(Photo via Florida Department of Agriculture and Consumer Services)
The case of Bay v. United Serv's Auto. Ass'n, 305 So. 3d 294 (Fla. 4th DCA 2020), involved a failure to strictly comply with the content requirements of a Civil Remedy Notice in Florida. The complainant "misidentified the insurer as 'USAA Casualty Insurance Company' instead of 'United States Automobile Association' or 'USAA.'” The trial judge held that this "misidentification" violated Florida Civil Remedy Notice requirements as a matter of law.
However, this was not an issue on appeal. The trial court's remaining ruling was the issue on appeal in this case.
The trial court's ruling that was challenged on appeal concerned the question of whether the carrier waived the noncompliance. The carrier did not raise this argument in its response to the civil remedy notice.
When it addressed this issue in this case, the Florida appellate court issued a new interpretation of Florida law concerning the waiver of contract rights. The appellate court's ruling affects many contract cases but in particular it will determine the outcome of many insurance bad faith matters.
The Florida appellate court held for apparently the first time that not responding pre-suit to a complainant's apparent failure to comply with statutory conditions to asserting rights, will result in a waiver by the challenged party of its corresponding right to object or respond to the notice when litigation is filed later.
"However, the insurer waived the failure of the condition precedent by not raising the misidentification in its response to the civil remedy notice." The CRN is a statutory condition precedent to filing suit for first-party bad faith in Florida. The CRN always comes before suit is filed. A response to a Civil Remedy Notice under Florida law generally if not always comes before suit is ever filed.
In sum, the holding on appeal was on an apparently novel issue at least under Florida law. The Florida appellate court held for what appears to be the first time that not raising a complainant's apparent failure to comply with statutory conditions to asserting rights even before suit is filed, will result in a waiver of the defense, i.e., an inability as a matter of law to raise the defense in litigation by a challenged party which might seek to object or respond to the notice when suit is filed later.
Please read the disclaimer. ©2020 Dennis J. Wall. All rights reserved.
Comments