Florida Senate - 2020                        COMMITTEE AMENDMENT
       Bill No. SB 1334
       
       
       
       
       
       
                                Ì452858RÎ452858                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/11/2020           .                                
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       The Committee on Banking and Insurance (Brandes) recommended the
       following:
       
    1         Senate Amendment to Amendment (632742) (with title
    2  amendment)
    3  
    4         Delete lines 145 - 187
    5  and insert:
    6         Section 5. Subsections (1) and (3) of section 624.155,
    7  Florida Statutes, are amended, and subsection (10) is added to
    8  that section, to read:
    9         624.155 Civil remedy.—
   10         (1) Any person may bring a civil action against an insurer
   11  when such person is damaged:
   12         (a) By a violation of any of the following provisions by
   13  the insurer:
   14         1. Section 626.9541(1)(i), (o), or (x);
   15         2. Section 626.9551;
   16         3. Section 626.9705;
   17         4. Section 626.9706;
   18         5. Section 626.9707; or
   19         6. Section 627.7283.
   20         (b) By the commission of any of the following acts by the
   21  insurer:
   22         1. Not attempting in good faith to settle claims when,
   23  under the totality of all the circumstances, it could and should
   24  have done so, had it acted fairly and honestly toward its
   25  insured and with due regard for her or his interests;
   26         2. Making claims payments to insureds or beneficiaries not
   27  accompanied by a statement setting forth the coverage under
   28  which payments are being made; or
   29         3. Except as to liability coverages, failing to promptly
   30  settle claims, when the obligation to settle a claim has become
   31  reasonably clear, under one portion of the insurance policy
   32  coverage in order to influence settlements under other portions
   33  of the insurance policy coverage.
   34  
   35  Notwithstanding paragraphs (a) and (b) the provisions of the
   36  above to the contrary, a person pursuing a remedy under this
   37  section need not prove that such act was committed or performed
   38  with such frequency as to indicate a general business practice.
   39         (3)(a) As a condition precedent to bringing an action under
   40  this section, the department and the authorized insurer must
   41  have been given 60 days’ written notice of the violation. Notice
   42  to the authorized insurer must be provided by the department to
   43  the e-mail address designated by the insurer under s. 624.422.
   44         (b) The notice shall be on a form provided by the
   45  department and shall state with specificity the following
   46  information, and such other information as the department may
   47  require:
   48         1. The statutory provision, including the specific language
   49  of the statute, which the authorized insurer allegedly violated.
   50         2. The facts and circumstances giving rise to the
   51  violation.
   52         3. The name of any individual involved in the violation.
   53         4. Reference to specific policy language that is relevant
   54  to the violation, if any. If the person bringing the civil
   55  action is a third party claimant, she or he shall not be
   56  required to reference the specific policy language if the
   57  authorized insurer has not provided a copy of the policy to the
   58  third party claimant pursuant to written request.
   59         5. A statement that the notice is given in order to perfect
   60  the right to pursue the civil remedy authorized by this section.
   61         (c) No action shall lie if, within 60 days after the
   62  insurer receives filing notice from the department in accordance
   63  with this subsection, the damages are paid or the circumstances
   64  giving rise to the violation are corrected.
   65         (d) The authorized insurer that is the recipient of a
   66  notice filed pursuant to this section shall report to the
   67  department on the disposition of the alleged violation.
   68         (e) The applicable statute of limitations for an action
   69  under this section shall be tolled for a period of:
   70         1.Sixty 65 days after the insurer receives from the
   71  department by the mailing of the notice required by this
   72  subsection.
   73         2.Sixty days after the date appraisal is invoked pursuant
   74  to paragraph (f) or the mailing of a subsequent notice required
   75  by this subsection.
   76         (f) A notice required under this subsection may not be
   77  filed within 60 days after appraisal is invoked by any party in
   78  a residential property insurance claim.
   79         (10) The provisions of this subsection apply to an action
   80  against a motor vehicle insurer for third-party bad faith under
   81  this chapter or at common law.
   82         (a)It is a condition precedent to such action that the
   83  insurer first receive written notice that the insurer has
   84  violated its duty to act in good faith toward its insured. A
   85  notice shall state with specificity the alleged violation and
   86  the facts and circumstances giving rise to the violation. The
   87  insurer’s receipt of written notice does not preclude subsequent
   88  written notices that an insurer violated its duty to act in good
   89  faith toward its insured. The insurer shall save and document
   90  any notice.
   91         (b)In handling claims, an insurer stands as a fiduciary
   92  for its insured. Accordingly, an insurer shall act in good faith
   93  toward its insured throughout the entirety of the claim.
   94         (c) A bad faith failure to settle means an insurer’s
   95  failure to settle a claim when, under the totality of the
   96  circumstances, it could and should have done so had it acted
   97  fairly, honestly, and with due regard for the interests of an
   98  insured. The claimant has the burden to establish through the
   99  greater weight of the evidence that specific conduct by the
  100  insurer is the cause or substantial cause of the insurer’s bad
  101  faith failure to settle.
  102         1.An insurer’s negligent actions alone are insufficient to
  103  establish the insurer’s bad faith failure to settle, but an
  104  insurer’s negligent actions are relevant when considering the
  105  totality of the circumstances.
  106         2.The actions or inactions of the insured or claimant are
  107  relevant in an action for a bad faith failure to settle. An
  108  insurer may assert as a defense that the conduct of the insured
  109  or claimant caused, in whole or in part, the failure to settle
  110  the claim.
  111         (d)No action against a motor vehicle insurer for third
  112  party bad faith shall lie if, within 45 days after the motor
  113  vehicle insurer receives notice pursuant to paragraph (a), the
  114  insurer cures the circumstances giving rise to the alleged
  115  breach of duty of good faith to the insured. A third party may
  116  proceed with a bad faith action against the insurer if the
  117  insurer fails to cure the violation within this period.
  118         (e)Paragraph (d) does not create a duty that the insurer
  119  must offer policy limits or the amount of a demand that is less
  120  than policy limits within 45 days after it receives notice under
  121  paragraph (a). However, the absence of such offer may be
  122  considered as part of the totality of the circumstances in
  123  determining whether the insurer in bad faith failed to settle.
  124         (f) If two or more third-party claimants in a liability
  125  claim make competing claims arising out of a single occurrence
  126  which in total exceed the available policy limits of one or more
  127  of the insured parties who may be liable to third party
  128  claimants, a motor vehicle insurer is not liable beyond the
  129  available policy limits for failure to pay all or any portion of
  130  the available policy limits to one or more of the third-party
  131  claimants if such insurer continues to comply with its good
  132  faith duties to its insured throughout the entirety of the
  133  claim, including the pendency of an interpleader action filed
  134  under the Florida Rules of Civil Procedure within 90 days after
  135  receiving notice of the competing claims in excess of the
  136  available policy limits. The competing third-party claimants are
  137  entitled to a prorated share of the policy limits as determined
  138  by the trier of fact.
  139  
  140  ================= T I T L E  A M E N D M E N T ================
  141  And the title is amended as follows:
  142         Delete line 1281
  143  and insert:
  144         statute of limitations is tolled; providing
  145         applicability; requiring that a civil remedy notice be
  146         provided to a motor vehicle insurer before a third
  147         party bad faith action is brought against the insurer;
  148         specifying requirements for the notice; providing
  149         construction relating to the notice; requiring the
  150         insurer to save and document any notice; providing
  151         construction relating to an insurer’s duty of good
  152         faith, a bad faith failure to settle, the claimant’s
  153         burden of proof, negligent actions of an insurer, and
  154         actions or inactions of the insured or claimant;
  155         providing that such bad faith actions are barred if
  156         the insurer cures certain circumstances within a
  157         certain timeframe; providing that an insurer is not
  158         liable beyond policy limits in certain third-party
  159         claims if it meets certain conditions; providing that
  160         competing third-party claimants are entitled to a
  161         prorated share of policy limits as determined by the
  162         trier of fact; amending s. 624.307,