DECEMBER 2019

Florida Insurance Matters is a monthly update on Florida insurance-related legal developments by the Colodny Fass Insurance Litigation Practice, recently recognized as the Insurance Litigation Department of the Year in South Florida by the Daily Business Review.

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.

Public Adjuster Cannot Serve as a “Disinterested” Appraiser

The Fourth District held an insured’s public adjuster could not serve as the insured’s “disinterested” appraiser. The insurer asked the appellate court to conclude as a matter of law that an insured’s public adjuster cannot later be appointed as the insured’s appraiser where there is a contingency-fee arrangement. However, the Fourth District was careful not to issue a blanket prohibition. Rather, the appellate court held that since the public adjuster was involved in the initial assessment of the insured’s damage, and also had a financial interest in the outcome, he could not serve as a disinterested appraiser. State Farm Fla. Ins. Co. v. Valenti, 4th DCA (December 11, 2019)

TIPS & LESSONS

• Earlier this year, in State Farm v. Sanders, the Third District retreated from prior opinions more than two decades old and held that a public adjuster could not act as a “disinterested” appraiser when the public adjuster would receive a percentage of any insurance recovery.
• The Fourth District refused to hold that a person with a direct financial interest in the amount recovered from an insurance claim cannot be “disinterested.”

Jury Instructions on Bad Faith Should Include Specific Acts of Unfair Claims Settlement Practices When Supported by the Facts

The Fifth District reversed a jury verdict in favor of the insurer because the trial court failed to properly instruct the jury on the relevant law regarding bad faith in a first-party property insurance dispute. The insureds filed a CRN and invoked the appraisal provision of the policy. Upon the conclusion of the appraisal process, the insurer paid the appraisal award. Thereafter, the insureds filed a bad faith lawsuit. At the bad faith trial, the insureds requested a jury instruction tracking section 626.9541(1)(i)3., Fla. Stat., where they alleged the insurer failed to adopt and implement standards for the proper investigation of claims, misrepresented pertinent facts or policy provisions, and denied claims without conducting reasonable investigations based on available information. The trial court gave the standard jury instruction for bad faith when an insurer fails to settle a claim when, under all the circumstances, it could and should have done so had it acted failure and honestly toward its insured and with due regard for their interests. The appellate court held this standard instruction was a “miscarriage of justice” since the jury could consider the insurance company’s violations of some other duty.  Cooper v. Federated National Ins. Co., 5th DCA (Dec. 13, 2019).

TIPS & LESSONS

• In 2019, the Florida Legislature amended section 624.155 to preclude a party from filing a CRN for 60 days after appraisal is invoked in a residential property insurance claim.
• Insurers should have guidelines in place when an insured has filed a CRN, or the claim is in appraisal, that require heightened review with an eye on the clock.