Florida/Georgia Personal Injury & Workers Compensation

...*58 Under Florida's Insurance Code, Part VII of Chapter 627 regulates group insurance policies issued in the state. Pursuant to the Code, out-of-state health insurance policies issued to Florida residents must comply with the provisions of Part VII, unless exempt. § 627.6515(1), Fla. Stat. (2002). Out-of-state policies are exempt if they comply with certain mandatory provisions found in section 627.6515(2)....

...hapter 627 if they can tie the alleged violations to specific statutory language and establish an entitlement to relief. 951 So.2d at 890. Under appellant's breach of contract claim, she argues that the insurance policy does not comply with sections 627.6515(2)(a), (b), and (c), thus leaving the policy subject to the provisions of Part VII of Chapter 627....

...The Modders prevailed after a jury trial and ANTEX reinstated their insurance coverage. After receiving the favorable judgments, the Modders filed a motion for attorney's fees under section 627.6698, Florida Statutes (1995). ANTEX opposed the motion, arguing the exclusionary provision of section 627.6515(2) precluded attorney's fees from being assessed against it....

...Both Arthur and Gail Modder appealed the district court's order denying them attorney's fees. The Eleventh Circuit found that the parties had raised issues of first impression under Florida law and that no Florida court has addressed the application, if any, of the exclusionary provision of section 627.6515, Florida Statutes (1995), to the attorney's fee provision of section 627.6698, Florida Statutes (1995). The Eleventh Circuit certified for our review the following question: DOES THE EXCLUSIONARY PROVISION OF SECTION 627.6515(2), FLORIDA STATUTES, EXEMPT AN INSURER FROM ATTORNEY'S FEES LIABILITY UNDER SECTION 627.6698, FLORIDA STATUTES, AND IF SO, HAS THE INSURER IN THIS CASE PROVIDED THE FACTUAL PREDICATE NECESSARY TO COME *332 WITHIN THE EXCLUSIONARY PROVISION? Modder v....

...Co., 86 F.3d 1070, 1071-72 (11th Cir.1996). ANALYSIS The two-part question certified presents this Court with a straightforward question of statutory construction and application. At the outset, we must determine whether the exclusionary provision of section 627.6515(2) exempts an insurer from attorney's fees liability under section 627.6698. Section 627.6515, within part VII of chapter 627, Florida Statutes (1995), and entitled "Out-of-state groups," reads in pertinent part: (1) Any group health insurance policy issued or delivered outside this state under which a resident of this state...

...ion of 60 days after proof of the claim was duly filed with the insurer. (2) When so awarded, the attorney's fee shall be included in the judgment or decree rendered in the case. (Emphasis added.) The Modders argue that the exclusionary provision of section 627.6515(2), Florida Statutes (1995), does not exempt ANTEX from the all-inclusive language of the attorney's fees provision under section 627.6698, Florida Statutes (1995). The Modders contend that because the Florida Legislature enacted the attorney's fees provision after the exclusionary provision, the legislature could not have contemplated that section 627.6515(2) would exempt an insurer from fee liability under section 627.6698. *333 In the alternative, the Modders argue that ANTEX failed to establish that the NBA came within the exclusionary provision of section 627.6515(2)....

...On the other hand, ANTEX maintains that it issued and delivered its policy to the NBA outside of Florida and has otherwise satisfied all the requirements of the exclusionary provision. ANTEX argues that the NBA was formed for purposes other than providing insurance and comprises an association group under section 627.6515(2), thereby qualifying for exemption from attorney's fee liability under section 627.6698....

...n; the statute must be given its plain and obvious meaning." Id. at 219 (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 1144, 137 So. 157 (1931)). We conclude the plain language of these statutes indicates that the exclusionary provision of section 627.6515(2) exempts insurers from liability for attorney's fees under section 627.6698. As ANTEX points out, both sections 627.6515(2) and 627.6698 are found in part VII of chapter 627 of the Florida Statutes. Section 627.6515(2) clearly states: "This part [part VII] does not apply to a group health insurance policy issued or delivered outside of this state under which a resident of this state is provided coverage if ..." and then sets forth three requirements that the policy in question must meet....

...of state. Because section 627.6698 is within part VII, it is among the statutory sections that are not applicable to those "exempt" policies. While the text of section 627.6698 is not selflimiting, its application is clearly limited by the terms of section 627.6515(2). Moreover, contrary to the Modders' assertion that section 627.6515(2) exempts certain policies only from the "compliance" provisions of part VII and not the penalty portion, section 627.6515(2) does not contain an exception for section 627.6698 attorney fee liability that would make it applicable to the otherwise exempt policies....

...The legislature could have made the attorney's fee penalty applicable to these policies, but it declined to do so. We are left to construe the statute as it is plainly written. Thus, we answer the first part of the Eleventh Circuit's certified question in the affirmative and hold that the clear language of section 627.6515(2) establishes that the attorney's fee penalty of section 627.6698, like the rest of part VII, is not applicable to policies described in section 627.6515(2). Finally, then, we address the second part of the Eleventh Circuit's question asking us to determine if the ANTEX policy meets the requirements for exemption set out in section 627.6515(2). As the parties in this case acknowledge, the answer to this question turns on the proper interpretation of the following language in section 627.6515(2)(a): "an association group to cover persons associated in any other common group which common group is formed primarily for purposes other than providing insurance." Reading this subsection of the statute in relation to the entire section, we reject the Modders' argument that this language in section 627.6515(2)(a) requires that the ANTEX policy issued to an "association group"—the NBA—must actually cover persons who are associated in some other common group independent of the NBA. To the contrary, we agree with the federal district court's interpretation of this phrase. That is, the phrase "associated in any other common group" in section 627.6515(2)(a) does not refer to some other group independent of the "association group" covered by the group insurance policy. Rather, the language merely distinguishes the association group covered by the policy and "formed primarily *334 for purposes other than providing insurance," from the other types of groups listed in section 627.6515(2)(a) that are also exempt from the requirements set out in part VII of chapter 627. CONCLUSION In light of the district court's factual findings that (1) the NBA was formed primarily for purposes other than providing insurance, and (2) that ANTEX also has complied with section 627.6515(2)(b) and (c), we answer the second part of the Eleventh Circuit's question in the affirmative. Accordingly, we conclude that the ANTEX group policy providing health insurance coverage to the Modders comes within the exclusionary provision of section 627.6515(2)....

...We agree with Freedom Life's contentions regarding Rule 1.220(b)(2) certification, but affirm in all other respects. FACTUAL BACKGROUND Wallant and Borek purchased GPPO(A) health insurance policies from Freedom Life under an out-of-state group health insurance program, administered by CIA, under Florida Statutes section 627.6515....

...s under her policy. Borek later joined the suit as a class representative. The class as defined by the representatives included: "All insured persons who were issued illegal certificates that did not comport with the clear requirements of Fla. Stat. § 627.6515(2) and whose certificates contained adhesion language pertaining to dispute resolution that was both procedurally and substantively unconscionable for five(5) years prior to the filing of the initial complaint." The representatives also alleged that Freedom Life improperly denies and delays claims in contravention of Florida law and the terms of the policies. In the first count of the complaint, the representatives alleged breach of contract, based on Florida Statutes sections 627.6515 and 627.65625, resulting in monetary loss....

...nterest under Florida Statute sections 627.6698 and 627.428. The second count was for declaratory judgment, seeking that Freedom Life be mandated to comply with Part VII of the Florida Insurance Code regarding claim payment due to noncompliance with section 627.6515(2), which includes a mandate to provide conversion rights as set forth by Florida Statutes section 627.6675, that the dispute resolution provision be rendered unenforceable, and that class members be compensated for violations of Part VII....

...tive of this appeal. Therefore, we certify the following question of law, based on the background recited below, to the Supreme Court of Florida for instructions. FACTS Appellants, Arthur Modder and Gail Modder, contend the exclusionary provision of section 627.6515(2), Florida Statutes does not exempt appellee, American National Life Insurance Company of Texas (Antex), from the all-inclusive language of the attorney’s fees provision under section 627.6698, Florida Statutes. Appellants contend that because the legislature enacted the attorney’s fees provision after the exclusionary provision, the legislature could not have contemplated that section 627.6515(2) would exempt an insurer from fee liability under section 627.6698. Alternatively, appellants contend that Antex failed to establish that the National and Business Association (NBA), came within the exclusionary provision of section 627.6515(2)....

...Antex contends that it issued and delivered its policy outside of the state of Florida, satisfying all the requirements of the exclusionary provision. Antex further contends that the NBA was formed for purposes other than providing insurance and comprises an association group under section 627.6515(2), thereby qualifying for exemption from fee liability under section 627.6698....

...Ultimately, the appellants prevailed and Antex reinstated their insurance coverage. After receiving the favorable judgments, appellants filed a motion for attorney’s fees under section 627.6698, and Antex opposed the motion arguing the exclusionary provision of section 627.6515(2) precluded attorney’s fees against Antex....

...Both appellants appealed the district court’s order denying them attorney’s fees. DISCUSSION We find that the parties in this appeal have raised issues of first impression under Florida law. No Florida court has addressed the application, if any, of the exclusionary provision of section 627.6515, Florida Statutes to the attorney’s provision of section 627.6698, Florida Statutes....

...Because the outcome of this appeal rests solely on the correct clarification of Florida law, we refrain from resolving the issues and certify the question to the highest court in Florida. Accordingly, we certify the following question to the Supreme Court of Florida: DOES THE EXCLUSIONARY PROVISION OF SECTION 627.6515(2), FLORIDA STATUTES EXEMPT AN INSURER FROM ATTORNEY’S FEES LIABILITY UNDER SECTION *1072 627.6698, FLORIDA STATUTES, AND IF SO, HAS THE INSURER IN THIS CASE PROVIDED THE FACTUAL PREDICATE NECESSARY TO COME WITHIN THE EXCLUSIONARY PROVISION....

.../claims-related factors contrary to Part VII of Chapter 627 (Group, Blanket, and Franchise Health Insurance Policies). In count two, Lutz sought a declaration that the group policy issued by Protective Life failed to meet the statutory conditions in section 627.6515(2), which would exempt it from the general provisions of Part VII of Chapter 627, and that Protective Life improperly raised the class members' premiums based on their claims history and/or health status, contrary to "Florida Law." T...

...tective Life's answer. While we agree with the trial court that nothing in the relevant statutes indicates that the legislature intended to create a private right of action for an insured to enforce compliance with an insurer's violation of sections 627.6515, 627.6571 or 627.6675, we believe these statutory provisions could form the basis for a breach of contract action by an insured if properly pled and supported by the evidence....

...perly raised premiums based on health status related factors," but the complaint never sufficiently tied these so-called contractual breaches to any specific statutory language or requirements. Lutz alleged that Protective Life failed to comply with section 627.6515(2), which would exempt the out-of-state policy from the requirements of the bulk of Part VII of Chapter 627; section 627.6675, which requires group policies to provide employees with the option of transferring to a conversion policy...

...es consideration of the issue for the first time on appeal"). We reverse the entry of judgment on the pleadings on the declaratory relief claim to the extent that Lutz sought a declaration that Protective Life failed to comply with the conditions of section 627.6515, which would exempt Lutz's group insurance policy from the general requirements of Part VII of Chapter 627....

...Lutz contends that the parties dispute whether the general requirements of Part VII of Chapter 627 apply to his insurance policy. An out-of-state group health insurance policy must comply with the provisions of Part VII of Chapter 627 in the same manner as group policies issued in the state. See § 627.6515(1), Fla. Stat. (2005). However, an out-of-state group health insurance policy is exempt from most of the requirements of Part VII of the Florida Insurance Code if it complies with certain mandatory provisions found in section 627.6515(2). In his claim for declaratory relief, Lutz maintained that Protective Life failed to strictly comply with the provisions of section 627.6515(2); therefore, the general provisions of Part VII of Chapter 627 apply to his policy of insurance....

...ismiss for failure to state a cause of action. See Domres v. Perrigan, 760 So.2d 1028 (Fla. 5th DCA 2000). We conclude that the pleadings demonstrate that Lutz is entitled to have the trial court resolve whether Protective Life failed to comply with section 627.6515(2), such that the policy would be subject to the general provisions of Part VII of Chapter 627....

...§ 1144. Likewise, the Plaintiff's state statutory argument is unavailing. According to the Defendant, Florida Statute 627.666 does not create a private cause of action, nor does it not apply to the insurance policy at issue. Under Florida Statute 627.6515, the Defendant argues, its insurance policy meets the test for exclusion from the requirements of Florida Statute 627.666, because the policy is allegedly in compliance with the three elements of Section 627.6515(2)....

...However, based upon the record presented before this Court, this Court finds that the provisions of Florida Statute 627.666 have no effect upon the outcome of this case. Specifically, the Court doubts whether the statute actually applies to the Defendant's plan pursuant to Florida Statute 627.6515(2)....

...627.6579, 627.6613, 627.667, and 627.6675. *525 This provision apparently exempts out-of-state groups from the requirements of Florida Statute 627.666 when the health policy at issue meets the conditions set forth in subsections (a), (b), and (c) of section 627.6515(2). Both parties dispute the application of Florida Statute 627.6515(2). In this case, the Defendant contends, through motion and affidavit, that section 627.6515(2) controls and that they have met its conditions. In response, the Plaintiff has offered only argument by counsel that the Defendant has failed to meet its burden of showing that they have met the conditions of section 627.6515(2). Given the possible application of Florida Statute 627.6515(2), the relevancy of section 627.666 remains tenuous....

...The appellant purchased group health insurance through ANTEX. The group policy was delivered to National Business Association, Incorporated Trust, located in Mississippi. Appellant received a certificate of insurance attached to which were several amendatory endorsements required by Florida law. See § 627.6515, Fla....

...Co., 86 F.3d 1070 (11th Cir.1996), we determined that this case involved a dispositive but unsettled question of Florida law. Accordingly, we certified the following question to the Supreme Court of Florida: Does the exclusionary provision of Section 627.6515(2), Florida Statutes, exempt an insurer from liability under Section 627.6698, Florida Statutes, and if so, has the insurer in this case provided the factual predicate necessary to come within the exclusionary pro...

...Modder, 86 F.3d at 1071-72. The Supreme Court of Florida has now answered the certified question in the affirmative stating: [W]e answer the first part of the Eleventh Circuit's certified question in the affirmative and hold that the clear language of section 627.6515(2) establishes that the attorney's fee penalty of section 627.6698, like the rest of part VII, is not applicable to policies described in section 627.6515(2). * Honorable Harlington Wood, Jr., Senior U.S....

...t's factual findings that (1) the NBA [National Business Association] was formed primarily for purposes other than providing insurance, and (2) that ANTEX [American National Life Insurance Company of Texas] also has complied with section 627.6515(2)(b) and (c), we answer the second part of the Eleventh Circuit's question in the affirmative. Modder v....

...American Nat'l Life Ins. Co., 688 So.2d 330, 333-34 (Fla.1997). Based on this answer, we conclude, as did the Supreme Court of Florida, that the ANTEX group policy providing health insurance coverage to the Modders comes within the exclusionary provision of Section 627.6515(2), Florida Statutes....

...Therefore, we certify the following question of law, based on the background recited below, to the Supreme Court of Florida for instructions. FACTS Appellants, Arthur Modder and Gail Modder, contend the exclusionary provision of section 627.6515(2), Florida Statutes does not exempt appellee, American National Life Insurance Company of Texas (Antex), from the all-inclusive language of the attorney's * Honorable Harlington Wood, Jr., Senior U.S....

...fees provision under section 627.6698, Florida Statutes. Appellants contend that because the legislature enacted the attorney's fees provision after the exclusionary provision, the legislature could not have contemplated that section 627.6515(2) would exempt an insurer from fee liability under section 627.6698. Alternatively, appellants contend that Antex failed to establish that the National and Business Association (NBA), came within the exclusionary provision of section 627.6515(2). Antex contends that it issued and delivered its policy outside of the state of Florida, satisfying all the requirements of the exclusionary provision. Antex further contends that the NBA was formed for purposes other than providing insurance and comprises an association group under section 627.6515(2), thereby qualifying for exemption from fee liability under section 627.6698....

...Ultimately, the appellants prevailed and Antex reinstated their insurance coverage. After receiving the favorable judgments, appellants filed a motion for attorney's fees under section 627.6698, and Antex opposed the motion arguing the exclusionary provision of section 627.6515(2) precluded attorney's fees against Antex....

...'s fees. DISCUSSION We find that the parties in this appeal have raised issues of first impression under Florida law. No Florida court has addressed the application, if any, of the exclusionary provision of section 627.6515, Florida Statutes to the attorney's provision of section 627.6698, Florida Statutes....

...rests solely on the correct clarification of Florida law, we refrain from resolving the issues and certify the question to the highest court in Florida. Accordingly, we certify the following question to the Supreme Court of Florida: DOES THE EXCLUSIONARY PROVISION OF SECTION 627.6515(2), FLORIDA STATUTES EXEMPT AN INSURER FROM ATTORNEY'S FEES LIABILITY UNDER SECTION 627.6698, FLORIDA STATUTES, AND IF SO, HAS THE INSURER IN THIS CASE PROVIDED THE FACTUAL PREDICATE NECESSARY TO COME WITHIN THE E...