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A Higher Bar for Bad Faith Claims in 2024

Posted by Phillip Warren | Mar 09, 2024 | 0 Comments

2022 and 2023 were years of sweeping change in Florida property insurance law.  Many changes touted as an effort to lower premiums and ease the insurance crisis actually resulted in numerous protections for insurance companies and hurdles to holding them accountable for paying claims timely and in full.  The new law passed in 2023, House Bill 837(“HB 837”), clarified the insurance company's conduct must amount to intentional conduct.  Meaning, more than mere negligence.  Another change was the addition of a new good faith standard imposed on insureds—policyholders like you—and their representatives, typically their public adjuster or attorney.  This change will allow the court or jury deciding the bad faith claim to look to the conduct of the policyholder, rather than simply the conduct of the insurance company.  Here's how these changes could impact you. 

Bad faith insurance claim

 

What Is Required to Prove a Claim for Bad Faith?

As we have discussed here on the blog before, your insurance company acts in bad faith when it intentionally treats you unfairly when handling your claim.  One example might be misrepresenting policy provisions or the cause of certain damage to justify paying less on your claim.  Revised Fla. Stat. § 624.155(5)(a) (2023) clarified more than mere negligence is required to prove a claim for bad faith.  Meaning, you have to prove your insurance company was not simply negligent—i.e., they inadvertently handled your claim in a sloppy or inefficient manner—but, rather, that they acted intentionally—i.e., they made a conscious decision—to handle or adjust your claim in bad faith.  Courts had previously reiterated this conclusion, but the Supreme Court's decision in Harvey v. GEICO, 259 So. 3d 1 (Fla. 2018) had, according to Justice Canady's dissent, “muddied” the water between the negligence standard and bad faith standard.  The revised Fla. Stat. § 624.155(5)(a) was intended to clarify this and ensure the bar for a bad faith claim requires more than mere negligence by the insurance company. 

How Might My Conduct Impact My Claim for Bad Faith?

Prior to the passage of HB 837, courts were precluded from considering the actions or inactions of an insured, claimant, or their respective attorneys in the adjustment of a claim.  Rather, the focus was to be directed at the insurance company and their conduct in investigating, adjusting, and paying (or not paying) the claim.  Fla. Stat. § 624.155(5)(b) (2023) now imposes a good faith standard on the insured, the policyholder, and agents they retain to assist with the claim, e.g., public adjusters, contractors, or attorneys. 

This change allows insurance companies to shift the focus away from their contractual and statutory obligations to policyholders and point to the conduct of the insureds, their adjuster, or their attorney.  This will allow insurance companies to get more traction out of what may have been inadvertent omissions/mistakes or unavoidable delay on the part of the insured, couching them as bad faith conduct by the insured.  Many of you who have first-hand experience with a property damage claim know that the submission of receipts, invoices, estimates, and other proofs of damages can be a tedious, complicated process fraught with potential for inexperienced insureds to make mistakes.  The new law will allow the factfinder in a bad faith lawsuit (the court or jury) to consider any alleged bad faith conduct by the insureds or their representatives when determining the validity of the bad faith claim and the amount of damages.  This change was merely another protection added to insulate insurers from bad faith verdicts. 

Think Your Insurance Company Has Acted in Bad Faith?

Although these law changes can feel disheartening, remember bad faith actions were created by the Florida legislature as a statutory remedy to give you, the policyholder, a method to hold your insurance company accountable when it wrongfully delays or denies your claim.  If you feel your insurance company has treated you unfairly by failing to pay your claim on time, failing to respond to your inquiries, pointing to excluded causes of damage, or claiming you caused the damage by failing to mitigate, contact us for a free, no-cost, no-obligation insurance claim review.  You have rights, and those may include the right to file a bad faith action against your insurance company.  However, the steps you have to take to preserve that right are technical and specific.  You need an experienced attorney looking out for your best interest and making sure you take the right steps.  At TWWHB, we are well-versed in bad faith law and always here to help you.

About the Author

Phillip Warren

Phillip devotes the same honor, courage, and commitment to his clients as he did in the USMC.

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