Florida Insurance Matters (August 2018)
Aug 7, 2018
I’m pleased to bring you Florida Insurance Matters, a monthly update on Florida insurance related legal developments. Please contact me any time with questions or feedback.
Amy L. Koltnow, Esq. | Shareholder, Colodny Fass
Appraisal panel to determine both causation and loss amount when covered loss not “wholly denied”
- The court held that causation is a coverage question for the court only when an insurer “wholly denies” that there is a covered loss; and an amount of loss question for the appraisal panel when an insurer admits there is a covered loss, but the amount of the loss is disputed.
This case may be interesting to watch since it appears to conflict with the 3d DCA, which permits cases to proceed on a “dual track” basis where the appraisal panel determines the amount of the loss, but all coverage defenses are preserved for judicial determination.
This case also seems to extend the Florida Supreme Court case of Johnson v. Nationwide beyond what may have been intended. (Johnson did not expressly hold that the appraisal panel determines coverage with finality, but held the appraisers are to exclude payment for damage by non-covered perils.)
Adjuster’s ethics have no place in simple breach of contract action
- Some plaintiff attorneys try to inject adjusting allegations into the complaint, and pursue adjusting issues at depositions. This case should be kept handy to strike such allegations and to keep the case focused solely on the application of the policy to the facts.
Insurance companies cannot be disparaged for asserting coverage in first-party suit
The 4th DCA also reversed a jury verdict in favor of the insured based on the insured’s counsel’s improper arguments and questioning of the insurance company’s litigation manager which implied bad faith actions on the part of the insurance company, improperly emphasized the insured’s payment of premiums, and disparaged the company’s defense of the claims.
The insured’s theory of the case was that the insurance company was “playing the odds” when it decided to deny the claims and disregarded its “personal responsibility”. The insured’s attorney also argued that the plaintiff paid his premiums “year after year” to obtain coverage. The insured’s attorney further denigrated the insurance company for asserting defenses to the claim, suggesting that the insurer should be punished for exercising its right to defend the case. The appellate court found the comments highly inflammatory and prejudicial to the insurance company and ordered a new trial.
- Insurance companies enter the courtroom already behind the eight ball. These recent 4th DCA cases will hopefully curtail future attempts by insureds’ counsel to improperly focus the case on claims handling and bad faith instead of liability for coverage and the extent of damage — the only issues in a first-party dispute.
This case should be kept handy at depositions and at trial and defense counsel should maintain steadfast in objecting to the improper injection of irrelevant issues in the case.
About the Author
Amy L. Koltnow, a Colodny Fass Shareholder, focuses her practice on representing insurance companies in complex insurance litigation and counseling insurers on claims resolution. She has represented insurers in connection with property damage and first-party coverage litigation, claims of “bad faith,” high-risk exposures, class actions and multi-district litigation.
For more information about Ms. Koltnow, click here.