Dispositional Gratitude May Be the Real Key to Success
Recently a good friend and colleague in the biz, and someone who would easily be described as successful, pointed me to a book entitled, Road to Character, by David Brooks. Of course, I ran out to buy it immediately and search for the phrase that had been referenced in the note from my friend, “Success leads to our greatest failure which is pride. Failure leads to our greatest success which is humility and learning.” Wow, that really hit me hard and made me want to read and learn more. I was also captivated by an article written by Mr. Brooks and published recently in the NY Times. The article made me pause and reflect on our commerce driven way of life and the absence of everyday gratitude. I would love to read the entire book to you but instead am offering just a few excerpts from his NY Times article. Mr. Brooks wrote in part, “Expectations structure our moods and emotions, none more so than the beautiful emotion of gratitude. Gratitude happens when some kindness exceeds expectations, when it is undeserved. Gratitude is a sort of laughter of the heart that comes about after some surprising kindness. Most people feel grateful some of the time – after someone saves you from a mistake or brings you food during an illness. But some people seem to be grateful dispositionally. They seem thankful practically all of the time. As most people get on in life and earn more status, they often get used to more respect and nicer treatment. But people with dispositional gratitude take nothing for granted. They take a beginner’s thrill at a word of praise, at another’s good performance or at each sunny day. These people are present-minded and hyper-responsive. They treasure the way they have been fashioned by parents, friends and ancestors who were in some ways their superiors. People with dispositional gratitude are continually struck by the fact that they are given far more than they pay for – and are much richer than they deserve. Their families, schools and summer camps put far more into them than they give back. There’s a lot of surplus goodness in daily life that can’t be explained by the logic of equal exchange. Gratitude is a form of social glue and a debt of gratitude is repaid forward, to another person who also doesn’t deserve it. In this way each gift ripples outward and yokes circles of people in bonds of affection. It reminds us that a society isn’t just a contract based on mutual benefit, but an organic connection based on natural sympathy – connections that are nurtured not by self-interest but by loyalty and service.
G.K. Chesterton wrote that “thanks are the highest form of thought, and that gratitude is happiness doubled by wonder.” Wow, that really knocks me off my feet and makes me want to be forever and in everything, a person of dispositional gratitude, living a life of paying that gratitude forward. How about you?
Now that we are feeling either much better about ourselves or wanting to feel much better about ourselves, we do need to move on to industry news of the past two weeks.
1st DCA Upholds Medical Malpractice Law Change
On Tuesday, July 21, the 1st DCA upheld the constitutionality of a controversial change in Florida’s medical-malpractice laws, ruling in part that some privacy rights are “waived” when people pursue malpractice lawsuits. The decision stemmed from a 2013 law passed after a lobbying battle between groups such as doctors and plaintiffs’ attorneys. The dispute focused on the section of the law that allows “ex parte communications.” The law requires patients to sign forms authorizing such communications before filing malpractice claims. In ex parte communications, defense attorneys representing a doctor accused of malpractice could get personal health information about the patient involved in the case. That information could come from other doctors who treated the patient, and disclosure could occur without the patient’s attorney being present. The 1st DCA ruling came as a result of a challenge to the law filed in 2013 in Escambia County. The plaintiff contemplated filing a medical-malpractice lawsuit against a physician but was concerned about the constitutionality of the ex-parte change. The challenge raised a number of constitutional issues, including arguing that the law violates a right to privacy in the Florida Constitution. An initial version of the challenge said the law requires disclosure of private health and medical information “without a compelling need for that information, in overly broad fashion without adequate safeguards against unnecessary disclosure, and without notice or opportunity to limit those disclosures.” But the appeal court’s ruling disagreed that the ex parte change violates the right to privacy in medical- malpractice cases. “It is well-established in Florida and across the country that any privacy rights that might attach to a claimant’s medical information are waived once that information is placed at issue by filing a medical malpractice claim,” said the ruling, written by Judge James Wolf and joined by judges Lori Rowe and Ross Bilbrey. “Thus, by filing the medical malpractice lawsuit, the decedent’s medical condition is at issue.” Another issue in the case involved whether the ex-parte change violated the constitutional separation of powers. The contention dealt with whether the Legislature encroached on the role of the Florida Supreme Court, which sets procedures for the court system. But the appeals court ruled that the change is not procedural but rather is “integral to the substantive pre-suit notice statute” involved in filing medical-malpractice cases.
Special Session to Enact New Map for Florida’s Senate District Starts October 19
On July 28 a memorandum was sent to the members of the Florida Legislature from Senate President Andy Gardiner & House Speaker Steve Crisafulli advising them of the special session on Senate redistricting. In part, the memorandum advised that the recent Florida Supreme Court decision to invalidate eight of Florida’s 27 Congressional Districts introduced new legal precedent. The opinion will govern the ongoing litigation concerning the Senate map adopted by the Legislature on March 27, 2012. Given these implications, the Senate entered into a stipulation and consent judgment with the Plaintiffs and agreed the enacted Senate map will be revised prior to the 2016 primary and general elections. The special session will run from October 19 through November 6, 2015 and will coincide with two previously scheduled interim committee weeks to reduce additional time and expense associated with travel to Tallahassee. Please click HERE to read the entire Memorandum regarding the upcoming special session
IRC Report Shines Headlights on Impact of 2012’s HB 119
In late June the Insurance Research Council (IRC) issued a detailed report focusing on the effectiveness of the Florida Legislature’s 2012 broad-sweeping auto insurance measure (HB 119) addressing major cost drivers within the state’s PIP system. The new insurance code provisions enacted by HB 119 capped PIP benefits at $2,500 until a physician diagnosed a “medical emergency condition”, eliminated benefits for message therapy and acupuncture, and required that medical treatment for a supposed automobile accident injury begin within fourteen days. The measure also adopted much more stringent licensing standards for PIP clinics, gave insurance companies additional time to investigate suspect claims and imposed more severe penalties against those who commit auto insurance fraud.
“While the news regarding PIP claim trends in Florida has been encouraging, it would be a mistake to ignore the impacts on third-party coverages and assume that HB 119 has fixed the auto injury system in the state,” David Corum, Vice President of the Insurance Research Council (IRC), said in a statement. Corum said that IRC’s actual experience confirms earlier predictions that enacting effective PIP reforms “would encourage some participants in the system to exploit other potential benefits,” adding that “other circumstances, such as Bad Faith litigation environment are properly exacerbating the response to PIP reforms.”
According to IRC’s report, “Florida has one of the highest Claim Frequencies for BI in the Country; among the highest rates of Uninsured Motorists; injury patterns that signal overtreatment, fraud and buildup; a weak tort threshold; a high rate of attorney involvement and third-party Bad Faith Lawsuits.” Florida’s BI Claim Frequency is higher than any other no-fault state and higher than the majority of other states. We also note that the IRC study is specifically only referencing BI Claim Frequency results from “mid-2012 to the fourth quarter of 2014.” Therefore, data encompassing the 4th Quarter of 2014 and all other subsequent quarters appear not to be included in the report’s analysis. “The Florida Office of Insurance Regulation anticipates the trend for higher frequency and severity of BI and UM Claims will continue over the next year”, according to the report’s findings.
Opponents of Florida’s current no-fault auto insurance system could certainly leverage the IRC study results to support their arguments that the PIP reforms intended by HB 119 have not met with success. This, coupled with the intensely litigious history of the reforms might just prompt further calls for the state to simply scrap the current system in favor of a replacement. However, major state leaders such as the Chief Financial Officer and others have over the past couple of years argued for more time to allow the reforms to show their true merit. We will continue to closely monitor this situation and keep you apprised concerning any efforts to make auto insurance legislation a major issue during the upcoming 2016 Legislative Session.
Padgett Plaintiffs Ask Florida Supreme Court to Decide
Workers’ Compensation Constitutionality
A legal challenge to the constitutionality of Florida workers’ compensation system thrown out by a state appeals court may be headed to the Florida Supreme Court. A three-judge panel of the Third District court did not rule on the constitutionality of the workers’ compensation system itself, but cited procedural issues and said the plaintiffs, Florida Workers’ Advocates and Workers’ Injury Law & Advocacy Group and Elsa Padgett, lacked standing to bring the suit. The dismissal came in response to a 2014 judgment by Florida 11th Circuit Court Judge Jorge Cueto, who determined that the “exclusiveness of liability” provision of the Florida Workers’ Compensation Law that immunizes an employer and its employees from lawsuits for covered, work-related injuries is facially unconstitutional. Cueto ruled that the benefits provided under the workers’ compensation law that was revised in 2003 are inadequate to qualify as an exclusive remedy for injured workers. The original case stemmed from a lawsuit by Julio Cortes, who sued his employer, Velda Farms, in 2010 after he was injured while operating equipment. In 2012, several employee advocacy groups and state government worker, Padgett, who had sustained an on-the-job injury and was forced to retire due to complications, joined the suit. Padgett, along with several trial bar groups, argued that her workers’ compensation benefits were inadequate and the law unfairly blocked her constitutional right to access the court. In 2013, Velda Farms voluntarily dismissed its affirmative defense of workers’ compensation immunity and contended that any remaining claims relating to statutory workers’ comp issues-including the judgment relief sought by the advocacy groups and Padgett-had become moot and should also be dismissed. In response, the advocacy groups filed to continue the case independently. Circuit Court Judge Cueto ruled in Padgett’s favor last August, focusing on the exclusive remedy provision of Florida’s workers’ comp law. Cueto said at the time that cuts in medical and wage-loss benefits made by lawmakers over the years had led to a system that no longer gave injured workers a “fair deal.” He specifically cited workers’ compensation changes made by lawmakers in 2003. “The Act of 2003 no longer provides full medical benefits or any compensation for permanent partial disability,” opined Cueto, adding that “it is inadequate as an exclusive remedy for all injured workers’ The state appealed shortly after the circuit court’s ruling and the case was sent to the 3rd DCA. The appeals court opined in its ruling that the case had strayed from its original intent. The justices wrote that the plaintiffs’ assertions that the workers’ comp system no longer provided adequate benefits to injured workers’ giving up their right to sue “were transformed by the present appellees and their counsel into a completely different set of claims and parties over the three years which followed” and in the process “the case lost (1) the essential elements of a justiciable ‘case or controversy,’ (2) and identifiable and properly-joined defendant, and (3) a procedurally proper vehicle for the trial court’s assessment of the constitutionality…” While not ruling on the constitutionality, the court said its reasons for dismissal precluded the plaintiffs from pursuing the constitutional claims and obtaining relief and added “because we find the issues dispositive, we decline to review the trial court’s analysis of the appellees’ state and federal constitutional claims.” The court further added that the advocacy groups may have an “economic interest in establishing their clients’ rights to file tort claims, but that indirect interest does not confer standing upon them in the present case.” The justices also stated that the associations in this case “are not suffering immediate or threatened injury of the kind comprising a justiciable issue had an individual member of the association-in this case, an attorney regularly representing workers’ compensation claimants-brought the action.”
Former DFS Insurer Rehab/Liquidation Executive Appointed to
Insurance Consumer Advocate Post
Tuesday, July 28, the Chief Financial Officer announced the appointment of Sha’ron James as the state’s Insurance Consumer Advocate effective August 3. A Tallahassee resident, James most recently served as the Director of the DFS Division of Rehabilitation & Liquidation, which oversees court proceedings if a Florida insurance company faces financial failure. James received her bachelor’s degree in economics from Florida A&M University, her master’s degree in public administration from Syracuse University, and her jurist doctor degree from the University of Florida. James replaces the recently retired Steve Burgess in the ICA role. Toma Wilkerson, who currently serves as Assistant Director of the Division of Rehabilitation & Liquidation, has been named Director of that Division.
Citizens Enters the World of Electronic Commerce with “E-signatures”
On July 28 Citizens announced that effective August 1, 2015; the state-run insurer will accept agents’, applicants’ and policyholders’ electronic signatures (also called e-signatures) on all required documents, with two exceptions that require “wet” signatures:
- Due to statutory requirements, policyholder statements to exclude windstorm coverage and/or contents coverage.
- Notarized forms and required forms signed by a customer’s authorized representative.
- Submitting e-signatures on required documents is voluntary.
- E-signatures must be obtained through the use of third-party e-signature providers.
- Forms signed with e-signatures must be submitted to Citizens via Policy Center® and ePAS, as applicable.
- Agents and agencies using e-signatures are responsible for all associated costs and for ensuring that such use complies with all applicable state and federal laws and regulations.
- Agents and agency principals are encouraged to review their respective Agent Appointment Agreement and Agency Agreement documents and must continue to comply with such agreements. In particular, note the provisions of the agreements pertaining to Records Custody and Retention and Citizens’ Confidential Information.
Please contact our office should you have any questions or need assistance with implementing the “e-signatures” process, we’ll be glad to help!
Oh How We Love the Dog Days of summer
That’s not even funny is it! And from what and where did that term come from? Well, maybe I’ll research that for our readers one day, but for now, it just means, hot, hot, hot weather, daily thunderstorms and the onslaught of pesky and dangerous mosquitoes – all those things that keep us in the air conditioned comfort of our homes and businesses. You, like I, have heard of the cases of West Nile virus in Florida already this summer and you will recall the stories we shared about our dear, dear friend Bob Lotane, who is still recovering from a mosquito born virus. We remind you again to take precautions and be smart.
We are traveling again over the next few weeks, so we’ll bring news and events back home to share in the upcoming newsletter editions.
Lisa and the LMA Team