[CLC-Discussion] New pre-suit notice for insurance claims Sect. 627.70152

Tue Jul 13 10:29:12 PDT 2021

A few other attys I know have bounced this around, and here is the Q&A.

  1.  Q: It is my understanding that we do not need to file pre-suit notices at this time for claims that took place prior to policy renewals of July 1st.  This follows in line with the Menendez case ruling.  Any other thoughts?
     *   A: SHOULD not apply to claims under policies issued before July 1st.  BUT if the insured has waited a long time to file suit, fails to do the pre-suit notice, the SOL expires during the pendency of the suit before the court rules on a MTD for lack of pre-suit notice, and a court makes a mistake and dismisses the lawsuit, now insured is facing an argument that this dismissal is with prejudice because the SOL expired.  It worries me on cases that are close to the SOL.  Plus on cases that are not close to the SOL, I worry about using up a freebie without prejudice dismissal. Although the pre-suit notice can open the door to more delay and shenanigans, and although I do not think it applies as you say, I am leaning toward approach of filing in an abundance of caution.
     *   A: That’s how I’m proceeding. I’m sure it will be litigated, but in light of Menendez case, the presuit notice should only be required with claims under policies issued on or after July 1.

  1.  Q: In response to our presuit demand/notice letter, the statute says that the insurer can require the claimant to participate in appraisal or other ADR. Is this true even if the appraisal clause in the policy is not mandatory? Or if there is no appraisal clause in the policy at all? And would the appraisal process be binding (or nonbinding)? Could you still file suit after appraisal process? What rules would govern the appraisal process, the policy? And do you think insurers will invoke appraisal in response to these presuit demand letters a lot? I was wondering the same … and what about the mediation programs per §627.7015? if you have already attended such a mediation? And then upload your Notice of Intent to Initiate Litigation – then can carrier force you in to appraisal or another mediation? And can they do that, even if contrary to the policy?
     *   A: The carrier cannot impose duties in contravention to the policy, nor does SB 76 authorize as such.
     *   A: These questions will be the subject of future litigation. I don’t see how the carrier can require the insured to attend appraisal if appraisal is not in the policy or if appraisal requires the insured’s consent. And if appraisal is not in the policy, then there are literally no rules governing it. That should answer the remaining questions. Make sure you have your CRNs filed (and preferably expired) by the time you provide the pre-suit notice (which we are not serving until after we get claims on a post-July 1 policy inception date)
     *   A: We are going to comply, but add a footnote to the complaint that says we do not believe it applies but that we are complying out of an abundance of caution.
     *   A: I would read that statutory provision to be a clarification that if an insured files a notice of intention to initiate litigation, that does not preclude a carrier from requiring the insureds from going through existing alternative dispute resolutions, to the extent they are already provided for in the contract.  The statute should not be read to create a new/independent right to require appraisal. To read it otherwise would run afoul of the Contracts clause, Art. I, §X, Fla. Const.

https://www.myfloridacfo.com/division/consumers/civilremedy.htm
Here is a link to the form.

Good luck!
Debbie
[cid:image001.jpg at 01D777EB.110FB160]<http://napleslaw.com/>
Debbie S. Crockett
Attorney at Law
Cheffy Passidomo, P.A.
4100 W. Kennedy Blvd., Suite 335
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FL
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From: clc-discussion-bounces at lists.flabarrpptl.org <clc-discussion-bounces at lists.flabarrpptl.org> On Behalf Of RPPTL CLC-Discussion
Sent: Tuesday, July 13, 2021 1:04 PM
To: clc-discussion at lists.flabarrpptl.org
Subject: [CLC-Discussion] New pre-suit notice for insurance claims Sect. 627.70152

Has anyone filed the new pre-suit notice for property insurance claims that can share practice tips?

Best regards,

Daniel Greene
Daniel M. Greene, P.A.
Florida Board Certified in Construction Law
Florida Supreme Court Certified Circuit Civil and Appellate Mediator
P.O. Box 3092
Orlando, FL 32802-3092
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