PART ONE. THE FIRST PART.
The defense of comparative bad faith may have reappeared in Florida in 2023. In 2023, the Florida Legislature enacted a "duty to act in good faith" regarding information, demands, setting deadlines, and "in attempting to settle the claim[.]"[1] The 2023 Florida Legislature did not make this new "good faith duty" actionable, however.[2] They fashioned it for "[t]he insured, claimant, and representative of the insured or claimant" in "any bad faith action[.]"[3]
The "trier of fact" may consider whether these entities "did not act in good faith pursuant to this paragraph" (b).[4] In the event of a finding that these entities did not act in good faith pursuant to paragraph (b) of the new Section 624.155(5), "the trier of fact may reasonably reduce the amount of damages awarded against the insurer."[5]
TO BE CONTINUED ...
[1] Fla. Stat. Ann. § 624.155(5)(b) (West; Westlaw current with laws, joint and concurrent resolutions and memorials through April 18, 2023, in effect from the 2023 Special B Session and the 2023 first regular session), enacted by 2023 Fla. Sess. Law Serv. Ch. 2023-15, § 4 (C.S.C.S.H.B. 837 (West).
[2] Section 624.155(5)(b)1.
[3] Section 624.155(5)(b)1 (emphasis added).
[4] Section 624.155(5)(b)2 (emphasis added). The new statute is silent on whether the trier of fact, usually a jury, may consider whether these entities "did … act in good faith pursuant to this paragraph[.]" (Emphasis added.) Presumably, the trier of fact would have to address that issue as well when considering, as expressly authorized by this new statute, the negative of that issue.
[5] Section 624.155(5)(b)2. Unfortunately, the new statute gives no guidance on what may constitute a reasonable reduction of the amount of damages awarded against the liability insurer, including how to calculate such a reduction.
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