From 2019 to 2022, the Florida Legislature enacted 4 separate property insurance coverage reforms that sought to rein in abusive property insurance coverage litigation fueled by one-way lawyer’s payment shifting and a military {of professional} plaintiffs submitting lawsuits pursuant to assignments of advantages. In its newest reform, the Legislature has shifted its focus to the broader insurance coverage market and to tort reform. For a few years now, Florida has considerably led the nation in tort prices per family. This metric has been pushed by a excessive octane litigation surroundings, ever rising private harm verdicts, and a progressively sharpened deal with establishing insurers for unhealthy religion claims.
On March 24, 2023, Governor DeSantis signed into legislation H.B. 837, which eliminates lawyer’s payment shifting in insurance coverage litigation in all situations besides sure declaratory actions following a complete protection denial, and establishes sure unhealthy religion secure harbors to cut back unhealthy religion setups. Notably, the brand new legislation imposes an obligation of fine religion on policyholders. On this article, we are going to talk about the legislative modifications affecting insurance coverage protection and bad-faith litigation.
90 Day Secure Harbor Interval for Insurers to Examine Legal responsibility Claims
Practically twenty years in the past, a dissenting Florida Supreme Courtroom Justice acknowledged that there are methods “to create unhealthy religion claims in opposition to insurers when, after an goal, suggested view of the insurer’s claims dealing with, unhealthy religion didn’t happen. This can be a technique which consists of setting synthetic deadlines for claims funds and the withdrawal of settlement provides when the bogus deadline will not be met.”[1]
The Legislature has now amended Part 624.155 so as to add a 90 day secure harbor investigation interval for legal responsibility insurers:
(4)(a) An motion for unhealthy religion involving a legal responsibility insurance coverage declare, together with any such motion introduced below the frequent legislation, shall not lie if the insurer tenders the lesser of the coverage limits or the quantity demanded by the claimant inside 90 days after receiving precise discover of a declare which is accompanied by ample proof to help the quantity of the declare.
The brand new Part 624.155(4)(a) provides insurers some safety in opposition to unreasonably brief synthetic deadlines, but in addition places a 90 day restrict on the secure harbor interval, which begins “after receiving precise discover of a declare which is accompanied by ample proof to help the quantity of the declare.” Whereas events would possibly disagree as to what proof is ample, the requirement for proof additional weakens the unhealthy religion setup, which is normally achieved at a time when data continues to be being gathered.
Unhealthy Religion Requirements
The Legislature codified sure requirements regarding unhealthy religion. A number of years in the past, the Florida Supreme Courtroom determined Harvey v. Geico and, regardless of acknowledging that “negligence will not be the usual,” decided that “negligence is related to the query of fine religion.” The choice was extensively criticized for decreasing long-established requirements for proving unhealthy religion—from unhealthy religion to negligence. To get rid of any confusion, the Legislature has now codified in Part 624.155(5)(a) that “negligence alone is inadequate to represent unhealthy religion.”
The Legislature has additionally imposed a superb religion commonplace on policyholders and claimants. One other frequent unhealthy religion setup tactic is for policyholders or claimants to make investigating claims as troublesome as doable for insurers. It appears counterintuitive—a claimant ought to wish to make it simple for an insurer to resolve it ought to pay cash—however some have discovered it extra worthwhile to create conditions the place they will then declare to have been wronged and sue for more cash. The brand new good religion commonplace for claimants in Part 624.155(5)(b) is as follows:
(b)1. The insured, claimant, and consultant of the insured or claimant have an obligation to behave in good religion in furnishing data concerning the declare, in making calls for of the insurer, in setting deadlines, and in trying to settle the declare. This responsibility doesn’t create a separate reason behind motion, however might solely be thought-about pursuant to subparagraph 2.
2. In any motion for unhealthy religion in opposition to an insurer, the trier of truth might think about whether or not the insured, claimant, or consultant of the insured or claimant didn’t act in good religion pursuant to this paragraph, through which case the trier of truth might moderately scale back the quantity of damages awarded in opposition to the insurer.
A number of Claimant Unhealthy Religion
One of the troublesome conditions for any legal responsibility insurer is figuring out the best way to method settlement the place a number of claimants have competing claims with damages more likely to exceed the obtainable protection, corresponding to when a number of persons are injured in a automotive accident. If the insurer is unable to safe a worldwide settlement, it’s more likely to face a foul religion go well with no matter its diligence and reasonableness.
The newly created Part 624.155(6) provides choices for insurers in situations the place “two or extra third-party claimants have competing claims arising out of a single incidence, which in whole might exceed the obtainable coverage limits of a number of of the insured events who could also be liable to the third-party claimants.” The insurer is not going to be liable past the coverage restrict if, inside 90 days after receiving discover of the competing claims in extra of the coverage restrict, the insurer both:
- Information an interpleader motion in a Florida court docket for the coverage restrict.
- Upon settlement between the insurer and claimants, makes the coverage restrict obtainable and submits the matter to binding arbitration. A 3rd-party claimant whose declare is resolved in arbitration should execute and ship a normal launch to the insured social gathering whose declare is resolved by the continuing.
Lawyer’s Charge Shifting
The Legislature formally repealed Part 627.428, the insurance coverage lawyer’s payment shifting statute, and its surplus traces counterpart, Part 626.9373. This important change in Florida legislation will doubtless apply solely to insurance policies issued or renewed after March 24, 2023.
Nevertheless, the Legislature additionally created a brand new statute, Part 86.121, which allows awards of lawyer’s charges in “an motion introduced for declaratory aid in state or federal court docket to find out insurance coverage protection after the insurer has made a complete protection denial of a declare.” The statute makes clear that “[a] protection supplied by an insurer pursuant to a reservation of rights doesn’t represent a protection denial of a declare.” Subsequently, an insurer that defends below a reservation of rights, after which seeks a declaration as to its protection obligations wouldn’t be topic to paying lawyer’s charges.
Below this statute, lawyer’s charges might be recovered solely by a named insured, omnibus insured, or named beneficiary. The suitable can’t be transferred or assigned. Part 86.121 doesn’t apply to any motion arising below a residential or industrial property insurance coverage coverage.
Modified Comparative Fault
The Legislature amended Part 767.81, the comparative fault statute, to restrict restoration for a celebration discovered to be larger than 50% at fault: “In a negligence motion to which this part applies, any social gathering discovered to be larger than 50 % at fault for his or her personal hurt might not get well any damages.” Nevertheless, this limitation doesn’t apply to actions for private harm or wrongful loss of life arising out of medical negligence introduced below Florida Statutes Chapter 766.
Efficient Dates
H.B. 837 states that it “shall not be construed to impair any proper below an insurance coverage contract in impact on or earlier than the efficient date of this act. To the extent that this act impacts a proper below an insurance coverage contract, this act applies to an insurance coverage contract issued or renewed after the efficient date of this act.” The legislation additionally states that “[e]xcept as in any other case expressly offered on this act, this act shall apply to causes of motion filed after the efficient date of this act.”
Primarily based on how courts have handled the prior reforms, the elimination of Sections 627.428 and 626.9373 will doubtless not apply to claims below insurance policies that had already been issued, and can as a substitute apply to insurance policies issued or renewed after March 24, 2023.
It’s much less clear how the unhealthy religion modifications will apply. The clause making the legislation apply to causes of motion filed after the efficient date would possibly sufficiently present an intent by the Legislature to use the legislation to insurance coverage claims already in progress, and to probably even get rid of some accrued unhealthy religion causes of motion. We anticipate that there will likely be litigation as as to if the unhealthy religion statutory modifications apply to all unhealthy religion fits going ahead, or solely to unhealthy religion fits arising below insurance policies issued after the efficient date, or solely to unhealthy religion go well with arising from civil treatment notices filed after the efficient date.
Closing Ideas
After passing a number of rounds of reforms centered on curbing abusive property insurance coverage litigation, the Legislature is now trying to broadly discourage lawyer-driven litigation and to curb bad-faith setups. With the Legislature now seguing into broader tort reform, it seems that this spherical of reforms would be the final important insurance coverage reform for the foreseeable future.
[1] Berges v. Infinity Ins. Co., 896 So. second 665, 685 (Fla. 2004) (Wells, J., dissenting).
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