Florida Senate - 2013                                    SB 1284
       
       
       
       By Senator Thrasher
       
       
       
       
       6-00792-13                                            20131284__
    1                        A bill to be entitled                      
    2         An act relating to civil remedies against insurers;
    3         amending s. 624.155, F.S.; requiring a party bringing
    4         a common-law claim of bad faith against an insurer to
    5         first provide written notification to the Department
    6         of Financial Services and the insurer; requiring that
    7         such notice specify the common-law duty violated by
    8         the insurer and specify the amount of moneys that an
    9         insurer has failed to pay if the violation includes
   10         such failure; providing that a violation based on
   11         certain statutory or common-law claim is corrected by
   12         payment of certain monetary tenders by an insurer;
   13         providing that in a third-party liability claim, an
   14         insured is entitled to a general release under certain
   15         circumstances; providing that the applicable statute
   16         of limitations is tolled if certain notices alleging a
   17         violation of common law are mailed; providing that
   18         third-party claimants having competing claims are
   19         entitled to a prorated share of policy limits under
   20         certain circumstances if the insurer files an
   21         interpleader action within a certain time period;
   22         revising provisions to conform to changes made by the
   23         act; making technical and grammatical changes;
   24         providing an effective date.
   25  
   26  Be It Enacted by the Legislature of the State of Florida:
   27  
   28         Section 1. Section 624.155, Florida Statutes, is amended to
   29  read:
   30         624.155 Civil remedy.—
   31         (1) Any person may bring a civil action against an insurer
   32  if when such person is damaged:
   33         (a) By a violation of any of the following provisions by
   34  the insurer:
   35         1. Section 626.9541(1)(i), (o), or (x);
   36         2. Section 626.9551;
   37         3. Section 626.9705;
   38         4. Section 626.9706;
   39         5. Section 626.9707; or
   40         6. Section 627.7283.
   41         (b) By the commission of any of the following acts by the
   42  insurer:
   43         1. Not attempting in good faith to settle claims when,
   44  under all the circumstances, it could and should have done so,
   45  had it acted fairly and honestly toward its insured and with due
   46  regard for her or his interests;
   47         2. Making claims payments to insureds or beneficiaries not
   48  accompanied by a statement setting forth the coverage under
   49  which payments are being made; or
   50         3. Except as to liability coverages, failing to promptly
   51  settle claims, when the obligation to settle a claim has become
   52  reasonably clear, under one portion of the insurance policy
   53  coverage in order to influence settlements under other portions
   54  of the insurance policy coverage.
   55  
   56  Notwithstanding the provisions of this subsection the above to
   57  the contrary, a person pursuing a remedy under this section need
   58  not prove that such act was committed or performed with such
   59  frequency as to indicate a general business practice.
   60         (2) Any party may bring a civil action against an
   61  unauthorized insurer if such party is damaged by a violation of
   62  s. 624.401 by the unauthorized insurer.
   63         (3)(a) As a condition precedent to bringing an action under
   64  this section or based on a common-law claim of bad faith, the
   65  department and the authorized insurer must be have been given 60
   66  days’ written notice of the violation. If the department returns
   67  a notice for lack of specificity, the 60-day time period does
   68  shall not begin until a proper notice is filed.
   69         (a)(b) The notice must shall be on a form provided by the
   70  department and shall state with specificity the following
   71  information, and such other information as the department may
   72  require:
   73         1. The statutory provision or common-law duty, including
   74  the specific language of the statute, if applicable, which the
   75  authorized insurer allegedly violated.
   76         2. The facts and circumstances giving rise to the violation
   77  and, if the violation includes failure to pay or tender moneys,
   78  the amount of such moneys.
   79         3. The name of any individual involved in the violation.
   80         4. Reference to specific policy language that is relevant
   81  to the violation, if any. If the person bringing the civil
   82  action is a third-party third party claimant, she or he is shall
   83  not be required to reference the specific policy language if the
   84  authorized insurer did has not provide provided a copy of the
   85  policy to the third-party third party claimant pursuant to
   86  written request.
   87         5. A statement that the notice is given in order to perfect
   88  the right to pursue the civil remedy authorized by this section
   89  or common law.
   90         (b)(c) Within 20 days after of receipt of the notice, the
   91  department may return any notice that does not provide the
   92  specific information required by this section, and the
   93  department shall indicate the specific deficiencies contained in
   94  the notice. A determination by the department to return a notice
   95  for lack of specificity is shall be exempt from the requirements
   96  of chapter 120.
   97         (c)(d) No action shall lie if, within 60 days after filing
   98  notice, the damages are paid or the circumstances giving rise to
   99  the violation are corrected. If the alleged violation is based
  100  on this section or on the common-law claim of bad faith, the
  101  insurer’s tender of the amount demanded in the notice or the
  102  applicable policy limits constitutes correction of the
  103  circumstances giving rise to the violation. In a third-party
  104  liability claim:
  105         1. If the claimant files the notice, the insured is
  106  entitled to a general release from the claimant upon the
  107  insurer’s tender of the amount demanded in the notice or the
  108  applicable policy limits.
  109         2. If the insured files the notice and the claimant accepts
  110  the insurer’s tender, the insured is entitled to a general
  111  release from the claimant.
  112         3. The notice may be filed by the claimant or the insured
  113  at any time after the incident giving rise to the claimant’s
  114  liability claim against the insured. The denial of a claim by
  115  the insurer is not a precondition for the filing of the notice
  116  by the insured or claimant.
  117         (d)(e) The authorized insurer that is the recipient of a
  118  notice filed pursuant to this section shall report to the
  119  department on the disposition of the alleged violation.
  120         (e)(f) The applicable statute of limitations for an action
  121  under this section or an action based on a common-law claim of
  122  bad faith is shall be tolled for a period of 65 days by the
  123  mailing of the notice required by this subsection or the mailing
  124  of a subsequent notice required by this subsection.
  125         (4) If two or more third-party claimants make competing
  126  claims arising out of a single incident, which in total exceed
  127  the available policy limits of one or more of the insured
  128  parties who may be liable to the third-party claimants, an
  129  insurer is not liable beyond the available policy limits for
  130  failure to pay all or any portion of the available policy limits
  131  to one or more of the third-party claimants if, within 90 days
  132  after receiving notice of the competing claims, the insurer
  133  files an interpleader action under the Florida Rules of Civil
  134  Procedure. If the claims of the competing third-party claimants
  135  are found to be in excess of the policy limits, the third-party
  136  claimants are entitled to a prorated share of the policy limits
  137  as determined by the trier of fact. An insurer’s interpleader
  138  action does not alter or amend the insurer’s obligation to
  139  defend its insured.
  140         (5)(4) Upon adverse adjudication at trial or upon appeal,
  141  the authorized insurer is shall be liable for damages, together
  142  with court costs and reasonable attorney attorney’s fees
  143  incurred by the plaintiff.
  144         (6)(5) No Punitive damages may not shall be awarded under
  145  this section unless the acts giving rise to the violation occur
  146  with such frequency as to indicate a general business practice
  147  and these acts are:
  148         (a) Willful, wanton, and malicious;
  149         (b) In reckless disregard for the rights of an any insured;
  150  or
  151         (c) In reckless disregard for the rights of a beneficiary
  152  under a life insurance contract.
  153  
  154  Any person who pursues a claim under this subsection must shall
  155  post in advance the costs of discovery in advance. Such costs
  156  shall be awarded to the authorized insurer if no punitive
  157  damages are not awarded to the plaintiff.
  158         (7)(6) This section does shall not be construed to
  159  authorize a class action suit against an authorized insurer or a
  160  civil action against the commission, the office, or the
  161  department or any of their employees, or to create a cause of
  162  action if when an authorized health insurer refuses to pay a
  163  claim for reimbursement on the ground that the charge for a
  164  service was unreasonably high or that the service provided was
  165  not medically necessary.
  166         (8)(7) In the absence of expressed language to the
  167  contrary, this section does shall not be construed to authorize
  168  a civil action or create a cause of action against an authorized
  169  insurer or its employees who, in good faith, release information
  170  about an insured or an insurance policy to a law enforcement
  171  agency in furtherance of an investigation of a criminal or
  172  fraudulent act relating to a motor vehicle theft or a motor
  173  vehicle insurance claim.
  174         (9)(8)Except as provided in subsection (3), the civil
  175  remedy specified in this section does not preempt any other
  176  remedy or cause of action provided for pursuant to any other
  177  statute or pursuant to the common law of this state. A Any
  178  person may obtain a judgment under either the common-law remedy
  179  of bad faith or this statutory remedy, but is shall not be
  180  entitled to a judgment under both remedies. This section does
  181  shall not be construed to create a common-law cause of action.
  182  The damages recoverable pursuant to this section include shall
  183  include those damages that which are a reasonably foreseeable
  184  result of a specified violation of this section by the
  185  authorized insurer and may include an award or judgment in an
  186  amount that exceeds the policy limits.
  187         (10)(9) A surety issuing a payment or performance bond on
  188  the construction or maintenance of a building or roadway project
  189  is not an insurer for purposes of subsection (1).
  190         Section 2. This act shall take effect July 1, 2013.