Steven Plitt, Expert Witness Steven Plitt, Expert Witness
Insurance Bad Faith Claim Handling Expert Serving Clients Nationwide

February 2020 Archives

WHERE YOU FILED IS SIGNIFICANT FOR FLOOD INSURANCE RECOVERY

The 5th Circuit Court of Appeals in Ekhlassi v. National Lloyds Ins. Co., 926 F.3d 130 (5th Cir. 2019) found that a lawsuit brought against a flood insurer was untimely when it was not filed in federal court within one year. In this case, the 5th Circuit Court of Appeals affirmed the District Court's ruling that a plaintiff/insured was required to file his, her suit in federal court within one year following the denial letter even though the suit had been brought in state court. Failure to file in federal court within one year barred the claim.

COMPUTERIZED MEDICAL BILLING REVIEWS COMES UNDER SCRUTINY IN WASHINGTON

Recently, in Folweiler Chiropractic, PS v. American Family Ins. Co., 2018 WL 5729873 (Wash. App. 2018), the Washington Court of Appeals reinstated a class action lawsuit against American Family where the suit accused American Family of unfairly discounting medical payments based upon computerized databases which were used to determine the reasonable cost of medical services. It was alleged that American Family, based upon the computerized databases that were utilized, automatically disallowed medical bill charges that exceeded the 80th percentile amount for the relevant zip code. The suit alleged that this practice violated Washington's Consumer Protection Act (CPA), RCW 19.8.020. The medical provider, Folweiler Chiropractic, filed the putative class action lawsuit, contending that the automatic deductions were a violation of Washington's PIP statute, the Unfair Claims Settlement Practices Regulations, and the CPA. The case was initially dismissed, but the Court of Appeals reversed and reinstated the case.

CALIFORNIA COURT OF APPEALS REACHES OBVIOUS CONCLUSION IN AUTOMOBILE POLICY LIMITS

Insurance policies are typically issued with a split limit. First, the policy will state its "per person" limit, which is the most the policy will pay for bodily injury damages to one person. Then, the policy will state a "per accident" limit, which is the aggregate of all claims arising from a single automobile accident. A question that often arises regarding split limits in automobile policies is whether loss of consortium damages are part of the "per person" limit assigned to the bodily injured claimant. In Jones v. IDS Property Casualty Insurance Co., 27 Cal.App. 5th, 625, 238 Cal.Rptr.3d 356 (3rd Dist. 2018), the California Court of Appeals held, consistent with the overwhelming majority of jurisdictions, that loss of consortium claims of one spouse are folded into the overall "per person" limit of liability policy limits under a standard automobile liability policy. The insureds argued that because the bodily injured spouse and the wife were two separate people, the aggregate limit applied and not the per person limit. However, this argument was rejected. Focusing on the language of the policy, the Court found that the express language of the policy, which stated that the per person limit applied to damages for bodily injury to one person, "regardless of the number of . . . claims, claimants . . ." meant that the "to one person" phrase in the policy modified "bodily injury." Based upon that interpretation, the per person limit applied to all damages, including loss of consortium, that arose from a bodily injury to one person. This was an expected result.

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