Florida Court of Appeals Dismisses Bad Faith Lawsuit For Failure To Comply With The Civil Remedy Notice Specificity Requirements
By Michael H. Scott
In Florida, a policyholder may not assert a statutory bad faith lawsuit against its Insurer under § 624.155, Fla. Stat. without first filing a Civil Remedy Notice (“CRN”) with the Florida Department of Financial Services (the “Department”). To comply with the statute’s requirements, the CRN must include specified information with specificity.
In Julien v. United Property and Casualty Insurance Company, 2021 Fla. App. LEXIS 3131, Florida’s Fourth District Court of Appeals upheld the trial court’s dismissal of the Insured, Junior Julien (“Julien”)’s, bad faith action against his Insurer due to a deficient CRN.
The issue before the Court in Julien was whether the CRN’s broad allegations citing to the entire policy, 14 statutory provisions, and 21 provisions of the Florida Administrative Code complied with the statute’s specificity requirements. Furthermore, as the “specific policy language” relevant to the violation, the Insured referenced and reprinted the entire policy.
The Court held the plain language of Fla. Stat. § 624.155(3)(b) instructs the policyholder to “state with specificity” information in the notice; to specify “language of the statute, which the authorized insurer allegedly violated;” and to “[r]eference . . . specific policy language that is relevant to the violation, if any.”
In evaluating the Insured’s CRN, the Court held that despite citing the various statutory and policy provisions, the Insured did not substantially comply with the CRN specificity standard that an insured “state with specificity” the policy language and the statutory provisions at issue. The Court held this lack of compliance was more than a mere technical defect. As the CRN was deficient and the Insurer raised the specificity argument in its response to the CRN, the Insured’s bad faith lawsuit was properly dismissed.
The Court rejected the Insured’s argument that the notice was sufficient because the Department did not return the notice. However, the Court held that it must independently review the notice even if the Department has made a specific determination about its legality because a state court may not defer to an administrative agency’s interpretation of a state statute but must interpret the statute de novo (Art. V, § 21, Fla. Const.).
Although the instant case was properly dismissed, the Court indicated there are exceptions to the specificity requirements. The United States District Court for the Middle District of Florida recently held that the failure to strictly comply with this specificity standard will not foreclose a statutory bad faith action where the defect is a purely technical defect, the insured substantially complies with the specificity standard, the insurer received actual fair notice in furtherance of the statute’s notice requirement, and the insurer is not prejudiced by the technical defect. See Pin-Pon Corp. v. Landmark Am. Ins. Co., 2020 U.S. District LEXIS 212941. Further, Pin-Pon held that failure to comply with the statutory requirements may be waived if not raised in the insurer’s response to the CRN.
Learning Point: In Clausen Miller’s 2020 Report of Recent Decisions, Vol. 4, we highlighted the CRN requirement in bad faith lawsuits, and noted that any bad-faith lawsuit may be subject to dismissal if the CRN lacks the information required by the Department and Florida law as a precondition for bringing a bad faith lawsuit. https://www.clausen.com/wp-content/uploads/2021/01/CMRpt2020vol4.pdf.
Julien demonstrates how broad reference to the policy, statutory provisions, and the Florida Administrative Code may not satisfy the CRN specificity requirement. The case also highlights the importance of raising the insured’s failure to comply with the statutory requirements in the CRN response, or the insurer risks waiving the defense.