HB 1463

1	A bill to be entitled
2	An act relating to civil actions against insurers;
3	amending s. 624.155, F.S.; authorizing an insured to bring
4	a civil action against an insurer when the insured is
5	damaged by the commission of certain acts by the insurer;
6	requiring the insured and any person demanding settlement
7	to cooperate with the insurer with regard to facilitating
8	the settlement; revising notice requirements related to
9	such civil actions; requiring that notice of such actions
10	contain certain information; deleting an exemption for a
11	third-party claimant; requiring the Department of
12	Financial Services to return such notice within a
13	specified period after receipt under certain
14	circumstances; providing that no action shall lie if
15	damages are paid or the circumstances giving rise to the
16	insurer's violation are corrected within a specified
17	period; extending the period for which the applicable
18	statute of limitations may be tolled under certain
19	circumstances; providing for the preemption of other civil
20	remedies; requiring that an insured prove, by clear and
21	convincing evidence, that the insurer's refusal to settle
22	was unreasonable in an action arising from an allegation
23	that the insurer failed to settle a claim for liability
24	insurance coverage; providing that the insurer of an
25	insured or insureds is not liable for extracontractual
26	damages for failing to pay the insurer's policy limits
27	under certain circumstances; providing that an insurer
28	that tenders its policy limits is entitled to a release
29	from its insured if the claimant accepts the tender;
30	providing circumstances under which a civil cause of
31	action does not exist; providing that an insured is not
32	prohibited from assigning the cause of action to an
33	injured third-party claimant for the insurer's failure to
34	act fairly and honestly toward its insured and with due
35	regard for the insured's interest; providing for
36	applicability; providing an effective date.
37
38	Be It Enacted by the Legislature of the State of Florida:
39
40	Section 1.  Subsections (1), (3), and (8) of section
41	624.155, Florida Statutes, are amended, and subsections (10)
42	through (15) are added to that section, to read:
43	624.155  Civil remedy.--
44	(1)  An insured Any person may bring a civil action against
45	an insurer when such insured person is damaged:
46	(a)  By a violation of any of the following provisions by
47	the insurer:
48	1.  Section 626.9541(1)(i), (o), or (x);
49	2.  Section 626.9551;
50	3.  Section 626.9705;
51	4.  Section 626.9706;
52	5.  Section 626.9707; or
53	6.  Section 627.7283.
54	(b)  By the commission of any of the following acts by the
55	insurer:
56	1.  Not attempting in good faith to settle claims when,
57	under all the circumstances, it could and should have done so,
58	had it acted fairly and honestly toward its insured and with due
59	regard for her or his interests. However, both the insured and
60	any person asserting a demand for such settlement owe a similar
61	duty to the insurer to cooperate fully with the insurer, and it
62	is a defense to any action brought under this section if the
63	court finds that the insured or other person demanding
64	settlement failed to cooperate fully with regard to facilitating
65	the settlement;
66	2.  Making claims payments to insureds or beneficiaries not
67	accompanied by a statement setting forth the coverage under
68	which payments are being made; or
69	3.  Except as to liability coverages, failing to promptly
70	settle claims, when the obligation to settle a claim has become
71	reasonably clear, under one portion of the insurance policy
72	coverage in order to influence settlements under other portions
73	of the insurance policy coverage.
74
75	Notwithstanding the provisions of the above to the contrary, a
76	person pursuing a remedy under this section need not prove that
77	such act was committed or performed with such frequency as to
78	indicate a general business practice.
79	(3)(a)  As a condition precedent to bringing an action
80	under this section, the department and the authorized insurer
81	must have been given 90 60 days' written notice of the
82	violation. If the department returns a notice for lack of
83	specificity, the 90-day 60-day time period shall not begin until
84	a proper notice is filed.
85	(b)  The notice shall be on a form provided by the
86	department and shall state with specificity the following
87	information, and such other information as the department may
88	require:
89	1.  The statutory provision, including the specific
90	language of the statute, which the authorized insurer allegedly
91	violated.
92	2.  The facts and circumstances giving rise to the
93	violation and any amount in dispute.
94	3.  The name of any individual involved in the violation.
95	4.  Reference to specific policy language that is relevant
96	to the violation, if any. If the person bringing the civil
97	action is a third party claimant, she or he shall not be
98	required to reference the specific policy language if the
99	authorized insurer has not provided a copy of the policy to the
100	third party claimant pursuant to written request.
101	5.  A statement that the notice is given in order to
102	perfect the right to pursue the civil remedy authorized by this
103	section.
104	(c)  Within 30 20 days after the date on which the
105	department receives of receipt of the notice, the department
106	shall may return any notice that does not provide the specific
107	information required by this section, and the department shall
108	indicate the specific deficiencies contained in the notice. A
109	determination by the department to return a notice for lack of
110	specificity is shall be exempt from the requirements of chapter
111	120.
112	(d)  No action shall lie if, within 90 60 days after filing
113	notice, the damages are paid or the circumstances giving rise to
114	the violation are corrected.
115	(e)  The authorized insurer that is the recipient of a
116	notice filed pursuant to this section shall report to the
117	department on the disposition of the alleged violation.
118	(f)  The applicable statute of limitations for an action
119	under this section shall be tolled for a period of 95 65 days by
120	the mailing of the notice required by this subsection or the
121	mailing of a subsequent notice required by this subsection.
122	(8)  The civil remedy specified in this section preempts
123	all does not preempt any other remedies or causes remedy or
124	cause of action for extracontractual damages for failing to
125	settle under an insurance contract that are provided for
126	pursuant to any other statute or pursuant to the common law of
127	this state. Any person may obtain a judgment under either the
128	common-law remedy of bad faith or this statutory remedy, but
129	shall not be entitled to a judgment under both remedies. This
130	section does shall not be construed to create a common-law cause
131	of action. The damages recoverable pursuant to this section
132	shall include those damages which are a reasonably foreseeable
133	result of a specified violation of this section by the
134	authorized insurer and may include an award or judgment in an
135	amount that exceeds the policy limits.
136	(10)  In any action against an insurer arising from an
137	allegation that the insurer failed to settle a claim for
138	liability insurance coverage, the insured has the burden to
139	prove, by clear and convincing evidence, that the insurer's
140	refusal to settle was unreasonable.
141	(11)  If multiple claimants seek compensation from the same
142	insured or multiple insureds or if a single claimant seeks
143	compensation from multiple insureds for damages arising from the
144	same occurrence, and such compensation in the aggregate exceeds
145	the policy limits of the insurer, the insurer of the insured or
146	insureds is not liable for extracontractual damages for failing
147	to pay the insurer's policy limits if the insurer makes a
148	written offer of its policy limits within the timeframe set
149	forth in this section to all known potential claimants in
150	exchange for releases of all claims against all insureds or
151	tenders such limits to the court for apportionment to the
152	claimants.
153	(12)  An insurer that tenders its policy limits is entitled
154	to a release from its insured if the claimant accepts the
155	tender.
156	(13)  A cause of action does not exist under this section
157	if an insurer remedies the alleged violation contained in the
158	notice issued under subsection (3) within 90 days after the date
159	on which such notice was issued if such notice meets all
160	requirements of that subsection.
161	(14)  This section does not prohibit an insured from
162	assigning the cause of action to an injured third-party claimant
163	for the insurer's failure to act fairly and honestly toward its
164	insured or with due regard for the insured's interest.
165	(15)  This section applies to all actions involving medical
166	malpractice claims unless such claims arise under or are
167	controlled by s. 766.1185.
168	Section 2.  This act shall take effect July 1, 2009.

CODING: Words stricken are deletions; words underlined are additions.