Restoration Association Accuses Florida Insurance Commissioner of Unconstitutional Conduct

A lawsuit filed by the Restoration Association of Florida has accused Florida’s Insurance Commissioner, David Altmaier, of acting in concert with the insurers he regulates to unconstitutionally approve an insurance companies forms which allow for arbitration but not a lawsuit to resolve controversies. I wrote about this new policy form in Will Arbitration Be the New Appraisal? https://www.propertyinsurancecoveragelaw.com/2022/05/articles/insurance/will-arbitration-be-the-new-appraisal/.

While the lawsuit is attached, some of the allegations are:

“1. American Integrity and Heritage unlawfully stripped away Florida homeowners’ and their assignees’ lawful rights and remedies regarding property insurance claims and used the Florida Office of insurance Regulation to unconstitutionally approve ill-conceived changes to their policies. In fact, Commissioner Altmaier has been interviewed on occasion, and he stated the Office of Insurance Regulation can assist where the Legislature fails – a rather mystifying statement that disregards traditional notions of separation of powers in our system of state government.

It is not a secret that property damage insurance claims are prevalent in Florida due to the occurrence of hurricanes, floods, and other storm-related events. Homeowners rely on their insurance companies and the policies purchased as life preservers after problems occur, and certainly after disasters strike. Yet, the goal of the Insurance Company Defendants here is to mount as many barriers as possible to homeowners receiving the proceeds of their policies for lawful claims while, at the same time, reaping the benefits of policy premiums paid by Floridians. Lawsuits are inevitably filed by homeowners against their insurers when insurance companies delay paying claims, underpay claims, or do not pay them at all.

In this instance, the policy changes deny (i) statutory rights enacted by the Legislature; (ii) the ability of Florida citizens to utilize the services of necessary and required contractors of their choice to repair property damage; (iii) justice in court through a jury trial; and (iv) the right to recover attorneys’ fees after prevailing against the Insurance Company Defendants in a lawsuit.

…

By supplanting statutory provisions intended to protect policyholders, Commissioner Altmaier has arrogated authority to himself that properly rests with the Legislature. Pursuant to the constitutional separation of powers that divides state government into legislative, executive, and judicial branches, “[n]o person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” ART. II, § 3, FLA. CONST.

The result of this ultra vires exercise of authority will cost policyholders more money to enforce insurance contracts for which they have paid premiums, require them to give up their right to a trial by jury as guaranteed “inviolate” by the Florida Constitution, and incur costs to vindicate rights that the Florida Legislature stated must be paid by the Insurance Company Defendants.”

The right to jury trial is fundamental to American democracy. Governments, as well as dictators, certainly have a different view on “power to the people” and generally make dictates and laws to abrogate these rights. This is what this lawsuit is about.

Whether it will prevail is anybody’s guess. I have unsuccessfully trying to get the Florida legislature to pass an anti-arbitration act applicable to first party insurance contracts. It seems fundamentally unfair to allow clauses that would make the arbitration in a far away venue applying another state’s insurance laws.