A Federal Court in Florida has held that a Lawyer should be allowed to testify as an Expert Witness on the issue of whether a Notice of Intent to sue an Insured-Hospital was "ambiguous". Download Ziolkowski v. Landmark American Insurance Co. (M.D. Fla. Case No. 8.09cv776, Order Filed August 24, 2011) PUBLIC ACCESS, also published as 2011 WL 37150580 *2 - *3 (M.D. Fla. August 24, 2011)(authorized password required to access Westlaw). The Notice of Intent is required by a Florida Statute, which is not cited in the Court's opinion. (It is worth noting, however, that the Plaintiff in this case is the Personal Representative of the Estate, which sued the Insured-Hospital under an agreement not to execute or what some Courts in Florida call a Coblentz agreement. Id. at *2 n.2.)
Florida's so-called Bad Faith Statute, F.S. § 624.155, similarly requires a Statutory Notice. No person may sue under Section 624.155 without first providing the Insurance Company with a Civil Remedy Notice of Insurer Violation in compliance with the Statute. The Statute requires that the Notice be stated "with specificity." F.S. § 624.155(3)(b). The intent behind this provision is to afford the Insurance Company with an opportunity to cure the violation alleged in the Notice.
This statutory requirement is a condition precedent to suing under Section 624.155. Courts in Florida are dismissing Bad Faith cases in which the required Civil Remedy Notice, "CRN," or "CRNI," is found by the Courts not to be sufficiently specific. For example, a Civil Remedy Notice which set forth "'claim delay,' 'claim denial,' 'unfair trade practice,' and 'unsatisfactory settlement offer' without further elaboration" was held to be legally insufficient and could not withstand a Motion to Dismiss on that ground in a case of alleged Third-Party Bad Faith involving multiple claims and claimants. The "recitations" which have just been quoted formed the bulk of the Civil Remedy Notice in that particular case, although other words were stated in the Notice. "These uninformative recitations do not meet the requirements of § 624.155 because they do not specifically inform the insurer of the facts underlying the alleged violations or the corrective action that the insurer needed to take to remedy the alleged violations." Download Rousso v. Liberty Surplus Insurance Corp. (S.D. Fla. Case No. 10cv20554, Order on Motion to Dismiss Filed August 13, 2010) PUBLIC ACCESS, also published as 2010 WL 7367059 *4 (S.D. Fla. August 13, 2010)(decision just released on Westlaw; authorized password required to access Westlaw).
In sum, the Federal Court held that the statutory condition precedent of Notice was not fulfilled and the statutory action must therefore be dismissed in that case: "As indicated above, the Plaintiffs' civil remedy notice also falls short because it fails to inform the Defendant about how it can fix the alleged violations. A proposed solution is not only required under the statute, but particularly necessary in this atypical case where the insurance claim consists of many third-party claims arising at different times that collectively far exceed the policy limits." Id. at *5.
No case has yet been found in which Expert Testimony has been proffered, let alone admitted, in a Bad Faith Case under Florida Statute Section 624.155 concerning whether a Civil Remedy Notice is "ambiguous" or whether it actually provides reasonable notice. It may be only a matter of time until the first such case is reported.
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