HB 589

1	A bill to be entitled
2	An act relating to civil remedies; amending s. 624.155,
3	F.S.; limiting actions against an insurer to insureds;
4	specifying a duty to cooperate with an insurer in
5	asserting a demand for settlement; specifying certain
6	activities as a defense in certain actions; revising
7	certain time periods relating to notices in certain
8	actions; revising notice requirements; providing for
9	preemption of specified civil remedies; specifying effect
10	of certain judgments; specifying a criterion for burden of
11	proof in actions against an insurer; limiting insurer
12	liability for failure to pay policy limits under certain
13	circumstances; authorizing parties to request certain
14	court orders relating to unnecessary delay; providing
15	requirements for amending witness lists; limiting
16	admissibility of certain evidence; specifying
17	considerations for a trier of fact in certain actions;
18	providing construction relating to assigning causes of
19	action; providing an effective date.
20
21	Be It Enacted by the Legislature of the State of Florida:
22
23	Section 1.  Subsections (1), (3), and (8) of section
24	624.155, Florida Statutes, are amended, and subsections (10),
25	(11), (12), and (13) are added to that section, to read:
26	624.155  Civil remedy.--
27	(1)  An insured Any person may bring a civil action against
28	an insurer when such person is damaged:
29	(a)  By a violation of any of the following provisions by
30	the insurer:
31	1.  Section 626.9541(1)(i), (o), or (x);
32	2.  Section 626.9551;
33	3.  Section 626.9705;
34	4.  Section 626.9706;
35	5.  Section 626.9707; or
36	6.  Section 627.7283.
37	(b)  By the commission of any of the following acts by the
38	insurer:
39	1.  Not attempting in good faith to settle claims when,
40	under all the circumstances, it could and should have done so,
41	had it acted fairly and honestly toward its insured and with due
42	regard for her or his interests and the interests of all other
43	policyholders. However, both the insured and any person
44	asserting any demand for such settlement owes a similar duty to
45	the insurer to cooperate fully with the insurer, and it shall be
46	a defense to any action under this section if the court finds
47	that the insured or other person demanding settlement:
48	a.  Failed to cooperate fully in facilitating the
49	settlement;
50	b.  Imposed or adhered to time limits or other conditions
51	on settlement without at that time demonstrating to the insurer
52	valid reasons that such time limits or other conditions were
53	reasonable and necessary and that such reasons were totally
54	unrelated to the possibility of obtaining damages under this
55	section; or
56	c.  Lacked authority to make the demand or to accept the
57	amount demanded in full settlement of all claims, including
58	liens, arising from the occurrence;
59	2.  Making claims payments to insureds or beneficiaries not
60	accompanied by a statement setting forth the coverage under
61	which payments are being made; or
62	3.  Except as to liability coverages, failing to promptly
63	settle claims, when the obligation to settle a claim has become
64	reasonably clear, under one portion of the insurance policy
65	coverage in order to influence settlements under other portions
66	of the insurance policy coverage.
67
68	Notwithstanding the provisions of the above to the contrary, a
69	person pursuing a remedy under this section need not prove that
70	such act was committed or performed with such frequency as to
71	indicate a general business practice.
72	(3)(a)  As a condition precedent to bringing an action
73	under this section, the department and the authorized insurer
74	must have been given 90 60 days' written notice of the
75	violation. If the department returns a notice for lack of
76	specificity, the 90-day 60-day time period shall not begin until
77	a proper notice is filed.
78	(b)  The notice shall be on a form provided by the
79	department and shall state with specificity the following
80	information, and such other information as the department may
81	require:
82	1.  The statutory provision, including the specific
83	language of the statute, which the authorized insurer allegedly
84	violated.
85	2.  The specific facts and circumstances giving rise to the
86	violation, including facts and circumstances pertinent to each
87	factor stated in subsection (10) and the identity of all parties
88	who have made claims against the insured for the occurrence
89	giving rise to the claim and any documentation pertaining to
90	such claims.
91	3.  The name of any individual involved in the violation.
92	4.  Reference to specific policy coverage and language that
93	is relevant to the violation, if any. If the person bringing the
94	civil action is a third party claimant, she or he shall not be
95	required to reference the specific policy language if the
96	authorized insurer has not provided a copy of the policy to the
97	third party claimant pursuant to written request.
98	5.  A statement that the notice is given in order to
99	perfect the right to pursue the civil remedy authorized by this
100	section.
101	6.  A detailed description of the specific dollar amounts
102	that are due and unpaid under each available coverage and how
103	such amounts are calculated and of any other actions requested
104	to cure the violation.
105	(c)  Within 30 20 days of receipt of the notice, the
106	department shall may return any notice that does not provide the
107	specific information required by this section, and the
108	department shall indicate the specific deficiencies contained in
109	the notice. A determination by the department to return a notice
110	for lack of specificity shall be exempt from the requirements of
111	chapter 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 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 and causes remedy or
124	cause of action for extra-contractual damages for failure to
125	settle under an insurance contract provided for pursuant to any
126	other statute or pursuant to the common law of this state. Any
127	person may obtain a judgment under either the common-law remedy
128	of bad faith or this statutory remedy, but shall not be entitled
129	to a judgment under both remedies. This section shall not be
130	construed to create a common-law cause of action. The damages
131	recoverable pursuant to this section shall include, but not
132	exceed, those actual 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. The rendition of a
136	judgment against a liability insured shall not raise any
137	presumption or inference that the violation will foreseeably
138	result in actual damages, except to the extent it is proven that
139	the insured has or is reasonably expected to have assets from
140	which such judgment is expected to be paid. The satisfaction of
141	a judgment rendered against an insurer pursuant to this
142	subsection shall operate as the satisfaction of the underlying
143	judgment against the insured.
144	(10)  In all actions against an insurer relating to failure
145	to settle claims for liability insurance coverage, the burden of
146	proof shall be clear and convincing evidence of an unreasonable
147	refusal to settle.
148	(a)  An insurer shall not be held liable for failure to pay
149	its policy limits if the insurer tenders its policy limits by
150	the earlier of:
151	1.  The 210th day after service of the complaint in the
152	negligence action upon the insured. The time period specified in
153	this subparagraph shall be extended by an additional 60 days if
154	the court finds in the action for a violation of this section
155	that, at any time during such period and after the 150th day
156	after service of the complaint in the underlying liability
157	action, the claimant provided new information not previously
158	provided to the insurer relating to the identity or testimony of
159	any material witnesses or the identity of any additional
160	claimants or defendants if such disclosure materially alters the
161	risk to the insured of an excess judgment; or
162	2.  The 60th day after the conclusion of all of the
163	following:
164	a.  Depositions of all claimants named in the complaint or
165	amended complaint.
166	b.  Depositions of all defendants named in the complaint or
167	amended complaint, including, in the case of a corporate
168	defendant, deposition of a designated representative.
169	c.  Depositions of all of the claimants' expert witnesses.
170	d.  The initial disclosure of witnesses and production of
171	documents.
172
173	When there are multiple claimants seeking compensation from the
174	same insured or multiple insureds or when there is a single
175	claimant seeking compensation from multiple insureds for damages
176	arising from the same occurrence, which compensation in the
177	aggregate exceeds policy limits, the insurer of the insured or
178	insureds shall not be held liable for extra-contractual damages
179	for failure to pay its policy limits if the insurer makes a
180	written offer of its policy limits within the timeframe set
181	forth in this subsection to all known potential claimants in
182	exchange for releases of all claims against all insureds or
183	tenders such limits to the court for apportionment to the
184	claimants.
185	(b)  Either party may request that the court enter an order
186	finding that the other party has unnecessarily or
187	inappropriately delayed any of the events specified in
188	subparagraph (a)2. If the court finds that the claimant was
189	responsible for such unnecessary or inappropriate delay,
190	subparagraph (a)1. shall not apply to the insurer's tendering of
191	policy limits. If the court finds that the defendant or insurer
192	was responsible for such unnecessary or inappropriate delay,
193	subparagraph (a)2. shall not apply to the insurer's tendering of
194	policy limits.
195	(c)  If any party to an action alleging liability for acts
196	covered by liability insurance amends its witness list after
197	service of the complaint in such action, that party shall
198	provide a copy of the amended witness list to the insurer of the
199	defendant.
200	(d)  The time limits specified in this subsection shall not
201	be admissible as evidence that the insurer acted in violation of
202	this section.
203	(11)  When an insurer does not tender its policy limits to
204	settle a liability insurance claim under subsection (10), the
205	trier of fact, in determining whether an insurer has acted in
206	violation of this section, shall consider only:
207	(a)  The insurer's willingness to negotiate with the
208	claimant in anticipation of settlement.
209	(b)  The propriety of the insurer's methods of
210	investigating and evaluating the claim.
211	(c)  Whether the insurer timely informed the insured of an
212	offer to settle within the limits of coverage, the right to
213	retain personal counsel, and the risk of litigation.
214	(d)  Whether the insured denied liability or requested that
215	the case be defended after the insurer fully advised the insured
216	as to the facts and risks.
217	(e)  Whether the claimant imposed any condition, other than
218	the tender of the policy limits, on the settlement of the claim.
219	(f)  Whether the claimant provided all relevant information
220	to the insurer on a timely basis.
221	(g)  Whether and when other defendants in the case settled
222	or were dismissed from the case.
223	(h)  Whether there were multiple claimants seeking, in the
224	aggregate, compensation in excess of policy limits from the
225	defendant or the defendant's insurer.
226	(i)  Whether the insured or claimant misrepresented
227	material facts to the insurer or made material omissions of fact
228	to the insurer.
229	(j)  Other matters that constitute defenses or limitations
230	to actions or damages that are specified in this section.
231	(12)  An insurer that tenders policy limits shall be
232	entitled to a release of its insured if the claimant accepts the
233	tender.
234	(13)  Nothing in this section shall be construed to
235	prohibit an insured from assigning the cause of action to an
236	injured third-party claimant for the insurer's failure to act
237	fairly and honestly towards its insured and with due regard for
238	the insured's interest.
239	Section 2.  This act shall take effect upon becoming a law.

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