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 legal professional’s charge 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 setting, ever rising private harm verdicts, and a steadily sharpened deal with organising insurers for dangerous religion claims.
On March 24, 2023, Governor DeSantis signed into regulation H.B. 837, which eliminates legal professional’s charge shifting in insurance coverage litigation in all cases besides sure declaratory actions following a complete protection denial, and establishes sure dangerous religion secure harbors to scale back dangerous religion setups. Notably, the brand new regulation imposes an obligation of fine religion on policyholders. On this article, we’ll focus on the legislative adjustments affecting insurance coverage protection and bad-faith litigation.
90 Day Protected 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 dangerous religion claims towards insurers when, after an goal, suggested view of the insurer’s claims dealing with, dangerous religion didn’t happen. This can be a technique which consists of setting synthetic deadlines for claims funds and the withdrawal of settlement presents when the bogus deadline shouldn’t 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 dangerous religion involving a legal responsibility insurance coverage declare, together with any such motion introduced underneath the widespread regulation, 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 enough proof to assist the quantity of the declare.
The brand new Part 624.155(4)(a) provides insurers some safety towards 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 enough proof to assist the quantity of the declare.” Whereas events would possibly disagree as to what proof is enough, the requirement for proof additional weakens the dangerous religion setup, which is often performed at a time when data continues to be being gathered.
Unhealthy Religion Requirements
The Legislature codified sure requirements regarding dangerous religion. A number of years in the past, the Florida Supreme Courtroom determined Harvey v. Geico and, regardless of acknowledging that “negligence shouldn’t be the usual,” decided that “negligence is related to the query of fine religion.” The choice was extensively criticized for reducing long-established requirements for proving dangerous religion—from dangerous religion to negligence. To eradicate any confusion, the Legislature has now codified in Part 624.155(5)(a) that “negligence alone is inadequate to represent dangerous religion.”
The Legislature has additionally imposed a great religion customary on policyholders and claimants. One other widespread dangerous religion setup tactic is for policyholders or claimants to make investigating claims as tough as potential 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’ll then declare to have been wronged and sue for extra money. The brand new good religion customary 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 relating to the declare, in making calls for of the insurer, in setting deadlines, and in trying to settle the declare. This obligation doesn’t create a separate explanation for motion, however could solely be thought of pursuant to subparagraph 2.
2. In any motion for dangerous religion towards an insurer, the trier of truth could contemplate whether or not the insured, claimant, or consultant of the insured or claimant didn’t act in good religion pursuant to this paragraph, by which case the trier of truth could fairly cut back the quantity of damages awarded towards the insurer.
A number of Claimant Unhealthy Religion
One of the tough conditions for any legal responsibility insurer is figuring out how you can strategy settlement the place a number of claimants have competing claims with damages more likely to exceed the accessible protection, reminiscent of when a number of persons are injured in a automotive accident. If the insurer is unable to safe a world settlement, it’s more likely to face a foul religion swimsuit no matter its diligence and reasonableness.
The newly created Part 624.155(6) provides choices for insurers in cases the place “two or extra third-party claimants have competing claims arising out of a single prevalence, which in complete could exceed the accessible coverage limits of a number of of the insured events who could also be liable to the third-party claimants.” The insurer won’t 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:
- Recordsdata an interpleader motion in a Florida courtroom for the coverage restrict.
- Upon settlement between the insurer and claimants, makes the coverage restrict accessible and submits the matter to binding arbitration. A 3rd-party claimant whose declare is resolved in arbitration should execute and ship a common launch to the insured occasion whose declare is resolved by the continuing.
Legal professional’s Price Shifting
The Legislature formally repealed Part 627.428, the insurance coverage legal professional’s charge shifting statute, and its surplus traces counterpart, Part 626.9373. This important change in Florida regulation will possible 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 legal professional’s charges in “an motion introduced for declaratory aid in state or federal courtroom 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 provided by an insurer pursuant to a reservation of rights doesn’t represent a protection denial of a declare.” Due to this fact, an insurer that defends underneath a reservation of rights, after which seeks a declaration as to its protection obligations wouldn’t be topic to paying legal professional’s charges.
Below this statute, legal professional’s charges will be recovered solely by a named insured, omnibus insured, or named beneficiary. The precise can’t be transferred or assigned. Part 86.121 doesn’t apply to any motion arising underneath 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 better than 50% at fault: “In a negligence motion to which this part applies, any occasion discovered to be better than 50 p.c at fault for his or her personal hurt could not recuperate any damages.” Nevertheless, this limitation doesn’t apply to actions for private harm or wrongful dying arising out of medical negligence introduced underneath Florida Statutes Chapter 766.
Efficient Dates
H.B. 837 states that it “shall not be construed to impair any proper underneath 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 underneath an insurance coverage contract, this act applies to an insurance coverage contract issued or renewed after the efficient date of this act.” The regulation 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.”
Based mostly on how courts have handled the prior reforms, the elimination of Sections 627.428 and 626.9373 will possible not apply to claims underneath insurance policies that had already been issued, and can as an alternative apply to insurance policies issued or renewed after March 24, 2023.
It’s much less clear how the dangerous religion adjustments will apply. The clause making the regulation apply to causes of motion filed after the efficient date would possibly sufficiently present an intent by the Legislature to use the regulation to insurance coverage claims already in progress, and to doubtlessly even eradicate some accrued dangerous religion causes of motion. We anticipate that there shall be litigation as as to whether the dangerous religion statutory adjustments apply to all dangerous religion fits going ahead, or solely to dangerous religion fits arising underneath insurance policies issued after the efficient date, or solely to dangerous religion swimsuit 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. 2nd 665, 685 (Fla. 2004) (Wells, J., dissenting).
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