Does Florida’s Statutory Insurance Disclosure Provision Have Any Teeth?
Developing Case Law and “Bad Faith” Implications
Florida Statute Annotated § 627.4137 provides mandatory disclosure of all insurance policies that may cover a claim. Too often the question is asked whether it contains enforcement language for non-compliance? While the answer is no, Plaintiff’s counsel increasingly attempts to use this statute to set up carriers for potential bad faith claims.
Recently, two Florida courts addressed bad faith arguments concerning the failure to provide full and complete insurance disclosure. In the first case, the Court found sanctions to be appropriate, striking the pleadings and entering a default judgment. Essentially the case went to trial on damages alone and an excess verdict was obtained. In the second case, the Court found that a failure to properly provide full and complete insurance disclosure under the statute was not an unconditional and complete acceptance of a time limit, policy limits demand.
In an unreported decision from the Fourth Judicial Circuit captioned, Oceanside 932 Condominium Assoc., Inc. v. Landsouth Construction, LLC, Case No. 16-2009-CA-007958, Plaintiff made a pre-suit section 627.4137 insurance disclosure request in addition to multiple discovery requests seeking insurance policy information. The Defendant responded to the requests by producing two policies. The coverage dates for the produced policies excluded the date of loss. Shortly before trial, Plaintiff’s counsel discovered additional policies which provided coverage. As a result, Plaintiff’s counsel filed a Motion for Sanctions and to Strike Defendant’s Pleadings due to Defendant’s failure to disclose all available insurance policies. In response, the Court struck the Defendant’s pleadings, entered a default judgment as to liability, and allowed a trial on damages which resulted in an excess verdict.
In a recent Florida appellate decision, Gira v. Wolfe, 38 Fla. L. Weekly, D1003 (Fla. 2nd DCA, May 8, 2013), Plaintiff conditioned a settlement offer on the tender of all insurance policy information required under § 627.4137.
The insurer tendered the policy limit and provided most of the information required under § 627.4137, except the insurer failed to specify “other insurance which may be available.” Failure to disclose additional policies resulted in the Court holding that the settlement was unenforceable, thereby constituting a rejection of the time limit, policy limits demand. The action is now proceeding forward, and according to discussions with counsel, a judgment in excess of the policy limit is being sought in an attempt to recover extra-contractual damages.
CLAIMS HANDLING PRACTICE TIP:
Many carriers take the position that the statute merely obligates carriers to disclose policies that apply, and therefore, do not disclose policies for other periods that “MAY” respond, for fear of triggering multiple limits. Nevertheless, that practice may allow a Plaintiff to argue that any attempt by a carrier to accept a time limit, policy limits demand without full disclosure under § 627.4137, is the equivalent of a rejection and counter-offer, possibly exposing the carrier to extra-contractual damages.