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A bill to be entitled

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An act relating to civil actions against insurers;

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amending s. 624.155, F.S.; providing that only an insured

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of the insurer may bring a civil action against the

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insurer under specified circumstances; requiring the

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insured to cooperate fully with an insurer in asserting a

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demand for settlement; specifying certain activities the

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insurer may interpose as a defense to a civil remedy;

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revising time periods relating to notices in certain

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actions; revising notice requirements; providing that the

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remedies specified preempt other civil remedies created by

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statute or common law; specifying the effect of certain

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judgments; requiring an insured to prove by clear and

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convincing evidence the allegations made in an action

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relating to the insurer's failure to settle a claim;

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limiting the liability of an insurer for failing to pay

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its policy limits under certain circumstances; authorizing

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parties to request certain court orders relating to

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unnecessary or inappropriate delay; providing procedures

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for amending witness lists; limiting admissibility of

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certain evidence; specifying considerations for a trier of

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fact in certain actions; providing for construction

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relating to assigning causes of action; providing an

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effective date.

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Be It Enacted by the Legislature of the State of Florida:

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     Section 1.  Subsections (1), (3), and (8) of section

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624.155, Florida Statutes, are amended, and subsections (10),

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(11), (12), and (13) are added to that section, to read:

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     624.155  Civil remedy.--

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     (1) An insured Any person may bring a civil action against

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an insurer when such person is damaged:

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     (a)  By a violation of any of the following provisions by

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the insurer:

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     1.  Section 626.9541(1)(i), (o), or (x);

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     2.  Section 626.9551;

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     3.  Section 626.9705;

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     4.  Section 626.9706;

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     5.  Section 626.9707; or

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     6.  Section 627.7283.

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     (b)  By the commission of any of the following acts by the

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insurer:

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     1.  Not attempting in good faith to settle claims when,

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under all the circumstances, it could and should have done so,

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had it acted fairly and honestly toward its insured and with due

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regard for her or his interests and the interests of all other

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policyholders. However, both the insured and any person asserting

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any demand for such settlement owes a similar duty to the insurer

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to cooperate fully with the insurer, and it is a defense to any

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action under this section if the court finds that the insured or

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other person demanding settlement:

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     a. Failed to cooperate fully in facilitating the

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settlement;

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     b. Imposed or adhered to time limits or other conditions of

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settlement without at that time demonstrating to the insurer

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valid reasons that such time limits or other conditions were

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reasonable and necessary and that such reasons were totally

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unrelated to the possibility of obtaining damages under this

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section; or

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     c. Lacked authority to make the demand or to accept the

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amount demanded in full settlement of all claims, including

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liens, arising from the occurrence;

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     2.  Making claims payments to insureds or beneficiaries not

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accompanied by a statement setting forth the coverage under which

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payments are being made; or

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     3.  Except as to liability coverage, failing to promptly

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settle claims, when the obligation to settle a claim has become

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reasonably clear, under one portion of the insurance policy

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coverage in order to influence settlements under other portions

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of the insurance policy coverage.

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Notwithstanding the provisions of the above to the contrary, a

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person pursuing a remedy under this section need not prove that

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such act was committed or performed with such frequency as to

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indicate a general business practice.

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     (3)(a)  As a condition precedent to bringing an action under

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this section, the department and the authorized insurer must have

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been given 90 60 days' written notice of the violation. If the

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department returns a notice for lack of specificity, the 90-day

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60-day time period does shall not begin until a proper notice is

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filed.

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     (b)  The notice shall be on a form provided by the

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department and shall state with specificity the following

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information, and such other information as the department may

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require:

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     1.  The statutory provision, including the specific language

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of the statute, which the authorized insurer allegedly violated.

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     2. The specific facts and circumstances giving rise to the

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violation, including facts and circumstances pertinent to each

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factor stated in subsection (11) and the identity of all parties

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who have made claims against the insured for the occurrence

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giving rise to the claim and any documentation pertaining to such

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claims.

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     3.  The name of any individual involved in the violation.

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     4. Reference to specific policy coverage and language that

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is relevant to the violation, if any. If the person bringing the

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civil action is a third party claimant, she or he shall not be

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required to reference the specific policy language if the

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authorized insurer has not provided a copy of the policy to the

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third party claimant pursuant to written request.

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     5.  A statement that the notice is given in order to perfect

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the right to pursue the civil remedy authorized by this section.

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     6. A detailed description of the specific dollar amounts

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that are due and unpaid under each available coverage and how

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such amounts are calculated and of any other actions requested to

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cure the violation.

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     (c) Within 30 20 days after of receipt of the notice, the

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department shall may return any notice that does not provide the

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specific information required by this section, and the department

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shall indicate the specific deficiencies contained in the notice.

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A determination by the department to return a notice for lack of

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specificity is shall be exempt from the requirements of chapter

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     (d) No action shall lie if, within 90 60 days after filing

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notice, the damages are paid or the circumstances giving rise to

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the violation are corrected.

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     (e)  The authorized insurer that is the recipient of a

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notice filed pursuant to this section shall report to the

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department on the disposition of the alleged violation.

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     (f)  The applicable statute of limitations for an action

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under this section shall be tolled for a period of 95 65 days by

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the mailing of the notice required by this subsection or the

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mailing of a subsequent notice required by this subsection.

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     (8) The civil remedy specified in this section preempts all

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does not preempt any other remedies and causes remedy or cause of

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action for extra-contractual damages for failing to settle under

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an insurance contract provided for pursuant to any other statute

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or pursuant to the common law of this state. Any person may

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obtain a judgment under either the common-law remedy of bad faith

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or this statutory remedy, but shall not be entitled to a judgment

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under both remedies. This section does shall not be construed to

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create a common-law cause of action. The damages recoverable

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under pursuant to this section shall include, but may not exceed,

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those actual damages that which are a reasonably foreseeable

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result of a specified violation of this section by the authorized

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insurer and may include an award or judgment in an amount that

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exceeds the policy limits. The rendition of a judgment against a

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liability insured does not create a presumption or inference that

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the violation will foreseeably result in actual damages, except

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to the extent it is proven that the insured has or is reasonably

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expected to have assets from which the judgment is expected to be

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paid. The satisfaction of a judgment rendered against an insurer

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under this section operates as the satisfaction of the underlying

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judgment against the insured.

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     (10) In an action against an insurer arising from an

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allegation that the insurer failed to settle a claim for

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liability insurance coverage, the burden is on the insured to

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prove, by clear and convincing evidence, that the insurer's

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refusal to settle was unreasonable.

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     (a) An insurer is not liable for failing to pay the

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insurer's policy limits if the insurer tenders the insurer's

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policy limits by the earlier of:

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     1. The 210th day after service of the complaint on the

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insurer in the negligence action against the insured. The time

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period specified in this subparagraph shall be extended by an

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additional 60 days if the court finds that, at any time during

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the period and after the 150th day after service of the complaint

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in the underlying liability action, the claimant provided new

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information not previously provided to the insurer relating to

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the identity or testimony of any material witnesses or the

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identity of any additional claimants or defendants if such

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disclosure materially alters the risk to the insured of an excess

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judgment; or

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     2. The 60th day after the conclusion of all of the

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following:

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     a. Depositions of all claimants named in the complaint or

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amended complaint.

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     b. Depositions of all defendants named in the complaint or

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amended complaint, including, in the case of a corporate

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defendant, deposition of a designated representative.

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     c. Depositions of all of the claimants' expert witnesses.

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     d. The initial disclosure of witnesses and production of

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documents.

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If there are multiple claimants seeking compensation from the

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same insured or multiple insureds or if there is a single

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claimant seeking compensation from multiple insureds for damages

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arising from the same occurrence, which compensation in the

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aggregate exceeds the policy limits of the insurer, the insurer

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of the insured or insureds is not liable for extra-contractual

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damages for failing to pay the insurer's policy limits if the

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insurer makes a written offer of its policy limits within the

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timeframe set forth in this subsection to all known potential

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claimants in exchange for releases of all claims against all

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insureds or tenders such limits to the court for apportionment to

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the claimants.

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     (b) Either party may request that the court enter an order

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finding that the other party has unnecessarily or inappropriately

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delayed any of the events specified in subparagraph (a)2. If the

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court finds that the claimant was responsible for unnecessary or

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inappropriate delay, subparagraph (a)1. does not apply to the

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insurer's tendering of the insurer's policy limits. If the court

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finds that the defendant or insurer was responsible for

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unnecessary or inappropriate delay, subparagraph (a)2. does not

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apply to the insurer's tendering of the insurer's policy limits.

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     (c) If a party to an action alleging liability for acts

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covered by liability insurance amends its witness list after

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service of the complaint in the action, that party shall provide

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a copy of the amended witness list to the insurer of the

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defendant.

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     (d) The time limits specified in this subsection are not

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admissible as evidence that the insurer acted in violation of

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this section.

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     (11) If an insurer does not tender its policy limits to

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settle a liability insurance claim under subsection (10), the

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trier of fact, in determining whether an insurer has acted in

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violation of this section, must consider only:

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     (a) The insurer's willingness to negotiate with the

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claimant in anticipation of settlement.

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     (b) The propriety of the insurer's methods of investigating

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and evaluating the claim.

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     (c) Whether the insurer timely informed the insured of an

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offer to settle within the limits of coverage, the right to

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retain personal counsel, and the risk of litigation.

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     (d) Whether the insured denied liability or requested that

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the case be defended after the insurer fully advised the insured

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as to the facts and risks.

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     (e) Whether the claimant imposed any condition, other than

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the tender of the policy limits, on the settlement of the claim.

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     (f) Whether the claimant provided all relevant information

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to the insurer on a timely basis.

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     (g) Whether and when other defendants in the case settled

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or were dismissed from the case.

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     (h) Whether there were multiple claimants seeking, in the

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aggregate, compensation in excess of policy limits from the

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defendant or the defendant's insurer.

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     (i) Whether the insured or claimant misrepresented material

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facts to the insurer or made material omissions of fact to the

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insurer.

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     (j) Other matters that constitute defenses or limitations

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to actions or damages that are specified in this section.

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     (12) An insurer that tenders the insurer's policy limits is

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entitled to a release of its insured if the claimant accepts the

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tender.

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     (13) This section does not prohibit an insured from

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assigning the cause of action to an injured third-party claimant

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for the insurer's failure to act fairly and honestly towards its

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insured and with due regard for the insured's interest.

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     Section 2.  This act shall take effect July 1, 2008.