Claims and Bad Faith Law Blog

WAIVER OF A DEFECT IN A CIVIL REMEDY NOTICE.

(Gridview_Imagefull/Florida DACS)

It has been held in a case under Florida law that defects in a Civil Remedy Notice of alleged first-party bad faith can be waived.  In that case, waiver existed when the carrier responded to the CRN without raising any objections to it.  Neal v. GEICO Gen. Ins. Co., 358 So. 3d 749, 752 (Fla. 4th DCA 2023).

Please read the disclaimer.  This blog article ©2023 Dennis J. Wall.  All rights reserved.  Waiver in the first-party insurance bad faith case law is examined in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 11:14 (3d Edition, West Publishing Company; 2023 Supplements in process).

FRAUD CAN DECEIVE A PERSON. BUT NOT EVERYONE, NOT ALWAYS.

In Discovery Land Co., LLC v. Berkley Ins. Co., NO. CV-20-01541-PHX-ROS, 2023 WL 2503634 (D. Ariz. March 14, 2023), the insureds bought a castle in Scotland, claimed that they were defrauded by their lawyers, added insureds to their policies after a known loss, and then apparently made claims to coverage.

    The two insurance carriers in the case "both filed counterclaims seeking rescission of the change endorsements, arguing Plaintiffs fraudulently added entities as joint insureds after they discovered the losses."  Discovery Land Co., 2023 WL 2503634, at *5.

    The Court entered a summary judgment of no coverage for both carriers.

Please read the disclaimer.  This blog article ©2023 Dennis J. Wall.  All rights reserved.  Fraud allegations in the context of first-party cases such as Discovery Land Company are discussed in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 11:12 (3d Edition West Publishing Co., 2023 Supplements in process).

"DISABILITY IS MORE PERVASIVE THAN WE THINK ...."

(New York Public Library Digital Collections)

Look, more than 61 million adults in the United States – that's just adults – have one or more disabilities.  And that's before COVID.  We haven't had the post-COVID numbers with long haulers included in there.  Disability is more pervasive than we think, and so if we see disability as touching many more things, places and people than it already does then applying a disability lens becomes even more important.

Professor Jasmine E. Harris, Professor of Law, University of Pennsylvania Carey Law School, quoted in interview by Maya Srikrishnan published by CTR. FOR PUB. INTEGRITY (Aug. 18, 2023).

            Professor Harris is a co-author of a recently published Law Review article in which she and her co-authors suggest and practice providing what they call a "disability lens" to the recent decisions of the U.S. Supreme Court.  "[B]ut it remains possible to glean new insights if we review the Court's work from an alternative perspective, one that does not often inform mainstream accounts."  Jasmine E. Harris, Karen M. Tani, and Shira Wakschlag, The Disability Docket, 72 AM. U.L. REV. 1667 (2023). Download Jasmine E. Harris Karen M. Tani and Shira The Disability Docket 72 AM. U.L. REV. 1667 (2023)

 

Please read the disclaimer. This blog article ©2023 Dennis J. Wall.  All rights reserved.

FIRST-PARTY INSURANCE COOPERATION IN COLORADO.

    A Failure-to-cooperate defense was enacted into Colorado first-party insurance law by statute in 2020.[1]  Colorado provided conditions on a carrier pleading or proving "a failure-to-cooperate defense in an action concerning an insurance policy providing first-party benefits or coverage," however, regardless of whether "the defense is asserted in a court of law or an arbitration[.]"[2]

    As a result of this statute, an underinsured motorist carrier accused of wrongful delay in paying first-party benefits and bad faith was granted summary judgment by the District Court for the insured's rather than the insurer's breach of contract.  The sort of record necessary to reach similar results is displayed in the case in which the UIM carrier obtained its summary judgment:  Aponte v. Allstate Fire & Cas. Ins. Co.,  No. 1:21-cv-01601-CNS-SKC, 2023  WL 129693, at *2 (D. Colo. Jan. 9, 2023).

 

[1] Colo. Rev. Stat. Ann. § 10-3-1118 (West; Westlaw current through legislation effective April 14, 2023 of the First Regular Session, 74th General Assembly [2023]).

[2] Colo. Rev. Stat. Ann. § 10-3-1118(1). 

 

Breach of the cooperation clause in first-party insurance policies, particularly in the context of bad faith claims, is analyzed in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 11:7 (3d Edition West Publishing Company, 2023 Supplements in process).

Please read the disclaimer.  This blog article ©2023 Dennis J. Wall.  All rights reserved.

 

WAIVER/NO WAIVER OF INSURER DEFENDANTS' COVERAGE OR POLICY DEFENSES.

Two recently decided cases illustrate the general rule that it is exceedingly difficult to prove an insurer's waiver of its defenses to insurance coverage.  E.g., Legend's Creek Homeowners Ass'n v. Travelers Indem. Co. of Am., 33 F.4th 932, 935, 937 (7th Cir. 2022) (Indiana substantive law; no waiver where there is no unquestioned duty to speak as to assertion of limitations period in an insurance policy, and no implicit waiver in this case, either); Grill House, LLC v. Berkshire Hathaway Homestate Ins. Co., No. 20-cv-2108-WJM-KLM, 2022 WL 1487575, at *4 (D. Colo. May 11, 2022) (no waiver of plaintiff's alleged failure to provide prompt notice).

Questions of waiver of, and of estoppel to assert policy and coverage defenses, are discussed in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 11:2 (discussing in particular, context of first-party bad faith claims) (3d Edition West Publishing Company, 2023 Supplements in process).

Please read the disclaimer.  This blog article ©2023 Dennis J. Wall.  All rights reserved.

WHEN BAD FAITH CLAIMS ARE NOT LINKED TO CONTRACT BREACHES.

It has been held under Pennsylvania's Bad Faith Statute,[1] that a bad faith claim may not always depend on the outcome of a breach of contract claim:  "Under those circumstances, especially when the bad faith claim is not solely based upon a denial of coverage, a bad faith claim is not contingent on the underlying breach of contract claim."[2]

 

[1] 42 Pa. Cons. Stat. Ann. § 8371.

[2]  In re Lewis (Lewis v. U.S. Bank Nat'l Ass'n), 627 B.R. 602, 617 (E.D. Pa. Bankr. 2021).

ASIC has been a very large provider of force-placed insurance policies; it was the subject of the insurance-related claims in this case.  The most frequently alleged claims and causes of action in force-placed insurance cases, including cases involving alleged bad faith, are discussed in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 9:35 (3d Edition West Publishing Company, 2023 Supplements in process).

Please read the disclaimer.  This blog article ©2023 Dennis J. Wall.  All rights reserved.

THE CASE OF THE UNNAMED PLAINTIFFS.

Hiding the names of the plaintiffs in a Federal lawsuit is generally a losing proposition.  A recent announcement of this state of the case law came in Does v. Mills, 39 F.4th 20, 25 (1st Cir. 2022), voluntarily dismissed by stipulation, No. 22-1435, 2022 WL 17367462 (1st Cir. July 14, 2022), 'the case of the putative pseudonymous plaintiffs':  "Those circuit courts that have considered the matter have recognized a strong presumption against the use of pseudonyms in civil litigation."

These issues are analyzed in first-party cases in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 9:28.100 (3d Edition West Publishing Company, 2023 Supplements in process).  Similar issues arising in third-party cases are discussed in 1 id., § 3:107.100.

This blog article ©2023 Dennis J. Wall.  All rights reserved.

THE IMPORTANCE OF A SPECIFIC SHOWING.

Judge's Gavel.  (Handout Photo by Sun-Sentinel)

The seriousness with which many Federal Courts take the requirement of a specific showing in order to seal information, is illustrated by the bad-faith case of Nichols v. GEICO Gen. Ins. Co., No. 2:18-cv-01253-TL, 2022 WL 579341 (W.D. Wash. Feb. 25, 2022).  In that insurance case, the parties did not present a specific showing to seal "any estimates or calculations regarding the amount of time it will take for review of claim files or to otherwise to try this case."  Nichols, 2022 WL 479341, at *3.

    PACER (the "Public Access to [Federal] Court Electronic Records" database) reveals what this opinion did not reveal:  The plaintiffs in their Second Amended Complaint in this case alleged, among other things, violations of Washington's Insurance Fair Conduct Act (IFCA), 'violations of Washington's Consumer Protection Act, common law bad faith, and breach of the implied covenant of good faith and fair dealing. Merle Nichols v. GEICO Gen. Ins. Co., Doc. No. 16, Second Amended Complaint, filed Sept. 20, 2018 (W.D. Wash. Case No. 2:18-cv-01253-TL).

    The Court found that good cause had not been shown to seal estimates or evaluations of time to review claims files and to try the case.  The Court ruled because of the parties' lack of specificity including failure to comply with the Local Rules regarding motions to seal.  Nichols, 2022 WL 479341, at *3.

    The parties were not specific when they presented their joint motions to seal.  All three motions to seal were apparently prepared by GEICO, were unopposed by the plaintiffs, were submitted "in the form of joint statements," Nichols, 2022 WL 479341, at *1, and were successful only in obtaining a ruling that previous protective orders allowing materials to be sealed "shall remain under seal."    Nichols, 2022 WL 479341, at *2.

    The sealing requests in this case failed from an insufficiently specific showing and from failure to comply with the Local Rules in this regard.

The how and why and best practices of Stipulated Protective Orders and their secrecy protections in particular, are examined in first-party case law in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 9:28.50 (3d Edition West Publishing Company, 2023 Supplements in process).  These issues arising in third-party cases are discussed in 1 id., § 3:107.50.

Please read the disclaimer.  This blog article ©2023 Dennis J. Wall.  All rights reserved.

SEALING PUBLIC RECORDS: LESSONS FROM UTAH AND MISSOURI FEDERAL COURTS.

After documents have been made available to the public, it will be difficult to overcome the presumption of public access and seal them.[1]

          This difficulty was apparently not an obstacle in a decision reported neither in Federal Supplement or in Westlaw:  Loy v. BMW of North America, LLC.[2]  Following the entry of  a previous order in the case,[3] the Court conducted an in camera inspection and denied plaintiffs' motion to compel.[4]  In the course of denying the motion to compel, the Court also denied the plaintiffs' request to remove the confidential designation from certain materials previously presented at a conference.

           The Court noted in its slipsheet opinion that these documents which BMW marked "Confidential," were slides "presented during a conference in Las Vegas, Nevada in 2018[.]"[5] 

 

[1] See Liberty Mut. Fire Ins. Co. v. Michael Baker Int'l, Inc., No. 2:19-cv-00881, 2023 WL 2504575, at *12 (D. Utah March 14, 2023) (Oberg, USMJ).

[2] Loy v. BMW of N. Am., LLC, No. 4:19-CV-00184 JAR, slip op. (E.D. Mo. Oct. 7, 2021).  This is Document No. 112 in the Court File, available on PACER.

[3] Loy v. BMW of N. Am., No. 4:19-CV-00184 JAR, 2021 WL 3930501 (E.D. Mo. Sept. 2, 2021).

[4] Loy v. BMW of N. Am., LLC, No. 4:19-CV-00184 JAR, slip op. at 2 (E.D. Mo. Oct. 7, 2021).

[5] Loy v. BMW of N. Am., LLC, No. 4:19-CV-00184 JAR, slip op. at 1 (E.D. Mo. Oct. 7, 2021).

 

The how and why and best practices of Stipulated Protective Orders and their secrecy protections in particular, are examined in first-party case law in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 9:28.50 (3d Edition West Publishing Company, 2023 Supplements in process).  These issues arising in third-party cases are discussed in 1 id., § 3:107.50.

Please read the disclaimer.  This blog article ©2023 Dennis J. Wall.  All rights reserved.

PROPERTY INSURANCE CLAIMS, PART PAYMENT?

A recently enacted Florida statute was confusingly enacted with two different effective dates, one effective on January 1, 2023 and the other effective on March 1, 2023.  This confusion is likely to persist until the Florida Legislature or a Florida court of competent jurisdiction clears up the matter.  Until such time, Fla. Stat. § 627.70131(7)(a) will confusingly provide in pertinent part:

(7)(a) Within [60 days - eff. January 1, 2023, or 90 days - eff. March 1, 2023] after an insurer receives notice of an initial, reopened, or supplemental property insurance claim from a policyholder, the insurer shall pay or deny such claim or a portion of the claim unless the failure to pay is caused by factors beyond the control of the insurer which reasonably prevent such payment.

The effects of Insurer's Payment of Undisputed Covered Amounts--Part Payment of Property Insurance Claims in first-party insurance bad faith cases, including cases dealing with property insurance claims, are discussed in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 9:27 (West Publishing Co. 3d Edition, 2023 Supplements in process).

Please read the disclaimer.  This blog article ©2023 Dennis J. Wall.  All rights reserved. 

SEALING AND SECRECY IN FEDERAL CASES.

In Wiens Capital Mgt., LLC v. Advocate Consulting Legal Grp., PLLC, No. 2:23-cv-81-SPC-KCD, 2023 WL 2435806 (M.D. Fla. Feb. 16, 2023) (USMJ), a U.S. Magistrate Judge faced a motion "to seal a portion of the disclosure statement required by Federal Rule 7.1 and Local Rule 3.03 that lists the identities of the individual members of Wiens Real Estate Ventures, LLC[.]"  Wiens Capital Management, 2023 WL 2435806, at *1.  Ventures was the sole member of Management, the plaintiff that filed this lawsuit.  Wiens Capital Management, 2023 WL 2435806, at *1.

The Magistrate Judge denied the motion.  The people who requested secrecy from public view in this case failed to overcome the presumption of public access that governs all Federal cases.

Including Insurance Bad Faith Cases.  The presumption of public access is discussed in the context of Third-Party Insurance Bad Faith cases in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH §§ 3:107, et seq. (West Publishing Co. 3d Edition, 2023 Supplements in process), and in the context of First-Party Insurance Bad Faith cases in 2 id., §§ 9:28, et seq.

Please read the disclaimer.  This blog article ©2023 Dennis J. Wall.  All rights reserved.

CIVIL REMEDY NOTICE TO ACT IN GOOD FAITH

Many jurisdictions have "bad faith statutes" which require the claimant to provide a Civil Remedy Notice of Insurer Violation of the statute, and which provide a "cure period" within which the carrier can foreclose litigation over the alleged violation by "curing" it.  The statutory "cure period" is not tolled in Florida when the carrier invokes a policy's appraisal provision after the policyholder has filed a Civil Remedy Notice (CRN).[1]

 

[1] E.g., Apex Roofing & Restor., LLC v. State Farm Fla. Ins. Co., 343 So. 3d 1223, 1225 (Fla. 5th DCA 2022); Zaleski v. State Farm Fla. Ins. Co., 315 So. 3d 7, 12 (Fla. 4th DCA 2021), review denied & attorney's fees awarded, No. SC 21-707, 2021 WL 5292345 (Fla. Nov. 15, 2021).

Statutory and Common Law requirements concerning Civil Remedy Notices, addressed mostly in first-party cases, are set forth in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 9:21 (West Publishing Co. 3d Edition, 2023 Supplements in process).  Decisions in third-party cases are discussed in 1 id., § 3:30.

CALIFORNIA'S UNFAIR COMPETITION LAW, COVID COVERAGE, AND IMPLIED COVENANT BREACH.

With reference to California's Unfair Competition Law specifically, it may be "that allegations sufficient to support a cause of action for breach of the covenant of good faith and fair dealing are also sufficient to support a claim for violation of the UCL."  Shusha, Inc. v. Century-Nat'l Ins. Co., 87 Cal. App. 5th 250, 303 Cal. Rptr. 3d 100, 114 n. 11 (Cal. 2d DCA, Div. 7 2022) (COVID insurance coverage case involving a commercial policy for lost business income; Century-National did not dispute that possibility in this case), review granted, 307 Cal. Rptr. 3d 1, 527 P.3d 271 (2023).

Express Statutory Causes of Action in first-party cases in the United States are discussed in Section 9:14 of 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH (West Publishing Company 3d Edition, 2023 Supplements in process).

This blog article ©2023 Dennis J. Wall.  All rights reserved.

THE ORIGIN OF FIRST-PARTY "BAD FAITH" IN MINNESOTA.

    "In 2008, the Minnesota Legislature created a private cause of action for bad faith in first-party insurance."[1]  The Minnesota statute is Minnesota Statute Section 604.18.[2]

    The Eighth Circuit quickly and clearly summarized the statute in 2022:

    To make a bad faith claim, the insured must establish both that the insurer lacked a reasonable basis for denying the insurance benefits and that the insurer knew it lacked a reasonable basis for denying benefits or acted in reckless disregard of the lack of a reasonable basis.[3]

Or, as the Minnesota Supreme Court put it in a slightly lengthier interpretation, reaching the same result: 

    Several things are clear from the plain text and structure of the statute. First, the burden rests with the insured to prove that the insurer violated the standard of conduct. Second, to prevail, the insured must establish two independent facts: (1) the insurer did not have a reasonable basis for denying the benefits of the insurance policy, and (2) the insurer either knew it lacked a reasonable basis for denying the benefits or it recklessly disregarded the fact that it lacked a reasonable basis for denying the benefits.[4]

 

[1] Friedberg v. Chubb & Son, Inc., 800 F. Supp. 2d 1020, 1025 (D. Minn. 2011) (Keyes, United States Magistrate Judge). 

[2] Minn. Stat. § 604.18 (West; Westlaw current with legislation effective through April 19, 2023 from the 2023 Regular Session).  By its terms, the Minnesota statute allows for an award of costs and attorney's fees under certain conditions.

[3] Wobig v. Safeco Ins. Co. of Am., 40 F. 4th 843, 848 (8th Cir. 2022) (construing and applying Minn. Stat. § 604.18 subd. 2(a)).

[4] Peterson v. W. Nat'l Mut. Ins. Co., 946 N.W.2d 903, 910 (Minn. 2020).

 

Express Statutory Causes of Action in first-party cases in the United States are discussed in Section 9:14 of 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH (West Publishing Company 3d Edition, 2023 Supplements in process).

This blog article ©2023 Dennis J. Wall.  All rights reserved.

TWO BITES AT THE "BAD FAITH" APPLE IN NEVADA?

In Nevada, violation of an unfair claims settlement practices statute is apparently separately actionable from the implied duty of good faith and fair dealing.[1] 

 

[1] See Rosas v. GEICO Cas. Co., 365 F. Supp. 3d 1123, 1126-27 (D. Nev. 2019).

Express Statutory Causes of Action in first-party cases in the United States are discussed in Section 9:14 of 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH (West Publishing Company 3d Edition, 2023 Supplements in process).

This blog article ©2023 Dennis J. Wall.  All rights reserved.

IS THERE A CONFLICT BETWEEN CONSUMERS AND POLICYHOLDERS?

There is a conflict in the case law as to whether insurance companies can be sued for insurer bad faith conduct under Unfair Trade Practices Acts.  The source of the conflict may lie in the language of the Consumer Protection Laws themselves.  For example, the Court held in Booker v. USAA Gen. Indem. Co., No. 22-1829, 2022 WL 2209287, at *2-*3 (E.D. Pa. June 21, 2022):

Count III of Plaintiff's Complaint asserts a claim under Pennsylvania's Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. §§ 201–1 et seq., arising from USAA's “conduct and handling” of his UM claim. This claim will be dismissed with prejudice because the UTPCPL does not extend to claims arising out of the handling of insurance claims.

* * *

The UTPCPL applies to conduct surrounding the insurer's conduct in forming the contract.

* * *

The allegations here all relate to USAA's handling of an insurance claim, with no allegations as to misconduct in the sale of the policy. Count III of the Complaint will therefore be dismissed with prejudice.

This conflict is broken down for use in litigated cases and in the prevention of insurer bad faith, in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 9:14, (West Publishing Company 3d Edition, 2023 Supplements in process).

Please see the disclaimer.  This Blog article ©2023 Dennis J. Wall.  All rights reserved.

INSURER BAD FAITH, INSURER LITIGATION CONDUCT: WHEN IS IT ACTIONABLE?

(Shepard's/McGraw-Hill brochure c. 1985)

In an insurance coverage case, a federal Magistrate Judge in Pennsylvania denied the plaintiffs' motion for leave to amend to state claims for insurer bad faith.  The proposed amendment was grounded on the alleged litigation conduct of the defendant insurer.  The Court's resolution of this issue is instructive:

          Plaintiffs Daniel and Susan Katz's Motion for Leave to File an Amended Complaint (doc. 46) is DENIED. The Katzes argue Defendant USAA Casualty Insurance  Company improperly denied allegations in their Complaint and seek to add allegations and claims of bad faith and breach of contract based on USAA's alleged misconduct. Although an insurer's actions during litigation may support a bad faith claim, such actions must involve more than defensive litigation tactics. [Citations omitted.]  The insurer generally must have taken intentional steps to evade its obligations under the insurance contract or undermine the truth-finding process. [Citations omitted.]  Even if USAA could have been more forthcoming in its Answer and/or produced a more appropriate corporate designee, its responses in the Answer fall within the category of defensive litigation tactics rather than an intentional evasion of its obligations as an insurer. See Answer (doc. 3). The Katzes also may pursue other remedies under the Federal Rules of Civil Procedure to the extent they believe the corporate designee was improper or contradicted USAA's Answer. [Citation omitted.] Because the Katzes' proposed amendments do not support their claims of bad faith or breach of contract, I deny their motion to amend as futile.[1]

 

[1] Katz v. USAA Cas. Ins. Co.,  No. 19-4488, 2021 WL 9031163, at *1 (E.D. Pa. July 19, 2021) (Rice, USMJ). 

The Katz case is one of many cases addressed in Section 9:6, in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH (West Publishing Company 3d Edition, 2023 Supplements in process).

Please read the disclaimer.  This Blog article ©2023 Dennis J. Wall.  All rights reserved.

First-Party, Third-Party Bad Faith Different, Even in Florida.

(Black Hole.  Image by NASA)

An outlier observation was made in dicta, well-intentioned dicta if not well-reasoned, but still dicta, in Lewis v. Allied World Spec. Ins. Co., No. 20-cv-20677-ALTMAN/Reid, 2023 WL 2770538 (S.D. Fla. April 4, 2023).

    Citing to Florida Supreme Court decisions in which the Supreme court addressed statutory bad-faith actions under Fla. Stat. § 624.155(1)(b) for alleged bad faith failure to settle, and holding that such statutory actions will always require an underlying determination of liability regardless of whether the statutory bad-faith action has been brought for alleged first-party or third-party bad faith failure to settle, the federal judge concluded from this that all first-party bad faith actions and third-party bad faith actions are always treated the same in Florida.

    Put it down to the fact that this federal judge was appointed in 2019.  He has not been a judge that long.  The only way that this federal judge could have honestly reached such a conclusion is by being ignorant of Florida law in the area of insurer bad faith. 

    Florida is a jurisdiction, for example, where first-party bad faith common law claims do not exist but third-party bad faith common law claims do exist.  In Florida, first-party bad faith claims can only be pursued under the statute addressed by the Florida Supreme Court in the decisions cited by this federal judge, which was otherwise unmentioned in the Lewis opinion.  Thus unburdened by the truth of  Florida insurer bad faith law, the federal judge in Lewis was free to write that Florida courts have always treated "first- and third-party bad-faith claims" the same.  Lewis, 2023 WL 2770538, at *5.

    Not so.  This judicial decision is featured in the context of overwhelming contrary authority in Florida as well as throughout history and the United States, in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 9:4, The Question of Bad Faith -- Extracontractual Liability of First-Party Insurers as Tort or Breach of Contract:  Differences From Third-Party Claims Situations (West Publishing Company 3d Edition, 2023 Supplements in process).

Please read the disclaimer.  This Blog article ©2023 Dennis J. Wall.  All rights reserved.

 

THE IMPLICATIONS OF SECRECY FOR BAD FAITH LITIGATION.

Assuming without deciding that the identity of jurors is within the presumption of public access, the Court ruled in the case of E. Jean Carroll v. Donald J. Trump[1] that the circumstances of that case overcame the presumption of access to the names of the jurors who would decide that case:

          On the basis of the unprecedented circumstances in which this trial will take place, including the extensive pretrial publicity and a very strong risk that jurors will fear harassment, unwanted invasions of their privacy, and retaliation by virtue of the matters referred to above, the Court finds that there is strong reason to believe that the jury needs the protection prescribed below. No less restrictive alternative has even been suggested. The presumption of access to juror names is overcome by this risk.[2]

Rulings like this one have implications for how bad faith cases are litigated.  The ruling in the E. Jean Carroll case discussed here goes beyond her case and beyond the issue of identifying jurors to the public.  It reaches the broader issues of litigating in secrecy, when it is allowed and when it is beyond the pale.

Implications from the presumption of public access in secrecy cases for bad faith litigation are explored concerning liability cases in particular, in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:107.50 (West Publishing Company 3d Edition, 2023 Supplements forthcoming), and with respect to first-party cases especially, in 2 id. § 9:28.50.

[1] E. Jean Carroll v. Donald J. Trump, No. 22-cv-10016 (LAK), 2023 WL 2612260 (S.D.N.Y. March 23, 2023).

[2] E. Jean Carroll, 2023 WL 2612260, at *5.

Please read the disclaimer.  This blog article ©2023 Dennis J. Wall.  All rights reserved.

MORE TO COME BY WAY OF GOOGLE, DISCOVERY, AND LITIGATION ....

(Bing Clip Art via Barry Law School)

The Google case discussed here on Wednesday, July 12, 2023 continued on.  On March 28, 2023 the Court once again declined the opportunity, as it had previously declined the same opportunity earlier in this case, "to issue terminating sanctions against Google."  Quite simply, the Court remained inclined to decide the antitrust case before it on grounds other than Google's "lost Chat communications."  In re Google Play Store Antitrust Litig., ___ F. Supp. 3d ___, No. 21-md-02981-JD, 2023 WL 2673109, at *10 (N.D. Cal. March 28, 2023).

          The Court was equally inclined, however, to sanction Google for its performance in discovery in that case.  What non-monetary sanctions would be appropriate will have to await further proceedings, the Court held:

The determination of an appropriate non-monetary sanction requires further proceedings. The Court fully appreciates plaintiffs’ dilemma of trying to prove the contents of what Google has deleted. Even so, the principle of proportionality demands that the remedy fit the wrong, and the Court would like to see the state of play of the evidence at the end of fact discovery. At that time, plaintiffs will be better positioned to tell the Court what might have been lost in the Chat communications.

In re Google Play Store Antitrust Litigation, 2023 WL 2673109, at *10 (emphasis supplied).

          Not so with respect to monetary sanctions.  In that regard, the remedy was clear and it fit the wrong with comparative ease, in the eyes of this Court:

    For monetary sanctions, it is entirely appropriate for Google to cover plaintiffs’ reasonable attorneys’ fees and costs in bringing the Rule 37 motion, including the joint statement that preceded the motion and the evidentiary hearing and related events. Plaintiffs are directed to file ... a statement of proposed attorneys’ fees and costs with adequate documentation.  The parties will meet and confer on the proposal ....

In re Google Play Store Antitrust Litigation, 2023 WL 2673109, at *10 (emphasis supplied).

          More is undoubtedly yet to come. 

Please read the disclaimer.  ©2023 Dennis J. Wall.  All rights reserved.

GOOGLE, SECRECY, AND DISCLOSURE ORDERED BY FEDERAL COURT.

(Bing Clip Art via Barry Law School)

Neither Defendant Google's "internal practices" or a stipulated protective order furnished the necessary statement of compelling reasons to support sealing Google's "internal business documents" in In re Google Play Store Antitrust Litigation.[1] 

    Google's "strict" internal policy of keeping such documents secret was of no avail, because "permitting sealing on the basis of a party's internal practices would leave the fox guarding the hen house."[2] 

    Similarly, the parties' stipulated protective order did not fuel Google's search for secrecy in this case:  "The parties cannot curtail public access by agreement."[3]

 

[1] In re Google Play Store Antitrust Litig., No. 21-md-02981-JD, 2021 WL 4305017 (N.D. Cal. Aug. 18, 2021).

[2] Google Play Store Antitrust Litigation, 2021 WL 4305017, at *1.

[3] Google Play Store Antitrust Litigation, 2021 WL 4305017, at *1.

Secrecy, stipulated protective orders, and the requirements of sealing and unsealing in litigation are disclosed in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:107.50 (West Publishing Company 3d Edition, 2023 Supplements in process).

Please read the disclaimer.  This blog article ©2023 Dennis J. Wall.  All rights reserved.

A NEW CIVIL REMEDY NOTICE IN FLORIDA'S BAD FAITH STATUTE ... Continued.

This article continues an article begun here on July 3, 2023.  

(Photo by Dennis Wall)

A further question which this new statute raises concerns the question of liability for bad faith by liability insurance companies in Florida generally.

          This new statute is part of a Bad Faith Statute that applies to "any person … damaged" by certain alleged conduct of an insurance company.[1]  However, despite its popular name, the so-called Bad Faith Statute, Fla. Stat. § 624.155, is not triggered by bad faith but by alleged violations of specified statutes and actions.

          In fact, the term "bad faith" was never before used in the statute, although it did refer to "good faith" one time in its description of an insurance company's actions.[2]

          This new, 2023 Section 624.155(4)(a) introduces a concept into third-party bad faith actions of damages less than policy limits, or it would make no sense to immunize a liability insurer from an "action for bad faith" when it pays less than policy limits.  (Note that the statute is not yet officially published even as of today.  The new language is accessible either on an unsecured web site as 2023 Florida Session Law Ch. 2023-15 which the reader can approach at her or his peril, or on a secure provider such as Westlaw or LexisNexis.)  The cases and statutes collected in DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH (West Publishing Company 3d Edition, 2023 Supplements in process), and in other treatises -- including cases and statutes from Florida  -- establish the widely held view that there should be no bad-faith when damages are less than policy limits.  That actually seems to have been the universally shared view in this nation, until the enactment of this new Florida Statute in 2023.

            So this is a very big deal indeed.

 

[1] See Section 624.155(1):  "Any person may bring a civil action against an insurer when such person is damaged[.]"

[2] See Section 624.155(1)(b)1 ("Not attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests") (emphasis added).

 

These and similar issues are addressed in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:28, Legal Bases of Liability in Settlement -- Statutory (West Publishing Company 3d Edition, 2023 Supplements in process).

This blog article ©2023 Dennis J. Wall.

A NEW CIVIL REMEDY NOTICE IN FLORIDA'S BAD FAITH STATUTE.

This article continues from  CHANGES IN LATITUDE, 2023 CHANGES ATTITUDE: FLORIDA LEGISLATURE & BAD FAITH, posted June 5, 2023.  There may have been some articles on related topics posted here in the interim, as well.  That is all to the good.

(Image provided by Florida Blue)

First, the 90-day period specified in new Subsection (4)(a) of Florida's Bad Faith Statute, Fla. Stat. § 624.155, begins for every liability carrier "after receiving actual notice[.]"[1]  The liability carrier must therefore receive the notice before the specified period can begin.  The "actual notice" that the liability carrier must receive within the specified timeframe is not defined in the statute.  It is an open question under this new statute whether actual knowledge of the situation will be sufficient or whether notice must be provided to the carrier before the period of immunity can begin.

          Another question concerns the new requirement that "the actual notice of a claim" – rather than, say, the settlement demand of a third-party claimant – must be "accompanied by sufficient evidence to support the amount of the claim."[2]  Perhaps surprisingly, the "sufficient evidence" required by the new statute is required to accompany notice to the liability carrier and not to accompany any settlement demands.

          In any case, the new statute does not offer any guidance as to what might constitute "sufficient evidence to support the amount of the claim" before this new immunity can become available.   That question appears to have been left to the Florida courts or perhaps to future sessions of the Florida Legislature.

[1] Section 624.155(4)(a).  Note that the statute is not yet officially published even as of today.  The new language is accessible either on an unsecured web site as 2023 Florida Session Law Ch. 2023-15 which the reader can approach at her or his peril, or on a secure provider such as Westlaw or LexisNexis.  

[2] Section 624.155(4)(a).

To be continued the day after Independence Day ....  These and similar issues are addressed in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:28, Legal Bases of Liability in Settlement -- Statutory (West Publishing Company 3d Edition, 2023 Supplements in process).

 

This blog article ©2023 Dennis J. Wall.

CIVIL REMEDY NOTICE ... again. THIS ONE IS LEGALLY SUFFICIENT!

 

(Gridview_imagefull / FDACS)

A Civil Remedy Notice was found legally sufficient under Florida's Bad Faith Statute, Section 624.155, in Vintage Bay Condo. Ass'n v. Lexington Ins. Co., No.: 2:22-cv-412-JES-NPM, 2022 WL 4957004, at *3 (M.D. Fla. Oct. 4, 2022).  There were certain markers that the Court pointed out in this instructive decision:

The Court finds that defects asserted in the Notice were purely technical, did not cause any prejudice to Lexington, and were not previously objected to by Lexington. The motion to dismiss will be denied on this basis.

 

Civil Remedy Notices that are challenged in the case law, not just in Florida as in the Village Bay case, but across the nation, are explored in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:30 (3d Edition West Publishing Company, 2023 Supplements in process), and in 2 id. § 9:21.

Please read the disclaimer.  This blog article ©2023 Dennis J. Wall.  All rights reserved.

INITIATING SETTLEMENT WITHOUT DEMAND ... A GUIDE FOR LIABILITY INSURERS.

 

The Kansas Supreme Court has addressed the question of a liability insurer initiating settlement negotiations not as a question of legal duty, but as a question of fact under all the circumstances:

    Under this hypothetical, both the insurer and insured know liability is clear and the claim filed by the insured exceeds policy limits, creating a conflict of interest that requires the insurer to exercise reasonable care and to act in good faith. [Citation omitted.]  They also know the claim can be settled within policy limits if they act quickly, even though the third party has not made formal demand. We cannot conclude, as a matter of law, that the insurer could never breach the duties of reasonable care and good faith by failing to explore settlement under these (or any other possible set of) circumstances simply because the third party has not yet made a formal demand. See, e.g., Keeton and Widiss, Insurance Law § 7.8(c), 889-90 (1988) (“In most circumstances the insurer, having reserved to itself the right to control the defense and the decision whether to agree to a settlement, should be obligated to explore the possibility of a settlement even in the absence of actions by the third-party or an express request by the insured.”).^[1]

          In the view of the Kansas Supreme Court, calling initiation a "duty" or absolving a carrier from not initiating settlement negotiations because there has been no demand from the injured claimant, are both too narrow to be useful to application and thus development of the law in particular cases:

When duties are framed narrowly and in a particularized fashion, the element of legal duty is conflated with the element of breach. As a result, this narrow, fact-specific framing of the insurer's implied contractual duties invades the province of the fact-finder.  [Citation omitted.]

          The existence of a duty is a question of law, but whether specific conduct satisfies or breaches that duty is a question of fact. [Citation omitted.]   And our court has long recognized that the trier of fact must decide whether the specific conduct in any given case breaches a broadly applicable legal duty. 

* * *

          The bottom line is that under Kansas law, whether certain conduct satisfies or breaches the implied contractual duties of reasonable care and good faith is a question reserved for the trier of fact (usually a jury).^[2]

The Granados case and other authorities on the settled guidelines summarized by the Kansas Supreme Court in Granados are explored in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:16, Duty to Initiate Settlement Negotiations (3d Edition West Publishing Company, 2023 Supplements in process).

Please read the disclaimer.  This blog article ©2023 Dennis J. Wall.  All rights reserved.

 

[1]Granados v. Wilson, 317 Kan. 34, 49-50, 523 P.3d 501, 513  (2023) (emphasis added).

[2] Granados, 317 Kan. at 43, 45, 523 P.3d at 509, 510.

THE COMPARATIVE BAD FAITH DEFENSE RETURNS!

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).

 

Please read the disclaimer.  ©2023 Dennis J. Wall.  All rights reserved.

THE RETURN OF COMPARATIVE BAD FAITH ... IN FLORIDA, NO LESS!

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.

Please read the disclaimer.  ©2023 Dennis J. Wall.  All rights reserved.

ARBITRATION AND PREEMPTION OF FIRST-PARTY BAD FAITH CLAIMS.

Effective December 16, 2022 the Florida Legislature added new Fla. Stat. § 627.70154.  It is titled Mandatory binding arbitration.  It is applicable by its terms only to property insurers, and it provides in full as follows:

A property insurance policy issued in this state may not require that a policyholder participate in mandatory binding arbitration unless all of the following apply:

(1) The mandatory binding arbitration requirements are contained in a separate endorsement attached to the property insurance policy.

(2) The premium that a policyholder is charged for the policy includes an actuarially sound credit or premium discount for the mandatory binding arbitration endorsement.

(3) The policyholder signs a form electing to accept mandatory binding arbitration. The form must notify the policyholder of the rights given up in exchange for the credit or premium discount, including, but not limited to, the right to a trial by jury.

(4) The endorsement establishes that an insurer will comply with the mediation provisions set forth in s. 627.7015 before the initiation of arbitration.

(5) The insurer also offers the policyholder a policy that does not require that the policyholder participate in mandatory binding arbitration.^[1]

    Property insurers in Florida are likely to avail themselves of mandatory arbitration provisions in their property insurance policies, if the boxes set out in the new statute are checked.  Other than the obvious reasons why property insurers in Florida would do this, there is another reason provided so far by the laws of other jurisdictions.

    Under various statutes across the United States, it has been held that a first-party insured's claims for extracontractual damages, i.e., for damages outside the provisions of the insurance policy, may be preempted as to "any claim that is resolved or confirmed by arbitration or appraisal."[2]

 

[1] Fla. Stat. § 627.70154 (emphasis supplied), added by 2022 Fla. Sess. Law Serv. Ch. 2022-271, §18 (S.B. 2-A) (WEST), effective December 16, 2022.

[2] See Minn. Stat. Ann. § 604.18 Subd. 4(c) (West; Westlaw current with legislation effective through April 19, 2023 from the 2023 Regular Session):  "An award of taxable costs under this section is not available in any claim that is resolved or confirmed by arbitration or appraisal."  

The effects of mandatory binding arbitration on extracontractual, "bad faith" claims are examined at length in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 11:18, Arbitration Provisions (West Publishing Company 3d Edition, 2023 Supplements in process).

Please read the disclaimer.  ©2023 Dennis J. Wall.  All rights reserved.

NO ARGUING LAW, NO PROVEN FACTS: THE GEORGE SANTOS CASE.

The criminal case of United States v. George Santos has taken a turn that resembles his public persona.  His attorney has filed a Response to two motions to identify the sureties who have co-signed Mr. Santos's $500,000.00 bond.  Mr. Santos's attorney, as expected, opposes both motions, one of  which was filed on behalf of the New York Times and the other one of which was filed on behalf of ABC News and a number of other news organizations.  Download United States v. Santos Response of George Santos. Doc. No. 17 filed 06.05.23 (E.D.N.Y. Cr. Case No. 23-CR-197)

          In the Response, Mr. Santos does not argue the actual law and does not prove the facts of his Response.

          On the law, the Santos Response argues that the standard for sealing documents that supposedly applies in the Third Circuit, should apply in this case pending within the Second Circuit.  According to the Response, the parties seeking to overcome secrecy must prove a compelling interest and offer a narrowly tailored means to secrecy.  This is not the law, not in the Second Circuit and not in the Third Circuit, either.

          The burden everywhere is on the party asking for the secrecy to prove that secrecy serves a compelling interest and is narrowly tailored to serve that interest.  The Santos Response turns the burden of proof on its head, removing his burden to prove secrecy and trying to shift the burden over to the parties seeking disclosure, which of course is the opposite of the law in every federal Circuit, in the Second Circuit ignored in the Santos Response,  as well as in the Third Circuit.

           (Parenthetically, the Santos Response argues for some reason that settlement agreements in civil cases are not sealed under Third Circuit case law.  Third Circuit law is to the contrary, and has been to the contrary for almost 40 years, but the  Response does not address it:  Bank of Am. Nat'l Trust & Sav's Ass'n v. Hotel Rittenhouse Assoc's, 800 F.2d 339, 343-44 (3d Cir. 1986) (holding that "the court's approval of a settlement or action on a motion are matters for which the public has a right to know about and evaluate.").)

          Even applying the test prevailing in the Third Circuit, then, the result is compelling that sureties on a bond for the release of a Member of the United States Congress on criminal charges is 'a matter for which the public has a right to know about and evaluate.'   In its own Order in this case Setting Conditions of Release and Appearance Bond, this Court previously required that the co-signing sureties identify themselves on the bond.   Download United States v. Santos Order Setting Conditions of Release and Appearance Bond filed 05.10.23 (E.D.N.Y. Cr. Case No. 23-CR-197) ( "cosigned by the financially responsible sureties identified on this bond").  The only way to know that the sureties are "financially responsible" is for the Court to accept that as proven, the sureties having been "identified on the bond."  Since the Court must approve the sureties as "financially responsible" for the $500,000.00 bond which they co-signed on behalf of the Member of Congress in this criminal case, this is a matter about which the public has a right to know and evaluate and the identities of the sureties are crucial to this evaluation.

.         The Santos Response also fails to meet its burden to prove the facts which are put forward to support it.  In the Response, Mr. Santos contends that his sureties would be harassed and perhaps even hurt if their identities were revealed to the public.  As factual "support," Mr. Santos attached one (1) hidden report of one (1) labelled threat supposedly called in to the Capital Police Department; we do not know if these representations are true, because Mr. Santos has hidden the report from us and requested that it be sealed, no further explanation given beyond his asking that it be sealed from public view.

          In the end, Mr. Santos's argument is that the two sureties that co-signed his bond (a third pulled out of co-signing it, he says), which again is a $500,000.00 bond in a criminal case against a Member of Congress, should not be made known to the public.

          Resolution of this matter seems simple enough:  The Magistrate Judge should order the sureties' identities to be disclosed to the public in this peculiar case. 

Postscript of Wednesday, June 7, 2023:

After this article was written, and on the same day, U.S. Magistrate Judge Anne Y. Shields ordered disclosure of the identity of the sureties who co-signed the bond in this criminal proceeding against a Member of Congress.  However, the Order is under seal and so is the Bond along with the identity of the sureties, at least until Friday, June 9, 2023.  That is the deadline set by the Magistrate Judge for any appeal from this Order to the U.S. District Judge.

    While as noted the Order of June 6, 2023 is sealed, the docket entry for this Order is open to the public.  Here is the text of  the docket entry for this sealed Order in United States v. Santos, Order entered by Shields, USMJ, filed June 6, 2023 (E.D.N.Y. Cr. Case No. 23-Cr-197):

ORDER: For the reasons contained in the attached Order, the motions to unseal the identities of the Suretors who signed the Bond for Defendant's pretrial release, filed herein at Docket Entries 13 and 14 , are granted. To allow Defendant to appeal this ruling to the District Court, the Clerk of the Court is directed to maintain the attached decision and all previously sealed documents, including the Bond, under seal. Any appeal of this Order must be filed by noon on Friday, June 9, 2023. So Ordered by Magistrate Judge Anne Y. Shields on 6/6/2023. (GO) (Entered: 06/06/2023)

Please read the disclaimer.  ©2023 Dennis J. Wall.  All rights reserved.

CHANGES IN LATITUDE, 2023 CHANGES ATTITUDE: FLORIDA LEGISLATURE & BAD FAITH

After leaving Florida's Bad Faith Statute alone in 2022, the Florida Legislature attacked it with a vengeance in 2023.

          The Florida Legislature apparently introduced different concepts of third-party insurance bad faith in 2023.  The effective date of amendments to Florida's Bad Faith Statute, Section 624.155, is unclear as a general matter, but it is probable that a court of competent jurisdiction will hold, or a new constitutionally permissible revision will be enacted by the Florida Legislature to provide, that the effective date of these amendments to Section 624.155 is March 24, 2023.[1]

          The special conditions attached to Section 624.155 by the 2023 Florida Legislature include conditions which affect the exposure of liability insurance companies to damages for bad faith.[2]  In basic terms, no "action for bad faith involving a liability insurance claim," including an action at common law,  will lie against a liability insurer if the insurer tenders the lesser of (1) its policy limits or (2) "the amount demanded by the claimant" within a specified 90-day period.[3]  The specified 90-day period for this immunity from liability for bad faith raises questions.

To be continued ....

[1] The session law in which this new provision was enacted is  2023 Fla. Sess. Law Serv. Ch. 2023-15, § 4 (C.S.C.S.H.B. 837) (West).  This session law has two savings clauses which seem potentially pertinent here.  One addresses rights under an insurance contract, which seems perhaps most pertinent here, id. § 29  (savings clause as to "right[s] under an insurance contract," stated not to be construed to "impair" any such rights in effect on or before March 24, 2023,  the effective date of this act and the date this act became a law; act stated applicable respecting such rights "under an insurance contract … issued or renewed after the effective date of this act.").  A second savings clause 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."  Id. § 30.  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.

[2] Fla. Stat. Ann. § 624.155(4)(a) (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).

[3] Section 624.155(4)(a).

 

The changes made by the Florida Legislature in 2023 to Insurer Bad Faith Laws are discussed in 1 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:28 Legal Bases of Liability in Settlement -- Statutory (West Publishing Company 3d Edition, 2023 Supplements in process).