The Florida legislature has included an alternative dispute resolution process in the Florida's sinkhole law to assist policyholders and insurers resolve disputed sinkhole claims. This process is simply known as "Neutral Evaluation." Alternative dispute resolution is a term of legal art that refers to a settlement process, the goal of which is to amicably resolve a legal claim by mutual agreement of the parties, as opposed to actual litigation of the claim in court. Mediation, either pre-suit or court-ordered, is a common form of alternative dispute resolution used thorughout Florida to resolve disputes without litigation. Arbitration, both binding and non-binding, represent another common form of alternative dispute resolution utilized to avoid litigation. In insurance matters, another common form of alternative dispute resolution is often built-in to the policy itself in the form an "appraisal" provision.
Much like other forms of alternative dispute resolution, Neutral Evaluation has as its stated goal the desire to assist in the resolution of disputed sinkhole claims and to avoid burdening the courts with a lawsuit that may be amenable to early resolution. Pursuant to the sinkhole statute, neutral evaluation is mandatory, if requested by either party, but it is non-binding. Once invoked by either the policyholder or insurer, the statute requires, among other things, the parties to participate in the neutral evaluation process. In a nutshell, neutral evaluation envisions that a "neutral" qualified expert will review all the scientific data in the case and determine whether the policyholder's or the insurer's expert is correct. The evaluator's opinion on which expert is correct is then published in a report and provided to the parties. Again, the neutral evaluator's opinion is non-binding, but, under the statute, the neutral evaluator's report is admissible in evidence at any subsequent trial.
The fact that the neutral evaluator actually makes a decision on which party's findings on sinkhole or repair methodology is correct makes the statutory process more akin to non-binding arbitration or appraisal. In both of those alternative dispute resolution processes, an arbitrer in arbitration or an umpire in appraisal, actually make a final decision in the case. In mediation, on the otherhand, the mediator does not actually decide which party is correct on the merits. For this reason, neutral evaluation is a process that should be taken seriously, because the neutral evaluator will make a decision on the merits that under the statute the jury will be informed about.
Sinkhole claims present special challenges, because of the complexity of the science and geology involved. On the legal end, litigation of sinkhole claims often is an equally complex mixture of science and law. The neutral evaluation process adds an additional layer of complexity and for that reason, the importance of the process should not be overlooked. Neutral evaluation first provides an opportunity to resolve a disputed claim and avoid the risk of total loss often assocaited with a trial. Any policyholder should relish the opportunity to amicably settle a disputed claim. After all, litigation against any large insurance company that has denied a claim is fraught with stress and risk. Next, an intelligent and prepared approach to neutral evaluation may result in the neutral evaluator actually finding in the homeowner's favor and against the insurer, resulting in another opportunity to convince the insurance company to abide by the policy coverage and pay the claim.
For further information about Florida's neutral evaluation process, please visit the Florida Department of Financial Services at http://www.myfloridacfo.com/Consumers/mediation/SettlingSinkholeClaim.htm. The site contains a consumer pamphlet discussing the neutral evaluation process. Of course, if any policyholder has any questions about the neutral evaluation process, it is recommended to consult with an attorney experienced in handling sinkhole claims and the neutral evaluation process.
Michael V. Laurato, Esq.
Austin & Laurato, P.A.
Tuesday, April 5, 2011
Friday, April 1, 2011
Florida Sinkhole Law: Plant City Woman Reportedly Falls In Sinkhole by M...
Florida Sinkhole Law: Plant City Woman Reportedly Falls In Sinkhole by M...: "Both local and National media have recently reported that a Plant City woman exited her home and fell into a sinkhole. According to th..."
Thursday, March 31, 2011
Florida Sinkhole Law: Robert Austin & Michael Laurato Discuss Proposed C...
Florida Sinkhole Law: Robert Austin & Michael Laurato Discuss Proposed C...: "Both the state senate and the state house are considering bills that propose substantial changes in Florida's sinkhole law. In our&nbs..."
Florida Sinkhole Law: Robert Austin & Michael Laurato Discuss Proposed C...
Florida Sinkhole Law: Robert Austin & Michael Laurato Discuss Proposed C...: "Both the state senate and the state house are considering bills that propose substantial changes in Florida's sinkhole law. In our&nbs..."
Florida Sinkhole Law: Michael Laurato and Robert Austin Looking Forward ...
Florida Sinkhole Law: Michael Laurato and Robert Austin Looking Forward ...: "Recent changes regarding Florida's Sinkhole law have effected the manner in which insurance companies defend sinkhole claims. Over the..."
Florida Sinkhole Law: Plant City Woman Reportedly Falls In Sinkhole by M...
Florida Sinkhole Law: Plant City Woman Reportedly Falls In Sinkhole by M...: "Both local and National media have recently reported that a Plant City woman exited her home and fell into a sinkhole. According to th..."
Plant City Woman Reportedly Falls In Sinkhole by Michael Laurato
Both local and National media have recently reported that a Plant City woman exited her home and fell into a sinkhole. According to the reports, the woman was forced to dial 911, because she was unable to escape from the sinkhole under her own power and without assistance from law enforcement. The responding officer held the woman by her wrists, until fire rescue was ulitmately able to extract her from the hole. Fortunately, it does not appear from the media reports that anyone was seriously injured or that the family's home was seriously damaged or impacted.
While the story may appear strange, human encounters with sinkholes are more common than one may imagine. First, many of the lakes, springs, and ponds throughout the state had there genesis as sinkholes. Likewise, an aerial view of many areas of the state, including those known as "sinkhole alley," will reveal the presence of large circular depressions, similar in appearance to the craters present on the moon. Geologists describe they crater-like depressions as evidence of past, or relic, sinkhole activity.
I have my own recent experience with a sinkhole to recount to help drive home the ubiquitous nature of sinkhole activity in many parts of the state. Recently, while I leaving the Crawfish festival in Pinellas County after enjoying evening of Zaydeco music and Cajun culture (reminiscent of my college days at Tulane), I encountered a large circular depression in an open field and walked right through the middle of it. Although I tripped slightly as I entered into the depression, it did not occur to me, until the following day, that I most likely walked through a developing sinkhole. The point of the story is that, here, in Florida, sinkholes, and the evidence of them, are all around us and a part of what makes Florida unique and beautiful. After all, limestone geology and hydrology are part of what make Weeki Wachi, Crystal River, and Homossasa Springs such amazing, unique, and beautiful places.
This story of the woman falling into the sinkhole, while intriguing, imparts some important information about the formation of sinkholes in Florida. First, while cover collapse sinkholes are rarer, relatively speaking, than other forms of sinkholes, they, nevertheless, do occur in Florida and many times, simply because the cover of the earth has collapsed, the sinkhole may not be obvious. Second, periods of either heavy rain or drought often act as a catatalyst, activiting dormant sinkhole activity, causing a sudden cover collapse of the earth. Third, these cover collapse sinkholes often occur suddenly, unexpectedly, and without notice. Cover collapse sinkholes are unpredictable, in many respects. Homeowners in sinkhole prone areas would be wise to take these lessons to heart.
From the published photographs, it appears that the sinkhole the woman fell into was what is known as a "chimney" sink. Chimney sinks are generally small, circular sinkholes. A chimney sink is a form of "solution" sinkhole that is common to Florida geology. A chimney sink forms when water, traveling through the limestone and into the aquafer, erodes a small diameter opening in the limestone. The small opening is then in-filled with soils from above, causing a small circular opening in the earth. Rain, and the subsequent water traveling down by the force of gravity through the soil strata, carries soil into these openings in the limestone, which, in turn, results in the ground opening. This results is the formation of a small sinkhole, which extends from the surface, many times, down to the limestone, that takes the shape of a "chimney." Thus, these types of sinkholes are colloquially refered to by the epynomous name, "chimney" sink.
Under Florida law, for any sinkhole--whether it is a chimney sink or other form of sinkhole--to implicate an the sinkhole law and sinkhole coverage, the sinkhole must cause some structural damage to the building. Accordingly, a sinkhole in the middle of an open field that does not affect the structure of any building will most likely not trigger any coverage under a policy of insurance, even if it results in a cover collapse.
Sinkholes are often simply assoicated with the geological feature of the ground opening up or innocuous minor damage to buildings. However, the recent events reported in Plant City provide us with a reminder that sinkhole activity in Florida is oftentimes unexpected, sudden, and potentially dangerous to life and property. Most importantly, it is a reminder that sinkhole activity, although many times out of sight, should never be out of mind. For those that live in sinkhole prone areas or in Florida's "sinkhole alley," vigilance and regular property inspections are the rule for family safety and preservation of propery, particularly after periods of heavy rain or drought.
For further information on the dangers of sinkhole activity in Florida and for information on what to do in case you encounter sinkhole activity, please visit the Florida Department of Financial Services and view the available consumer guide at http://www.myfloridacfo.com/sitePages/services/flow.aspx?ut=Consumer+Guides. The cosumer guide entitled "What You Should Know About Sinkholes and Catastrophic Ground Cover Collapse" provides helfpul information about your potential encounter with one of Florida's most common geological features--the sinkhole.
Michael Laurato, Esq.
Austin & Laurato, P.A.
While the story may appear strange, human encounters with sinkholes are more common than one may imagine. First, many of the lakes, springs, and ponds throughout the state had there genesis as sinkholes. Likewise, an aerial view of many areas of the state, including those known as "sinkhole alley," will reveal the presence of large circular depressions, similar in appearance to the craters present on the moon. Geologists describe they crater-like depressions as evidence of past, or relic, sinkhole activity.
I have my own recent experience with a sinkhole to recount to help drive home the ubiquitous nature of sinkhole activity in many parts of the state. Recently, while I leaving the Crawfish festival in Pinellas County after enjoying evening of Zaydeco music and Cajun culture (reminiscent of my college days at Tulane), I encountered a large circular depression in an open field and walked right through the middle of it. Although I tripped slightly as I entered into the depression, it did not occur to me, until the following day, that I most likely walked through a developing sinkhole. The point of the story is that, here, in Florida, sinkholes, and the evidence of them, are all around us and a part of what makes Florida unique and beautiful. After all, limestone geology and hydrology are part of what make Weeki Wachi, Crystal River, and Homossasa Springs such amazing, unique, and beautiful places.
This story of the woman falling into the sinkhole, while intriguing, imparts some important information about the formation of sinkholes in Florida. First, while cover collapse sinkholes are rarer, relatively speaking, than other forms of sinkholes, they, nevertheless, do occur in Florida and many times, simply because the cover of the earth has collapsed, the sinkhole may not be obvious. Second, periods of either heavy rain or drought often act as a catatalyst, activiting dormant sinkhole activity, causing a sudden cover collapse of the earth. Third, these cover collapse sinkholes often occur suddenly, unexpectedly, and without notice. Cover collapse sinkholes are unpredictable, in many respects. Homeowners in sinkhole prone areas would be wise to take these lessons to heart.
From the published photographs, it appears that the sinkhole the woman fell into was what is known as a "chimney" sink. Chimney sinks are generally small, circular sinkholes. A chimney sink is a form of "solution" sinkhole that is common to Florida geology. A chimney sink forms when water, traveling through the limestone and into the aquafer, erodes a small diameter opening in the limestone. The small opening is then in-filled with soils from above, causing a small circular opening in the earth. Rain, and the subsequent water traveling down by the force of gravity through the soil strata, carries soil into these openings in the limestone, which, in turn, results in the ground opening. This results is the formation of a small sinkhole, which extends from the surface, many times, down to the limestone, that takes the shape of a "chimney." Thus, these types of sinkholes are colloquially refered to by the epynomous name, "chimney" sink.
Under Florida law, for any sinkhole--whether it is a chimney sink or other form of sinkhole--to implicate an the sinkhole law and sinkhole coverage, the sinkhole must cause some structural damage to the building. Accordingly, a sinkhole in the middle of an open field that does not affect the structure of any building will most likely not trigger any coverage under a policy of insurance, even if it results in a cover collapse.
Sinkholes are often simply assoicated with the geological feature of the ground opening up or innocuous minor damage to buildings. However, the recent events reported in Plant City provide us with a reminder that sinkhole activity in Florida is oftentimes unexpected, sudden, and potentially dangerous to life and property. Most importantly, it is a reminder that sinkhole activity, although many times out of sight, should never be out of mind. For those that live in sinkhole prone areas or in Florida's "sinkhole alley," vigilance and regular property inspections are the rule for family safety and preservation of propery, particularly after periods of heavy rain or drought.
For further information on the dangers of sinkhole activity in Florida and for information on what to do in case you encounter sinkhole activity, please visit the Florida Department of Financial Services and view the available consumer guide at http://www.myfloridacfo.com/sitePages/services/flow.aspx?ut=Consumer+Guides. The cosumer guide entitled "What You Should Know About Sinkholes and Catastrophic Ground Cover Collapse" provides helfpul information about your potential encounter with one of Florida's most common geological features--the sinkhole.
Michael Laurato, Esq.
Austin & Laurato, P.A.
Wednesday, March 30, 2011
Robert Austin & Michael Laurato Discuss Proposed Changes to the Sinkhole Law
Both the state senate and the state house are considering bills that propose substantial changes in Florida's sinkhole law. In our view, the proposed amendments will limit available sinkhole coverage for Florida's homeowners and impose additional hardships on homeowners that chose to pursue and be fairly compensated under policies for sinkhole claims.
Because sinkholes are prevalent throughout many areas of Florida, sinkhole coverage is important for many homeowners. In many cases, it is a necessary protection for the family home. The pending amendments are gaining legislative momentum and, if there is not a tide change, these anti-homeowner provisions are likely to be signed into law by the governor. It is anticipated that the effective date of the new provisions may be in July.
The matter has cleared the state senate. With that being said, it is important for you to contact your state representative. Tell your representative that you oppose the amendments.
Michael V. Laurato
Austin & Laurato, P.A.
Because sinkholes are prevalent throughout many areas of Florida, sinkhole coverage is important for many homeowners. In many cases, it is a necessary protection for the family home. The pending amendments are gaining legislative momentum and, if there is not a tide change, these anti-homeowner provisions are likely to be signed into law by the governor. It is anticipated that the effective date of the new provisions may be in July.
The matter has cleared the state senate. With that being said, it is important for you to contact your state representative. Tell your representative that you oppose the amendments.
Michael V. Laurato
Austin & Laurato, P.A.
Tuesday, March 29, 2011
Michael Laurato and Robert Austin Looking Forward to Getting Neutral Evaluator Before Hernando County Jury
Recent changes regarding Florida's Sinkhole law have effected the manner in which insurance companies defend sinkhole claims. Over the course of the last several years, the legislature, encouraged by heavy lobbying activity by the state's largest insurance carriers, has enacted several changes to the sinkhole law which alter the course of the trial of sinkhole cases. One such change is the alternative dispute resolution procedure, ostensibly known as, neutral evaluation.
Neutral evaluation was conceived as an alternative dispute resolution mechanism, similar in nature to mediation. The stated purpose of the neutral evaluation process was to avoid conflicts over disputed sinkhole claims and encourage settlement of claims. In addition to the alternative dispute resolution aspects of the statute, neutral evaluation also impacted the trial of sinkhole claims, because of two of the statute's provisions. While neutral evaluation is nonbinding, the report of the neutral evaluator is deemed admissible under the statute in any subsequent trial. In addition, the statute contains a mandatory stay provision, which requires the court to stay any litigation so that neutral evaluation can be completed.
Resoluting and nearly universally, insurers in all sinkhole cases have been seeking the mandatory stay and invoking neutral evaluation, in the hope of titling the playing field at trial in their favor, by having the evaluator, who is paid by the insurer, side with the insurer's investigating expert. The end result for trial practitioners is that the claimant may now be faced with two adverse experts, one described as neutral, testifying that no sinkhole activity exists. Many of the significant legal issues surrounding the neutral evaluation statute remain unresolved and there have been few test cases anywhere in the state to give trial lawyers guidance on the parameters of the neutral evaluator's role in the resolution of trial cases.
The neutral evaluation process, in my view, has had the opposite of its inteneded effect. Rather than promoting settlement of disputed claims, the process has re-invigorated insurers to deny claims entirely when the evaluator's report is favorable to the insurer and to manipulate the process to obtain an additional favorable opinion for use at trial against the insured. As a result, insurers have been more inclined not to settle cases and force insureds to trial, using the neutral evaluation process as both a sword and a shield.
Austin & Laurato, P.A. recently had the opportunity to partially try one of the first cases under the neutral evaluation statute in Hernando County. The neutral evaluator came out in favor of State Farm and found that no sinkhole activity was present at the property. State Farm relied heavily upon the findings of the neutral evaluator in the presuit process. Prior to trial, the trial judge made certain rulings favorable to State Farm, particularly that the neutral evaluator could testify and that his testimony would not be excluded as cumulative. In addition, the trial court ruled that neutral evaluator's report would be admissible, although the parties stipulated that all expert reports would be inadmissible. Accordingly, the neutral evaluator's testimony would be allowed, but his report would be excluded.
For reasons, unassociated with the neutral evaluator, the case was unable to be concluded and will be re-tried as provided for by law. The firm looks forward to raising the issues surrounding the neutral evaluator in front of the jury again and is encouraged by the experience gained thus far. The firm also looks forward to concluding the trial so that other claimants and lawyers in the field will be able to gauge the true impact the neutral evaluation statute may have on sinkhole claims statewide.
Michael V. Laurato, Esq.
Austin & Laurato, P.A.
Neutral evaluation was conceived as an alternative dispute resolution mechanism, similar in nature to mediation. The stated purpose of the neutral evaluation process was to avoid conflicts over disputed sinkhole claims and encourage settlement of claims. In addition to the alternative dispute resolution aspects of the statute, neutral evaluation also impacted the trial of sinkhole claims, because of two of the statute's provisions. While neutral evaluation is nonbinding, the report of the neutral evaluator is deemed admissible under the statute in any subsequent trial. In addition, the statute contains a mandatory stay provision, which requires the court to stay any litigation so that neutral evaluation can be completed.
Resoluting and nearly universally, insurers in all sinkhole cases have been seeking the mandatory stay and invoking neutral evaluation, in the hope of titling the playing field at trial in their favor, by having the evaluator, who is paid by the insurer, side with the insurer's investigating expert. The end result for trial practitioners is that the claimant may now be faced with two adverse experts, one described as neutral, testifying that no sinkhole activity exists. Many of the significant legal issues surrounding the neutral evaluation statute remain unresolved and there have been few test cases anywhere in the state to give trial lawyers guidance on the parameters of the neutral evaluator's role in the resolution of trial cases.
The neutral evaluation process, in my view, has had the opposite of its inteneded effect. Rather than promoting settlement of disputed claims, the process has re-invigorated insurers to deny claims entirely when the evaluator's report is favorable to the insurer and to manipulate the process to obtain an additional favorable opinion for use at trial against the insured. As a result, insurers have been more inclined not to settle cases and force insureds to trial, using the neutral evaluation process as both a sword and a shield.
Austin & Laurato, P.A. recently had the opportunity to partially try one of the first cases under the neutral evaluation statute in Hernando County. The neutral evaluator came out in favor of State Farm and found that no sinkhole activity was present at the property. State Farm relied heavily upon the findings of the neutral evaluator in the presuit process. Prior to trial, the trial judge made certain rulings favorable to State Farm, particularly that the neutral evaluator could testify and that his testimony would not be excluded as cumulative. In addition, the trial court ruled that neutral evaluator's report would be admissible, although the parties stipulated that all expert reports would be inadmissible. Accordingly, the neutral evaluator's testimony would be allowed, but his report would be excluded.
For reasons, unassociated with the neutral evaluator, the case was unable to be concluded and will be re-tried as provided for by law. The firm looks forward to raising the issues surrounding the neutral evaluator in front of the jury again and is encouraged by the experience gained thus far. The firm also looks forward to concluding the trial so that other claimants and lawyers in the field will be able to gauge the true impact the neutral evaluation statute may have on sinkhole claims statewide.
Michael V. Laurato, Esq.
Austin & Laurato, P.A.
Monday, March 14, 2011
Important Changes to Florida's Sinkhole Law-Cover Collapse vs. Sinkhole Activity
The proposed sinkhole statute revision pending in the state house changes the procedure for all sinkhole claims. Under the present statute, two types of sinkhole coverage are available in Florida: cover collapse and sinkhole activity/loss coverage. The first type--known as catastrophic collapse coverage--is mandatory for all homeowner's policies of insurance and only occurs in very rare circumstances. The second-type--known as sinkhole activity/loss coverage--presently must be offered by insurance companies, but is not mandatory. Sinkhole activity is a much more prevalent form of sinkhole formation in Florida than cover collapse.
In Florida, there are four general types of sinkhole or karst formations and cover collapse is the rarest form. Under the statutory definition cover collapse sinkhole coverage is only implicated when a visible depression opens up in the ground and renders the structure uninhabitable. In order for a sinkhole to qualify for the mandatory cover collapse sinkhole coverage under the statute, the sinkhole must open up and result in the home actually being condemned by a governmental authority. This type of sinkhole is not very prevalent relatively speaking, when compared with the most common type of sinkhole which damages homes in Florida--sinkhole loss/activity. Presently, an insurer must offer sinkhole loss/activity coverage if requested by the homeowner.
Under the proposed legislative changes pending, an insurance company would no longer be required to even offer sinkhole activity/loss coverage. Accordingly, while the rare catastrophic collapse coverage would still be mandatory, insurance companies, under the proposed changes to the sinkhole law, would be legally entitled to not provide any coverage for the more common, and just as damaging, sinkhole activity/loss coverage.
I urge my clients and Floridians to unite and take a moment to write their state representative. Tell them to vote no on the proposed sinkhole law changes. Sinkhole coverage is important and, because it damages many homes throughout Florida, it is important that homeowners have both the mandatory cover collapse coverage, as well as the sinkhole activity/loss coverage option available to them to protect their largest investment--their family home.
Sincerely,
Michael Laurato
Austin & Laurato, P.A.
In Florida, there are four general types of sinkhole or karst formations and cover collapse is the rarest form. Under the statutory definition cover collapse sinkhole coverage is only implicated when a visible depression opens up in the ground and renders the structure uninhabitable. In order for a sinkhole to qualify for the mandatory cover collapse sinkhole coverage under the statute, the sinkhole must open up and result in the home actually being condemned by a governmental authority. This type of sinkhole is not very prevalent relatively speaking, when compared with the most common type of sinkhole which damages homes in Florida--sinkhole loss/activity. Presently, an insurer must offer sinkhole loss/activity coverage if requested by the homeowner.
Under the proposed legislative changes pending, an insurance company would no longer be required to even offer sinkhole activity/loss coverage. Accordingly, while the rare catastrophic collapse coverage would still be mandatory, insurance companies, under the proposed changes to the sinkhole law, would be legally entitled to not provide any coverage for the more common, and just as damaging, sinkhole activity/loss coverage.
I urge my clients and Floridians to unite and take a moment to write their state representative. Tell them to vote no on the proposed sinkhole law changes. Sinkhole coverage is important and, because it damages many homes throughout Florida, it is important that homeowners have both the mandatory cover collapse coverage, as well as the sinkhole activity/loss coverage option available to them to protect their largest investment--their family home.
Sincerely,
Michael Laurato
Austin & Laurato, P.A.
Legislative Changes to Sinkhole Law
The Florida Legislature is in the process of overhauling Florida's sinkhole law to the disadvantage of Florida's homeowners. The proposed legislation is the result of extensive lobbying by Florida Insurance Companies that seek to limit a homeowner's right to make sinkhole claims and increase insurance company profits. Sinkhole coverage has been legislatively mandated for over 20 years in Florida in order to protect homeowners from the damage caused by sinkholes, statewide. If the new legislation is passed and signed by the Governor, many of the important protections provided by law will not be available.
The proposed legislative changes will, for the first time, permit insurance companies to not cover, or even offer, sinkhole loss coverage to Florida's homeowners. Sinkhole activity is important coverage and the insurance companies should be required to offer it, as they have been for the past several decades.
Please take a moment and write/email your state representative or state senator. Ask them to cast their vote for the homeowner and to vote no on the changes proposed to the sinkhole law.
Michael Laurato
Austin & Laurato, P.A.
Sinkhole Lawyer
The proposed legislative changes will, for the first time, permit insurance companies to not cover, or even offer, sinkhole loss coverage to Florida's homeowners. Sinkhole activity is important coverage and the insurance companies should be required to offer it, as they have been for the past several decades.
Please take a moment and write/email your state representative or state senator. Ask them to cast their vote for the homeowner and to vote no on the changes proposed to the sinkhole law.
Michael Laurato
Austin & Laurato, P.A.
Sinkhole Lawyer
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