As with anything involving an insurance company, suing them for bad faith is not always easy. Insurance company lobbyists work very hard to promote and push laws through that protect insurance companies and make it difficult for you to seek redress when your insurance company treats you unfairly. While you can sue your insurance company for bad faith, there are technical steps that must be met before you can file the lawsuit. If you fail to meet them precisely, the insurance company may be able to have your lawsuit dismissed. However, there have been some recent Florida opinions that change the requirements and provide an alternative to preserve your bad faith claim even if you make a slight misstep. At TWWH, we stay ahead of the curve on legal developments such as this to ensure we are fully equipped to protect your rights and preserve your claim for bad faith. Read on to learn what steps are required to file a lawsuit against your insurance company for its bad faith handling of your claim and the Southern District of Florida's recent decision on substantial compliance, waiver, and prejudice.
NOTE: In Florida, you must first pursue and win on a claim for breach of contract against your insurance company—meaning you proved your insurance company did not abide by the terms of your policy in adjusting your claim—before you can pursue a claim for bad faith. Learn more about the difference between a breach of contract claim and a claim for bad faith, and the steps you must first take with respect to your breach of contract claim before you can pursue a bad faith claim here. The steps outlined in this article relate solely to the bad faith claim and presume the breach of contract claim has already been proven.
First You Must File a Civil Remedy Notice (“CRN”)
To be able to sue your insurance company for bad faith, you have to file a valid Civil Remedy Notice (“CRN”) first. This is a form provided by the Florida Department of Financial Services (“DFS”) that is filled out online (link here) and submitted, i.e., filed, and then served upon your insurance company. Filing a CRN starts a clock. It gives your insurance company 60 days to “cure” (remedy) the violations you have alleged in your CRN. If it fails to do so, you can then sue your insurance company for bad faith. In order to cure, your insurance company must fix the things you claim it is doing wrong, which is typically a failure to pay your claim timely and in full or a wrongful denial of portions of, or your entire, claim. A properly filed CRN is a prerequisite to filing a bad faith lawsuit, and it has many detailed and specific requirements that, if unfulfilled, can result in a dismissal of your bad faith lawsuit. This is why it is important to stay on top of legal decisions and rulings with respect to CRN requirements. Here is what Florida courts have held recently when analyzing CRNs.
June 5, 2020 Pin-Pon Opinion Dismissing CRNs as Deficient
In Pin-Pon Corp. v. Landmark American Insurance Company, Judge Middlebrooks of the Southern District of Florida assessed the insurance company's motion to dismiss the policyholder's bad faith lawsuit based on an alleged failure to fulfill the specificity requirements for filing a CRN. 465 F.Supp.3d 1227 (S.D.Fla. 2020). The court concluded for a CRN to be valid—meaning, it enables the policyholder to file a bad faith lawsuit—it must, pursuant to Fla. Stat. § 624.155(3), contain the following:
- The statutory provision the insurance company allegedly violated (selected from a drop-down menu, these include failing to pay timely, wrongfully denying claims, failing to communicate or respond, etc.);
- The facts and circumstances giving rise to the violation (a written narrative);
- The name of any individual involved in the violation (typically the field and/or desk adjuster);
- The specific policy provisions the insurance company violated (identification of certain policy provisions, typically involving the insurance company's duty to pay); and
- A statement that the notice is given in order to perfect the right to pursue a claim for bad faith (this is check box that must be selected before the CRN can be submitted online to the DFS).
In addition to these five requirements, the Department's CRN form requires the following additional 15 items:
- Complainant's Name;
- Complainant's Address;
- Complainants E-mail address;
- Complainant type (the policyholder (“Insured”) or some other person);
- Insured's Name;
- Insurance Policy Number;
- Insurance Claim Number;
- Attorney's Name;
- Attorney's Address;
- Attorney's E-mail Address;
- Type of Insurer (authorized or otherwise);
- Name of Insurer (selected from a drop-down menu)
- Address of Insurer (should be included in the narrative);
- Type of Insurance (Commercial, Residential, or otherwise, selected from a drop-down menu); and
- Reason for Notice (selected from a drop-down menu, typically includes Claim Delay or Claim Denial).
See Pin-Pon, 465 F.Supp.3d at 1229. If your CRN does not include one of these items, or does not state them with the requisite specificity, your insurance company may be able to have your bad faith lawsuit dismissed. In the original Pin-Pon opinion, decided June 5, 2020, this is precisely what occurred because the policyholder, Pin-Pon Corp., in three different CRNs it filed, failed to state the proper Complainant name, Insurer name, Complainant's email address, and the Insurer's address. This was a surprising decision as the insurance company received and responded to all three CRNs without raising these technical deficiencies in its responses. As the purpose of the CRN is to give notice to the insurance company that you intend to file a bad faith lawsuit, it appeared in responding substantively to each CRN, the insurance company in Pin-Ponundoubtedly had notice. However, this decision, starkly in favor of insurance companies, changed the way we, at TWWH, prepare CRNs for our clients to ensure we meet all of the technical components with every filing.
September 23, 2020 Julien Opinion Dismissing a CRN as Deficient
A few months after the Pin-Pon decision was rendered, the Florida Fourth District Court of Appeals issued Julien v. United Property and Casualty Insurance Company, finding a CRN insufficient to allow the policyholder to file a bad faith lawsuit because it did not meet the specificity requirements of Fla. Stat. § 624.155. 2020 WL 5652364 (Fla. 4th DCA 2020). Specifically, of the five stated requirements above, the insurance company claimed the policyholder's CRN failed to state with specificity No. 1 (the statutory provisions violated) and No. 4 (the policy provisions violated) because the CRN listed every single statutory provision available in the DFS's drop-down menu (35 total) and it essentially cited nearly all policy provisions, referring only generically to their heading names, not citing the actual language of the individual provisions.
This opinion was not surprising as the policyholder was rather sloppy in naming all statutory provisions and virtually the entire policy in his CRN. When we file CRNs at TWWH, we are careful to quote only the coverages and payment obligations at issue and we only cite a handful of statutes that the insurance company actually violated according to the adjusters' conduct and the wrongful actions they took in handling your specific claim, i.e., whether they wrongfully denied the claim, pointed inaccurately to excluded causes, tried to blame you for failing to mitigate, or failed to communicate with you, etc. The 4th DCA also ruled that the DFS's acceptance of a CRN did not preclude the court's need to review it to ensure the CRN meets the necessary specificity and other requirements. See Julien, 2020 WL 5652364 at *3.
November 10, 2020 Pin-Pon Reversal Finding Substantial Compliance, Waiver, and Lack of Prejudice
In a surprising move, Judge Middlebrooks granted Pin-Pon's motion for reconsideration, asking the court to reconsider its previous ruling finding Pin-Pon's CRNs so deficient they precluded an action for bad faith. See Pin-Pon Corp. v. Landmark American Insurance Company, 2020 WL 6588379 (S.D.Fla. 2020). In this opinion, Judge Middlebrooks did find the technical requirements of Fla. Stat. § 624.155 were to be construed strictly and concluded again that Pin-Pon, in failing to identify the parties and their addresses correctly, did fail to meet these requirements. However, he explained that “a court may allow an action to proceed if the [CRN] defect was of a purely technical nature, the party substantially complied, the notice purpose of the statute has been fulfilled, and the opposing party has not been prejudiced by the error.” Pin-Pon, 2020 WL 6588379 at *6.
Judge Middlebrooks found that Pin-Pon had substantially complied and that the insurance company had waived its right to claim the technical defects were fatal because it failed to raise them in its responses to the three CRNs. Id. The court also concluded there was no prejudice to the insurance company as the CRNs provided adequate notice of Pin-Pon's intent to file a bad faith action, and the insurance company received and responded to each notice. Judge Middlebrooks's decision to reverse his prior opinion, which was a big win for insurance companies, and find some space for substantial compliance, waiver, and a lack of prejudice that enable a policyholder who files a fair CRN that gives the insurance company adequate notice to proceed with a bad faith claim was big win for you: policyholders.
March 3, 2021 Julien Opinion Affirming the Court's Duty to Review CRNs
On March 3, 2021, the Fourth DCA, in light of the recent Pin-Pon reversal, issued an opinion sua sponteaffirming its prior decision that: 1) a CRN that lists every statutory violation available and generically quotes virtually the entire policy as the alleged violation fails to meet the specificity requirements of Fla. Stat. § 624.155; and 2) even if the DFS accepts a CRN submission, this does not preclude the court's duty to evaluate the CRN and make an independent determination as to its sufficiency according to the statute. See Julien v. United Property and Casualty Insurance Company, 2021 WL 824438 (Fla. 4th DCA 2021). This opinion, we presume, was intended to make clear that, despite the November 10, 2020 Pin-Pon change in law focusing on substantial compliance, waiver, and prejudice, a CRN that cites all statutes and all policy provisions will fail to meet the specificity requirements for filing a bad faith action, despite acceptance by the DFS.
Do You Feel You Have a Bad Faith Claim Against Your Insurance Company?
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, as you can see from these four recent Florida opinions, 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 TWWH, we are well-versed in bad faith law and always here to help you.