Sexual harassment claims are becoming an increasingly important issue when it comes to business and employee conduct. Cording to the Equal Employment Opportunity Commission (EEOC), just between 2017 and 2018, 74 percent of all charges included sexual and workplace harassment allegations. These charges not only carry significant financial risk in terms of  compensatory and punitive damages, but also exposure for the company, and tort litigation– such as assault, battery, and decimation–not only against the company, but also against directors and officers for failing to properly regulate the conduct. In addition, any evidence of cover-ups should be of concern to a company that is acquiring a business, as that can adversely impact the purchaser.

Wage and Hour Claims

Wage and hour claims are also an emerging issue that carry increasing financial impacts, as these claims can be substantial, and now average between $10 million and $50 million. These claims tend to involve the following issues:

• failure to pay minimum wage;
• failure to play pay for work;
• improper rounding;
• misclassification of employees as independent contractors;
• misclassification of employees concerning overtime;
• improper compensable time practices; and
• improper rounding.

A number of courts have held that successor companies can be held liable for previous wage and hour violations; even if they occurred before the purchaser acquired the company. There are also additional unique state law claims, for example, state laws that concern workplace safety. 

Contact Our Florida Business Attorneys to Find Out More

At HD Law Partners, our Tampa business and corporate attorneys possess the legal knowledge and experience to help address any business transaction concerns and prevent problems before they can occur. Contact us today to find out more about our services.

Resource:

law.com/texaslawyer/2019/04/08/three-emerging-labor-and-employment-risks-in-ma-transactions/

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On April 13, HD Law Partners participated in the Hillsborough County Bar Association’s 16th Annual 5k Pro Bono River Run and Judicial Pig Roast/Food Festival. Participants ran down Tampa’s River Walk, from Water Works Park to the Tampa Convention Center, then returned to Water Works Park. After the run, participants and non-participants enjoy themed tents and good food at Stetson University’s Tampa Law Center.

The funds raised by the Hillsborough County Bar Association from this event go toward providing pro bono legal services to people in need in Hillsborough County, Florida. The Hillsborough County Bar Association, through its run participants registered for the event, pledged 5,000 pro bono hours.

The firm enjoys supporting the Hillsborough County Bar Association’s goal of supporting individuals in need of legal assistance in Hillsborough County. To learn more about free and low-cost legal aid in Tampa Bay, visit the HCBA’s website for more resources. To see the complete race results, click here

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According to new research, although many parents decide to stay together and delay divorcing until their children are older because they think that is better for them, in fact, divorce is actually less harmful if it occurs earlier in childhood.

Of course, when it comes to how a family will react to divorce, experts have long held that that depends upon the family. Exactly how a child will react depends upon what is going on with the family, the child’s temperament, age, and the relationship between the parents. If there is exposure to chronic violence in the home, the consensus has been that parents should get divorced as soon as possible. The same also goes for repeated high conflict in the marriage. Still, for children who come from violent divorces, many experts will recommend that additional steps be taken, such as taking the child to therapy.

What the New Study Indicates

As the first major assessment done on the emotional impact of divorce on children, this latest study results specifically indicate that the greatest repercussions from divorce (i.e. behavioral and emotional problems in children) come in early adolescence; i.e., between the ages of seven and 14, especially in boys. Older children are not only more sensitive to relationship dynamics, but they are also more likely to be affected by other consequences of divorce, such as disruption to friendships and schooling. Conversely, for children between the ages of three and seven, the study found no differences whatsoever between children whose parents divorced and those who did not.

Interestingly, the study also showed that children from privileged backgrounds were just as likely to experience mental health problems as those who come from less advantaged backgrounds, and mothers were more likely to experience mental health issues if they separated when their children were older.

How Do I Approach My Children About The Divorce?

The experts recommend following these tips in helping you get through what can sometimes be a difficult conversation:

• Be honest, but do not provide them with the details on your split. Try to keep to how it will affect their lives—i.e. living arrangements, school, seeing the other parent, celebrations and holidays—and focus on their well-being;
• Choose your words and tone carefully, and make sure you stay on a unified message with your soon-to-be ex;
• Be open to any reaction they might have, which includes listening to their concerns and questions and answering them in a simple, calm manner; and
• Stay positive—avoid negativity.

 Contact Our Florida Divorce Attorneys to Find Out More

Getting divorced when you have children is never easy; however, if studies have shown us anything, it’s that doing so sooner rather than later is best for both you and your kids. Still, it is a subjective, personal decision. Contact our Florida divorce attorneys at HD Law Partners today to find out how we can assist you through the process.

Resource:

telegraph.co.uk/news/2019/01/17/revealed-best-age-get-divorced-protect-childrens-mental-health/

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Florida citizens upset over their homeowners’ association charging them for painting that had to be done on residences have garnered news headlines of late. This is a common type of dispute that arises between residents and their homeowners’ association; a maintenance service that has been written into residents’ contracts increasing their association dues; and residents being frustrated about it. Is the homeowners’ association in the wrong here?

A homeowners’ association board has tremendous power and every right to follow through with a maintenance requirement like painting residences and charging owners for that requirement. It does not need to take a vote from resident owners first; however, a majority of the homeowners can demand a recall election and elect new board members if they are frustrated by decisions like these.

The Ability to Levy Special Assessments

These types of fees are typically collected each month by homeowners’ associations to assist with improving and maintaining all properties in the association. While already-established fees often cover regular maintenance costs, associations can levy special assessments—like this painting fee—if reserve funds are not enough to cover a large project that’s badly needed.

The Rights of Associations If Owners Fail To Pay Fees

If residents fail to pay these fees, the association can take action against the owner, depending on how the specific contract is worded. From late fees, to placing a lien on the property, foreclosing to collect payments, or initiating litigation, the association has its options. It is the association’s obligation to ensure that members pay these fees so that common areas and other services do not suffer.

In a nutshell, homeowners’ associations are quasi-governmental organizations, bound by the contracts that they enter into with homeowners and their bylaws. If the governing documents allow for the association to increase dues and/or levy fees, it is legal to do so, pursuant to the contract that owners entered into with that association when they purchased that home. Owners are obligated to pay an increase that their board approves, as well as any that are specified in the bylaws that are automatically triggered by certain events, for example, residences needing to be painted every 10 years, etc.

Options for Homeowners

Homeowners who are frustrated do have some options for making their voices heard: As previously mentioned, they can run for a position on the board, as well as lodge a complaint with the board of directors, board president, and/or the state licensing agency.

Contact Our Florida Homeowners’ Association Attorneys

Our skilled, experienced homeowners’ association attorneys have served a number of association clients throughout Florida when it comes to disputes and potential legal action. Contact us today at HD Law Partners to find out more about our services.

Resource:

wsvn.com/news/help-me-howard/residents-clash-with-homeowners-association-over-133k-paint-job/

Common Questions Involving “Material Alterations” In Homeowners’ Associations

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As attorneys who regularly represent clients who are going through a divorce here in Florida, we consider it to be of vital importance to ensure that our clients understand the most important mistakes to avoid during the divorce process. Below, we discuss some of these mistakes in greater detail:

Be Cautious & Careful When It Comes To Social Media

First and foremost, be careful—and cautious—on social media. Boasting about your new life—salary, trips, etc.—can only negatively affect your proposed settlement.

Gather As Much Information as Possible ASAP

You also want to make sure that you gather all of the important paperwork in place before it’s too late and if you have to ask for it from our ex, down the road. Some of the paperwork includes information covering:

• Account numbers and balances for financial accounts;
• How much you paid for certain assets, such as the family home;
• Receipts documenting any major expenses, such as funds spent on home improvements; and
• Social security benefits for you and your ex, including current and expected future earnings.

These documents are not only essential to the current divorce settlement process, but they help you and your attorney figure out what makes sense in terms of negotiations. For example, alimony negotiations might be affected by spousal survivor benefits from Social Security in 25 years. The more information you have now, the better you will be able to predict current and future tax consequences, and all of that affects what you demand and give up in the now. For example, a Roth IRA is worth more than a traditional IRA because it is untaxed in retirement. In a nutshell, one of the biggest mistakes you can make is being in the dark when it comes to your finances.

Close All Joint Accounts

Closing joint accounts is another very important task you want to take care of. Regardless of what your ex promises, you are responsible for any and all joint debts, and you are liable so long as your name—and their name—is on any account. Not only should joint accounts be closed, but authorized users adjusted for each credit card, and any agreed-upon debts assigned to the individual who plans to pay them.

Choose the Right Florida Divorce Attorney

When it comes to making wise decisions during your divorce, you want to work with the very best divorce attorney you can find—someone who has a lot of experience practicing divorce law locally, and predict every surprise and consequence that might come along so that you are protected every step of the way. Contact our Florida divorce attorneys at HD Law Partners today and find out more about our skilled legal services.

Resource:

southbendtribune.com/news/business/nerdwallet-divorce-mistakes-that-can-cost-you/article_5a9f6d91-0bd6-5fb7-a811-517538347a45.html

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An important insurance bad faith decision out of a New York appellate court clarifies important Court of Appeals precedent regarding the bad faith pleading standard, while also clarifying a number of issues that the courts have never addressed, including consequential losses and attorney’s fees.

Even though decided in New York courts, this is an important decision to all insurance companies when it comes to setting precedent for bad faith claims, as we discuss in greater detail below.

The Case

The case started with property owners filing an insurance claim for direct damage and physical loss to their property as a result of construction work done in the adjoining building. According to reports, the property owners filed a claim with their insurance company, National Union Fire Insurance Company, which did not respond or pay the claim. According to them, National Union, instead “made unreasonable and increasingly burdensome information demands” with the hopes that the owners would drop the claim entirely. As a result, the owners filed claims alleging breach of contract and of the implied covenant of good faith and fair dealing.

The Decision & Its Implications

While the Supreme Court dismissed the claim, finding that the property owners failed to specify how consequential damages were foreseeable to National Union when they entered into the contract, the First Department appellate court reversed this decision, and in doing so, effectively changed the minimal pleading standard required for bad faith claims when it comes to what a plaintiff must specify in alleging how consequential damages were reasonably foreseeable. According to the decision, the division effectively found that all the plaintiff has to do is state the types of consequential damages and that they were reasonably foreseeable instead of explaining why the damages were reasonably foreseeable.

A number of insurance companies around the country, including those in Florida, have effectively argued in the courts that these types of claims are duplicative of breach of contract claims, and should be dismissed. What this decision does is essentially separate the two claims—breach of contract and bad faith managing of an insurance claim—making it clear that both can be brought on their own, irrespective of each other. This is important because it is the first decision that helps clarify what previous court decisions meant regarding what the bad faith pleading standard entails, while also arguably recognizing specific types of damages and losses that were not previously recognized.

Contact Our Florida Insurance Bad Faith Defense Attorneys Today To Find Out More

At HD Law Partners, our insurance carrier attorneys have represented a number of companies that have had bad faith claims brought against them. Contact our Florida bad faith defense attorneys today to find out more.

Resource:

insurancebusinessmag.com/us/news/breaking-news/new-york-appellate-court-sets-new-precedent-for-bad-faith-claims-123694.aspx

Florida Appellate Decisions Push Bad Faith Standard & Raise Concerns

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