....THE "BAD FAITH SETUP PROBLEM" DOESN'T EXIST. AND COMPARATIVE BAD FAITH IS NO SOLUTION.
Sadly, the "bad faith setup" has always been a myth. It is sad because some part-time legislators in various States are being convinced to vote for solutions written by insurance companies to solve a nonexistent problem. They could spend their time actually doing good work, but they spend their time on this.
A federal judge summarized the Florida law of bad faith precedent in terms almost universally descriptive of bad faith law in United States jurisdictions. Juries and judges almost always take the insured's and the claimant's conduct into account in first-party and third-party bad faith cases alike:
This inquiry looks at the facts of each case and at the "totality of the circumstances." [Citations omitted.] The proper focus of the inquiry is on the actions of the insurer rather than on the actions of the insured, the claimant, or the claimant's attorney. Thus, when the evidence clearly establishes the insurer acted in bad faith, the insurer may not escape liability merely because the insured or the claimant may have contributed to the failure to settle the claim. [Citation omitted.] At the same time, while the focus is on the insurer's conduct, the conduct of the insured or the claimant is relevant as part of the totality of the circumstance.[1]
Under Florida law the insurance carrier received a summary judgment of no bad faith under the facts of this case. So it has been since bad faith law was imported into Florida no later than 1938.
This changed in 2023 in Florida, from which we will take our lead example. This quotation represents a bygone era in the bad faith inquiry in Florida cases. In future articles, we will take a look at the Florida example of inventing comparative bad faith in the legislature when no judge who confronted the idea ever did anything other than reject it.
To be continued ....
[1] Wiseman v. Progressive Paloverde Ins. Co., No. 8:21-cv-2743-TPB-AAS, (M.D. Fla. Dec. 22, 2023 (italics by the Court, boldface added), app. voluntarily dismissed, No. 24-10187, 2024 WL 3436239 (11th Cir. May 7, 2024).
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