Kevin B. Dreher
Haley A. Hinton
In the aftermath of Hurricane Ian and the great devastation it caused, Florida policyholders will face new and substantial hurdles when seeking to obtain any insurance coverage in 2023, particularly insurance for losses sustained by future hurricanes. On Dec. 16, 2022, Gov. Ron DeSantis approved a bill, SB 2A (identical to HB 1A, hereinafter referred to as the “Legislation”), which will completely reform and overhaul how policyholders in the state of Florida are able to obtain, or rather not obtain, property insurance coverage in the aftermath of losses such as those sustained from Hurricane Ian. House sponsor of the Legislation, Tom Leek (Republican from Ormond Beach), proudly stated that this new Legislation represents the “biggest, meatiest, beefiest property insurance reform legislation that the state has ever seen.” While the Legislation originally was touted to other members of the House and the public as a means of reducing litigation costs, speeding up the claims process, and preventing “fraudulent claims,” the reality is that this Legislation will harm individual and corporate policyholders in the state of Florida by reducing the availability of insurance, increasing the cost of insurance, and making it much more challenging for a policyholder to enforce and collect on their valid claims against their insurers in the aftermath of losses such as those sustained by Hurricane Ian.
Here are a few salient points about this new Legislation that Florida policyholders should be aware of going forward:
1. The Legislation will not bring any immediate or short term financial relief to policyholders in the form of reduction to the high cost of insurance in the state of Florida. Lawmakers, including Leek, have been clear in taking the position that they do not expect the law to “provide immediate relief to homeowners” in the near future with respect to any reduction to the cost of insurance. However, lawmakers remain hopeful that policyholders may see rates begin to decrease in a year or two.
2. Under the new Legislation, policyholders who are forced to bring a lawsuit against their property insurer who wrongly refuses to pay a claim are no longer able to recover the attorney fees they are forced to spend to obtain their insurance. Insurers lobbied for the passage of the Legislation based on the false position that Florida’s mandate requiring insurers to pay the attorney fees of policyholders forced to bring suit to obtain their insurance has led to an increase in litigation and costs. However, the Legislation will only further encourage insurers to deny valid claims in order to make it even more costly for policyholders to seek and obtain the insurance they were promised. The result is not likely to lessen Litigation; rather, it is more likely to encourage it by providing insurers with incentive to create insurance disputes over claims they should pay. Unfortunately, the Legislation shifts the cost of this Litigation squarely onto policyholders even when they successfully litigate their claims against an insurer who should have paid the claim in the first instance.
3. Policyholders can no longer “assign their insurance benefits” from their claims to contractors or other third parties. Prior to this Legislation, policyholders enjoyed the right to assign their insurance claims (i.e. to use their claims as compensation) to contractors and third parties who could then stand in the shoes of the policyholder to pursue and obtain insurance coverage directly from the insurer. Now, with the passage of this new Legislation, policyholders in Florida have been stripped of this right. Not only has this Legislation encouraged insurers to deny more claims and made litigation more costly for policyholders, but policyholders can no longer assign these claims to third parties as a means of providing compensation to that party for work they perform to assist a policyholder with recovering from an insurable loss. Although insurers (once again) falsely claimed that this practice of assigning claims increased litigation and costs, in reality an assignment provided policyholders with immediate financial support from third parties in exchange for the right to pursue the insurance claim in place of the policyholder. As insurers know, when a policyholder suffers a significant loss, such as from a hurricane, most policyholders do not have the resources to pursue a contested insurance claim, particularly in litigation and particularly where the policyholder cannot recover their litigation costs. In the end, the only party who benefits from taking away a policyholder’s right to assign its claim is the insurer.
4. This new Legislation will shrink the insurance market for policyholders, reduce the time period for policyholders to pursue claims and create a policyholder funded pool of money to bail out financially insolvent insurance companies. Under the new Legislation, Florida property insurers will be financially supported by the state of Florida to provide funding for failing insurers while making it more difficult for policyholders to obtain insurance or collect on their claims. Surprisingly, this Legislation puts into effect several additional onerous measures likely to harm policyholders while financially supporting insurers, such as:
(a) Homeowners/policyholders can only obtain insurance from private carriers and will eliminate state-backed insurance (e.g., Citizens Property Insurance Corp.);
(b) The window of time for policyholders to pursue their insurance prior to bringing a lawsuit will be reduced from two years to one year; and
(c) The state of Florida will create a reinsurance program funded by the state, entitled the Florida Optional Reinsurance Assistance Program, to provide insurers with additional reinsurance (insurance for any claims they pay to policyholders) at a reduced cost.
Although the Legislation includes some measures that may be beneficial to some policyholders—such as shortening the time period for an insurer to deny or cover claims from 90 days to 60 days—the Legislation completely alters the rights of policyholders in Florida and provides insurers with significant leverage to drive up the cost for policyholders to obtain insurance coverage and recovery for their valid claims.
National Law Review, Volume XIII, Number 5
Source URL: https://www.natlawreview.com/article/florida-property-insurance-reforms-to-lead-to-major-hurdles-policyholders
Justin Berlin provides analysis to Telemundo on the confusing state of Marijuana laws
Congress is moving towards the legalization of marijuana. This is what you should know for your safety
Translated from Telemundo. Original Author, Felipe Gálvez T.
NOVEMBER 20, 2019 / 10:00 AM EDT
Marijuana divides the United States into two. It is legal in 11 states, but it is prohibited at the federal level, which causes for example that you cannot buy with a credit card even where it is allowed. In New York, there are Latinos who go to jail (or are deported) for smoking it in the Queens neighborhood, but it is legal to do so in Manhattan. Even the Democrats doubt: the main candidate for the presidency in 2020 is against its legalization because it leads to using other drugs, while most of its rivals think the opposite.
This Wednesday, the Judicial Committee of the House of Representatives approved, with 24 votes in favor and 10 against, the proposed law to legalize this drug at the federal level. Now it will be the Plenary, with a Democratic majority, that makes the final decision, although it must still be endorsed by the Senate, under Republican control, and, ultimately, signed by President Donald Trump.
The measure would not only legalize the use of marijuana, but also eliminate the criminal record (every year there are more than 600,000 arrests for this reason , which punish mostly Latinos and other minorities). That would also relieve migrants facing deportation for that crime.
In any case, it seems difficult for legalization to occur before November 2020, when the White House and the Upper House could change political color.
But the debate advances strongly in society, and political divergences cause serious complications.
In 11 states it is already completely legal, while in 11 it is still prohibited. In the remaining 28, its use is allowed for medicinal reasons, or the police do not pursue its consumption, although the variety of nuances continues to create confusion and differences, especially in the way in which the authorities act.
Are those consumers protected by the law of the state in which they live to do something that is illegal at the federal level?
Can an industry of billions of dollars rely on the production and consumption of a product whose use is pursued by the FBI?
Only an important Democratic candidate opposes
Nearly seven in 10 Americans believe that marijuana should be legal, according to a study by the Pew Research Center released in November .
But the discussion continues to polarize politicians, and not just Republicans against Democrats: among the latter, former Vice President Joe Biden , the leading candidate according to polls in the 2020 elections, said Saturday that he is against it because “there is still not enough evidence to rule out that it is not an entry drug [to other drugs]. ”
Senator Kamala Harris , also among the favorites in the Democratic primary, instead heads the efforts to legalize her. "Let's be clear," he wrote on the social network Twitter hours later, "marijuana is not a gateway and must be legalized."
Biden, who in any case has said to respect the decisions of the states, is the only one of the main Democratic candidates who opposes the decriminalization of marijuana.
Senator Elizabeth Warren has recalled that both African Americans and whites consume marijuana "but the former are more likely to be arrested." “If we talk about criminal justice reform, we must start with the things we do illegally. One of the best places we could start with is the legalization of marijuana, ”he said.
Senator Bernie Sanders revealed in October his plan to legalize marijuana, which includes creating a federal clemency board to deal with related convictions.
Mayor Pete Buttigieg , who acknowledged having consumed it "a handful of times a long time ago," has said that the criminalization of drugs, especially marijuana, has failed. He even assured that its medicinal use should be covered by health insurance, like any other therapy.
Among the Republicans, legalization also has support. Senator Cory Gardner of Colorado, where marijuana is legal, and Rand Paul of Kentucky, where it is not, have come out in favor of decriminalization.
The president, Donald Trump , said during his 2016 campaign that he would respect the states in which he is considered legal, but criticized this decision and suggested that it should be avoided.
Speaking to Telemundo News, Justin Strekal, political director of the National Organization for the Reform of the Laws on Marijuana, said that “never in history has there been a presidential contest in which so many candidates support ending the failed policy of the criminalization of marijuana . "
"When more than 66% of the American public, including Democratic, independent and Republican majorities support its legal use among adults, it is increasingly likely that the United States will never elect a prohibitionist president again," he emphasized.
Studies for and against
Among the scientific community, the use of marijuana also divides. Dr. Peter Grinspoon reasons on the website of the Harvard Medical School his medicinal use of the drug, indicating that one of its components, the CBD, has shown benefits for patients with chronic pain, as well as the relief of insomnia or anxiety.
But some of its negative effects have also been studied, such as loss of attention and memory, impaired coordination and increased risk of certain mental illnesses, according to the Centers for Disease Control and Prevention (CDC).
The use of the drug has been linked to an increase in traffic accidents in the states where its recreational use has been approved. There are even studies that claim that it could generate bipolar symptoms in adolescents .
The National Academies of Science, Engineering and Medicine prepared a report in 2017 where it analyzed relevant studies carried out since 1999, concluding, among other things, that more analysis is still needed to be able to make sound decisions in the field of health .
The legalization of this drug is also a matter of discussion among lawyers who know the difficulties that the federal prohibition presents in opposition to state authorizations.
Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont and Washington, in addition to Washington DC are the states where marijuana has been fully legalized (in Illinois as of January 1). In another 28 states it has been decriminalized only in some cases.
But in all of them there have been controversial situations: for example, an immigrant can see his legal status jeopardized if he works for this industry even if it is legal in the state where he resides.
The lawyer Michael Horn, based in New York, explained to Telemundo that "if the state says one thing and the federal law another, the latter is the prevailing one." That is, "even in states where it is legal, the consumer is violating federal legislation," he argued recalling the case of Brandon Coats, who was fired in Colorado after failing to pass a drug test .
Coats, who was a quadriplegic patient, relied on medicinal use. But the state Supreme Court said that even when Colorado legalized the use of marijuana, companies can fire for consuming it because it is prohibited at the federal level.
The lawyer believes, however, that in relation to the use of marijuana, the federal government is more focused on drug trafficking cases, and not on the sale and consumption of the citizen.
He assures in any case that this legal difference creates "a rare sub-economy: multi-million dollar businesses, but that work in cash, with a bank that does not want to be involved." And to this are added problems such as the difficulties of companies to hire staff, offer benefits and even pay their employees' taxes.
One solution, apart from the discussion that will take place in Congress, would be for regulators (such as the Currency Control Office or the Federal Deposit Insurance Corporation) to regulate the banking relationship with this trade: “They could say, if a bank negotiates with one of these companies in a state where this drug is legal, that's fine, we're not going to chase them for breaking the law. ” And the bank "really wants this, they want to be part of this business that could generate billions of dollars, but they don't want to risk going to jail for this," he concludes.
What happens in Florida, Colorado and California
Florida is one of the states where the possession and consumption of marijuana are still prohibited, although the issue is treated with certain nuances, according to attorney Justin Berlin, based in Broward County. Last year this state approved the medicinal use of the drug, but in a more limited way than in other states.
"Certain types of marijuana possession can be [considered] a crime in Florida, so leaving at the discretion of a police officer [if the punishment is] a small fine and a crime has created some uneven results," he says.
"The Broward Sheriff's Office announced that they will not make arrests of persons possessing less than three grams of marijuana and that the mere act of smelling marijuana is no longer 'probable cause' to allow a police officer to conduct searches," He added, "But every city and every police department has followed different policies, which is creating inconsistency and confusion."
In Colorado, where five years have passed since marijuana was legalized for recreational use, a lucrative industry that generates tax revenue has been generated; but there are those who believe that certain repairs have not been overcome for moral and health reasons , and that the quality of life has even decreased.
In California, one of the first places to legalize it, the black marijuana market continues to generate problems. The state authorities recently reported the seizure of illegal plantations valued at 1,500 million dollars during fiscal year 2019, an amount that according to an expert cited by the news agency The Associated Press, is equal to everything generated by the legal drug market .
Supreme Court says warrant necessary for phone location data in win for privacy
By Alfred Ng of Cnet
US justices say law enforcement needs a warrant to follow your digital footprints. The Supreme Court rules police need warrants to gather phone location data as evidence for trials.
In a 5-4 decision on Friday the justices said that police need warrants to gather phone location data as evidence for trials. That reversed and remanded a decision by the Sixth Circuit Court of Appeals.
United States is the first case about phone location data that the Supreme Court has ruled on. That makes it a landmark decision regarding how law enforcement agencies can use technology as they build cases. The court heard arguments in the case on Nov. 29.
The dispute dates back to a 2011 robbery in Detroit, after which police gathered months of phone location data from Timothy Carpenter's phone provider. They pulled together 12,898 different locations from Carpenter, over 127 days.
The legal and privacy concern was that police gathered the four months' worth of Carpenter's digital footprints without a warrant. A Sixth Circuit Court of Appeals judge ruled that cellphone location data is not protected by the Fourth Amendment, which forbids unreasonable search and seizure, and therefore didn't require a warrant.
In the Supreme Court's ruling, Chief Justice John Roberts wrote that the government's searches of Carpenter's phone records were considered a Fourth Amendment search.
"The Government's position fails to contend with the seismic shifts in digital technology that made possible the tracking of not only Carpenter's location but also everyone else's, not for a short period but for years and years," he wrote.
Roberts said that allowing government access to historical GPS data infringes on Carpenter's Fourth Amendment protections and expectation of privacy, by providing law enforcement with an "all-encompassing record" of his whereabouts. He added that historical GPS data presents an "even greater privacy risk" than real-time GPS monitoring.
Carpenter's attorneys, including lawyers from the American Civil Liberties Union, argued before the Supreme Court that cellphone location data constitutes sensitive digital records and should be protected under the Fourth Amendment.
"This is a groundbreaking victory for Americans' privacy rights in the digital age," ACLU attorney Nathan Freed Wessler, who argued the case, said in a statement. "The Supreme Court has given privacy law an update that it has badly needed for many years, finally bringing it in line with the realities of modern life. The government can no longer claim that the mere act of using technology eliminates the Fourth Amendment's protections."
Phone location data is a hot-button issue for privacy advocates. In May, Sen. Ron Wyden, a Democrat from Oregon, asked phone service providers why they were giving away location data to Securus Technologies, a service that monitors calls to prison inmates, which police could use to track anybody's phone in the US, without a warrant.
Also in May, the Federal Communications Commission opened an investigation into LocationSmart, a company that boasted that it could find any phone in the US without needing special permission.
The Supreme Court's decision now sets a precedent for every Americans' phone location data being used in criminal investigations, Wessler said.
"It's not just about Carpenter, it's about the rights of Americans who own cellphones, which is in excess of 95 percent of people in the country," Wessler said in a press conference call.
Fighting 'near-perfect surveillance'Wyden said Friday's ruling was a "welcome step" for privacy and fighting against the expanding power of government surveillance.
"The court's recognition that digital devices can generate 'near-perfect surveillance' of a person's private life is a validation of the vital protections against unreasonable search and seizure provided by our Constitution," the senator said.
The losing argument was that phone companies can provide customers' data to law enforcement because they own those records, not the person. During the trial, US Deputy Solicitor General Michael Dreeben told the Supreme Court that people agree to hand over their information to providers for their service.
"It is asking a business to provide information about the business' own transactions with a customer," Dreeben said in November.
Before the trial took place, major tech companies, including Apple, Facebook and Google, filed a friend-of-the-court brief with the Supreme Court, urging the justices to make it harder for law enforcement officials to obtain individuals' data without a warrant.
While the decision sets a ruling for historical GPS data, the Supreme Court said it does not apply to security cameras, business records or real-time location tracking.
As technology improves, so will surveillance techniques, Ryan Radia, a Center for Technology and Innovation research fellow, said. For example, cell tower location data is going to become much more accurate once 5G rolls out, Radia said.
He said Friday's decision showed that the Supreme Court is willing to continue to weigh privacy implications that technology continues to change.
"For people who are understandably worried about technological evolution enabling tools and mass surveillance, they can take solace in the fact that the court has willingness to limit the government's abilities to surveill," Radia said.
The Computer and Communications Industry Association's president Ed Black said the decision would have significant impact on how the Fourth Amendment protects your data from government surveillance.
"This decision will provide users with the confidence that the sensitive location data they share with innovative digital devices and services will only be disclosed to law enforcement with a warrant based on probable cause," he said.
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FORT LAUDERDALE, Fla. (Reuters) - Florida Governor Rick Scott signed amended "stand your ground" legislation, making it easier for defendants in the state to successfully claim they were protecting themselves when they commit violence.
Previously, the law required defendants to prove that they were using force in self-defense. The new law shifts the burden of proof in pretrial hearings to prosecutors, rather than defendants, to prove whether force was used lawfully.
Supporters of stand your ground laws, including the National Rifle Association, the powerful U.S. gun lobby, see the legislation as bolstering civilians' right to protect themselves.
Florida's self-defense law was initially passed in 2005, and inspired similar laws in other states. It removes the legal responsibility to retreat from a dangerous situation and allows the use of deadly force when a person feels greatly threatened.
Opponents have said the amended law will embolden gun owners to shoot first, citing the 2012 death of unarmed black teenager Trayvon Martin in the Orlando area, which spurred national protests and the Black Lives Matter movement.
The neighborhood watchman who killed him, George Zimmerman, was acquitted of murder after the state's stand your ground law was included in jury instructions.
Scott, a Republican, signed the amended legislation into law along with a spate of other measures passed this week in a special session of the state's legislature. The measure was largely passed by party-line vote in the legislature.
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