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 |
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38 | Be It Enacted by the Legislature of the State of Florida: |
39 |
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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 |
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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. |