PART TWO. THE LAST PART.
These new subparagraphs of paragraph (5)(b) of Florida Statute Section 624.155 introduce an undeniable new defense of "comparative bad faith." By its terms, simply put the good-faith conduct of the parties is compared, one against another.
In preexisting case law, the bad faith question has focused on whether, for example, the insurance carrier has attempted in good faith to settle claims, when under all the circumstances of the claim, the carrier could and should have done so, had the carrier acted fairly and honestly toward the insured and with due regard for her or his interests.[1] The defense of "comparative bad faith" has not enjoyed universal support in the case law, in the statutes, or in the legal literature, although it has enjoyed the support of liability insurers and first-party insurance carriers. Florida may be the first jurisdiction to adopt the defense of comparative bad faith when the Florida Legislature enacted this new statute in 2023.
Before concluding this discussion of Subsection 624.155(5) which was newly added to the Florida Statutes by the 2023 Florida Legislature, it is important to point out that there is a question about its effective date. It is pointed out in other articles posted on this blog, and in a number of sections of LITIGATION AND PREVENTION OF INSURER BAD FAITH (3d Edition West Publishing Company, 2023 Supplements in process), that questions exist about the Session Law in which various provisions of the Florida Statutes were amended or enacted, including questions about the effective dates of these provisions.[2] This is because of two competing savings clauses, in part here pertinent.
One of the savings clauses addresses rights under an insurance contract, which seems perhaps most pertinent here.[3] The language of this new Subsection (5) addresses rights (and duties) under insurance contracts: "furnishing information regarding the claim," "making demands of the insurer," "setting deadlines," and "attempting to settle the claim."[4]
A second savings clause in this same Session Law addresses the filing date of "causes of action," providing in full that "[e]xcept as otherwise expressly provided in this act, this act shall apply to causes of action filed after the effective date of this act."[5] Absent constitutional adjustment by the Florida Legislature, courts, counsel and clients in future cases will have to address these issues, which are open at the time of this writing.
[1] This is the language of the Bad Faith Statute itself, language which remains in place even after the newly enacted Subsection (5). See Fla. Stat. § 624.155(1)(b).
[2] See DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH, §§ 3:28, 3:45, and 5:18, supra, and §§ 13:14 and 13:22, infra.
[3] 2023 Fla. Sess. Law Serv. Ch. 2023-15, § 29 (C.S.C.S.H.B. 837) (West).
[4] Section 624.155(5)(b)1, enacted by 2023 Fla. Sess. Law Serv. Ch. 2023-15, § 4 (C.S.C.S.H.B. 837) (West).
[5] 2023 Fla. Sess. Law Serv. Ch. 2023-15, § 30 (C.S.C.S.H.B. 837) (West, Westlaw current with laws, joint and concurrent resolutions and memorials through May 17, 2023, in effect from the 2023 Special B Session and the 2023 first regular session) (emphasis added).
For more in-depth treatment of these issues, see 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 11:24, Other Defenses: Defenses Potentially Available in All Claims and Cases of First-Party Insurance Bad Faith (West Publishing Company Third Edition, 2023 Supplements in Process).
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