Perry Cone published in Florida Bar Journal

The Florida Bar Journal has published Perry Cone's book review of an insurance treatise. In the Journal's December 2012 edition, Perry reviews Litigation and Prevention of Insurer Bad Faith, a two-volume comprehensive treatise by expert Dennis Wall.

As Perry concludes about Wall's work: "Litigation and Prevention of Insurer Bad Faith is a serious read and an essential legal resource. You may not want to take it on your vacation, but you will want to keep it on hand in your office to help you work through thorny legal issues."

The full review is available at these links: Litigation and Prevention of Insurer Bad Faith and The Florida Bar Journal, Dec. 2012 - Books (3rd review down).

This summary was prepared by Perry Cone and posted at TallyInsLaw.com.

Legal Notice and Disclaimer

Chalfonte decided - first-party bad faith is statutory only

There should be a gigantic sense of relief (and appropriately so) on the part of in-house counsel and executives of insurers doing business in Florida. Yesterday, the Florida Supreme Court resolved important questions regarding liability in first-party insurance cases, in the long-awaited QBE Insurance Corp. v. Chalfonte Condominum Apartment Assoc., No. SC09-441 (Fla., May 31, 2012).

The three key decisions of the Court are summarized below:

Mid-session report - week 5, 2012

The middle of week 5 marked the mid-point of Florida’s 2012 legislative session. Of the 30 or so insurance measures I have been following, 11 inched forward last week.

There are now four weeks left to go, with the session scheduled to end on March 9, 2012. Below is a combined week 5 update and mid-term report on a select dozen insurance matters – four of the more controversial issues still kicking around, four bills that seem poised for passage (eventually), and four that appear dead for the session.

Bad faith reform defeated: likely dead for 2012 Florida legislative session

A very streamlined version of insurance "bad faith" reform failed to pass the House Civil Justice Subcommittee this week and is presumed to be dead for the 2012 Florida legislative session.

Unlike last year's complicated bill, the 2012 version would simply subject common law bad-faith (defense of third party liability claims) to the existing "civil remedy notice" protocol of section 624.155, Florida Statutes. The bill provides for a release of the insured in certain circumstances, but makes no other major changes to the statute.

2012 Key Legislative Issues & Resources - Florida Insurance Law

Resources on key issues for the 2012 Florida legislative session are accumulated on a new page of TallyInsLaw.com.  Issues already receiving high attention are: (1) PIP; (2) property insurance; (3) bad faith and tort reform; and (4) workers compensation.  Updated - go to this link

This summary was prepared by Perry Cone and posted at www.TallyInsLaw.com/

Legal Notice and Disclaimer

Tort reforms: 2011 Florida Legislature passed some, passes on others

There were victories and defeats in the robust effort to obtain tort reform during the 2011 Florida Legislative Session.  The insurance and business communities had high hopes, anchored on Florida's conservative Legislature and Governor.  Here are hard-fought tort reform bills that passed:*

• Medical malpractice.  H479 will require out-of-state doctors to apply for a certificate to testify as an expert witness in Florida, and enable the State to discipline such doctors if they are found to have offered "deceptive or fraudulent" testimony.  For insurers, the bill eliminates the requirement that medical malpractice insurance policies include a clause authorizing the insurer to settle within policy limits without the insured's permission (and removes the prohibition against a clause giving the insured the right to veto a settlement within the policy limits).  The bill represents a big step for the Florida Medical Association, which has "been working to pass expert witness reform for over a decade."  Legislature passes lawsuit protection for doctors.

Key bills scheduled for week 5 of Florida Legislative Session

Florida legislative committees are set to hear key insurance bills during week 5 of session:

• Monday, April 4:
• Bad Faith (H 1187) is scheduled for its first hearing in the House, before the Civil Justice Subcommittee.
• Medical Malpractice (S 1590) is scheduled to be heard in the Senate Health Regulation Committee.

Trial attorney responds to Florida Bar article on "bad faith"

A rebuttal on “bad faith” reform was published in the March 2011 edition of the Florida Bar Journal.  The March rebuttal article, "Florida Insurance Bad Faith Law: Protecting Businesses and You," was written by trial attorney Rutledge R. Liles, a former president of the Florida Bar Association and author of the 2003 article "Insurance Bad Faith: The Set Up Myth." 

“Bad faith” reform out of the gate, but not without difficulty.

The Senate's version of "bad faith" reform, SB 1592, escaped from the Senate Judiciary Committee last week with a 4-3 vote. The House companion bill, HB 1187, has yet to come up for a vote.

The focus of the bills is on third-party liability, to provide a better process and more clearly defined rules.  The reform bills provide some minor improvements for first-party claims.

"Bad faith" reform bills filed

Senate and House sponsors have filed comprehensive bills to reform Florida's so-called "bad faith" laws.  The Senate bill was filed by Senator John Thrasher.  The House Bill was filed by Representative Dennis Baxley.  Here are links to the bills and a summary:

Big property insurance bill S408 approved by Senate insurance committee -- finally

Third time's the charm.  After three meetings, the Senate Banking and Insurance Committee finally voted its approval of the big property bill, SB 408.  The current text of the bill is at this link: S 0408 c1.  A staff analysis is found at this link: Bill Analysis, S 0408, 02/24/2011.

The Senate staff analysis provides the following summary of S 408:

Modifies current replacement cost coverage and actual cash value provisions relating to dwellings and personal property.
Requires windstorm and hurricane claims to be brought within three years and sinkhole loss claims to be brought within two years.

Bad faith reform - Senate workshop

It was all very polite, as proponents and opponents debated reform to the "bad faith" laws before the Senate Judiciary Committee on February 22.  The proponents were led by GrayRobinson's George Meros and Charlie Wells, representing the U.S. Chamber Institute for Legal Reform. 

"What we are asking of this Legislature is to bring common sense and equity to an area of the law that has gone very, very bad," said Meros.  Former Florida Supreme Court Justice Charlie Wells expressed his concerns with bad faith, saying "I believe that it goes directly to the heart and health of the economy of this state."  Wells is well known for his dissenting opinion in Berges v. Infinity Ins. Co. (Fla. 2005).  See Bad Faith Set-Up: Florida Bar Article.

Senate busy with key insurance issues on Tuesday, February 22

Senate committees hear critical insurance issues this week:

• On Tuesday morning, the Senate Judiciary Committee holds a workshop on bad faith.  See meeting records for February 22.
• On Tuesday afternoon, the Senate Banking and Insurance Committee meets to vote on the big property bill (S 408).  See meeting records for February 22.

This summary was prepared by Perry Cone and is posted at www.tallyinslaw.com/

Legal Notice and Disclaimer

Bad faith count is stayed pending appeal of contract breach - Bolen

A bad faith claim is frozen until the carrier's appeal on the underlying contract breach count has been finally determined, ruled a Florida appeals court in Illinois National Ins. Co. v. Bolen (Fla. 5th DCA, Feb. 4, 2011).  After verdict was rendered against the carrier on an uninsured motorist claim, the trial court permitted the insured to move forward on its bad faith claim while the carrier appealed.  The appeals court reversed, supporting the carrier's argument that "because the appeal was pending, there had been no final determination of liability and damages on the UM claim; therefore, lifting the abatement would be premature."

Bad Faith Set-Up: Florida Bar Article

This month's Florida Bar Journal has a feature article on insurance bad faith, "The Good Faith, Bad Faith, and Ugly Set-up of Insurance Claims Settlement." Written from the perspective of defense attorneys, the article has this set-up paragraph:

The current imbalance in Florida’s bad faith statute can be exploited to create bad faith claims where they otherwise would not exist.  This practice is commonly referred to as the “bad faith set-up,” and the various tactics used to set up bad faith claims have been well-documented by courts and commentators alike. Simply put, the “bad faith set-up” is “nothing more than an attempt to induce the insurer to commit a tort in order to explode the policy limits.

Opposition to bad faith reform: "government takeover"

A new website, Taxpayers Against Insurance Bad Faith, provides a sign that opponents of "bad faith" reform are preparing for a fight.  The angle of this "patriotic" site is that bad faith reform will result in "government takeover of insurance claims" and "We are opposed to any government takeover of insurance claims."

Impact of Bad Faith Lawsuits on Florida Consumers

George Meros, Jr., GrayRobinson, Tallahassee, released a report from Berkeley Research Group: The Impact of Bad Faith Lawsuits on Consumers in Florida and Nationwide. It will be used in support of the bad faith reform legislation proposed for the 2011 session.  In releasing the report Meros stated: "Here is the economist's report on the adverse impact of bad faith litigation on Florida's consumers. Note that it correctly states that a bad faith verdict cannot be included in the rate base but goes on to show how Florida's bad faith laws have a devastating financial impact nonetheless."

The report is at this link:  William Hamm study - The Impact of Bad Faith Lawsuits on Consumers in Florida.

"Judicial hellhole" status not reason to trust insurance companies?

The 2010/2011 report on "judicial hellholes" -- showing South Florida at #4 -- appears at this link: http://www.judicialhellholes.org/

In a letter published by the Sun Sentinel, Broward plaintiff attorney Gary Farmer writes an opposing view to the claim that Florida is a "judicial hellhole."  Farmer, who is also an officer of the Florida Justice Association, writes:  "Earlier this month, the insurance industry spin machine started up again. If you believe them, every woe in our state — from traffic in South Florida to the cold weather in the Panhandle — is somehow the result of lawsuits. Some even call Florida a 'judicial hellhole,' claiming that Florida can lower costs for consumers and create jobs simply by reducing lawsuits.  Well, ask yourself this one question: Why in the world would you trust anything your insurance company says? Here are the facts: . . . "

Farmer's letter appears at this link:  http://www.sun-sentinel.com/news/opinion/fl-insurance-companies-forum-20110102,0,3953007,print.story