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 insuredAny personmay bring a civil action against 48 an insurer when such insuredpersonis 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 9060days' written notice of the violation. If 84 the department returns a notice for lack of specificity, the 90 85 day60-day timeperiod 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 civil98action is a third party claimant, she or he shall not be99required to reference the specific policy language if the100authorized insurer has not provided a copy of the policy to the101third 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 3020days after the date on which the 105 department receivesof receipt ofthe 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 110shall beexempt from the requirements of chapter 120. 111 (d) No action shall lie if, within 9060days 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 9565days 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 122does not preempt anyother remedies or causesremedy or causeof 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.Any126person may obtain a judgment under either the common-law remedy127of bad faith or this statutory remedy, but shall not be entitled128to a judgment under both remedies.This section doesshallnot 129be construed tocreate 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.