HOUSE AMENDMENT Bill No. HB 63B
1	CHAMBER ACTION
2	Senate House
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12	Representative Brown offered the following:
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14	Amendment (with title amendment)
15	Between lines 1031 and 1032, insert:
16	Section 26. Section 624.155, Florida Statutes, is amended
17	to read:
18	624.155 Civil remedy.--
19	(1) Any person may bring a civil action against an insurer
20	when such person is damaged:
21	(a) By a violation of any of the following provisions by
22	the insurer:
23	1. Section 626.9541(1)(i), (o), or (x);
24	2. Section 626.9551;
25	3. Section 626.9705;
26	4. Section 626.9706;
27	5. Section 626.9707; or
28	6. Section 627.7283.
29	(b) By the commission of any of the following acts by the
30	insurer:
31	1. Not attempting in good faith to settle claims when,
32	under all the circumstances, it could and should have done so,
33	had it acted fairly and honestly toward its insured and with due
34	regard for her or his interests;
35	2. Making claims payments to insureds or beneficiaries not
36	accompanied by a statement setting forth the coverage under
37	which payments are being made; or
38	3. Except as to liability coverages, failing to promptly
39	settle claims, when the obligation to settle a claim has become
40	reasonably clear, under one portion of the insurance policy
41	coverage in order to influence settlements under other portions
42	of the insurance policy coverage.
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44	Notwithstanding the provisions of the above to the contrary, a
45	person pursuing a remedy under this section need not prove that
46	such act was committed or performed with such frequency as to
47	indicate a general business practice.
48	(2) In matters relating to professional liability
49	insurance coverage for medical negligence, only the insured may
50	bring a civil action against an insurer when such person is
51	damaged:
52	(a) By a violation of any of the following provisions by
53	the insurer:
54	1. Section 626.9541(1)(i), (o), or (x);
55	2. Section 626.9551;
56	3. Section 626.9705;
57	4. Section 626.9706;
58	5. Section 626.9707; or
59	6. Section 627.7283.
60	(b) By the commission of any of the following acts by the
61	insurer:
62	1. Not attempting in good faith to settle claims when,
63	under all the circumstances, the insurer could and should have
64	done so, had the insurer acted fairly and honestly toward its
65	insured and with due regard for the insured’s interests,
66	provided, in any action, whether under the laws of this state or
67	common law, against a liability insurer for alleged failure to
68	settle a claim against its insured:
69	a. The duty of good faith and fairly and honestly dealing
70	with its insured requires the insurer to provide a defense for
71	its insured to give the insured’s interests consideration at
72	least equal to its interests and the interests of all its
73	policyholders in deciding whether to litigate or settle a claim.
74	b. An insurer need not submit to demands for settlement
75	within the policy limit simply because there is a possibility of
76	a verdict in excess of the policy limit. The insurer must have
77	had a reasonable opportunity to settle the claim within the
78	policy limits during the life of the claim.
79	c. An insurer shall not be held in bad faith if the
80	insurer tenders its policy limits at least 120 days prior to
81	trial in the underlying case giving rise to a bad faith claim.
82	d. Factors to be considered in determining whether the
83	insurer dealt with its insured in good faith include:
84	(I) The insurer’s willingness to negotiate with the
85	claimant.
86	(II) The insurer’s proper investigation of the claim.
87	(III) The insurer’s consideration of the advice of its
88	defense counsel.
89	(IV) Whether the insurer informed the insured of the offer
90	to settle within the limits of coverage, the right to retain
91	personal counsel, and the risks of litigation.
92	(V) Whether the insured denied liability or requested that
93	the case be defended.
94	(VI) Whether the claimant imposed any condition, other
95	than tender of policy limits, as to settlement of the claim.
96	e. In the event that an insurer is found to have breached
97	its duty to settle on behalf of an insured, the insurer is
98	responsible to pay on behalf of the insured as to such judgment
99	only the applicable policy limits and amount of the excess
100	judgment that the insured can demonstrate could have been
101	satisfied from the attachment or forced sale of property of the
102	insured, absent liability insurance coverage. The court shall
103	enter judgment against the insurer after conducting an inquiry
104	to ascertain the future value of the underlying excess judgment.
105	The inquiry shall include the use of expert testimony on the
106	issues of future income of the insured, accumulation of
107	attachable assets by the insured, and the probability of
108	collecting the underlying excess judgment from the insured,
109	absent liability insurance coverage. The insured shall be deemed
110	not to have waived any exemption from forced sale or attachment
111	available to the insured or insured’s spouse under state law,
112	federal law, or law applicable in the jurisdiction where the
113	property is located. This limitation shall not be construed to
114	limit rights or obligations of the insured or insurer other than
115	as specified herein.
116	f. As to any judgment entered against an insured covered
117	by a liability insurance policy, the judgment debtor is hereby
118	granted an exemption under chapter 55, and from any liens or
119	execution of such judgment, in an amount equal to all sums that
120	have been paid on his or her behalf by a liability insurer. All
121	such sums shall be recorded by the judgment creditor in a manner
122	that reflects an equivalent partial or total satisfaction of the
123	judgment.
124	g. Any judgment entered against a liability insurer and
125	any portion of a settlement designated as damage for breach of
126	this subparagraph shall be reported by the insurer to the Office
127	of Insurance Regulation and the office shall conduct such
128	investigation and impose such penalties as the office determines
129	to be appropriate for any violation of the insurance code.
130	2. Making claims payments to insureds or beneficiaries not
131	accompanied by a statement setting forth the coverage under
132	which payments are being made.
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134	An insured pursuing a remedy under this subsection need not
135	prove that such act was committed or performed with such
136	frequency as to indicate a general business practice. Nothing in
137	this subsection shall be construed to prohibit an insured from
138	assigning the cause of action to an injured third-party claimant
139	for the insurer’s failure to act fairly and honestly towards its
140	insured and with due regard for the insured’s interest.
141	(3)(2)(a) As a condition precedent to bringing an action
142	under this section, the department and the insurer must have
143	been given 60 days' written notice of the violation. If the
144	department returns a notice for lack of specificity, the 60-day
145	time period shall not begin until a proper notice is filed.
146	(b) The notice shall be on a form provided by the
147	department and shall state with specificity the following
148	information, and such other information as the department may
149	require:
150	1. The statutory provision, including the specific
151	language of the statute, which the insurer allegedly violated.
152	2. The facts and circumstances giving rise to the
153	violation.
154	3. The name of any individual involved in the violation.
155	4. Reference to specific policy language that is relevant
156	to the violation, if any. If the person bringing the civil
157	action is a third party claimant, she or he shall not be
158	required to reference the specific policy language if the
159	insurer has not provided a copy of the policy to the third party
160	claimant pursuant to written request.
161	5. A statement that the notice is given in order to
162	perfect the right to pursue the civil remedy authorized by this
163	section.
164	(c) Within 20 days of receipt of the notice, the
165	department may return any notice that does not provide the
166	specific information required by this section, and the
167	department shall indicate the specific deficiencies contained in
168	the notice. A determination by the department to return a notice
169	for lack of specificity shall be exempt from the requirements of
170	chapter 120.
171	(d) No action shall lie if, within 60 days after filing
172	notice, the damages are paid or the circumstances giving rise to
173	the violation are corrected.
174	(e) The insurer that is the recipient of a notice filed
175	pursuant to this section shall report to the department on the
176	disposition of the alleged violation.
177	(f) The applicable statute of limitations for an action
178	under this section shall be tolled for a period of 65 days by
179	the mailing of the notice required by this subsection or the
180	mailing of a subsequent notice required by this subsection.
181	(4)(3)Upon adverse adjudication at trial or upon appeal,
182	the insurer shall be liable for damages, together with court
183	costs and reasonable attorney's fees incurred by the plaintiff,
184	however, in any action under this section relating to
185	professional liability insurance coverage for medical
186	negligence, no award for attorney’s fees shall be enhanced by a
187	contingency risk multiplier.
188	(5)(4)No punitive damages shall be awarded under this
189	section unless the acts giving rise to the violation occur with
190	such frequency as to indicate a general business practice and
191	these acts are:
192	(a) Willful, wanton, and malicious;
193	(b) In reckless disregard for the rights of any insured;
194	or
195	(c) In reckless disregard for the rights of a beneficiary
196	under a life insurance contract.
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198	Any person who pursues a claim under this subsection shall post
199	in advance the costs of discovery. Such costs shall be awarded
200	to the insurer if no punitive damages are awarded to the
201	plaintiff.
202	(6)(5)This section shall not be construed to authorize a
203	class action suit against an insurer or a civil action against
204	the department, its employees, or the Insurance Commissioner, or
205	to create a cause of action when a health insurer refuses to pay
206	a claim for reimbursement on the ground that the charge for a
207	service was unreasonably high or that the service provided was
208	not medically necessary.
209	(7)(6)In the absence of expressed language to the
210	contrary, this section shall not be construed to authorize a
211	civil action or create a cause of action against an insurer or
212	its employees who, in good faith, release information about an
213	insured or an insurance policy to a law enforcement agency in
214	furtherance of an investigation of a criminal or fraudulent act
215	relating to a motor vehicle theft or a motor vehicle insurance
216	claim.
217	(8)(7)The civil remedy specified in this section does not
218	preempt any other remedy or cause of action provided for
219	pursuant to any other statute or pursuant to the common law of
220	this state. Any person may obtain a judgment under either the
221	common-law remedy of bad faith or this statutory remedy, but
222	shall not be entitled to a judgment under both remedies. This
223	section shall not be construed to create a common-law cause of
224	action. The damages recoverable pursuant to this section shall
225	include those damages which are a reasonably foreseeable result
226	of a specified violation of this section by the insurer and may
227	include an award or judgment in an amount that exceeds the
228	policy limits.
229	Section 27. If any amendment to s. 624.155, Florida
230	Statutes, contained in this act or the application thereof to
231	any person or circumstance is held invalid, the invalidity shall
232	not affect other provisions or applications relating to
233	amendments to s. 624.155, Florida Statutes, contained in this
234	act, provided such provisions can be given effect without the
235	invalid provision or application, and to this end, the
236	provisions of this act and amendments to s. 624.155, Florida
237	Statutes, contained in this act are declared severable.
238
239	================= T I T L E A M E N D M E N T =================
240	Remove line 74, and insert:
241	to conform; amending s. 624.155, F.S.; eliminating third-party
242	civil actions against insurers in certain matters involving
243	insurance coverage for medical negligence; providing
244	requirements, criteria, and limitations for actions against a
245	liability insurer for alleged failure to settle a claim;
246	revising a standard for determination of good faith by an
247	insurer in medical liability cases; providing factors to be
248	considered in determining whether an insurer has acted in good
249	faith in such cases; requiring the reporting of certain
250	judgments to the Office of Insurance Regulation; providing a
251	limitation on damages recoverable in certain bad faith actions;
252	providing an exemption to certain insureds from judgment liens
253	and execution in an amount equal to sums paid on behalf of such
254	insured by a liability insurer; providing that no award for
255	attorney’s fees shall be enhanced by a contingency risk
256	multiplier in certain actions relating to professional liability
257	insurance coverage for medical negligence; providing
258	severability; amending s. 624.462, F.S.; authorizing health