The Florida Senate and the Florida House are fast tracking a bill relating to property insurance in Florida. And, that sounds good on its face, but is it good for homeowners?

Easy answer is it is not good for homeowners, but it is simply one of many bills that legislators are trying to pass that will help big business (not small business owners) and will hurt consumers. This bill will severely limit coverage available to consumers and provides no reduction in premium that in any realistic way corresponds to the loss by consumers.

Let’s take a look at the latest version of Senate Bill 408 – An Act Relating to Property and Casualty Insurance; shall we?

Florida is a big sand bar. Sinkholes are a fact of life; even though they happen rarely. The damage, which can be done by a sinkhole is typically substantial.

The new law will limit coverage for sinkholes to only the “principal building”. So, no coverage for your unattached garage unless the insurance company specifically agrees to add it. In addition, there is no longer the standard deductible; insurers will now be able to charge a deductible equal to “1 percent, 2 percent, 5 percent, or ten percent of the policy dwelling limits”. So, if you have $250,000 in dwelling coverage, you could have a sinkhole damage deductible as high as $25,000.

Question: is there a sinkhole crisis in Florida that would compel the legislature to limit consumers’ rights and additional benefits to protect insurance companies?

Now, though, through a carefully worded disclosure, insurance companies are not required to offer sinkhole coverage as long as they “inform” policyholders of the following:

“Your policy provides coverage for a catastrophic ground cover collapse that results in the property being condemned and uninhabitable. Otherwise, your policy does not provide coverage for sinkhole losses.”

If a sinkhole collapses the corner foundation and requires $30,000 in structural repairs, but does not cause your property to be “condemned and uninhabitable”, there is likely to be no coverage. If there is coverage, your deductible may be high enough that there may as well not be any coverage.

If you file a claim, this is how the process goes under Senate Bill 408.

The insurance company hires the professional engineer to determine if sinkhole activity has occurred and the extent of repairs necessary according to the engineer hired by the insurance company. The insurance company does not have to pay for repairs not found necessary by the insurance company paid engineer.

What happens if the insurance company paid engineer finds no sinkhole loss and after you have refused to withdraw the claim, but you refuse to withdraw it? The “policyholder shall reimburse the insurer for 50 percent of the actual costs of the analyses and services provided…”

What if you must file a lawsuit against the insurance company? The new law says that the burden of proof shifts in favor of the insurance company and its engineer:

“…the findings, opinions, and recommendations of the professional engineer as to the land and building stabilization and foundation repair…shall be presumed correct…”

In English, this means that you must go into court, the judge is going to start out believing the findings of the insurance company paid engineer and you will be required to prove that he or she is wrong and why.

So, let us assume that you have a sinkhole loss that the insurance company agrees to and pays for repairs. If that happens, under Senate bill 408, you are required to record in the county records that a sinkhole loss occurred to the property. In addition, if you sell your house, you are affirmatively required to disclose to a buyer that a sinkhole loss occurred. Now, if we assume that the insurance company’s engineer properly identifies all the necessary repairs; the insurance company pays the correct amount; and the insurance company’s contractor properly makes the repairs; the house should be fine now. Well, maybe. The new law specifically waives any liability upon the insurance company for the negligence of the insurance company paid engineer in finding all the damage or proscribing all the appropriate repairs.

Why should a paper have to be recorded to notify the world of sinkhole damage; why is there an affirmative duty to disclose the nature of sinkhole damage; and why such a large deductible for sinkhole claims? Because these three things combines will discourage homeowners from reporting sinkhole claims. The insurance companies know this; your legislators know this; and both of them are chuckling all the way to the bank.

When can you file suit? Well, you must agree to non-binding, but mandatory, “neutral evaluation” before you may file a lawsuit (now, keep in mind that your house is damaged through this whole process). The “neutral evaluator” must “make reasonable efforts” to hold the evaluation conference within 90 days, but the failure to accomplish it in 90 days does not invalidate the requirement to still go forward with it. After the “neutral evaluator” gets around to evaluating, he or she has 14 business days (effectively three weeks” in which to issue a report.

So, if you suffer sinkhole damage to your home. If you are lucky enough to get the insurance company to agree to pay for repairs. If you are fortunate enough to get everything properly repaired, you have probably been living in a damaged home for possibly as long as four to six months. You are also now branded forever with a home that has been documented as having suffered a sinkhole collapse; even though the insurance company’s engineer will assure you that it has all been properly identified and fixed.

So, what is the overriding crisis that is motivating your legislators to pass this type of anti-consumer legislation?

Because they are betting they can get away with it and that you will reelect them anyway. What does that say about what they think of us voters?

Business interests are fond of complaining about the jury system and regularly claim that it is “broken”, it needs to be “fixed”. Perhaps the best word is, in fact, “fixed”; they would like to fix the civil justice system so that it can be better influenced in their direction. Should we hold it against them because they work to achieve an unfair playing field? We should not hate Big Corporations for this, but should we allow them to achieve it? Absolutely not!

I think the jury system our founding fathers borrowed from English common law works just fine in protecting the rights of individual citizens. Frankly, I want six of my fellow citizens sitting and listening to evidence in my case. I want six regular people considering what makes sense and what does not make sense. I do not want a special panel appointed to hear my case, as has been promoted by many business “political parrots”. I do not want the government inserting itself into the civil justice system anymore than they already do. I trust an impartial panel of my fellow citizens to fairly weigh the evidence and reach a decision that makes sense.

Imagine if we did not have a civil justice system? What if we did what Big Business and the Insurance Lobby would like for us to do and do away with all lawsuits; except, of course, when one corporation wants to sue another corporation? Where would we be? Imagine that you get a call and find out that a guy ran a red light and your wife, daughter, or son are in the hospital injured. You go to the hospital and your loved one heals as best as they can or as best as they can based on your ability to pay. What then? If there is no civil justice system do you break out the armor, your sword and your trusty steed and launch an assault on the house of the guy who ran the red light? Do you drive your car into his one day? What recourse for justice would we have without a civil justice system that, at least, promises an opportunity to pursue justice? Keeping the courthouse doors open to allow citizens an opportunity to bring grievances and to have those grievances heard by an impartial jury is an integral part of our justice system.

So, how do we have an opportunity to obtain an impartial jury? Through a process called “voir dire” an opportunity is provided to have your case heard by an impartial set of jurors. Voir dire is simply the opportunity for attorneys representing each of the parties to a lawsuit to ask prospective jurors questions. Those questions are supposed to disclose potential biases held and allow only those who have no preconceived opinions of matters connected to the case to be jurors. For example, if you are suing the ABC Corporation, you might not want an employee or stockholder of the ABC Corporation to be a juror, since the outcome of the case might have an effect on that person. In fairness, you should be permitted to ask that person to step aside for another juror who may not be influenced by their relationship with ABC Corporation.

When attorneys are asking questions of prospective jurors, the inquiry sometimes seems extremely invasive and overly personal. It is not the attorney’s intent to embarrass any prospective juror or be too invasive about the information they are seeking. Their job, though, is to do everything in their power to try and disclose any bias a juror may have and, sometimes, it may be a bias the juror was not even consciously aware of having. In fact, at any point during this questioning, a juror may request that they be allowed to answer questions privately, with only the judge and attorneys present.

During the course of jury selection, the judge or attorneys may ask that a prospective juror be excused without any apparent explanation. This happens for reasons not always apparent or obvious, but it is not a criticism of that particular juror. It is simply the judge or the attorneys doing their very best to impanel as impartial a jury as possible.

Once a panel of jurors is chosen, the attorneys have the opportunity to set forth what they believe their respective cases are all about; this is called opening statements. These opening statements are not evidence and the judge will advise the jurors that they are not to consider them to be evidence. The attorneys are simply trying to give the jurors a summary of the case.

These statements are followed by the plaintiff attorney’s presentation of evidence supporting the case, then the defense attorney’s evidence defending against the complaint. Evidence may be documents or reports introduced into the record, statements of the plaintiff or defendant on the witness stand, and any other evidence the court deems admissible.

Many trials call upon expert witnesses, people who have special skills or training in specific areas such as medicine, engineering, or science. These witnesses are called upon to testify based upon their professional experience and review of the facts and evidence in the case at hand.

When expert testimony is presented, attorneys understand that most jurors will not be familiar with complex terminology and issues. Often, expert witnesses such as doctors, nurses, and engineers may educate the jury by using charts, diagrams and illustrations to explain the terminology and issues involved in a given case.

During the trial, the judge instructs the jury on evidence that is not admissible and should not be used as a factor in deliberations. For example, sometimes jurors wonder if a plaintiff or defendant is covered by insurance – but evidence of insurance is not admissible in civil trials. Similarly, evidence of costs and attorneys fees is generally not admissible. There are good reason for these and other rules of evidence; they are applied in an effort balancing the interests of all the parties.

After all the evidence has been presented, the judge provides jury members with instructions related to the law that should be followed by the jurors during their deliberations. Then attorneys for both sides have the opportunity to summarize the evidence and make the strongest case possible for their clients. This is the trial segment, called final or closing arguments, most often dramatized on television shows.

In listening to closing arguments, a juror’s job is to focus on facts and evidence presented during the trial and apply the law as the judge has given it to them. In the American civil justice system, the burden of proof falls on the plaintiff, whose case must be established beyond “a preponderance of the evidence.” In other words, the plaintiff must present a case that tips the scales of justice just 51% in favor of their case. It is not necessary that the plaintiff prove their case beyond a “reasonable doubt’; the standard rightly applied in criminal cases.

After final arguments and instructions from the judge on how the law is to be applied, jurors retire to the jury room to discuss and deliberate the evidence they have heard. The jury room is off limits to anyone other than jurors, and deliberation can take as much time as is necessary to reach a verdict. At the outset, jurors elect a foreperson to preside over the deliberations. However, all jurors are expected to participate in deliberations based upon their experience, wisdom and understanding of the issues; the verdict they reach must be unanimous.

Once a verdict is reached, it is documented on a verdict form, which consists of several questions the jury must answer to reach a decision in the case. When the form is completed, it is signed by the foreperson and presented to the judge. The judge then reads the verdict aloud in open court, and the trial is concluded.

This is a summary of our civil justice system, but the core, the very foundation for an opportunity to obtain justice, lies with the jurors. For the system to work, it relies on the common sense, responsibility, and the dedication of jurors to listen to the evidence and reach a fair decision. So, when we get past all that goes in between, our justice system begins and ends with citizens willing to be a part of their own government and participate in a system that does work.

Recently we’ve also seen the case of Melenna Del Valle who was killed in the interstate 90 tunnel collapse in Boston. In that matter the National Transportation Safety Board has just reported that the failure related to the design and materials utilized in the construction. The finding has brought forth a criminal indictment of at least one firm involved in the project. Unfortunately the criminal statute provides for only a $1,000 dollar penalty. I think most would agree that this is insufficient to inspire accountability or a change of heart on the part of a major corporation.

So what can we do? We can start talking about the issue. Our system is leadership with our consent, right? Have we really given our representatives the OK sign to limit our own individual rights. My sense is that we have been very busy with our lives and with only so much time in the day and so many well crafted marketing campaigns pressing the corporate agenda, we just have not woken up to the reality of what’s happening. In Florida for example if you are 26 years old and your mom is killed due to medical negligence you may not bring that issue to a jury. The hospital involved could be clearly guilty of gross negligence but you will have no recourse. This was a statute voted for by your representatives. Are you OK with that? We should understand the restrictions being placed on individual citizens access to the courts at all government levels. If we the people want these rights restored and protected then that is exactly what will happen.

Your right to access the court only means the right to bring the issue and present evidence. You have no right to prevail in the dispute. But that access gives you power to guard your liberty and collectively the liberty and safety of us all. I think we should be concerned that the stature of the individual American citizen, so eloquently described by Jefferson (as endowed with inalienable rights) and purchased with so much of our fathers blood, is being….well…..alienated. I think we should be even more alarmed that we have either been unaware of what’s being lost or have been convinced by corporate interests that their rights should be greater than our own.

When it opened 40 years ago, the bridge was an engineering breakthrough because no mid-span support was placed under the bridge. This allowed for unimpeded boat traffic on the Mississippi river below. Bridges decay, stress, and become damaged over time. The LA Times reports that the last comprehensive inspection of this bridge was in 2001. State inspectors concluded that the bridge “should not have any problems with fatigue cracking in the foreseeable future.” Tragically, the foreseeable future must be something less than six years. The LA Times reported that:

“Inspectors recommended frequent inspection – as often as every six months – of the steel trusses that bore the most stress. But they concluded that the state “does not need to prematurely replace this bridge … avoiding the high costs associated with such a large project.”

Bridges are often exposed to chloride as a result of marine salt or the application of salt during winter road deicing. Chloride attacks the bridge surface and can begin causing corrosion of both the bridge surface as well as the support structures. The reinforcements found closest to the top or bottom surface of the concrete are usually the first to suffer structural decay. Once the decay begins, structural components suffer progressive decay and structural integrity failure.

Testing for structural integrity has typically involved hammer tapping the surface of the deck to discover hollow places in it. In addition visual inspection of the support components are made. The problem with detecting potential failure and correcting it is the enormous costs involved with conducting repairs. Bridge Design & Engineering reports:

“Highway authorities in the USA have become increasingly aware of the scale of the problem during the 1990s, and current estimates suggest a possible US$3 trillion bill for repair to damaged concrete bridge decks.”

“Deck testing has usually been squeezed into repair programmes, meaning that results are provided too late to enable advance planning of repairs and only the shallowest, most obvious defects have been picked up.”

Our sympathies go out to the families of those who tragically died in this incident and to those injured. It is our hope that a thorough and open investigation of this tragedy can be conducted to prevent other such tragedies in the future.

Responding, in part, to consumer outrage, both houses of Congress have proposed amending The Federal Arbitration Act to restore homebuyers’ rights to take developers to court instead of submitting to mandatory arbitration (H.R. 3010 and S. 1782, filed July 12, 2007).

Consumer organizations such as HomeOwners for Better Building (http://www.hobb.org/) and People Over Profits (http://www.peopleoverprofits.org/) have argued for years that as major construction defects become more prevalent, binding arbitration rules become, in effect, legislated protection of huge development corporations that cut corners – literally and figuratively – and make home warranties worthless.

Janet Ahmad, president of Homeowners for Better Building, cites case after case of homeowners who, in building their dream house, have encountered instead their worst nightmare: sagging roofs, flooding basements, cracking foundations, and worse. But Federal law allows homebuilders to insist that buyers submit to a private arbitrator instead of taking their case to court. Paul Bland, an attorney with Public Justice (http://www.publicjustice.org/) points out that because homebuilders regularly contract with certain arbitration companies, these companies tend to be on the side of the developers . . . leaving consumers powerless.

In a rare moment of clarity and action, the House bill says of arbitration clauses, “Few people realize, or understand the importance of the deliberately fine print that strips them of rights; and because entire industries are adopting these clauses, people increasingly have no choice but to accept them.” The bill further notes, “Private arbitration companies are sometimes under great pressure to devise systems that favor the corporate repeat players who decide whether those companies will receive their lucrative business.”

Well, duh! And who else often falls into this category? Lawmakers who, over and over again, have subsumed the rights of individuals to the profits of huge corporations that fill their campaign coffers. Dare we hope that a light bulb has gone on in their heads . . . or is at least flickering?