Cam Fentriss, FRSA LEGISLATIVE COUNSEL
I am having déjà vu in Tallahassee. The AOB abuse issue is taking the same path as the workers’ compensation crisis a number of years ago.
Sixteen years ago, we fought the war for workers’ comp reform and fifteen years ago, we finally won it. Along the way, one of the conditions I remember best is when the fighting got so out of hand that those with the biggest sticks pushed those truly affected out of the way and turned it into a stupid back alley fight that everyone knew would not accomplish anything at all. Who were those
people?
The big stick holders were the Legislature, trial lawyers, and insurers. Those truly affected were employers and employees. While you can understand why the trial lawyers and insurers would fight to protect their interests, it is really very hard to understand why legislators would throw punches, taunt and mock one side or the other and just dare any of those involved to cross a line drawn in the sand. The legislators are supposed to work to find a solution. They are NOT supposed to just jump into the fight and start slinging mud and other moist material.
When a trial lawyer legislator advocates for a solution to the problem of excessive litigation by encouraging more litigation, it is wrong but at least it makes sense because he is acting in his own best interests. But when one senator attacks insurers despite very clear knowledge and statistics that scream “this is not a simple good versus bad, black versus white, right versus wrong problem,” then you really have to wonder.
On February 6, 2018, the chair of the Senate Banking and Insurance Committee, Senator Anitere Flores (R-Miami, lawyer), put on a real show expressing her frustration with insurers that they claim they cannot commit to a specific rate reduction forecast if the legislature took certain step(s) to curb AOB abuse, yet the Office of Insurance Regulation can provide forecasted rate reductions for certain changes, and insurers are so well able to cite to actual statistics proving rate increases attributable to AOB abuse. She has been in this process long enough to understand that there are so many factors involved such that pricing the effect of one change (in isolation) and forecasting other factors (such as hurricanes) or the potential success or failure of the unknown make it irresponsible to commit to the kind of political cover sought here. Think about that: the complaint is that you are unwilling to guarantee the future but you are willing to describe the past. You kind of get the sense that maybe she was counting on that as a good reason to keep
from passing a bill.
She did not stop there – she took another step off the cliff of reason when she said that the use of an AOB for property repairs is no different than the very common use of an AOB by health care providers for filing a claim for health insurance benefits. Except that’s not true at all. You don’t see doctors using your body to sue health insurance companies, but these repair companies do use a customer’s property and his insurance policy to sue a property insurance company. You don’t see doctors performing open heart surgery just because you signed an AOB when all you needed was blood pressure medication, but you do see some repair companies completely re-doing a kitchen just because you signed an AOB when all you needed was a wet-dry vacuum, a few fans, and a section
of wall replaced. This comparison from Senator Flores was ignorant and well below what we should be able to expect from the chair of the Senate Banking and Insurance Committee.
Was that the end of it? No, there is more. Senator Flores claims that the vendors (water damage repair companies) supporting the use of AOB are fighting to save the use of AOBs because they represent consumers, individuals, homeowners. This is not true either. The vendor represents the vendor. This is about income for the vendor. Once the vendor gets past the “I’ll take care of everything” sales job to convince the customer to sign the contract, there is no question but that an AOB is more valuable to that vendor than it is to that customer. Senator Flores is a lawyer and as such, she should know that you cannot just claim to speak on someone’s behalf without that person’s express permission just because you want to look good (and not self-serving or greedy).
And the last troubling statement from Senator Flores was to advocate for passage of the heavily opposed bill up for debate, SB 1186 by Greg Steube (R-Sarasota, trial lawyer), that is well recognized as a “half-baked” bill just to do something now. Don’t anyone fall for that. The only reason to pass something now is to almost guarantee that AOB abuse will stay in place (and get worse) in Florida for years to come. She’s been in this political process long enough to know that you cannot successfully deal with half a controversial issue (or half deal with a controversial issue – you pick). If you have a controversial issue, you need to deal with it completely. That is the only fair thing to do for everyone, especially for your constituents.
Let’s get some things in perspective. First, this issue matters to property owners (aka consumers, constituents) whose property is affected, whose insurance policy is supposed to provide coverage, and whose insurance rates are climbing rapidly (as was the case so many years ago with workers’ comp rates). Second, this issue matters to us as reputable roofing contractors, and we are NOT insurance company cheerleaders. We are interested in making sure that insurance companies pay for work that is actually needed and anything that makes that harder is bad for our entire industry. Third, the more insurance money that goes to the handful of unscrupulous contractors and trial lawyers, the less money that is left to pay for real claims and the more it costs a property owner to even have property insurance coverage. Fourth, the Legislature should be willing to take steps to fix abuses because they are abuses! No one is asking them to fix “uses” as this is part of what the system is designed to handle. Fifth and most important, the Legislature’s job is to help consumers and prevent cheating. By jumping into the fight between lawyers and insurers, legislators are absolutely ignoring their responsibilities to property owners and honest businesses that are not trying to game the system. That was not a smart thing to do as we worked toward workers’ comp reform in 2003, and it still is not a good idea today.
Anna Cam Fentriss is an attorney licensed in Florida since 1988 representing clients with legislative and state agency interests. Cam has represented FRSA since 1993, is an Honorary Member of FRSA, recipient of the FRSA President’s Award and the Campanella Award in 2010.
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