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The Florida Senate

2016 Florida Statutes

Title XXXVII INSURANCE
Chapter 627 INSURANCE RATES AND CONTRACTS Entire Chapter
SECTION 7074
Alternative procedure for resolution of disputed sinkhole insurance claims.
F.S. 627.7074
627.7074 Alternative procedure for resolution of disputed sinkhole insurance claims.—
(1) The department shall:
(a) Certify and maintain a list of persons who are neutral evaluators.
(b) Prepare a consumer information pamphlet for distribution by insurers to policyholders which clearly describes the neutral evaluation process and includes information necessary for the policyholder to request a neutral evaluation.
(2) Neutral evaluation is available to either party if a sinkhole report has been issued pursuant to s. 627.7073. At a minimum, neutral evaluation must determine:
(a) Causation;
(b) All methods of stabilization and repair both above and below ground;
(c) The costs for stabilization and all repairs; and
(d) Information necessary to carry out subsection (12).
(3) If there is coverage available under the policy and the claim was submitted within the timeframe provided in s. 627.706(5), following the receipt of the report provided under s. 627.7073 or the denial of a claim for a sinkhole loss, the insurer shall notify the policyholder of his or her right to participate in the neutral evaluation program under this section. Neutral evaluation supersedes the alternative dispute resolution process under s. 627.7015 but does not invalidate the appraisal clause of the insurance policy. The insurer shall provide to the policyholder the consumer information pamphlet prepared by the department pursuant to subsection (1) electronically or by United States mail.
(4) Neutral evaluation is nonbinding, but mandatory if requested by either party. A request for neutral evaluation may be filed with the department by the policyholder or the insurer on a form approved by the department. The request for neutral evaluation must state the reason for the request and must include an explanation of all the issues in dispute at the time of the request. Filing a request for neutral evaluation tolls the applicable time requirements for filing suit for 60 days following the conclusion of the neutral evaluation process or the time prescribed in s. 95.11, whichever is later.
(5) Neutral evaluation shall be conducted as an informal process in which formal rules of evidence and procedure need not be observed. A party to neutral evaluation is not required to attend neutral evaluation if a representative of the party attends and has the authority to make a binding decision on behalf of the party. All parties shall participate in the evaluation in good faith. The neutral evaluator must be allowed reasonable access to the interior and exterior of insured structures to be evaluated or for which a claim has been made. Any reports initiated by the policyholder, or an agent of the policyholder, confirming a sinkhole loss or disputing another sinkhole report regarding insured structures must be provided to the neutral evaluator before the evaluator’s physical inspection of the insured property.
(6) The insurer shall pay reasonable costs associated with the neutral evaluation. However, if a party chooses to hire a court reporter or stenographer to contemporaneously record and document the neutral evaluation, that party must bear such costs.
(7) Upon receipt of a request for neutral evaluation, the department shall provide the parties a list of certified neutral evaluators. The department shall allow the parties to submit requests to disqualify evaluators on the list for cause.
(a) The department shall disqualify neutral evaluators for cause based only on any of the following grounds:
1. A familial relationship within the third degree exists between the neutral evaluator and either party or a representative of either party.
2. The proposed neutral evaluator has, in a professional capacity, previously represented either party or a representative of either party in the same or a substantially related matter.
3. The proposed neutral evaluator has, in a professional capacity, represented another person in the same or a substantially related matter and that person’s interests are materially adverse to the interests of the parties. The term “substantially related matter” means participation by the neutral evaluator on the same claim, property, or adjacent property.
4. The proposed neutral evaluator has, within the preceding 5 years, worked as an employer or employee of any party to the case.
5. The proposed neutral evaluator has, within the preceding 5 years, worked for any entity that performed any sinkhole loss testing, review, or analysis for the property.
(b) The department shall deny an application for, or suspend or revoke its certification of, a neutral evaluator to serve in such capacity if the department finds that 1any of the following grounds exist:
1. Lack of one or more of the qualifications specified in this section for approval or certification.
2. Material misstatement, misrepresentation, or fraud in obtaining or attempting to obtain the approval or certification.
3. Demonstrated lack of fitness or trustworthiness to act as a neutral evaluator.
4. Fraudulent or dishonest practices in the conduct of an evaluation or in the conduct of financial services business.
5. Violation of any provision of this code or of a lawful order or rule of the department, or aiding, instructing, or encouraging another party in committing such a violation.
(c) The parties shall appoint a neutral evaluator from the department list and promptly inform the department. If the parties cannot agree to a neutral evaluator within 14 business days, the department shall appoint a neutral evaluator from the list of certified neutral evaluators. The department shall allow each party to disqualify two neutral evaluators without cause. Upon selection or appointment, the department shall promptly refer the request to the neutral evaluator.
(d) Within 14 business days after referral, the neutral evaluator shall notify the policyholder and the insurer of the date, time, and place of the neutral evaluation conference. The conference may be held by telephone, if feasible and desirable. The neutral evaluator shall make reasonable efforts to hold the conference within 90 days after the receipt of the request by the department. Failure of the neutral evaluator to hold the conference within 90 days does not invalidate either party’s right to neutral evaluation or to a neutral evaluation conference held outside this timeframe.
(8) For policyholders not represented by an attorney, a consumer affairs specialist of the department or an employee designated as the primary contact for consumers on issues relating to sinkholes under s. 20.121 shall be available for consultation to the extent that he or she may lawfully do so.
(9) Evidence of an offer to settle a claim during the neutral evaluation process, as well as any relevant conduct or statements made in negotiations concerning the offer to settle a claim, is inadmissible to prove liability or absence of liability for the claim or its value, except as provided in subsection (14).
(10) Regardless of when noticed, any court proceeding related to the subject matter of the neutral evaluation shall be stayed pending completion of the neutral evaluation and for 5 days after the filing of the neutral evaluator’s report with the court.
(11) If, based upon his or her professional training and credentials, a neutral evaluator is qualified to determine only disputes relating to causation or method of repair, the department shall allow the neutral evaluator to enlist the assistance of another professional from the neutral evaluators list not previously stricken, who, based upon his or her professional training and credentials, is able to provide an opinion as to other disputed issues. A professional who would be disqualified for any reason listed in subsection (7) must be disqualified. The neutral evaluator may also use the services of professional engineers and professional geologists who are not certified as neutral evaluators, as well as licensed building contractors, in order to ensure that all items in dispute are addressed and the neutral evaluation can be completed. Any professional engineer, professional geologist, or licensed building contractor retained may be disqualified for any of the reasons listed in subsection (7). The neutral evaluator may request the entity that performed the investigation pursuant to s. 627.7072 perform such additional and reasonable testing as deemed necessary in the professional opinion of the neutral evaluator.
(12) At the conclusion of the neutral evaluation, the neutral evaluator shall prepare a report describing all matters that are the subject of the neutral evaluation, including whether, in his or her opinion, the sinkhole loss has been verified or eliminated within a reasonable degree of professional probability and, if verified, whether the sinkhole activity caused structural damage to the covered building, and, if so, the need for and estimated costs of stabilizing the land and any covered buildings and other appropriate remediation or necessary building repairs due to the sinkhole loss. The evaluator’s report shall be sent to all parties and to the department, within 14 days after completing the neutral evaluation conference.
(13) The recommendation of the neutral evaluator is not binding on any party, and the parties retain access to the court. The neutral evaluator’s written recommendation, oral testimony, and full report shall be admitted in any action, litigation, or proceeding relating to the claim or to the cause of action giving rise to the claim.
(14) If the neutral evaluator verifies the existence of a sinkhole that caused structural damage and recommends the need for and estimates costs of stabilizing the land and any covered buildings and other appropriate remediation or building repairs which exceed the amount that the insurer has offered to pay the policyholder, the insurer is liable to the policyholder for up to $2,500 in attorney’s fees for the attorney’s participation in the neutral evaluation process. For purposes of this subsection, the term “offer to pay” means a written offer signed by the insurer or its legal representative and delivered to the policyholder within 10 days after the insurer receives notice that a request for neutral evaluation has been made under this section.
(15) If the insurer timely agrees in writing to comply and timely complies with the recommendation of the neutral evaluator, but the policyholder declines to resolve the matter in accordance with the recommendation of the neutral evaluator pursuant to this section:
(a) The insurer is not liable for extracontractual damages related to a claim for a sinkhole loss but only as related to the issues determined by the neutral evaluation process. This section does not affect or impair claims for extracontractual damages unrelated to the issues determined by the neutral evaluation process contained in this section; and
(b) The actions of the insurer are not a confession of judgment or admission of liability, and the insurer is not liable for attorney’s fees under s. 627.428 or other provisions of the insurance code unless the policyholder obtains a judgment that is more favorable than the recommendation of the neutral evaluator.
(16) If the insurer agrees to comply with the neutral evaluator’s report, payments shall be made in accordance with the terms and conditions of the applicable insurance policy pursuant to s. 627.707(5).
(17) Neutral evaluators are deemed to be agents of the department and have immunity from suit as provided in s. 44.107.
(18) The department shall adopt rules of procedure for the neutral evaluation process and adopt rules for certifying, denying certification of, suspending certification of, and revoking the certification as a neutral evaluator.
History.—s. 29, ch. 2006-12; s. 27, ch. 2011-39; s. 7, ch. 2014-86; s. 30, ch. 2014-123; s. 6, ch. 2015-135; s. 18, ch. 2016-132.
1Note.—As amended by s. 7, ch. 2014-86. The amendment by s. 30, ch. 2014-123, uses the words “one or more” instead of the word “any.”