Personal Injury

Did your Auto Insurance Carrier raise your premium for an accident that was not your fault?

Many times consumers are perplexed as to why they have had their auto insurance rates increased after an accident that was not their fault. In Florida, there are actually some statutory guidelines consumers should be aware of.These guidelines fall under the domain of Fla. Stat. 626.9541.

First, let me make sure there is an understanding of the difference between a general global insurance rate increase and that of an actual surcharge to an individual policy holder. Typically, insurance rates are governed by the Florida Department of Financial Services. When it comes to increasing rates on a global basis for an entire class of policy holders, insurance carriers have specific processes and procedures they are required to follow. What we are discussing here are the incidences when an insurance carrier specifically surcharges* ( adds an additional extra premium) a specific policy holder due to an accident.

Fla. Stat. 626.9541 indicates that it is, in general, an unfair act or practice to surcharge a policy holder solely because the insured was in an accident, unless the insurer in good faith believes the insured was substantially at fault in the accident. Insurance carriers fault code each accident for underwriting purposes, hence if an adjuster wrongly indicates an insured is 51% or greater at fault, that will justify a rate increase. Sometimes carriers, without substantial fault by their policy holder, chose to pay a liability claim just to avoid a complaint or an expensive legal battle. That is indeed their prerogative to do. However, they should not surcharge the policyholder. Please note the insurer, at the time of notice of any surcharge, is required to advise the insured that he, or she, is entitled to reimbursement of the surcharge amount, if the named insured demonstrates that the operator involved in the accident was,in fact, not substantially at fault. Following, are the specific conditions, outlined in the statutory language, that are associated with an accident surcharge, that if proven true, allow for a challenge of the surcharge:

(I) Lawfully parked;

(II) Reimbursed by, or on behalf of, a person responsible for the accident or has a judgment against such person;

(III) Struck in the rear by another vehicle headed in the same direction and was not convicted of a moving traffic violation in connection with the accident;

(IV) Hit by a "hit-and-run" driver, if the accident was reported to the proper authorities within 24 hours after discovering the accident;

(V) Not convicted of a moving traffic violation in connection with the accident, but the operator of the other automobile involved in such accident was convicted of a moving traffic violation;

(VI) Finally adjudicated not to be liable by a court of competent jurisdiction;

(VII) In receipt of a traffic citation which was dismissed or nolle prossed; or(VIII) Not at fault as evidenced by a written statement from the insured establishing facts demonstrating lack of fault which are not rebutted by information in the insurer's file from which the insurer in good faith determines that the insured was substantially at fault.

These are clear circumstances that, if applicable, are relatively easy to prove. As you can see, even if the first 7 conditions do not apply, the insured still has the ability to provide a written statement, to their insurance carrier, outlining why they were not substantially at fault in the accident. Here are some key things to remember. The way the law is written places a substantial onus on you, the consumer, to carefully review any premium increase, and to determine if you have in fact been surcharged wrongly. Insurance companies can make mistakes when they determine at fault percentages for underwriting purposes. Sadly, many insureds may not have the knowledge to know when they have been surcharged, or even if they realize it,they may not be savvy enough to understand how to challenge a wrongful surcharge. Now that you’re an educated consumer, don't be afraid to ask questions of your auto insurance carrier and challenge any surcharge that you think is incorrect. Last, when a smart insured knows how to approach their carrier with the facts, they can successfully prevail in these disputes!

** “Surcharge”

An extra charge applied by the insurer. For automobile insurance, a surcharge is usually for accidents or moving violations.

Title XXXVII INSURANCE

Chapter 626

INSURANCE FIELD REPRESENTATIVES AND OPERATIONS

626.9541 Unfair methods of competition and unfair or deceptive acts or practices defined.--

3.a. Imposing or requesting an additional premium for a policy of motor vehicle liability, personal injury protection, medical payment, or collision insurance or any combination thereof or refusing to renew the policy solely because the insured was involved in a motor vehicle accident unless the insurer's file contains information from which the insurer in good faith determines that the insured was substantially at fault in the accident.

b. An insurer which imposes and collects such a surcharge or which refuses to renew such policy shall, in conjunction with the notice of premium due or notice of nonrenewal,notify the named insured that he or she is entitled to reimbursement of such amount or renewal of the policy under the conditions listed below and will subsequently reimburse him or her or renew the policy, if the named insured demonstrates that the operator involved in the accident was:

(I) Lawfully parked;

(II) Reimbursed by, or on behalf of, a person responsible for the accident or has a

judgment against such person;

(III) Struck in the rear by another vehicle headed in the same direction and was not

convicted of a moving traffic violation in connection with the accident;

(IV) Hit by a "hit-and-run" driver, if the accident was reported to the proper authorities

within 24 hours after discovering the accident;

(V) Not convicted of a moving traffic violation in connection with the accident, but the operator of the other automobile involved in such accident was convicted of a moving traffic violation;

(VI) Finally adjudicated not to be liable by a court of competent jurisdiction;

(VII) In receipt of a traffic citation which was dismissed or nolle prossed; or

(VIII) Not at fault as evidenced by a written statement from the insured establishing facts demonstrating lack of fault which are not rebutted by information in the insurer's file from which the insurer in good faith determines that the insured was substantially at fault.

c. In addition to the other provisions of this subparagraph, an insurer may not fail to renew a policy if the insured has had only one accident in which he or she was at fault within the current 3-year period. However, an insurer may nonrenew a policy for reasons

other than accidents in accordance with s. 627.728. This subparagraph does not prohibit nonrenewal of a policy under which the insured has had three or more accidents, regardless of fault, during the most recent 3-year period.

4. Imposing or requesting an additional premium for, or refusing to renew, a policy for motor vehicle insurance solely because the insured committed a noncriminal traffic infraction as described in s. 318.14 unless the infraction is:

a. A second infraction committed within an 18-month period, or a third or subsequent infraction committed within a 36-month period.

b. A violation of s. 316.183, when such violation is a result of exceeding the lawful speed limit by more than 15 mph.

If you believe that your insurance company has wrongfully surcharged you for an accident that was not your fault for one of the above reasons, please contact the Law Office of Andrew N. Cassas, P.A. at 561/265-3311.