Florida Enacts Broad Insurance coverage Reforms Specializing in Unhealthy Religion

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 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 setting, ever rising private harm verdicts, and a step by step sharpened deal with establishing insurers for unhealthy religion claims.

On March 24, 2023, Governor DeSantis signed into legislation H.B. 837, which eliminates legal professional’s payment shifting in insurance coverage litigation in all cases 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’ll 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 towards 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 gives when the synthetic deadline just isn’t 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 underneath the widespread 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 assist the quantity of the declare.

The brand new Part 624.155(4)(a) offers insurers some safety towards unreasonably brief synthetic deadlines, but additionally 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 assist the quantity of the declare.” Whereas events may disagree as to what proof is ample, the requirement for proof additional weakens the unhealthy religion setup, which is often executed 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 just isn’t the usual,” decided that “negligence is related to the query of fine religion.” The choice was broadly criticized for reducing 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 very good religion commonplace on policyholders and claimants. One other widespread unhealthy religion setup tactic is for policyholders or claimants to make investigating claims as troublesome as attainable for insurers. It appears counterintuitive—a claimant ought to need to make it straightforward 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 making an attempt to settle the declare. This obligation doesn’t create a separate reason for motion, however could solely be thought of pursuant to subparagraph 2.

2. In any motion for unhealthy religion towards an insurer, the trier of reality could 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, by which case the trier of reality could moderately scale back the quantity of damages awarded towards the insurer.

A number of Claimant Unhealthy Religion

One of the vital troublesome conditions for any legal responsibility insurer is figuring out tips on how to strategy settlement the place a number of claimants have competing claims with damages more likely to exceed the out there 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 go well with no matter its diligence and reasonableness.

The newly created Part 624.155(6) offers choices for insurers in cases the place “two or extra third-party claimants have competing claims arising out of a single prevalence, which in whole could exceed the out there 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:

• Recordsdata an interpleader motion in a Florida courtroom for the coverage restrict.
• Upon settlement between the insurer and claimants, makes the coverage restrict out there 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 Price Shifting

The Legislature formally repealed Part 627.428, the insurance coverage legal professional’s payment shifting statute, and its surplus traces counterpart, Part 626.9373. This important change in Florida legislation will probably 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 reduction 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 supplied by an insurer pursuant to a reservation of rights doesn’t represent a protection denial of a declare.” Subsequently, 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.

Beneath this statute, legal professional’s charges could 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 business 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 higher than 50% at fault: “In a negligence motion to which this part applies, any social gathering discovered to be higher than 50 p.c at fault for his or her personal hurt could 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 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 legislation additionally states that “[e]xcept as in any other case expressly supplied 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 probably 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 unhealthy religion modifications will apply. The clause making the legislation apply to causes of motion filed after the efficient date may 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 might be litigation as as to whether the unhealthy religion statutory modifications apply to all unhealthy religion fits going ahead, or solely to unhealthy religion fits arising underneath 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 making an attempt 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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