The Florida Legislature’s passage of HB 837 which was the so-called “tort reform” that went into effect on March 24, 2023 eliminated an insured’s rights to attorney’s fees under FS §627.428 when an insurance company wrongly denies benefits under the insurance policy. HB 837 applies to insurance policies that came into effect after March 24, 2023. I have litigated cases where insurance companies try to argue that HB 837 from March 24, 2023 onwards irrespective of when the insurance policy came in effect. Although I have seen court orders from some judges agreeing with insurance companies on that issue, I have been fortunate enough to be successful on all of my cases where insurance companies try to apply HB 837 retroactively. When litigating these types of cases, it is important to file an extensive memorandum of law so that a judge can feel comfortable with knowing that he or she is making the right decision by refusing to apply a retroactive application of HB 837 to insurance policies in effect before March 24, 2023.
Under FS §86.121, the insured may recover attorney’s fees if successful if the insurance company totally denies a claim. When an insurance company totally denies a claim, the insured/patient can file an action for declaratory relief under FS §86.121, seek benefits and obtain attorney’s fees if successful. Only the insured can bring a claim and only for a total denial of a claim. This means that no claim can be brought under FS §86.121 on an assignment of benefits. In a situation where a medical provider executes assignment of benefits with an insured/patient, the insured/ patient can later revoke the assignment of benefits and bring an action for declaratory relief against the insurance company. My experience has been that insurance companies will fight tooth and nail over the definition of a “total denial of the claim” as there is not much law developed in this area for guidance for trial court. It is important for an attorney to be specialized in a definition of a total denial of a claim.
Case law developed before the passage of Florida HB 837 defining a PIP claim as each medical bill sustained by the insured/patient. This means that if an insurance company pays some medical bills but not others, the insurance company “totally denies” those PIP claims it did not pay. This means that under FS §86.121, the insured/patient can obtain attorney’s fees if he or she prevails on those PIP claims the insurance company “totally denied” some dates of service but did not totally deny others.
When insurance companies try to apply HB 837 retroactively, a well-argued memorandum of law can be the difference between justice and injustice.
