Florida Senate - 2009                                    SB 1650
       
       
       
       By Senator Oelrich
       
       
       
       
       14-00742A-09                                          20091650__
    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
    4         bring a civil action against an insurer when the
    5         insured is damaged by the commission of certain acts
    6         by the insurer; revising notice requirements related
    7         to such civil actions; requiring the insured and any
    8         person demanding settlement to cooperate with the
    9         insurer with regard to facilitating the settlement;
   10         requiring that notice of such actions contain certain
   11         information; deleting an exemption for a third-party
   12         claimant; authorizing the Department of Financial
   13         Services to return such notice within a specified
   14         period after receipt under certain circumstances;
   15         providing that no action shall lie if damages are paid
   16         or the circumstances giving rise to the insurer's
   17         violation are corrected within a specified period;
   18         extending the period for which the applicable statute
   19         of limitations may be tolled under certain
   20         circumstances; providing for the preemption of other
   21         civil remedies; requiring that an insured prove, by
   22         clear and convincing evidence, that the insurer's
   23         refusal to settle was unreasonable in an action
   24         arising from an allegation that the insurer failed to
   25         settle a claim for liability insurance coverage;
   26         providing that the insurer of an insured or insureds
   27         is not liable for extracontractual damages for failing
   28         to pay the insurer's policy limits under certain
   29         circumstances; providing that an insurer that tenders
   30         its policy limits is entitled to a release from its
   31         insured if the claimant accepts the tender; providing
   32         circumstances under which a civil cause of action does
   33         not exist; providing that an insured is not prohibited
   34         from assigning the cause of action to an injured
   35         third-party claimant for the insurer's failure to act
   36         fairly and honestly toward its insured and with due
   37         regard for the insured's interest; providing for
   38         applicability; providing an effective date.
   39         
   40  Be It Enacted by the Legislature of the State of Florida:
   41         
   42         Section 1. Subsections (1), (3), and (8) of section
   43  624.155, Florida Statutes, are amended, and subsections (10),
   44  (11), (12), (13), (14), and (15) are added to that section, to
   45  read:
   46         624.155 Civil remedy.—
   47         (1) An insured Any person may bring a civil action against
   48  an insurer when such insured person is damaged:
   49         (a) By a violation of any of the following provisions by
   50  the insurer:
   51         1. Section 626.9541(1)(i), (o), or (x);
   52         2. Section 626.9551;
   53         3. Section 626.9705;
   54         4. Section 626.9706;
   55         5. Section 626.9707; or
   56         6. Section 627.7283.
   57         (b) By the commission of any of the following acts by the
   58  insurer:
   59         1. Not attempting in good faith to settle claims when,
   60  under all the circumstances, it could and should have done so,
   61  had it acted fairly and honestly toward its insured and with due
   62  regard for her or his interests. However, both the insured and
   63  any person asserting a demand for such settlement owes a similar
   64  duty to the insurer to cooperate fully with the insurer, and it
   65  is a defense to any action brought under this section if the
   66  court finds that the insured or other person demanding
   67  settlement failed to cooperate fully with regard to facilitating
   68  the settlement;
   69         2. Making claims payments to insureds or beneficiaries not
   70  accompanied by a statement setting forth the coverage under
   71  which payments are being made; or
   72         3. Except as to liability coverages, failing to promptly
   73  settle claims, when the obligation to settle a claim has become
   74  reasonably clear, under one portion of the insurance policy
   75  coverage in order to influence settlements under other portions
   76  of the insurance policy coverage.
   77  Notwithstanding the provisions of the above to the contrary, a
   78  person pursuing a remedy under this section need not prove that
   79  such act was committed or performed with such frequency as to
   80  indicate a general business practice.
   81         (3)(a) As a condition precedent to bringing an action under
   82  this section, the department and the authorized insurer must
   83  have been given 90 60 days' written notice of the violation. If
   84  the department returns a notice for lack of specificity, the 90
   85  day 60-day time period shall not begin until a proper notice is
   86  filed.
   87         (b) The notice shall be on a form provided by the
   88  department and shall state with specificity the following
   89  information, and such other information as the department may
   90  require:
   91         1. The statutory provision, including the specific language
   92  of the statute, which the authorized insurer allegedly violated.
   93         2. The facts and circumstances giving rise to the
   94  violation, and any amount in dispute.
   95         3. The name of any individual involved in the violation.
   96         4. Reference to specific policy language that is relevant
   97  to the violation, if any. If the person bringing the civil
   98  action is a third party claimant, she or he shall not be
   99  required to reference the specific policy language if the
  100  authorized insurer has not provided a copy of the policy to the
  101  third party claimant pursuant to written request.
  102         5. A statement that the notice is given in order to perfect
  103  the right to pursue the civil remedy authorized by this section.
  104         (c) Within 30 20 days after the date on which the
  105  department receives of receipt of the notice, the department may
  106  return any notice that does not provide the specific information
  107  required by this section, and the department shall indicate the
  108  specific deficiencies contained in the notice. A determination
  109  by the department to return a notice for lack of specificity is
  110  shall be exempt from the requirements of chapter 120.
  111         (d) No action shall lie if, within 90 60 days after filing
  112  notice, the damages are paid or the circumstances giving rise to
  113  the violation are corrected.
  114         (e) The authorized insurer that is the recipient of a
  115  notice filed pursuant to this section shall report to the
  116  department on the disposition of the alleged violation.
  117         (f) The applicable statute of limitations for an action
  118  under this section shall be tolled for a period of 95 65 days by
  119  the mailing of the notice required by this subsection or the
  120  mailing of a subsequent notice required by this subsection.
  121         (8) The civil remedy specified in this section preempts all
  122  does not preempt any other remedies or causes remedy or cause of
  123  action for extracontractual damages for failing to settle under
  124  an insurance contract that are provided for pursuant to any
  125  other statute or pursuant to the common law of this state. Any
  126  person may obtain a judgment under either the common-law remedy
  127  of bad faith or this statutory remedy, but shall not be entitled
  128  to a judgment under both remedies. This section does shall not
  129  be construed to create a common-law cause of action. The damages
  130  recoverable pursuant to this section shall include those damages
  131  which are a reasonably foreseeable result of a specified
  132  violation of this section by the authorized insurer and may
  133  include an award or judgment in an amount that exceeds the
  134  policy limits.
  135         (10)In an action against an insurer arising from an
  136  allegation that the insurer failed to settle a claim for
  137  liability insurance coverage, the insured has the burden to
  138  prove, by clear and convincing evidence, that the insurer's
  139  refusal to settle was unreasonable.
  140         (11)If multiple claimants seek compensation from the same
  141  insured or multiple insureds or if a single claimant seeks
  142  compensation from multiple insureds for damages arising from the
  143  same occurrence, and such compensation in the aggregate exceeds
  144  the policy limits of the insurer, the insurer of the insured or
  145  insureds is not liable for extracontractual damages for failing
  146  to pay the insurer's policy limits if the insurer makes a
  147  written offer of its policy limits within the timeframe set
  148  forth in this section to all known potential claimants in
  149  exchange for releases of all claims against all insureds or
  150  tenders such limits to the court for apportionment to the
  151  claimants.
  152         (12)An insurer that tenders its policy limits is entitled
  153  to a release from its insured if the claimant accepts the
  154  tender.
  155         (13)A cause of action does not exist under this section if
  156  an insurer remedies the alleged violation contained in the
  157  notice issued under subsection (3) within 90 days after the date
  158  on which such notice was issued if such notice meets all
  159  requirements of that subsection.
  160         (14)This section does not prohibit an insured from
  161  assigning the cause of action to an injured third-party claimant
  162  for the insurer's failure to act fairly and honestly toward its
  163  insured or with due regard for the insured's interest.
  164         (15)This section applies to all actions involving medical
  165  malpractice claims, unless such claims arise under or are
  166  controlled by s. 766.1185.
  167         Section 2. This act shall take effect July 1, 2009.