Florida Senate - 2023                          SENATOR AMENDMENT
       Bill No. CS/CS/HB 837, 1st Eng.
       
       
       
       
       
       
                                Ì501986MÎ501986                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                 Floor: WD/2R          .                                
             03/22/2023 05:53 PM       .                                
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       Senator Martin moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 335 - 402
    4  and insert:
    5         (4)(a)In an action for bad faith failure to settle a
    6  liability insurance claim, including any such action brought
    7  under the common law, if the insurer initiates settlement
    8  negotiations by tendering the lesser of the policy limits or the
    9  amount demanded by the claimant in exchange for a general
   10  release of the insured within 90 days after receiving actual
   11  notice of the loss, the failure to tender the policy limits
   12  sooner does not constitute bad faith.
   13         (b)If an insurer does not tender the lesser of the policy
   14  limits or the amount demanded by the claimant within the 90-day
   15  timeframe provided in paragraph (a), the existence of the 90-day
   16  timeframe and that no bad faith action could lie had the insurer
   17  tendered the lesser of policy limits or the amount demanded by
   18  the claimant pursuant to paragraph (a) is inadmissible in any
   19  action seeking to establish bad faith on the part of the
   20  insurer.
   21         (c)If the insurer fails to tender pursuant to paragraph
   22  (a) within the 90-day period, any applicable statute of
   23  limitations is extended for an additional 90 days.
   24         (5)In any bad faith action, whether such action is brought
   25  under this section or is based on the common-law remedy for bad
   26  faith:
   27         (a)Mere negligence alone is insufficient to constitute bad
   28  faith.
   29         (b)The focus of the bad faith claim is on the conduct of
   30  an insurer, but in determining whether the insurer actually
   31  could have settled the claim, the jury may consider the totality
   32  of the circumstances, including:
   33         1.Whether any conditions placed on the settlement by the
   34  claimant were unreasonable or impossible to perform within the
   35  time permitted; and
   36         2.Whether the insured failed to cooperate with the
   37  insurer’s efforts to meet the conditions after being fully
   38  advised by the insurer about the purpose and importance of doing
   39  so.
   40         (6)(a)If two or more third-party claimants have competing
   41  claims arising out of a single occurrence, which in total may
   42  exceed the available policy limits of an insured who may be
   43  liable to the third-party claimants, and the insurer initiates
   44  settlement negotiations by globally tendering the applicable
   45  policy limits in exchange for a general release of the insured
   46  within 90 days after receiving actual notice of the loss, the
   47  failure to tender policy limits sooner does not constitute bad
   48  faith.
   49         (b)If an insurer does not globally tender the policy
   50  limits within the 90-day timeframe provided in paragraph (a),
   51  the existence of the 90-day timeframe and that no bad faith
   52  action could lie had the insurer tendered the lesser of policy
   53  limits or the amount demanded by the claimant pursuant to
   54  paragraph (a) is inadmissible in any action seeking to establish
   55  bad faith on the part of the insurer.
   56         (c)If two or more third-party claimants have competing
   57  claims arising out of a single occurrence, which in total may
   58  exceed the available policy limits of an insured who may be
   59  liable to the third-party claimants, and the claimants are
   60  unwilling to globally settle within the policy limits,
   61  thereafter, the insurer must attempt to minimize the magnitude
   62  of possible excess judgments against the insured. The insurer is
   63  entitled to great discretion to decide how much to offer each
   64  respective claimant in its attempt to protect the insured. The
   65  insurer may, in its effort to minimize the excess liability of
   66  the insured, use its discretion to offer the full available
   67  policy limits to one or more claimants to the exclusion of other
   68  claimants and may leave the insured exposed to some liability
   69  after all the policy limits are paid. An insurer does not act in
   70  bad faith simply because it is unable to settle all claims in a
   71  competing claimant case.
   72         (d)An insurer is not liable beyond the available policy
   73  limits for failure to pay all or any portion of the available
   74  policy limits to one or more of the third-party claimants if,
   75  pursuant to a binding arbitration that has been agreed to by the
   76  insurer and all the third-party claimants, the insurer makes the
   77  entire amount of the policy limits available for payment to the
   78  competing third-party claimants before a qualified arbitrator
   79  agreed to by the insurer and such third-party claimants at the
   80  expense of the insurer. The third-party claimants are entitled
   81  to a prorated share of the policy limits as determined by the
   82  arbitrator, who must consider the comparative fault, if any, of
   83  each third-party claimant and the total likely outcome at trial
   84  based upon the total of the economic and noneconomic damages
   85  submitted to the arbitrator for consideration. A third-party
   86  claimant whose claim is resolved by the arbitrator must execute
   87  and deliver a general release to the insured party whose claim
   88  is resolved by the proceeding.
   89         (7)(4)In any insurance bad faith action, whether brought
   90  under this section or the common law, upon adverse adjudication
   91  at trial or upon appeal, the authorized insurer shall be liable
   92  for damages, together
   93  
   94  ================= T I T L E  A M E N D M E N T ================
   95  And the title is amended as follows:
   96         Between lines 17 and 18
   97  insert:
   98         revising applicability and conditions for the award of
   99         damages, court costs, and attorney fees in certain
  100         civil actions;