Florida Business Litigation & Insurance Coverage Law Blog

In Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., 232 So. 3d 273 (Fla. 2017), the Florida Supreme Court answered a certified question from the United States Court of Appeals for the Eleventh Circuit in the affirmative, finding that a Chapter 558 Notice does constitute a “suit” under the definitions in a CGL Policy.

Why Does The Definition Of “Suit” Matter?

An insurance carrier’s duty to defend is only triggered when there is a “suit” seeking damages for “property damage.” 

If you are tired of being harassed by debt collectors and cannot seem to catch up on your payments, filing for bankruptcy might be an option for you.  If you decide to take this route, debt collectors must stop their collection efforts, including harassing phone calls. Debt collectors are automatically notified of your filing, so any call received after they are notified is a violation of the Telephone Consumer Protection Act (TCPA), in addition to The Bankruptcy Code.

But They’re Still Calling

So let’s say you are still receiving calls even after you filed, your case was successfully discharged, and you no longer have to pay your debts. In some cases, not enough time has passed since your case was discharged and they may not have been alerted yet.

You may receive calls from time to time (or all the time) from a pre-recorded message or auto dialer, also known as a robocall. In other words, not a live human being. This could be from your local pharmacy, telemarketers, or even debt collectors. This can be in violation of the Telephone Consumer Protection Act (TCPA), if you have not previously given consent to receive these calls. But the question is, if it’s a pre-recorded message, how do you get them to stop calling?

You can begin by revoking consent one of two ways.

Have you ever decided against purchasing insurance and then suddenly the insurance you should have purchased would have come in handy?  The thought that runs through most people’s head is “hey, maybe I can apply for insurance and have it in time before my car finally kicks the dust or before my new iPhone stops working after it took a plunge in the toilet.”  However, what most people do not realize is that a loss that is known to an applicant prior to a policy’s inception is not covered.

“[L]osses which exist at the time of the insuring agreement, or which are so probable or imminent that there is insufficient ‘risk’ being transferred between the insured and insurer, are not proper subjects of insurance.” 7 Lee R. Russ in consultation with Thomas F.

If you are constantly receiving calls from debt collectors, it is good to know your rights.  Even if you are behind on your bills or owe debts, there are rules that debt collectors must follow.

 Here's What You Should Know

Under the Fair Debt Collections Practices Act, it is illegal for debt collectors to practice the following behaviors:

• Call you repeatedly
• Call you at inconvenient times (late at night or early in the morning)
• Call you at work
• Contact your friends, family, or employer regarding your debt
• Verbally abuse you
• Lie about the amount of money that is owed
• Lie about who they are in order to collect debts (falsely claim to be a lawyer or law enforcement officer, or use a fake company name)
• Threaten to seize or sell your property wages-- unless they are permitted by law and intend to do so
• Threaten to arrest you if your debts are not paid

Informing debt collectors that you aware of your rights may help to limit harassing collection behaviors. However, that is not always the case and you may be entitled to sue for $500 per call.

If you are receiving harassing calls that go against the Fair Debt Collections Practices Act, then give Davis Law Firm a call to help you today.

The TCPA prohibits placing a call that uses a prerecorded voice to a residential telephone line. If on the do not call list, they can be a $500 violation or a violation of the TCPA.  If you are getting robocalls while on the do not call list, contact Davis Law Firm today.  

Robocalls or automated calls are annoying. We all get them, But what can we do about them? The answer is fight back. When you get a robo call to your cell phone it is probably a TCPA violation.  The Telephone Consumer Protection Act protects individuals from unwanted calls to your cell phone by punishing callers for up to $1500 per call.  

 Here's what to do when you receive a robocall:

1. Answer the call and tell them to "stop calling.

Suspicious Emails Are Likely a Scam

If you have received an Email from a company claiming to be Davis Law Firm that states you are being sued for "Violation of Federal Banking Regulation," "Collateral Check Fraud," and "Theft By Deception," it is not us.  In addition, we have reason to believe the email is a scam.  The E-Mail states that a lawsuit has been filed against you based on a potential debt you owe for a payday loan or something similar.  We do NOT do debt collection against consumers. In fact, we make a point to sue debt collectors that attempt to collect improperly.

Examinations Under Oath ("EUO") in Florida

Sometimes after submitting a claim to an insurance company, insureds are requested to participate in an Examination Under Oath, better known in the insurance world as an "EUO."  When an insurance company requests your attendance at an EUO, it's usually not a good thing.  The insurance company would like you to believe that it's just their way of saying "we need more information," but, to me, it really means "we're really considering denying your claim." 

An EUO is exactly what it sounds like: it's an examination (of you) by the insurance company, under oath.  You will be required to attend in person and will be sworn under oath. An attorney for the insurance company will ask you questions that you may have no idea how to answer. A court reporter will be present and will take down every word you say.  It's similar to a deposition in a lawsuit, but for an EUO, no pending lawsuit is required.  

If you're ordered to an EUO, the insurance company is probably considering denying your claim.  As stated above, the insurance company wants you to believe that they're just gathering information, but there is usually more to it than that.  There are circumstances that they may find questionable and they want to lock you into a statement that they can later use to deny your claim. Like on crime shows on TV, what you say can be used against you.  

Are you required to attend an EUO?  The short answer is generally, yes.  Your insurance policy likely has a clause that requires your (as the insureds) cooperation with the insurance company's investigation.  This cooperation clause likely requires your attendance at an EUO.  

The good news is, you can have an attorney present at an EUO.  And you should.  I tell all of my insurance clients that, like a deposition, you don't want to have your statement taken under oath without an attorney on your side. The insurance company will have an attorney that may be trying to make you say something to give them a reason to deny your claim.  It's best to have an experienced insurance attorney there with you to steer you clear of any traps.  A Florida EUO attorney will give you your best shot at getting the claim covered. 

 What type of claims do insurance companies request an EUO? All types, but often when there's a particularly tricky factual issue, often present in fire claims, theft claims, uninsured motorist claims, and claims where they suspect fraud. 

EUO's are not to be taken lightly.  If your insurance company requests an EUO from you, contact an experienced Florida EUO attorney immediately.  

Collection Calls for Others are TCPA Violations 

One question I often receive from clients relates to collection calls for another person.  Are collection calls for another person a violation of the TCPA to YOU, the party that received the call?  The simple answer is a resounding "Yes."  TCPA violations apply to the "called party," regardless of whether they are calling about your debt or someone else's.  This makes sense because the TCPA is all about protecting people from harassment.  In fact, TCPA violations for calls looking for others or relatives is even an easier case to prove than when collectors are calling for you.  I'll explain why. 

As I often explain to my clients, a TCPA violation has three main elements: 

1. An automated call (it can be a pre-recorded voice or a call by an auto-dialer or robodialer);
2. to your cell phone;
3. without your consent. 

TCPA violations are that simple.  Usually the first two elements are pretty easy to determine.  If there's a recording on the other end of the line, a "press one" message, or a delay when you answer and before the other party speaks, chances are that it's an autodialer. Determining whether they are calling your cell phone is even more simple. The consent element is often the tricky part. 

Calls for Relatives are TCPA Violations

However, if someone is calling to collect a debt from a relative or a person that you do not know, then the lack of consent element is clearly met.  You see, consent to call is often given when you sign up for a debt or click on a user agreement when applying for a credit card online.  But if you never sign up for service or a credit card, then you could not have given consent.  Thus, collection calls for relatives or others are often the easiest cases to prove.  

So, when the bank autodials your cell phone looking for Uncle Ricky, that is a violation to YOU.  You are the person that is entitled to sue for $500 per call.  Tell them to stop calling. Tell them that they have the wrong number.  Log all of your calls to document the TCPA Violations. Follow the example call log in our previous TCPA article here.  Then call us and let us get you the money that you deserve. 

Five Steps to Disputing Incorrect Entries on Your Credit Report

Having good credit is important.  But what happens if you find an incorrect entry on your credit report that should not be there? In this article, we'll take you step by step through what you should do to dispute the mistake in your credit report. Follow these instructions exactly, and you'll be in the best position to bring a claim should the credit reporting agency not properly remedy the mistake. 

But first, let us explain why it is so important to dispute improper entries on your credit report.  You undoubtedly know the practical reasons, including being denied credit for a house, a business loan, being denied a job, and other life-altering reasons. From a legal standpoint, however, most people do not realize that the damage from an improper denial is recoverable in court, including damages for emotional distress, humiliation, mental anguish, loss of reputation, invasion of privacy, fear of lost credit opportunities and others.  

One recent jury awarded an $18 million verdict to a consumer against Experian for improper credit reporting. Although these results are not typical, it does mean that common people like those jurors understand the frustration and damage that an improper credit report can cause a person. But, your losses are only recoverable if you follow the instructions below and properly dispute your credit report.  

1. Write a Dispute Letter to the Credit Reporting Agencies AND the Company that Reported the Error

The letter should clearly and concisely address the mistake on your credit report, explain why it is incorrect, and request that it be removed and corrected. Use this example of a dispute letter from the FTC's website as your template and enter your own information and facts. 

Address the letter to ALL of the credit reporting agencies as well as the company that sent in the error.  For example, if Comcast erroneously reported that you failed to pay a $75 bill, address the letter to all of the credit reporting agencies as well as Comcast.  The contact information for all three of the credit reporting agencies is at the end of this article.

2.  Include All Documents that Support Your Case

In the initial letter, include all documents that support your case. Include a copy of your last bill and a snapshot of your bank account or cashed check showing that the payment was made. If the bill was not yours, include a copy of your driver's license showing that the incorrect entry was for "John A. Smith" and you are "John B. Smith."  Essentially include anything that you think will help.  

3.  Keep Evidence of What You Send and Receive

You want to document everything you send and receive.  If you include a copy of your bank statement with your dispute letter, scan it and keep a copy somewhere for later. Include in the letter statements like "I'm attaching proof of payment for your review."  Ideally, send the letters via certified mail or some type of return receipt.  If you can get an email contact to send the letters, send your documents by email as well.  An online trail is the best proof that you've been disputing properly.  

4.  Be Persistent

Chances are that your dispute will not be resolved immediately.  If your dispute is reviewed and denied, but you know the information on the report is inaccurate, don't give up.  Send another letter. Then another. And send an email, and make a call, document every time you contact them.  The more egregious their denial of your request to correct the problem is, the more damages will be awarded against them in the end. 

5.  Send Your Dispute to All Three of the Credit Reporting Agencies

The three main credit reporting agencies are Equifax, Experian, and Transunion.  Address your letters to all of them. Their contact information is below.  If there is another credit reporting agency that you know is improperly reporting entries, make sure to send your dispute to them as well. 

Equifax 

Complete this form, attach your dispute letter, and mail to: 

Equifax Information Services LLC
P.O. Box 740256
Atlanta, GA 30374

Online - Also, you can dispute online here: Equifax Online Dispute Form 

Experian

Mailing address: 

Experian
P.O. Box 4500
Allen, TX 75013

Online - To dispute online, click here: Experian Online Dispute

Transunion

Complete this form, attach your dispute letter, and mail to: 

TransUnion Consumer Solutions
P.O. Box 2000
Chester, PA 19022-2000 

Online - To dispute online, click here: Transunion Online Dispute